Title:71 Part:2000

SOURCE: Adopted at 9 Ill. Reg. 174, effective December 24, 1984; amended at 10 Ill. Reg. 19104, effective October 27, 1986; amended at 16 Ill. Reg. 10068, effective June 15, 1992; amended at 39 Ill. Reg. 2703, effective February 5, 2015.

SUBPART A: GENERAL

Section 2000.5 Policy

All construction projects shall be accomplished in the most economic, expeditious and commercially reasonable manner that is in accordance with the Illinois Purchasing Act (Ill. Rev. Stat. 1983, ch. 127, par. 132.1 et seq.), this Part, the Department of Central Management Services rules entitled "Standard Procurement" (44 Ill. Adm. Code 1) and Capital Development Board rules entitled "Prequalification and Suspension of Contractors" (44 Ill. Adm. Code 950). This Part is promulgated to facilitate the construction project practices of the Office of the Secretary of State. Operational interpretations are to be made in accordance with the standards set forth in this Part in a flexible manner designed to secure the Secretary of State's needs and protect its interests.

Section 2000.10 Applicability

This Part applies to all construction projects by or through delegation to the Office of the Secretary of State.

Section 2000.15 Definitions

"Agency" unless otherwise specified, means the Office of the Secretary of State.

"Architect" means a person who is licensed as an architect by the Illinois Department of Financial and Professional Regulation.

"Beneficial Interest" means any profit, benefit or advantage resulting from a contract.

"Bid" means an offer made by a Bidder in response to a request by the Office of the Secretary of State for sealed bids, sealed proposals or request for proposal.

"Bidder" means any person or entity by representative that submits a bid. The term Bidder may also, in the appropriate context, refer to the successful Bidder or to a vendor.

"CDB" means the Capital Development Board.

"CMS" means the Department of Central Management Services.

"Contract" means the Agreement for the stated services and/or material.

"Director" unless otherwise specified, means the Director of the Department of Physical Services for the Secretary of State.

"Director of Purchasing" means the Director of the Purchasing Department of the Office of the Secretary of State.

"Engineer" means a person who is licensed as a professional or structural engineer by the Illinois Department of Financial and Professional Regulation.

(Source: Amended at 39 Ill. Reg. 2703, effective February 5, 2015)

Section 2000.20 Prequalification

All architects, engineers, and contractors shall be prequalified according to the rules of the Capital Development Board (44 Ill. Adm. Code 950 and 980) to determine their responsibility prior to entering into a contractual relationship with the Secretary of State.

Section 2000.25 Beneficial Interest

a) All Bidders pursuant to this Part shall disclose in their bid submission documents the names of each individual who has a beneficial interest of more than 7 1/2 percent in the enterprise bidding on the contract. (Section 6-1 of the Illinois Purchasing Act, Ill. Rev. Stat. 1983, ch. 127, par. 132.6-1).

b) A corporation shall disclose in its bid submission documents the names of all officers and directors.

c) Each Bidder shall notify the Secretary of State of any changes in its ownership or officers when such change occurs.

Section 2000.30 Suspension

Any Bidder who violates the Illinois Purchasing Act (Ill. Rev. Stat. 1983, ch. 127, pars. 132.1 et seq.) or this Part, will be suspended by the Director of Purchasing for up to one year, the exact term of suspension shall not exceed one year and shall depend upon the following factors, including but not limited to, the severity and magnitude of the violation, the previous record of the Bidder, and the delay of inquiry to the Secretary of State in the project.

Section 2000.35 Causes for Suspension

The following shall be sufficient grounds for suspension:

a) Material Breach of contract.

b) Delivery of goods or performance of services which do not comply with the specifications of the Bidder's contract with the State.

c) Failure to perform within the time specified in the contract or order.

d) Failure to keep offer firm for length of time specified by the Bidder in his/her bid.

e) Failure to provide performance bond when required by Invitation for Bids.

f) Collusion with other Bidders or prospective Bidders to restrain competitive bidding.

g) Giving information in an application for inclusion on a Bidder's list that is later found to be false or materially misleading.

h) Any substitution of an article, even though of the same quality, without first securing the written consent of the Secretary of State.

i) Bankruptcy or other objective evidence of insolvency of the Bidder, such as cash shortages, foreclosures, and inabilities to obtain material from suppliers.

j) Any other facts such as resignation or death of principal partner, loss of personnel with expertise, financial difficulties such as bankruptcy, loss of line of credit, discontinuance of business, termination of previous contracts, bad credit rating, and poor business relations causing substantial doubts as to whether the Bidder will continue to be a responsible Bidder who can be relied upon to fulfill his/her obligations under this Part and under any contract awarded to him/her, including, but not limited to, the Director and Director of Purchasing's experience with the bidder, their business experience, knowledge and expertise, common business practices, bidder reputation, and knowledge of bidder's experience with other government agencies.

k) Any violation of Illinois or federal law or rule which would make it inadvisable for the Agency to deal with such Bidder, including but not limited to bribery, racketeering, other forms of corruption, theft, collusion, consumer fraud, misrepresentation, Internal Revenue Service violations, and tax fraud.

l) Revocation of Department of Human Rights Public Contract number.

m) Failure to honor warranties or to make equitable adjustment or replacements for damaged goods.

n) Failure to provide prevailing wages and benefits where required by law.

o) Any other violation of this Part.

Section 2000.40 Debarment

Debarment is the permanent suspension of a Bidder or prospective Bidder from doing business with the Agency. A debarment may only take place in those instances involving bribery or attempted bribery of a State of Illinois officer or employee.

Section 2000.45 Bid Opening

a) Bids will be opened on the date and at the time and place specified in the bid solicitation. The opening of all bids shall be done publicly.

b) The public bid opening shall be conducted and witnessed by not less than two (2) employees of the Secretary of State Purchasing Department. One shall open and read the bid prices aloud, while the other witnesses and records the abstract of bids. This public bid opening shall be open to anyone who wants to attend and witness the proceeding.

(Source: Amended at 16 Ill. Reg. 10068, effective June 15, 1992)

Section 2000.50 Proprietary Information

Any information submitted by the contract awardee is considered public. Information, other than price information, labeled proprietary which is submitted by an unsuccessful Bidder will be held confidential.

Section 2000.55 The Illinois Purchasing Act

The Illinois Purchasing Act shall apply to all contracts for construction entered into by the Secretary of State.

SUBPART B: BID SUBMISSIONS

Section 2000.100 Invitation for Bid

The Secretary of State will advertise the bid in the official State Purchasing Website (www.purchase.state.il.us) in accordance with requirements of the Illinois Procurement Code, and use the prequalified Bidders of the Capital Development Board (44 Ill. Adm. Code 950). Bidders who have failed on two consecutive occasions to return the bid form without bidding will not ordinarily be sent a bid form on the next occasion, unless the Bidder has shown in a letter to the Director of Purchasing that it wishes to be sent a bid form.

(Source: Amended at 39 Ill. Reg. 2703, effective February 5, 2015)

Section 2000.110 Contents of Invitation for Bids

Invitations for bids will contain the following information:

a) The construction project to be bid.

b) A description of the needs and requirements of the work to be done.

c) The dates of the work to be done.

d) A description of the major subdivisions of the work to be done.

e) Any other terms and conditions which will be required to accomplish the project.

Section 2000.120 Time and Place to Submit Bids

In addition to the above, each Invitation for Bids will indicate a date, time and place for the Bidder to submit a bid. Responses received late will not be considered. The Agency does not prescribe the method by which bids are to be transmitted; therefore, it cannot be held responsible for delay in transmission resulting in late delivery.

Section 2000.130 Submission of Bids

Each bid must conform to the requirements of this Part and to any additional requirements in the Invitation for Bids. Unless otherwise stated in the Invitation, bids shall be returned using the Agency supplied bid form. Every bid should be typed or written clearly in ink. Bids must be signed by an authorized representative of the Bidder.

(Source: Amended at 39 Ill. Reg. 2703, effective February 5, 2015)

Section 2000.140 Change or Withdrawal of Bid

A Bidder may change or withdraw a bid if written or in-person notice of the change or withdrawal is received by the Agency before the time specified for submission of bids. No change or withdrawal is allowed after bid opening except as provided in Subpart E. Modifications, changes, and erasures must be initialed in ink by the Bidder.

Section 2000.150 Submission Binding

Any bid submitted may be accepted within 30 days of opening unless a different period of time is specified in the Invitation for Bids. Acceptance by the Agency will bind the Bidder in accordance with this Part and any terms and conditions contained in the Invitation for Bids.

Section 2000.160 Bid Reservations

The Agency reserves the right to reject any or all bids or any part thereof, to waive immaterial technicalities, such as misplaced decimal points, punctuation, misnumbering and typographical errors and to accept bids deemed most favorable to the interests of the Agency, including but not limited to failure to sign bid when bidder is able to come in and sign, failure to acknowledge receipt of documents, and delivery requirements, after all bids have been examined and evaluated.

Section 2000.170 Bidder Must be Responsible

Contracts are to be made only with responsible Bidders unless no responsible Bidder is available to meet the Agency's needs. If there is doubt about the responsibility of a Bidder as determined by Subpart C of this Part, and if a bond or other security, such as cashiers check, certified check, or withholding a percentage of the total contract amount, would adequately protect the Agency's interests, then that Bidder may be awarded a contract upon receipt of the bond or other security.

SUBPART C: RESPONSIBILITY

Section 2000.200 Determination by Procuring Agency

The determination of responsibility is made by the Director of Purchasing and such determination is to be based upon written documentation regarding the following Standards of Responsibility. Responsibility can be proven until time of award or execution of contract, whichever is later.

Section 2000.205 Proof of Responsibility

Each prospective Bidder must provide the Agency with adequate documentation of responsibility. The Agency will ordinarily provide forms for this information, except when insurance companies provide such forms or references are required in the invitation for bids. The Agency may supplement this information from other sources and may require additional documentation at any time, in order to clarify or complete documentation of responsibility.

Section 2000.210 Standards of Responsibility

Responsibility shall be determined by consideration of the following factors, such as, whether the Bidder:

a) Has adequate financial resources or the ability to obtain such resources as required during the performance of the contract. The Director of Purchasing shall designate a level of financial resources when the contract exceeds $10,000.00, below which the Bidder will be deemed "not responsible", as determined in the Capital Development Board Rules (44 Ill. Adm. Code 950).

b) Is able to comply with required or proposed delivery or performance schedules, taking into consideration all existing commercial and governmental commitments.

c) Has a satisfactory record of performance. Bidders who are or have been deficient in current or recent contract performance in dealing with the Agency or other customers shall be deemed "not responsible" unless the deficiency is shown to have been beyond the reasonable control of the Bidder.

d) Has a satisfactory record of integrity and business ethics based upon reputation, previous contractual arrangements, and performance.

e) Has a currently valid Identification Number issued by the Public Contracts Division of the Illinois Department of Human Rights.

f) Pays prevailing wages if required by law. The Department of Labor will periodically provide the agency with current information regarding prevailing rates of wages. The Invitation for Bids will advise prospective bidders the amount of wages and benefits which the Department of Labor has determined that workers providing services under the resulting contract should be paid. Submission of a bid shall constitute the bidders acceptance and intent to fully comply. Complaints regarding a contractor's failure to comply shall be directed to the Illinois Department of Labor.

(Source: Amended at 16 Ill. Reg. 10068, effective June 15, 1992)

Section 2000.215 New Bidders

a) Bidders not having a history of performance shall be considered responsible if no other disqualifying factors exist. A bond or other security shall be required for such Bidders.

b) Bidders who are newly formed business concerns having substantially the same owners, officers, directors, or beneficiaries as a previously existing not-responsible Bidder, defined as persons having a controlling interest or 10% or more of any interest, will be declared not-responsible unless the new organization can prove it was not set up for the purpose of avoiding an earlier declaration of non-responsibility.

Section 2000.220 Security Required

The Director of Purchasing will require that a Bidder furnish bid or performance security on State contracts exceeding $10,000.00 in value. Whenever a bond is required, the bid request will clearly indicate the type and amount of security.

Section 2000.225 Form of Security

Security, unless otherwise specified, may be in the form of cashier's check, certified check, money order, irrevocable letter of credit or bond. Any bond must be issued by a surety company authorized to do business in the State of Illinois.

(Source: Amended at 10 Ill. Reg. 19104, effective October 27, 1986)

Section 2000.230 Amount

The Director of Purchasing will determine the amount, in percentage of contract price, that will adequately protect the Agency's interests. This percentage will be 10 percent unless the performance record of the bidder is deficient as determined in Section 2000.210 or a greater percentage is required to ensure completion of the project in accordance with the requirements of the invitation for bid.

Section 2000.235 Subsequent Requirement

A Bidder shall be required to furnish up to 100% performance security at his/her cost without prior notice, as determined by the Director of Purchasing, if it appears that delivery or production schedule cannot be met, quality is poor, responsibility is questioned and for similar reasons that bear upon the ability to perform the contract.

Section 2000.240 Security Allowances

a) Bid security will be required pursuant to Section 2000.220, but will not be required on negotiations, emergency or sole source procurements.

b) Performance security will be required pursuant to Section 2000.220, and will be required on contracts calling for advance payment.

Section 2000.245 Annual Security

A Bidder may submit a single or continuous security each year which will be applicable on all contracts of the Agency. When such security has been obligated in an amount equal to the sum of accumulated security requirements, additional security must be submitted.

Section 2000.250 Return of Security

Bid security will be returned to unsuccessful Bidders after award of the contract and issuance of a Notice to Proceed. The bid security of the successful Bidder will be returned after contracts have been signed and performance security, if any, submitted. Performance security will be returned upon full performance.

(Source: Amended at 16 Ill. Reg. 10068, effective June 15, 1992)

Section 2000.255 Recording

a) Bid information, including opening date, general description of the procurement, names of Bidders and price information shall be entered in an abstract or record at time of opening.

b) The Director of Purchasing shall certify to the accuracy of the abstract or record. This abstract or record shall be available for public inspection following the award for a period of one year.

SUBPART D: AWARDING OF BIDS AND REJECTION

Section 2000.300 Award

Unless all bids are rejected, a notification shall be made in writing within the time allowed for acceptance to the responsible Bidder whose bid, conforming to the request for bids, will be most advantageous to the Agency, including but not limited to, price, low bid, ability to do work, regulatory provisions, special needs, responsiveness to bid request, fiscal constraints and other terms or conditions stated by bidder. The notification must be considered conditional upon favorable determination of any protest (see Subpart G of this Part).

(Source: Amended at 10 Ill. Reg. 19104, effective October 27, 1986)

Section 2000.310 Delay in Award

Should administrative difficulties, such as delay in approval from the Office of the Architect of the State Capitol, fiscal problems, acts of God, death of parties, and utility failures, be encountered after bid opening that may delay award beyond Bidders' acceptance periods, the responsive Bidders may be requested, before expiration of their bids, to extend the bid acceptance period (with consent of sureties, if any) in order to avoid the need for readvertisement.

(Source: Amended at 39 Ill. Reg. 2703, effective February 5, 2015)

Section 2000.320 Cancellation of Invitation

Invitation for Bids may be cancelled prior to award or after consideration of protest and all bids rejected prior to award when such action is in the best interests of the Agency. Every effort shall be made to anticipate necessity of rejection to avoid additional procurement costs and exposure of bid prices. Reasons for rejecting all bids are:

a) Inadequate, ambiguous, or otherwise deficient specifications were cited in the Invitation for Bids.

b) The goods or services are no longer required.

c) The Invitation for Bids did not provide for consideration of all factors of cost to the Agency.

d) Bids received indicate that the needs of the Agency can be satisfied by a less expensive good or service differing from that on which the bids were invited.

e) All otherwise acceptable bids received are at unreasonable prices as compared to the estimated cost of the project.

f) The bids were not independently arrived at in open competition, were collusive, or were submitted in bad faith.

g) Time factors for delivery do not allow acceptance.

(Source: Amended at 16 Ill. Reg. 10068, effective June 15, 1992)

Section 2000.330 Notice of Cancellation

When it is determined to reject all bids and to rebid the request, the Director of Purchasing shall notify each Bidder that all bids have been rejected, stating the reason for such action.

Section 2000.340 Rejection of Individual Bids

a) Any bid which fails to conform to the essential requirements of the Invitation for Bids, such as specifications, delivery schedule, or permissible alternatives thereto, shall be rejected as nonresponsive in addition to the reasons specified in subsection (c) of this Section.

b) Bids containing any material alteration or erasure will be rejected unless the change is initialed in ink by the Bidder. Samples submitted showing evidence of altering or removing manufacturer's label, logotype, model or serial number, or any other standard of the industry for identification, shall be due cause for rejection of the bid, unless alteration or removal is supported with justifiable documentation satisfactory to the Director of Purchasing.

c) A bid shall be rejected or considered an alternative bid where the Bidder imposes conditions which would modify requirements of the Invitation for Bids or limit liability to the Agency so as to give an advantage over other Bidders. For example, bids shall be rejected in which the Bidder:

1) Attempts to protect against future changes in conditions such as increased costs, if total price to the Agency cannot be determined for bid evaluation.

2) Fails to state a price and, in lieu thereof, states that price shall be "price in effect at time of delivery".

3) States a price but qualifies such price as being subject to "price in effect at time of delivery", or "price subject to change".

4) Where not authorized by the invitation, conditions or qualifies the bid by stipulating that the bid is to be considered only if, prior to date of award, Bidder receives (or does not receive) award under a separate procurement.

5) Limits rights of Agency under any contract clause. However, a low Bidder may be requested to delete objectionable conditions from the bid if these conditions do not go to the substance, as distinguished from the form of the bid. A condition goes to the substance of a bid where it affects price, quantity, quality, or delivery of the items offered.

d) Any bid may be rejected if the Agency determines in writing that it is unreasonable as to price.

e) Bids received from any person or concern debarred or ineligible shall be rejected if the period of debarment or ineligibility has not expired.

f) Low bids received from firms determined to be not responsible.

g) Where a bid security is required and a bidder fails to furnish it in accordance with the requirements of the Invitations for Bids.

h) After submitting a bid, if a Bidder transfers all of his/her assets or that part of his/her assets related to the bid during the period between the bid opening and the award, the transferee may not take over the bid except with permission of the Agency.

i) Any bid may be rejected if the bidder fails to provide any information which was requested in the Invitation for Bids. Criteria for rejection of a bid due to the failure of the bidder to provide any information which was requested in the Invitation for Bid could include, but not necessarily be limited to:

1) The difference in price between the bid received from this non-responsive bidder and a fully responsive bidder.

2) The time and effort required to obtain such information from the non-responsive bidder.

j) The originals of all rejected bids, and any written findings with respect to such rejection, shall be preserved along with the bids and other papers relating to the procurement.

(Source: Amended at 16 Ill. Reg. 10068, effective June 15, 1992)

Section 2000.350 Minor Informalities or Irregularities in Bids

A minor informality or irregularity is one which is a matter of form or pertains to some immaterial or inconsequential defect or variation of a bid from the exact requirement of the Invitation for Bids, the correction or waiver of which would not be prejudicial to other Bidders. The defect or variation in the bid is immaterial and inconsequential when its significance as to price, quantity, quality, or delivery is trivial or negligible when compared to the total cost or scope of the goods or services being procured. The Director of Purchasing shall either give the Bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive such deficiency, whichever is to the advantage of the Agency. Examples of minor informalities or irregularities of form include, but are not limited to:

a) Failure of Bidder to return the number of copies of signed bids required by the Invitation for Bids.

b) Failure of Bidder to sign its bid, but only if:

1) The unsigned bid is accompanied by other material indicating the Bidder's intention to be bound by the unsigned bid document, such as the submission of a bid guarantee, or a letter signed by the Bidder with the bid referring to and clearly identifying the bid itself; or

2) The firm submitting a bid has formally adopted or authorized, before the date set for opening of bids, the execution of document by typewritten, printed, or stamped signature and submits evidence of such authorization and the bid carries such a signature.

c) Failure of a Bidder to acknowledge receipt of an amendment to an Invitation for Bids, but only if:

1) The bid received clearly indicates that the Bidder received the amendment, such as where the amendment added another item to the Invitation for Bids and the Bidder submitted a bid thereon; or

2) The amendment involves only a matter of form or is one which has either no effect or merely a trivial or negligible effect on price, quantity, quality, or delivery of the item bid upon.

Section 2000.360 Time of Award

After evaluation, the Director of Purchasing will determine and announce the apparent awardee. The award will not become final until any protest period has passed. If a protest is received, award will not be made final until the protest is resolved, unless immediate award is necessary to secure Agency needs. Performance prior to finalization of award or execution of contract is at Bidder's risk.

Section 2000.370 General

After the opening of bids, Director of Purchasing shall examine all bids for accuracy. In cases of apparent error and in cases where the Director of Purchasing has reason to believe that an error may have been made, he/she shall request from the Bidder a verification of the bid, calling attention to the suspected error. If the Bidder alleges an error, the matter shall be processed in accordance with Section 2000.350 of this Part. Such actions shall be taken prior to award.

(Source: Amended at 10 Ill. Reg. 19104, effective October 27, 1986)

SUBPART E: MISTAKES AND ERRORS

Section 2000.400 Apparent Clerical Mistake

Any clerical mistake, apparent on the face of a bid, may be corrected by the Director of Purchasing prior to award, if the Director of Purchasing has first obtained from the Bidder verification of the bid actually intended. Examples of such apparent mistakes are: obvious misplacement of a decimal point; obviously incorrect discounts (for example, 1 percent 10 days, 2 percent 20 days, 5 percent 30 days); obvious reversal of the price f.o.b. (free on board) destination and price f.o.b. origin; and obvious mistake in designation of unit. Correction shall be reflected in the award document.

Section 2000.410 Other Mistakes Disclosed Before Award

Director of Purchasing is authorized, in order to minimize delay in contract awards, to make the administrative determinations described below in connection with mistakes in bids alleged after opening of bids and before award. The authority contained herein to permit correction of bids is limited to bids which, as submitted, are responsive to the Invitation for Bids, and may not be used to permit correction of bids to make them responsive.

a) A determination may be made permitting the Bidder to withdraw its bid where the Bidder requests permission to do so and clear and convincing evidence establishes the existence of a mistake.

b) If the evidence is clear and convincing both as to the existence of a mistake and as to the bid actually intended, and if the bid, both as uncorrected and corrected, is the lowest received, a determination may be made to correct the bid and not permit its withdrawal.

c) A determination may be made permitting the Bidder to correct the bid where the Bidder requests permission to do so and clear and convincing evidence establishes both the existence of a mistake and the bid actually intended. However, if such correction would result in displacing one or more lower acceptable bids, the determination shall not be made unless the existence of the mistake and bid actually intended are ascertainable substantially from the invitation and bid itself. If the evidence is clear and convincing only as to the mistake, but not as to the intended bid, a determination permitting the Bidder to withdraw his/her bid may be made.

d) If the evidence does not warrant a determination under subsections (a), (b), or (c) of this Section, a determination may be made that a Bidder may neither withdraw nor correct his/her bid.

(Source: Amended at 16 Ill. Reg. 10068, effective June 15, 1992)

Section 2000.420 Processing Mistakes

a) Suspected or alleged mistakes prior to award shall be processed as follows:

1) Whenever the Director of Purchasing suspects that a mistake may have been made in a bid, he/she shall immediately request that the Bidder verify the request. Such request shall inform the Bidder why the request for verification is made, that a mistake is suspected and the basis for such suspicion; e.g., that the bid is significantly out of line with the next low or other bids or with the Agency's estimate. If the time for acceptance of bids is likely to expire before a decision can be made, the Director of Purchasing, shall request all Bidders whose bids may become eligible for award to extend the time for acceptance of their bids. If the Bidder whose bid is believed erroneous does not grant such extension of time and a decision cannot be reached before expiration of the time for acceptance, even if handled by telegraph or telephone as provided in subsection (d) of this Section, the bid shall be considered as originally submitted.

2) If the Bidder verifies his/her bid, the Director of Purchasing shall consider it as originally submitted. If the Bidder alleges a mistake, the Director of Purchasing shall advise him/her to support his allegation by statements concerning the alleged mistake and by all pertinent evidence, such as the Bidder's file copy of the bid, his/her original worksheets and other data used in preparing the bid, subcontractors' and suppliers' quotations, if any, published price lists, and any other evidence which will serve to establish the mistake, the manner in which it occurred, and the bid actually intended.

b) If a mistake is disclosed after award the Agency shall advise the Bidder to support the alleged error by written statements and by all pertinent evidence, such as the Bidder's file copy of the bid, his/her original worksheets and other data used in preparing the bid, subcontractors' and suppliers' quotation (if any), published price lists, and any other evidence which will serve to establish the mistake, the manner in which it occurred, and the bid actually intended.

c) Where the Bidder furnished evidence in support of an alleged mistake, the Director of Purchasing shall consider:

1) All evidence furnished by the Bidder.

2) The bid, the Invitation for Bids, and any specifications or drawings relevant to the alleged mistake.

3) The abstract or record of the bids received.

4) A contract if any.

5) A written statement setting forth:

A) The expiration date of the bid in question and of the other bids submitted;

B) Specific information as to how and when the mistake was alleged;

C) A summary of the evidence submitted by the Bidder;

D) In the event only one bid was received, a quotation of a recent contract price for the supplies or services involved, or, in the absence of a recent comparable contract, the estimate of a fair price for the supplies or services and the basis for such estimate;

E) Any additional evidence considered pertinent including copies of all correspondence between the Agency and the Bidder concerning the alleged mistake; and

F) The course of action with respect to the bid that the Director of Purchasing considers proper on the basis of the evidence.

d) Where the Bidder fails or refuses to furnish evidence in support of a suspected or alleged mistake, the Director of Purchasing shall consider the bid as submitted unless the amount of the bid is so far out of line with the amounts of other bids received or with the amount estimated by the Agency or determined by the Agency to be reasonable, or there are other indications of error so clear, as reasonable to justify the conclusion that acceptance of the bid would be unfair to the Bidder or to other bonafide Bidders, in which case it shall be rejected. The attempts made to obtain the information required and the action taken with respect to the bid shall be fully documented.

Section 2000.430 Incorrect Procedures

If, for any reason, the Director of Purchasing makes an award that is procedurally incorrect and if it determines not to overturn the award, the protesting Bidder that should have received the award may only claim as damages the reasonable cost of bid preparation, such as labor, postage, photocopies, etc. An explanation of such procedural errors will be filed with the Department of Central Management Services and with the Auditor General.

(Source: Amended at 16 Ill. Reg. 10068, effective June 15, 1992)

SUBPART F: TERMS AND CONDITIONS

Section 2000.500 Terms and Conditions of Transactions

The following terms and conditions, or substitute language proposed by the Bidder and acceptable to the Agency, whether in a contract form or not, shall apply to any contract resulting from these procedures:

a) Entire Agreement – These terms and conditions, together with the Invitation for Bids, other written representation of Bidder, and all sheets or documents as are made a part hereof, shall constitute the entire present agreement between the parties.

b) Modifications – No change in, addition, or waiver of the items, conditions and specifications contained herein shall be a binding obligation on the Agency unless approved in writing by its authorized representative.

c) Warranties – Bidder makes the following warranties to Agency and its customers and the users of the goods or services herein described in the bid:

1) It will, at the date of delivery, have good title to any and all goods supplied hereunder, and said goods will be free and clear of any and all liens and encumbrances,

2) Any and all goods supplied hereunder will be merchantible quality and fit for the particular use intended,

3) Will be free from defects, whether patent or latent in material or workmanship, and will be in full conformity with the specifications contained herein.

4) Bidder agrees that the foregoing warranties shall survive acceptance of the goods, and that said warranties shall be in addition to any warranties of additional scope given to Agency by Bidder. The warranty in subsection (2) above may be modified if expressly brought to the attention of the Agency and an acceptable substitute offered.

d) Governing Law – The contract formed pursuant to the terms, conditions and specifications of the Invitation for Bids and the obligations thereby imposed on Bidder and Agency shall be governed by and construed according to the laws of the State of Illinois. Bidder represents and agrees that the goods herein described have not been or will not be manufactured, sold, priced or transported in violation of any federal, state or local law or any lawful order, rule or regulations issued thereunder.

e) Assignment – Bidder shall not assign such contract without the written consent of the Agency by the Director of Purchasing.

f) Equal Employment Opportunity – In the event of the bidder's non-compliance with the provisions of this Equal Employment Opportunity Clause, the Illinois Human Rights Act (Ill. Rev. Stat. 1991, ch. 68, pars. 1-101 et seq.) or the Rules of the Illinois Department of Human Rights (44 Ill. Adm. Code 750) ("Department"), the Bidder shall be declared ineligible for future contracts or subcontracts with the State of Illinois or any of its political subdivisions or municipal corporations, and the contract shall be cancelled or voided in whole or in part, and such other sanctions or penalties shall be imposed or remedies invoked as provided by statute or regulation. During the performance of this contract, the Bidder agrees as follows:

1) That it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status, national origin or ancestry, age, physical or mental handicap unrelated to ability, or an unfavorable discharge from military service, and further that it will examine all job classifications to determine if minority persons or women are under-utilized and will take appropriate affirmative action to rectify any such under-utilization.

2) That, if it hires additional employees in order to perform this contract or any portion thereof, it will determine the availability (in accordance with the Department's Rules) of minorities and women in the area(s) from which it may reasonably recruit and it will hire for each job classification for which employees are hired in such a way that minorities and women are not under-utilized.

3) That, in all solicitations or advertisements for employees placed by it or on its behalf, it will state that all applicants will be afforded equal opportunity without discrimination because of race, color, religion, sex, marital status, national origin or ancestry, age, physical or mental handicap unrelated to ability, or an unfavorable discharge from military service.

4) That it will send to each labor organization or representative of workers with which it has or is bound by a collective bargaining or other agreement or understanding, a notice advising such labor organization or representative of the Bidder's obligations under the Illinois Human Rights Act and the Department's Rules. If any such labor organization or representative fails or refuses to cooperate with the Bidder in its efforts to comply with such Act and Rules, the Bidder will promptly so notify the Department and the Agency and will recruit employees from other sources when necessary to fulfill its obligations thereunder.

5) That it will submit reports as required by the Department's Rules, furnish all relevant information as may from time to time be requested by the Department or the Agency, and in all respects comply with the Illinois Human Rights Act and the Department's Rules.

6) That it will permit access to all relevant books, records, accounts and work sites by personnel of the Agency and the Department for purposes of investigation to ascertain compliance with the Illinois Human Rights Act and the Department's Rules.

7) That it will include verbatim or by reference the provision of this clause in every subcontract it awards under which any portion of the contract obligations are undertaken or assumed, so that such provisions will be binding upon such subcontractor. In the same manner as with other provisions of this contract, the Bidder will be liable for compliance with applicable provisions of this clause by such subcontractors; and further it will promptly notify the Agency and the Department in the event any subcontractor fails or refuses to comply therewith. In addition, the contractor will not utilize any subcontractor declared by the Illinois Human Rights Commission to be ineligible for contracts or subcontracts with the State of Illinois or any of its political subdivisions or municipal corporations.

g) Other Terms and Conditions – Any terms and conditions not set forth herein shall be as specified in the request for proposal or invitation for bid and/or the resulting contract.

h) Anti-Bribery – By signing the bid or contract, the bidder certifies that he/she has not bribed or attempted to bribe an officer or employee of the State of Illinois.

i) Insurance – Each bidder shall carry full workers' compensation insurance and public liability insurance sufficient to protect the Agency's interests.

(Source: Amended at 16 Ill. Reg. 10068, effective June 15, 1992)

Section 2000.510 Modification

Contracts may be changed or modified only by amendments signed by all parties to the original contract and approved by the Agency with procurement authority. Amendments may pertain to parties, scope of work, time-frame, terms or price but should be allowed only for valid consideration. Price amendments to other contracts may be in amount necessary to accomplish the Agency's needs. Typographical errors may be corrected or other minor changes made on the contract form if those corrections or changes are initialed by the party to be bound.

Section 2000.520 Fiscal Year Contracting

The state fiscal year is July 1 to June 30 of the following calendar year. If a contract is signed before June 30, and performance occurs on or after July 1 and before September 30, payment may be made from funds of the fiscal year in which the contract was obligated in accordance with "An Act in relation to State finance" (Ill. Rev. Stat. 1991, ch. 127, pars. 137 et seq.).

(Source: Amended at 16 Ill. Reg. 10068, effective June 15, 1992)

Section 2000.530 Contracts Spanning Fiscal Years

All contracts may span fiscal years but must contain a clause that terminates the Agency's obligations immediately and without further payment being required if the Illinois General Assembly or applicable Federal Funding source fails to appropriate or otherwise make available, funds for the contract.

Section 2000.540 Prevailing Wage Required

a) No Bidder will be awarded a contract for construction on public works unless its employees are paid wages and benefits and are working under conditions prevalent in the location where the work is to be performed.

b) Prevailing wage and conditions prevalent means the hourly wages plus fringe benefits for health and welfare (such as, unemployment compensation, workman's compensation, liability insurance and health insurance), insurance, vacations and pensions paid generally, in the locality in which the work is being performed, to employees engaged in work of a similar character, as determined by the Department of Labor (Ill. Rev. Stat. 1991, ch. 48, par. 39s-2).

c) Prevailing wage rates, benefits and conditions will be those in effect on the first date of the contract, provided that if the rate changes during the contract term and the amount of change is known before execution of the contract, then the contract rate will reflect the change in rate. Any increases in costs to the contractor due to changes in the prevailing rate of wages or labor law during the term of any contract shall be at the expense of the contractor and not at the expense of the Secretary of State.

(Source: Amended at 16 Ill. Reg. 10068, effective June 15, 1992)

Section 2000.550 Full Compliance

By submitting a bid the Bidder agrees to comply with all applicable laws and rules and with the specific requirements set forth in the Invitation for Bids. A waiver of a requirement on one occasion will not be construed as a waiver on subsequent occasions unless a written directive indicates the waiver as permanent.

Section 2000.560 Cancellation for Material Breach of Contract

In any of the following cases the Director of Purchasing shall terminate or rescind any contract entered into under this Part for the following reasons, unless it is in the best interest of the Agency to continue the contract because of the need to complete the work and/or the financial advantage to the Agency:

a) In the event the successful Bidder fails to furnish the required performance bond within the time specified.

b) In the event Bidder fails to make delivery or complete the work at the place or within the time specified in the contract or subsequently upon the failure of bidder to meet the original scheduling requirements as ordered by the Director.

c) In the event any goods or services provided under the contract are rejected (for not meeting specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the Bidder. If there are repeated rejections of the Bidder's goods or service this shall be grounds for termination or rescission even though the Bidder offers to replace the goods or services promptly. Promptness shall be determined by the Director of Purchasing considering the availability of items, goods or services, and needs of the agency.

d) In the event the Bidder is guilty of misrepresentation in connection with the contracting or subcontracting of another contract for the sale of goods or services to the Agency that he/she cannot reasonably be depended upon to fulfill his/her obligations as a responsible Bidder under any of his/her contracts with the Agency.

e) In the event the Bidder should be adjudged bankrupt; enter into a general assignment for the benefit of his/her creditors or receivership due to insolvency; or disregard laws and ordinances, rules, regulation, or instructions of a purchasing official; or act in violation of any provision of the contract or these regulations; or if the contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.

f) In the event of any other material breach of contract or other unlawful act by the Bidder such as fraud, theft, misrepresentation, embezzlement, racketeering, consumer fraud, or similar statutes of Illinois or the United States.

(Source: Amended at 10 Ill. Reg. 19104, effective October 27, 1986)

Section 2000.570 Cancellation for Fraud, Collusion, Illegality, Etc.

a) The Director of Purchasing shall cancel any contract if it is established that there is sufficient evidence, by the preponderance of the evidence, to show that

1) The contract was obtained by fraud, collusion, conspiracy, or other unlawful means, or

2) The contract conflicts with any statutory provision of the State of Illinois or of the United States.

b) The Director of Purchasing will notify the Attorney General of the facts upon which such termination or rescission is based in order that he/she may take such action as he/she deems appropriate.

Section 2000.580 Withholding Monies to Compensate State for Damages

If a contract is terminated or rescinded pursuant to this Part, the Agency shall deduct from whatever is owed the Bidder on that or any other contract an amount sufficient to compensate the State of Illinois for any damages suffered by it because of the Bidder's breach of contract or other unlawful act on his/her part on which the cancellation is based.

Section 2000.590 Damages

The damages for which the Agency may be compensated as provided in Section 2000.580 or by a suit on the Bidder's performance bond or by other legal remedy shall include, but is not limited to the following:

a) The additional cost of goods or services bought elsewhere.

b) Cost of repeating the procurement procedure.

c) Any expenses incurred because of delay in receipt of goods or services, and

d) Any other damages caused by the Bidder's breach of contract or unlawful act, such as theft, fraud, misrepresentation, embezzlement, racketeering, consumer fraud, or similar statutes of Illinois or the United States.

SUBPART G: PROTESTS

Section 2000.600 General

The Director of Purchasing shall consider all protests or objections regarding a procurement action which are timely submitted. If the protest or objection is oral and cannot be immediately resolved, written confirmation must be timely submitted as shown below. If the written protest is not received by the time specified, the oral protest may be disregarded and award may be made in the normal manner. Each protest or objection must contain a full and concise statement of the facts and circumstances of the action which is alleged to be objectionable, why the action is objectionable legally or otherwise and a statement of the relief sought. The Director of Purchasing may require additional details if the protests or objection fails to meet the requirements listed in this Section. Failure to supply information requested by the Director of Purchasing will be cause for dismissal of the protest.

Section 2000.610 Time/Place for Protest or Objections

Written protests or objections regarding a procurement action or decision must be received by the Director of Purchasing at his/her office within seven calendar days of the award of the contract.

(Source: Amended at 10 Ill. Reg. 19104, effective October 27, 1986)

Section 2000.620 Suspension of Award

Where a written protest against the making of an award is received, award shall not be considered final until the matter is resolved unless the Director of Purchasing determines that:

a) The items or services to be procured are urgently required to meet the immediate needs of the Agency to avoid impairing the duty, functioning and responsibility of the Agency; or

b) Delivery or performance will be unduly delayed by failure to make award promptly due to inability to resolve the protest.

(Source: Amended at 10 Ill. Reg. 19104, effective October 27, 1986)

Section 2000.630 Evaluation of Protest or Objection

The Director of Purchasing shall immediately investigate the allegations against the procurement action. The nature of the allegations will determine the investigative procedure utilized:

a) In all actions suspending or debarring a Bidder, the Bidder will be required to submit a written statement as required above. After investigation of the allegations, the Director of Purchasing will issue a written final decision.

b) In all other procurement actions, such as contract interpretation or termination, bid procedures, specifications or evaluations, the Bidder will be required to submit a written statement as required above. The Director of Purchasing will investigate the allegations and will issue a final written decision.

Section 2000.640 No Rights Conferred

Receipt of an Invitation for Bids or submission of a bid confers no rights to receive an award nor obligates the Agency in any manner.

Section 2000.650 Attempt to Influence Award

No person on a Bidder's list or who submits or intends to submit a bid shall give or offer to give, directly or indirectly, any money, article, or other thing of value to any Agency officer or employee which gift is intended in any manner to influence the award or administration of an Agency contract. Violation of this provision will result in suspension from bidding, and may result in debarment depending upon the size of the gift, the size of the contract, whether a criminal action is initiated, or a conviction occurs, or to whom the gift is offered, and whether such gift-giving is a standard cause of conduct by the Bidder.

Section 2000.660 Collusive Bids

No person shall agree with another to restrain the competitive procurement process by fixing prices, agreeing not to submit bids or by any other means. If it appears that there is a reasonable basis for believing such an agreement exists, the Director of Purchasing shall immediately contact the Attorney General. If the low price appears to have been arrived at by collusion, award will be suspended until the Attorney General notifies the Director of Purchasing of the appropriate action.

SUBPART H: MISCELLANEOUS

Section 2000.700 Identical Bids

If the Director of Purchasing obtains two or more identical bids in a response to an Invitation for Bids, it shall inform the Attorney General of such facts, in writing within 30 days following the disposition of all bids received in response to an Invitation, whether by the awarding of contracts or other action, in such form and manner as prescribed by the Attorney General.

Section 2000.710 Severability

If any provision of this Part or any application thereof is held invalid, such invalidity shall not affect other provisions or applications of this Part which can be given effect without such invalid provision or application.