Full Text of HB5388 97th General Assembly
HB5388 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 HB5388 Introduced 2/15/2012, by Rep. Ann Williams SYNOPSIS AS INTRODUCED: |
| 30 ILCS 500/50-33 new | | 30 ILCS 500/50-60 | |
740 ILCS 175/4 | from Ch. 127, par. 4104 |
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Amends the Illinois Procurement Code. Requires all State contracts to contain a certification that vendors are in compliance with various anti-fraud and anti-corruption statutes. Provides that the chief procurement officer may declare the contract void if the vendor's certification is false. Amends the Illinois False Claims Act. Provides that certain false claim actions must, unless opposed by the State, be dismissed by the court if substantially the same allegations or transactions as alleged in the action were publicly disclosed. Redefines "original source". Provides that a civil action for relief from retaliatory actions may not be brought more than 3 years after the date when the retaliation occurred.
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| | A BILL FOR |
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| 1 | | AN ACT concerning State government.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Illinois Procurement Code is amended by | 5 | | changing Section 50-60 and by adding Section 50-33 as follows: | 6 | | (30 ILCS 500/50-33 new) | 7 | | Sec. 50-33. Lawful and ethical conduct. | 8 | | (a) No person shall enter into or perform a contract with a | 9 | | State agency or enter into or perform a subcontract under this | 10 | | Code if that person has engaged in conduct, alone or in concert | 11 | | with any other person, relating to the contract or subcontract | 12 | | that would constitute a violation of Section 17-9, Section | 13 | | 17-10.2, Section 17-10.3, Section 17-24, Article 33, or Article | 14 | | 33E of the Criminal Code of 1961, or any similar federal | 15 | | offense. | 16 | | (b) Every bid submitted and contract executed by the State | 17 | | and every subcontract subject to Section 20-120 of this Code | 18 | | shall contain a certification by the bidder, contractor, or | 19 | | subcontractor, respectively, that the bidder, contractor, or | 20 | | subcontractor is not barred from bidding for, entering into, or | 21 | | performing a contract under subsection (a) of this Section and | 22 | | that he or she acknowledges that the chief procurement officer | 23 | | may declare the related contract void if any of the |
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| 1 | | certifications completed pursuant to this subsection (b) are | 2 | | false.
| 3 | | (30 ILCS 500/50-60)
| 4 | | Sec. 50-60. Voidable contracts.
| 5 | | (a) If any contract or amendment thereto is entered into or | 6 | | purchase
or expenditure of funds is made at any time in | 7 | | violation of this Code or any other law,
the contract or | 8 | | amendment thereto may be declared void by the chief procurement | 9 | | officer or may be
ratified and affirmed,
provided the chief | 10 | | procurement officer determines that ratification is in the
best | 11 | | interests of the
State. If the contract is ratified and | 12 | | affirmed, it shall be without prejudice
to the State's rights | 13 | | to any appropriate damages.
| 14 | | (b) If, during the term of a contract, the chief | 15 | | procurement officer determines
that the contractor is | 16 | | delinquent in the payment of debt as set forth in
Section 50-11 | 17 | | of this Code, the chief procurement officer may declare the | 18 | | contract void if
it determines that voiding the contract is in | 19 | | the best interests of the State.
The Debt Collection Bureau | 20 | | shall adopt rules for the implementation of this
subsection | 21 | | (b).
| 22 | | (c) If, during the term of a contract, the chief | 23 | | procurement officer determines
that the contractor is in | 24 | | violation of Section 50-10.5 of this Code, the
chief | 25 | | procurement officer shall declare the contract void.
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| 1 | | (d) If, during the term of a contract, the contracting | 2 | | agency learns from an annual certification or otherwise | 3 | | determines that the contractor no longer qualifies to enter | 4 | | into State contracts by reason of Section 50-5, 50-10, 50-12, | 5 | | 50-14, or 50-14.5 , or 50-33 of this Article, the chief | 6 | | procurement officer may declare the contract void if it | 7 | | determines that voiding the contract is in the best interests | 8 | | of the State. | 9 | | (e) If, during the term of a contract, the chief | 10 | | procurement officer learns from an annual certification or | 11 | | otherwise determines that a subcontractor subject to Section | 12 | | 20-120 no longer qualifies to enter into State contracts by | 13 | | reason of Section 50-5, 50-10, 50-10.5, 50-11, 50-12, 50-14, or | 14 | | 50-14.5 , or 50-33 of this Article, the chief procurement | 15 | | officer may declare the related contract void if it determines | 16 | | that voiding the contract is in the best interests of the | 17 | | State. | 18 | | (f) The changes to this Section made by Public Act 96-795 | 19 | | apply to actions taken by the chief procurement officer on or | 20 | | after July 1, 2010. | 21 | | (Source: P.A. 96-493, eff. 1-1-10; 96-795, eff. 7-1-10 (see | 22 | | Section 5 of P.A. 96-793 for the effective date of changes made | 23 | | by P.A. 96-795); 96-1000, eff. 7-2-10.) | 24 | | Section 10. The Illinois False Claims Act is amended by | 25 | | changing Section 4 as follows:
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| 1 | | (740 ILCS 175/4) (from Ch. 127, par. 4104)
| 2 | | Sec. 4. Civil actions for false claims.
| 3 | | (a) Responsibilities of the Attorney General and the | 4 | | Department of
State Police. The Attorney General or the | 5 | | Department of State Police shall diligently investigate
a civil | 6 | | violation under Section 3. If the Attorney General finds that a | 7 | | person violated or is violating Section 3, the Attorney General | 8 | | may bring a civil action under this Section
against the person.
| 9 | | The State shall receive an amount for reasonable expenses | 10 | | that the court finds to have been necessarily incurred by the | 11 | | Attorney General, including reasonable attorneys' fees and | 12 | | costs. All such expenses, fees, and costs shall be awarded | 13 | | against the defendant. The court may award amounts from the | 14 | | proceeds of an action or settlement that it considers | 15 | | appropriate to any governmental entity or program that has been | 16 | | adversely affected by a defendant. The Attorney General, if | 17 | | necessary, shall direct the State Treasurer to make a | 18 | | disbursement of funds as provided in court orders or settlement | 19 | | agreements. | 20 | | (b) Actions by private persons.
| 21 | | (1) A person may bring a civil action
for a violation | 22 | | of Section 3 for the person and for the State. The action
| 23 | | shall be brought in the name of the State. The action may | 24 | | be dismissed
only if the court and the Attorney General | 25 | | give written consent to the
dismissal and their reasons for |
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| 1 | | consenting.
| 2 | | (2) A copy of the complaint and written disclosure of | 3 | | substantially all
material evidence and information the | 4 | | person possesses shall be served on
the State. The | 5 | | complaint shall be filed in camera, shall remain under seal
| 6 | | for at least 60 days, and shall not be served on the | 7 | | defendant until the
court so orders. The State may elect to | 8 | | intervene and proceed with the
action within 60 days after | 9 | | it receives both the complaint and the material
evidence | 10 | | and information.
| 11 | | (3) The State may, for good cause shown, move the court | 12 | | for extensions
of the time during which the complaint | 13 | | remains under seal under paragraph
(2). Any such motions | 14 | | may be supported by affidavits or other submissions
in | 15 | | camera. The defendant shall not be required to respond to | 16 | | any complaint
filed under this Section until 20 days after | 17 | | the complaint is unsealed and
served upon the defendant.
| 18 | | (4) Before the expiration of the 60-day period or any | 19 | | extensions
obtained under paragraph (3), the State shall:
| 20 | | (A) proceed with the action, in which case the | 21 | | action shall be
conducted by the State; or
| 22 | | (B) notify the court that it declines to take over | 23 | | the action, in which
case the person bringing the | 24 | | action shall have the right to conduct the action.
| 25 | | (5) When a person brings an action under this | 26 | | subsection (b), no person
other than the State may |
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| 1 | | intervene or bring a related action based on the
facts | 2 | | underlying the pending action.
| 3 | | (c) Rights of the parties to Qui Tam actions.
| 4 | | (1) If the State proceeds
with the action, it shall | 5 | | have the primary responsibility for prosecuting
the | 6 | | action, and shall not be bound by an act of the person | 7 | | bringing the
action. Such person shall have the right to | 8 | | continue as a party to the
action, subject to the | 9 | | limitations set forth in paragraph (2).
| 10 | | (2)(A) The State may dismiss the action | 11 | | notwithstanding the objections
of the person initiating | 12 | | the action if the person has been notified by the
State of | 13 | | the filing of the motion and the court has provided the | 14 | | person
with an opportunity for a hearing on the motion.
| 15 | | (B) The State may settle the action with the defendant | 16 | | notwithstanding
the objections of the person initiating | 17 | | the action if the court determines,
after a hearing, that | 18 | | the proposed settlement is fair, adequate, and reasonable
| 19 | | under all the circumstances. Upon a showing of good cause, | 20 | | such hearing
may be held in camera.
| 21 | | (C) Upon a showing by the State that unrestricted | 22 | | participation during
the course of the litigation by the | 23 | | person initiating the action would
interfere with or unduly | 24 | | delay the State's prosecution of the case, or
would be | 25 | | repetitious, irrelevant, or for purposes of harassment, | 26 | | the court
may, in its discretion, impose limitations on the |
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| 1 | | person's participation,
such as:
| 2 | | (i) limiting the number of witnesses the person may | 3 | | call:
| 4 | | (ii) limiting the length of the testimony of such | 5 | | witnesses;
| 6 | | (iii) limiting the person's cross-examination of | 7 | | witnesses; or
| 8 | | (iv) otherwise limiting the participation by the | 9 | | person in the
litigation.
| 10 | | (D) Upon a showing by the defendant that unrestricted | 11 | | participation
during
the course of the litigation by the | 12 | | person initiating the action would be
for purposes of | 13 | | harassment or would cause the defendant undue burden or
| 14 | | unnecessary expense, the court may limit the participation | 15 | | by the person in
the litigation.
| 16 | | (3) If the State elects not to proceed with the action, | 17 | | the person who
initiated the action shall have the right to | 18 | | conduct the action. If the
State so requests, it shall be | 19 | | served with copies of all pleadings filed in
the action and | 20 | | shall be supplied with copies of all deposition transcripts
| 21 | | (at the State's expense). When a person proceeds with the | 22 | | action, the
court, without limiting the status and rights | 23 | | of the person initiating the
action, may nevertheless | 24 | | permit the State to intervene at a later date upon
a | 25 | | showing of good cause.
| 26 | | (4) Whether or not the State proceeds with the action, |
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| 1 | | upon a showing by
the State that certain actions of | 2 | | discovery by the person initiating the
action would | 3 | | interfere with the State's investigation or prosecution of | 4 | | a
criminal or civil matter arising out of the same facts, | 5 | | the court may stay
such discovery for a period of not more | 6 | | than 60 days. Such a showing shall
be conducted in camera. | 7 | | The court may extend the 60-day period upon a
further | 8 | | showing in camera that the State has pursued the criminal | 9 | | or civil
investigation or proceedings with reasonable | 10 | | diligence and any proposed
discovery in the civil action | 11 | | will interfere with the ongoing criminal or
civil | 12 | | investigation or proceedings.
| 13 | | (5) Notwithstanding subsection (b), the State may | 14 | | elect to pursue its
claim through any alternate remedy | 15 | | available to the State, including any
administrative | 16 | | proceeding to determine a civil money penalty. If any such
| 17 | | alternate remedy is pursued in another proceeding, the | 18 | | person initiating
the action shall have the same rights in | 19 | | such proceeding as such person
would have had if the action | 20 | | had continued under this Section. Any finding
of fact or | 21 | | conclusion of law made in such other proceeding that has | 22 | | become
final shall be conclusive on all parties to an | 23 | | action under this Section.
For purposes of the preceding | 24 | | sentence, a finding or conclusion is final if
it has been | 25 | | finally determined on appeal to the appropriate court, if | 26 | | all
time for filing such an appeal with respect to the |
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| 1 | | finding or conclusion
has expired, or if the finding or | 2 | | conclusion is not subject to judicial review.
| 3 | | (d) Award to Qui Tam plaintiff.
| 4 | | (1) If the State proceeds with an
action brought by a | 5 | | person under subsection (b), such person shall, subject
to | 6 | | the second sentence of this paragraph, receive at least 15% | 7 | | but not more
than 25% of the proceeds of the action or | 8 | | settlement of the claim,
depending upon the extent to which | 9 | | the person substantially contributed to
the prosecution of | 10 | | the action. Where the action is one which the court
finds | 11 | | to be based primarily on disclosures of specific | 12 | | information (other
than information provided by the person | 13 | | bringing the action) relating to
allegations or | 14 | | transactions in a criminal, civil, or administrative
| 15 | | hearing, in a legislative, administrative, or Auditor | 16 | | General's report,
hearing, audit, or investigation, or | 17 | | from the news media, the court may award
such sums as it | 18 | | considers appropriate, but in no case more than 10% of the
| 19 | | proceeds, taking into account the significance of the | 20 | | information and the
role of the person bringing the action | 21 | | in advancing the case to litigation.
Any payment to a | 22 | | person under the first or second sentence of this
paragraph | 23 | | (1) shall be made from the proceeds. Any such person shall | 24 | | also
receive an amount for reasonable expenses which the | 25 | | court finds to have
been necessarily incurred, plus | 26 | | reasonable attorneys' fees and costs.
The State shall also |
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| 1 | | receive an amount for reasonable expenses which the
court | 2 | | finds to have been necessarily incurred by the Attorney | 3 | | General,
including reasonable attorneys' fees and costs. | 4 | | All such expenses, fees, and costs shall be awarded
against | 5 | | the defendant. The court may award amounts from the | 6 | | proceeds of an action or settlement that it considers | 7 | | appropriate to any governmental entity or program that has | 8 | | been adversely affected by a defendant. The Attorney | 9 | | General, if necessary, shall direct the State Treasurer to | 10 | | make a disbursement of funds as provided in court orders or | 11 | | settlement agreements.
| 12 | | (2) If the State does not proceed with an action under | 13 | | this Section, the
person bringing the action or settling | 14 | | the claim shall receive an amount
which the court decides | 15 | | is reasonable for collecting the civil penalty and
damages. | 16 | | The amount shall be not less than 25% and not more than 30% | 17 | | of
the proceeds of the action or settlement and shall be | 18 | | paid out of such
proceeds. Such person shall also receive | 19 | | an amount for reasonable expenses
which the court finds to | 20 | | have been necessarily incurred, plus reasonable
attorneys' | 21 | | fees and costs. All such expenses, fees, and costs shall be
| 22 | | awarded against the defendant. The court may award amounts | 23 | | from the proceeds of an action or settlement that it | 24 | | considers appropriate to any governmental entity or | 25 | | program that has been adversely affected by a defendant. | 26 | | The Attorney General, if necessary, shall direct the State |
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| 1 | | Treasurer to make a disbursement of funds as provided in | 2 | | court orders or settlement agreements.
| 3 | | (3) Whether or not the State proceeds with the action, | 4 | | if the court finds
that the action was brought by a person | 5 | | who planned and initiated the violation
of Section 3 upon | 6 | | which the action was brought, then the court may, to the
| 7 | | extent the court considers appropriate, reduce the share of | 8 | | the proceeds of
the action which the person would otherwise | 9 | | receive under paragraph (1) or
(2) of this subsection (d), | 10 | | taking into account the role of that person in
advancing | 11 | | the case to litigation and any relevant circumstances | 12 | | pertaining
to the violation. If the person bringing the | 13 | | action is convicted of
criminal conduct arising from his or | 14 | | her role in the violation of Section
3, that person shall | 15 | | be dismissed from the civil action and shall not
receive | 16 | | any share of the proceeds of the action. Such dismissal | 17 | | shall not
prejudice the right of the State to continue the | 18 | | action, represented by the Attorney General.
| 19 | | (4) If the State does not proceed with the action and | 20 | | the person
bringing the action conducts the action, the | 21 | | court may award to the
defendant its reasonable attorneys' | 22 | | fees and expenses if the defendant
prevails in the action | 23 | | and the court finds that the claim of the person
bringing | 24 | | the action was clearly frivolous, clearly vexatious, or | 25 | | brought
primarily for purposes of harassment.
| 26 | | (e) Certain actions barred.
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| 1 | | (1) No court shall have jurisdiction over an
action | 2 | | brought by a former or present member of the Guard under | 3 | | subsection
(b) of this Section against a member of the | 4 | | Guard arising out of such
person's service in the Guard.
| 5 | | (2)(A) No court shall have jurisdiction over an action | 6 | | brought under
subsection (b) against a member of the | 7 | | General Assembly, a member of the
judiciary, or an exempt | 8 | | official if the action is based on evidence or
information | 9 | | known to the State when the action was brought.
| 10 | | (B) For purposes of this paragraph (2), "exempt | 11 | | official" means any of
the following officials in State | 12 | | service: directors of departments
established under the | 13 | | Civil Administrative Code of Illinois, the Adjutant
| 14 | | General, the Assistant Adjutant General, the Director of | 15 | | the State
Emergency Services and Disaster Agency, members | 16 | | of the boards and
commissions, and all other positions | 17 | | appointed by the Governor by and with
the consent of the | 18 | | Senate.
| 19 | | (3) In no event may a person bring an action under | 20 | | subsection (b) which
is based upon allegations or | 21 | | transactions which are the subject of a civil
suit or an | 22 | | administrative civil money penalty proceeding in which the | 23 | | State
is already a party.
| 24 | | (4)(A) The court shall dismiss an action or claim under | 25 | | this Section, unless opposed by the State, if substantially | 26 | | the same allegations or transactions as alleged in the |
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| 1 | | action or claim were publicly disclosed: No court shall | 2 | | have jurisdiction over an action under this
Section
based | 3 | | upon the public disclosure of allegations or transactions | 4 | | (i) in a
criminal, civil, or administrative | 5 | | hearing in which the State or its agent is a party; , | 6 | | (ii) in a State legislative, State
administrative, | 7 | | or Auditor General, or other State General's report, | 8 | | hearing, audit, or
investigation ; , or | 9 | | (iii) from the news media, | 10 | | unless the action is brought by the
Attorney General or the | 11 | | person bringing the action is an original source of
the | 12 | | information.
| 13 | | (B) For purposes of this paragraph (4), "original | 14 | | source" means an
individual who either (i) prior to a | 15 | | public disclosure under subparagraph (A) of this paragraph | 16 | | (4), has voluntarily disclosed to the State the information | 17 | | on which allegations or transactions in a claim are based, | 18 | | or (ii) has knowledge that is independent of and materially | 19 | | adds to the publicly disclosed allegations or | 20 | | transactions, has direct and independent knowledge of the | 21 | | information on
which the allegations are based and who has | 22 | | voluntarily provided the
information to the State before | 23 | | filing an action under this Section which
is based on the | 24 | | information .
| 25 | | (f) State not liable for certain expenses. The State is not | 26 | | liable for
expenses which a person incurs in bringing an action |
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| 1 | | under this Section.
| 2 | | (g) Relief from retaliatory actions. | 3 | | (1) In general, any employee, contractor, or agent | 4 | | shall be is entitled to all relief necessary to make that | 5 | | employee, contractor, or agent whole, if that employee, | 6 | | contractor, or agent is discharged, demoted, suspended, | 7 | | threatened,
harassed, or in any other manner discriminated | 8 | | against in the terms and
conditions of employment because | 9 | | of lawful acts done
by the employee, contractor, or agent | 10 | | on behalf of the employee, contractor, or agent , or | 11 | | associated others in furtherance of an action under this | 12 | | Section or other efforts to stop one or more violations of | 13 | | this Act. | 14 | | (2) Relief under paragraph (1) shall include | 15 | | reinstatement with the same seniority status that the | 16 | | employee, contractor, or agent
would have had but for the | 17 | | discrimination, 2 times the amount of back pay,
interest on | 18 | | the back pay, and compensation for any special damages | 19 | | sustained
as a result of the discrimination, including | 20 | | litigation costs and
reasonable attorneys' fees. An action | 21 | | under this subsection (g) may be brought in the
appropriate | 22 | | circuit court for the relief provided in this subsection | 23 | | (g). | 24 | | (3) A civil action under this subsection may not be | 25 | | brought more than 3 years after the date when the | 26 | | retaliation occurred.
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| 1 | | (Source: P.A. 96-1304, eff. 7-27-10.)
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