(630 ILCS 10/10) (Section scheduled to be repealed on July 1, 2032)
Sec. 10. Definitions. As used in this Act:
"Alternative Technical Concepts" means a proposed deviation from the contract requirements set forth in the procurement documents for a transportation facility that offers a solution that is equal to or better than the requirements in the procurement documents.
"Authority" means the Illinois State Toll Highway Authority. "Best value" means any selection process in which proposals contain both price and qualitative components and award is based upon a combination of price, qualitative concepts, and other factors.
"Chief procurement officer" means the chief procurement officer for the Transportation Agency.
"Construction Manager/General Contractor" means a proposer that has entered into a Construction Manager/General Contractor contract under this Act.
"Construction Manager/General Contractor contract" means a two-phase contract between the Transportation Agency and a Construction Manager/General Contractor that includes a first phase addressing preconstruction services and a second phase addressing the construction of the transportation facility.
"Construction Manager/General Contractor project delivery method" means a method of procurement and contracting that makes a Construction Manager/General Contractor who enters into a contract with the Transportation Agency responsible for certain preconstruction services and then, if the parties reach agreement on key terms, responsible for construction of the transportation facility.
"Department" means the Illinois Department of Transportation.
"Design-bid-build project delivery method" means the traditional method of procuring and contracting for design services and construction services used separately in this State that incorporates the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act and the principles of competitive bidding under the Illinois Procurement Code.
"Design-build contract" means a contract between the Transportation Agency and a design-builder under which the design-builder agrees to furnish architectural, surveying, engineering, construction, and related services for a transportation facility, and may include, but is not limited to, the progressive design-build project delivery method.
"Design-build project delivery method" means a method of procurement and contracting that provides responsibility within a single contract between the Transportation Agency and a design-builder for the furnishing of architectural, surveying, engineering, construction, and related services for a transportation facility.
"Design-builder" means a proposer that has entered into a design-build contract with the Transportation Agency under this Act.
"Evaluation Committee" means the committee assembled to evaluate and score statements of qualifications and proposals.
"Evaluation criteria" means the standards and requirements established by the Transportation Agency against which the qualifications and proposals of a proposer will be assessed during the procurement of a design-build contract or Construction Manager/General Contractor contract, as applicable.
"Executive Director" means the Executive Director of the Illinois State Toll Highway Authority. "Metropolitan planning organization" means a metropolitan planning organization under 23 U.S.C. 134 whose metropolitan planning area boundaries are partially or completely within this State.
"Preconstruction services" means all non-construction-related services that a Construction Manager/General Contractor is required to perform during the first phase of a Construction Manager/General Contractor contract, and may include, but is not limited to, giving advice to the Transportation Agency regarding scheduling, work sequencing, cost engineering, constructability, cost estimating, and risk identification.
"Progressive design-build project delivery method" is a type of design-build project delivery method that consists of 2 phases, with the first phase including budget-level design development, preconstruction services, and negotiation of a contract price (either lump sum or guaranteed maximum price). After completion of the first phase, the second phase is begun. The second phase consists of final design, construction, and commissioning of the project. "Proposal" means a proposer's response to a request for proposals.
"Proposer" means any individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity legally established to conduct business in this State that proposes to be the design-builder or Construction Manager/General Contractor for any transportation facility under this Act. "Qualifications" means a statement of qualifications submitted by a proposer in response to a request for qualifications.
"Request for proposals" means the document issued by the Transportation Agency to solicit proposals and describe the procurement process for a design-build contract or Construction Manager/General Contractor contract in accordance with the design-build project delivery method or the Construction Manager/General Contractor project delivery method, as applicable.
"Request for qualifications" means the document issued by the Transportation Agency in the first phase of a two-phase procurement to solicit qualifications from proposers in accordance with the design-build project delivery method or the Construction Manager/General Contractor project delivery method, as applicable.
"Scope and performance requirements" means the activities, constructed elements, and standards of performance the Transportation Agency requires the design-builder or the Construction Manager/General Contractor to comply with in the development of the transportation facility, and may include, but is not limited to, the intended usage, capacity, size, scope, quality and performance standards, life-cycle costs, preliminary engineering, design, and other requirements as developed and determined by the Transportation Agency.
"Secretary" means the Secretary of the Illinois Department of Transportation.
"Transportation Agency" means the Illinois Department of Transportation or the Illinois State Toll Highway Authority. "Transportation facility" means any new or existing facility or group of facilities that are the subject of a design-build contract or a Construction Manager/General Contractor contract, and includes highways, roads, bridges, tunnels, overpasses, bus ways, guideways, ferries, airports or other aviation facilities, public transportation facilities, vehicle parking facilities, port facilities, rail facilities, stations, hubs, terminals, intermodal facilities, transit facilities, or similar facilities used for the transportation of persons or goods, together with any buildings, structures, parking areas, appurtenances, intelligent transportation systems, and other property or facilities related to the operation or maintenance of these facilities.
(Source: P.A. 102-1094, eff. 6-15-22.) |
(630 ILCS 10/25) (Section scheduled to be repealed on July 1, 2032)
Sec. 25. Procurement process.
(a) The Transportation Agency may solicit a proposer with which to enter into a design-build contract or Construction Manager/General Contractor contract, as applicable, by using, without limitation, one or more requests for qualifications, a shortlisting of the most highly qualified proposers, requests for proposals, and negotiations. The Transportation Agency shall use a two-phase procurement for a design-build contract to select the successful proposer, except that the Transportation Agency may use a single-phase procurement if the transportation facility is estimated to cost less than $5,000,000 or the Secretary or the Executive Director makes a written determination that the Transportation Agency may use a single-phase procurement for a particular transportation facility. In a two-phase procurement, the Transportation Agency shall use the first phase to evaluate and shortlist the most highly qualified proposers based on a proposer's qualifications, and then use the second phase to evaluate and select a proposer based on proposals submitted by the shortlisted proposers. During the first phase of a two-phase procurement, the Transportation Agency shall not consider price proposals to make its shortlist decision. In a single-phase procurement, the Transportation Agency shall solicit proposers with a request for proposals, and shall evaluate and select a proposer based on those proposals.
(b) The request for qualifications may contain any terms deemed appropriate by the Transportation Agency including, without limitation, the following:
(1) a description of the anticipated scope of work |
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(2) a requirement that the proposer identify
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| certain key personnel, and for design-build contracts certain key firms, the experience of the personnel and firms, and the conditions on which identified personnel and firms can be replaced;
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(3) the evaluation criteria for the qualifications
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| and the relative importance of those criteria; these evaluation criteria may address, without limitation, the proposer's technical and financial qualifications, such as specialized experience, technical competence, capability to perform, financial capacity, the proposer's workload, local office presence, past performance including the proposer's safety record and record of utilization of business enterprises, including disadvantaged business enterprises, and any other qualifications-based factors;
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(4) the Transportation Agency's prequalification,
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| licensing, and registration requirements, including any requirements from the Professional Engineering Practice Act of 1989, the Illinois Architecture Practice Act of 1989, the Structural Engineering Practice Act of 1989, and the Illinois Professional Land Surveyor Act of 1989, except that nothing contained herein precludes the Transportation Agency's use of additional prequalification criteria or pass-fail evaluation factors addressing minimum levels of technical experience or financial capabilities;
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(5) a requirement that the proposer provide
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| references or contact information for persons who can attest to the past performance of the proposer, including with respect to successful project delivery, subcontracting, labor relations, diverse business utilization, workforce diversity, and compliance with contract requirements;
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(6) the maximum number of proposers the
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| Transportation Agency will shortlist to submit proposals; and
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(7) any other relevant information the
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(c) Upon completion of the qualifications evaluation, the Transportation Agency shall, based on the evaluation criteria set forth in the request for qualifications, create a shortlist of the most highly qualified proposers. The Transportation Agency shall shortlist no more than 5 and no fewer than 2 of the most highly qualified proposers. Notwithstanding other provisions of this subsection (c), the Transportation Agency may shortlist fewer than 2 proposers if the Secretary or the Executive Director makes a finding that an emergency situation justifies the limited shortlisting and fewer than 2 proposers meet any applicable prequalification or pass-fail requirements set forth in the request for qualifications.
(d) The request for proposals may contain any terms deemed appropriate by the Transportation Agency including, without limitation, the following:
(1) the form and amount of required bid security;
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(2) the terms of the design-build contract or
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| Construction Manager/General Contractor contract, including, but not limited to, scope and performance requirements, schedule or completion date requirements, subcontractor requirements, payment and performance security requirements, and insurance requirements;
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(3) the requirements for the technical component of
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| the proposal, including a description of the level of design, scope and type of renderings, drawings, and specifications to be provided in the proposals;
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(4) the requirements for the price component of the
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| proposal, which for Construction Manager/General Contractor contracts may include a requirement for the proposer to submit a lump sum price for the direct costs to perform the required preconstruction services and percentage mark-up on those direct costs;
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(5) the evaluation criteria for the proposals,
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| including technical criteria, innovation, and schedule, and the relative importance of those criteria, as the Transportation Agency deems appropriate;
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(6) a process for the Transportation Agency to
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| review and accept Alternative Technical Concepts;
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(7) requirements regarding utilization of business
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| enterprises, including disadvantaged business enterprises, and workforce development, including a description of utilization and workforce diversity plans and certifications to be provided in the proposals for both design and construction phases;
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(8) requirements regarding the proposer's
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(9) any other relevant information the
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(e) Before the proposers' submittal of proposals, the Transportation Agency may conduct confidential meetings and exchange confidential information with proposers to promote understanding of the request for proposals, review Alternative Technical Concepts, or discuss other issues related to the procurement.
(f) The date proposals are due must be at least 28 calendar days after the date the Transportation Agency first issues the request for proposals.
(g) The Transportation Agency may offer to pay a stipend in an amount and on the terms and conditions determined by the Transportation Agency and as set forth in the request for proposals to: (1) all shortlisted proposers if the Transportation Agency cancels the procurement after the proposals have been released, but before the due date for proposals; or (2) each unsuccessful proposer that submits a responsive proposal; or (3) each member of the proposer team that
incurs costs in the preparation of the proposal. The Transportation Agency may pay a stipend only to those proposers who grant to the Transportation Agency the right to use any work product contained in the unsuccessful proposer's proposal and other proposal-related submissions or, if the Transportation Agency cancels the procurement after the proposals have been released, but before the due date for proposals, any work product developed before cancellation, including technologies, techniques, methods, processes, and information contained in the recipient's design for the transportation facility.
(h) The Transportation Agency shall, as appropriate depending on whether the transportation facility includes building facilities, directly employ or retain a professional engineer or engineers licensed in this State or a licensed architect or architects, or both engineers licensed in this State and licensed architects, to prepare the scope and assist in the evaluation of the proposals' technical submissions under a design-build project delivery method. The professional engineers and licensed architects performing these services are precluded from participating in the procurement of the transportation facility at issue as a member of a proposer team.
(i) The Transportation Agency has the right to reject any and all qualifications or proposals, including, but not limited to, the right to reject any qualifications or proposals as non-responsive, if, in the Transportation Agency's sole discretion, the qualifications or proposals do not meet all material requirements of the request for qualifications or request for proposals, as appropriate. The Transportation Agency shall not consider a proposal that does not include:
(1) the proposer's plan to comply with requirements
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| established by the Transportation Agency regarding utilization of business enterprises, including disadvantaged business enterprises; or
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(2) bid security in the form and amount designated in
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| the request for proposals.
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(j) The Transportation Agency shall consult with the appropriate chief procurement officer on the design-build project delivery method and the Construction Manager/General Contractor project delivery method procurement processes, and the Secretary or the Executive Director, in consultation with the chief procurement officer, shall determine which procedures to adopt and apply to the design-build project delivery method and Construction Manager/General Contractor project delivery method procurement processes in order to ensure an open, transparent, and efficient process that accomplishes the purposes of this Act.
(k) To ensure taxpayer accountability, for any project with an estimated cost over $30,000,000, the Transportation Agency shall independently procure an owner's representative or construction manager to supplement staff directly employed by the Transportation Agency, provide design reviews, constructability reviews, construction acceptance, oversight of utility relocations, independent quality assurance surveys, independent material testing, documentation of construction, risk mitigation, and oversight of construction activities, including construction management, maintenance of traffic, permit compliance, and other services which may include: value engineering, stakeholder coordination, or public involvement management.
(Source: P.A. 102-1094, eff. 6-15-22.)
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(630 ILCS 10/40) (Section scheduled to be repealed on July 1, 2032)
Sec. 40. Project records; confidentiality; public disclosure.
(a) The Transportation Agency shall maintain all written decisions, qualification and proposal evaluations, scoring documents, selection evaluations, proposals, and procurement documents in a procurement file maintained by the Transportation Agency.
(b) A proposer may identify those portions of a proposal or other submission that the proposer considers to be trade secrets or confidential, commercial, financial, or proprietary information. Confidential and proprietary information, including trade secrets, shall be exempt from disclosure only if the proposer does the following:
(1) requests exclusion from disclosure upon |
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(2) identifies the data or other materials for
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| which protection is sought;
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(3) states the statutory or regulatory basis for
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(4) fully complies with the federal Freedom of
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| Information Act and any other applicable provisions of State law, including, but not limited to, the Freedom of Information Act, with respect to information the proposer contends should be exempt from disclosure; and
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(5) certifies if the information is in accordance
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| with the protection of the Illinois Trade Secrets Act.
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(c) Notwithstanding any other provision of law, in order to properly balance the need to maximize competition under this Act with the need to create a transparent procurement process, the qualifications, proposals, and other information and documents submitted by proposers and the Transportation Agency's evaluation records shall not be subject to release or disclosure by the Transportation Agency until execution of the design-build contract or Construction Manager/General Contractor contract, as applicable. If the Transportation Agency terminates the procurement for a transportation facility, the exemption from release or disclosure under this Section shall remain in place until the Transportation Agency re-procures the transportation facility and has entered into a design-build contract or Construction Manager/General Contractor contract, as applicable. However, this exemption shall lapse if the Transportation Agency does not commence the re-procurement of the transportation facility within 5 years of the termination.
(Source: P.A. 102-1094, eff. 6-15-22.)
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(630 ILCS 10/50) (Section scheduled to be repealed on July 1, 2032)
Sec. 50. Construction Manager/General Contractor contract.
(a) The Construction Manager/General Contractor contract shall divide the Construction Manager/General Contractor services into 2 phases. The first phase shall address preconstruction services and the procedures the parties shall follow to finalize the contract terms for the second phase. The second phase shall address the Construction Manager/General Contractor's construction of the transportation facility for a lump sum or a guaranteed maximum price.
(b) A Construction Manager/General Contractor contract shall include provisions regarding the following:
(1) the Construction Manager/General Contractor's |
| provision of preconstruction services during the first phase of the contract, including the Construction Manager/General Contractor's compensation for those services;
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(2) a requirement that, during the first phase of
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| the contract, the Construction Manager/General Contractor shall use a competitive bidding process to procure subcontracts for at least the minimum percentage of construction work specified in the request for proposals, provided that:
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(A) compliance with this requirement shall be
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| based on an estimated cost for the construction work approved by the Transportation Agency before the start of the competitive bidding process; and
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(B) the Construction Manager/General Contractor
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| may not use subcontracts with its wholly or partially owned subsidiaries, parent companies, or affiliates to satisfy this obligation;
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(3) the process the Transportation Agency and the
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| Construction Manager/General Contractor shall use to determine a lump sum or guaranteed maximum price for the construction work, including a requirement that the Transportation Agency conduct an independent cost estimate for the construction work; and
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(4) grounds for termination of the Construction
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| Manager/General Contractor contract, including the Transportation Agency's right to terminate the contract and not proceed with the construction phase of the project if the Transportation Agency and the Construction Manager/General Contractor are unable to negotiate a lump sum or guaranteed maximum price for the construction work.
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(c) In addition to the provisions under subsection (b) of this Section, a Construction Manager/General Contractor contract may include any other provisions the Transportation Agency determines are necessary or appropriate, including, but not limited to, provisions regarding the following:
(1) liability for damages and nonperformance;
(2) events of default and the rights and remedies
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| available to the Construction Manager/General Contractor and the Transportation Agency in the event of a default or delay;
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(3) the identification of any technical
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| specifications that the Construction Manager/General Contractor must comply with when aiding the Transportation Agency with developing plans or performing construction work;
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(4) required performance and payment security for
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| the construction phase of the contract;
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(5) the terms and conditions of indemnification and
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| minimum insurance requirements; and
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(6) any other terms and conditions the
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| Transportation Agency deems necessary.
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(d) If the Construction Manager/General Contractor contract is terminated for any reason, the Transportation Agency, in its sole discretion, may readvertise the Construction Manager/General Contractor contract under this Act or use any other authorized procurement method to complete the transportation facility or any portion of the transportation facility. Once the contract is terminated, the Transportation Agency may use any work product developed by the Construction Manager/General Contractor to complete the transportation facility.
(Source: P.A. 102-1094, eff. 6-15-22.)
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