(630 ILCS 5/20)

Sec. 20. Procurement process.

(a) A transportation agency seeking to enter into a public-private partnership with a private entity for the development, finance, and operation of a transportation facility as a transportation project shall determine and set forth the criteria for the selection process. The transportation agency shall use (i) a competitive sealed bidding process, (ii) a competitive sealed proposal process, or (iii) a design-build procurement process in accordance with Section 25 of this Act. Before using one of these processes the transportation agency may use a request for information to obtain information relating to possible public-private partnerships.

(b) If a transportation project will require the performance of design work, the transportation agency shall use the shortlist selection process set forth in subsection (g) of this Section to evaluate and shortlist private entities based on qualifications, including but not limited to design qualifications.

A request for qualifications, request for proposals, or public-private agreement awarded to a contractor for a transportation project shall require that any subsequent need for architectural, engineering, or land surveying services which arises after the submittal of the request for qualifications or request for proposals or the awarding of the public-private agreement shall be procured by the contractor using a qualifications-based selection process consisting of:

(1) the publication of notice of availability of services;

(2) a statement of desired qualifications;

(3) an evaluation based on the desired qualifications;

(4) the development of a shortlist ranking the firms in order of qualifications; and

(5) negotiations with the ranked firms for a fair and reasonable fee.

Compliance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act shall be deemed prima facie compliance with this subsection (b). Every transportation project contract shall include provisions setting forth the requirements of this subsection (b).

(c) Prior to commencing a procurement for a transportation project under this Act, the transportation agency shall notify any other applicable public agency, including the Authority, in all cases involving toll facilities where the Department would commence the procurement, of its interest in undertaking the procurement and shall provide the other public agency or agencies with an opportunity to offer to develop and implement the transportation project. The transportation agency shall supply the other public agency or agencies with no less than the same level and type of information concerning the project that the transportation agency would supply to private entities in the procurement, unless that information is not then available, in which case the transportation agency shall supply the other public agency or agencies with the maximum amount of relevant information about the project as is then reasonably available. The transportation agency shall make available to the other public agencies the same subsidies, benefits, concessions, and other consideration that it intends to make available to the private entities in the procurement.

The public agencies shall have a maximum period of 60 days to review the information about the proposed transportation project and to respond to the transportation agency in writing to accept or reject the opportunity to develop and implement the transportation project. If a public agency rejects the opportunity during the 60-day period, then the public agency may not participate in the procurement for the proposed transportation project by submitting a proposal of its own. If a public agency fails to accept or reject this opportunity in writing within the 60-day period, it shall be deemed to have rejected the opportunity.

If a public agency accepts the opportunity within the 60-day period, then the public agency shall have up to 120 days (or a longer period, if extended by the transportation agency), to (i) submit to the transportation agency a reasonable plan for development of the transportation project; (ii) if applicable, make an offer of reasonable consideration for the opportunity to undertake the transportation project; and (iii) negotiate a mutually acceptable intergovernmental agreement with the transportation agency that facilitates the development of the transportation project and requires that the transportation agency follow its procurement procedures under the Illinois Procurement Code and applicable rules rather than this Act. In considering whether a public agency's plan for developing and implementing the project is reasonable, the transportation agency shall consider the public agency's history of developing and implementing similar projects, the public agency's current capacity to develop and implement the proposed project, the user charges, if any, contemplated by the public agency's plan and how these user charges compare with user charges that would be imposed by a private entity developing and implementing the same project, the project delivery schedule proposed by the public agency, and other reasonable factors that are necessary, including consideration of risks and whether subsidy costs may be reduced, to determine whether development and implementation of the project by the public agency is in the best interest of the people of this State.

(d) If the transportation agency rejects or fails to negotiate mutually acceptable terms regarding a public agency's plan for developing and implementing the transportation project during the 120-day period described in subsection (c), then the public agency may not participate in the procurement for the proposed transportation project by submitting a proposal of its own. Following a rejection or failure to reach agreement regarding a public agency's plan, if the transportation agency later proceeds with a procurement in which it materially changes (i) the nature or scope of the project; (ii) any subsidies, benefits, concessions, or other significant project-related considerations made available to the bidders; or (iii) any other terms of the project, as compared to when the transportation agency supplied information about the project to public agencies under subsection (c), then the transportation agency shall give public agencies another opportunity in accordance with subsection (c) to provide proposals for developing and implementing the project.

(e) Nothing in this Section 20 requires a transportation agency to go through a procurement process prior to developing and implementing a project through a public agency as described in subsection (c).

(f) All procurement processes shall incorporate requirements and set forth goals for participation by disadvantaged business enterprises as allowed under State and federal law.

(g) The transportation agency shall establish a process to shortlist potential private entities. The transportation agency shall: (i) provide a public notice of the shortlisting process for such period as deemed appropriate by the agency; (ii) set forth requirements and evaluation criteria in a request for qualifications; (iii) develop a shortlist by determining which private entities that have submitted statements of qualification, if any, meet the minimum requirements and best satisfy the evaluation criteria set forth in the request for qualifications; and (iv) allow only those entities, or groups of entities such as unincorporated joint ventures, that have been shortlisted to submit proposals or bids. Throughout the procurement period and as necessary following the award of a contract, the transportation agency shall make publicly available on its website information regarding firms that are prequalified by the transportation agency pursuant to Section 20 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act to provide architectural, engineering, and land surveying services. The transportation agencies shall require private entities to use firms prequalified under this Act to provide architectural, engineering, and land surveying services. Firms identified to provide architectural, engineering, and land surveying services in a statement of qualifications shall be prequalified under the Act to provide the identified services prior to the transportation agency's award of the contract.

(h) Competitive sealed bidding requirements:

(1) All contracts shall be awarded by competitive sealed bidding except as otherwise provided in subsection (i) of this Section and Section 25 of this Act.

(2) An invitation for bids shall be issued and shall include a description of the public-private partnership with a private entity for the development, finance, and operation of a transportation facility as a transportation project, and the material contractual terms and conditions applicable to the procurement.

(3) Public notice of the invitation for bids shall be published in the State of Illinois Procurement Bulletin at least 21 days before the date set in the invitation for the opening of bids.

(4) Bids shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The name of each bidder, the amount of each bid, and other relevant information as may be specified by rule shall be recorded. After the award of the contract, the winning bid and the record of each unsuccessful bid shall be open to public inspection.

(5) Bids shall be unconditionally accepted without alteration or correction, except as authorized in this Act. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award, such as discounts, transportation costs, and total or life cycle costs, shall be objectively measurable. The invitation for bids shall set forth the evaluation criteria to be used.

(6) Correction or withdrawal of inadvertently erroneous bids before or after award, or cancellation of awards of contracts based on bid mistakes, shall be permitted in accordance with rules. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the State or fair competition shall be permitted. All decisions to permit the correction or withdrawal of bids based on bid mistakes shall be supported by written determination made by the transportation agency.

(7) The contract shall be awarded with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids, except when the transportation agency determines it is not in the best interest of the State and by written explanation determines another bidder shall receive the award. The explanation shall appear in the appropriate volume of the State of Illinois Procurement Bulletin. The written explanation must include:

(A) a description of the agency's needs;

(B) a determination that the anticipated cost will be fair and reasonable;

(C) a listing of all responsible and responsive bidders; and

(D) the name of the bidder selected, pricing, and the reasons for selecting that bidder.

(8) When it is considered impracticable to initially prepare a purchase description to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced offers to be followed by an invitation for bids limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation.

(i) Competitive sealed proposal requirements:

(1) When the transportation agency determines in writing that the use of competitive sealed bidding or design-build procurement is either not practicable or not advantageous to the State, a contract may be entered into by competitive sealed proposals.

(2) Proposals shall be solicited through a request for proposals.

(3) Public notice of the request for proposals shall be published in the State of Illinois Procurement Bulletin at least 21 days before the date set in the invitation for the opening of proposals.

(4) Proposals shall be opened publicly in the presence of one or more witnesses at the time and place designated in the request for proposals, but proposals shall be opened in a manner to avoid disclosure of contents to competing offerors during the process of negotiation. A record of proposals shall be prepared and shall be open for public inspection after contract award.

(5) The requests for proposals shall state the relative importance of price and other evaluation factors. Proposals shall be submitted in 2 parts: (i) covering items except price; and (ii) covering price. The first part of all proposals shall be evaluated and ranked independently of the second part of all proposals.

(6) As provided in the request for proposals and under any applicable rules, discussions may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarifying and assuring full understanding of and responsiveness to the solicitation requirements. Those offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. Revisions may be permitted after submission and before award for the purpose of obtaining best and final offers. In conducting discussions there shall be no disclosure of any information derived from proposals submitted by competing offerors. If information is disclosed to any offeror, it shall be provided to all competing offerors.

(7) Awards shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the State, taking into consideration price and the evaluation factors set forth in the request for proposals. The contract file shall contain the basis on which the award is made.

(j) In the case of a proposal or proposals to the Department or the Authority, the transportation agency shall determine, based on its review and evaluation of the proposal or proposals received in response to the request for proposals, which one or more proposals, if any, best serve the public purpose of this Act and satisfy the criteria set forth in the request for proposals and, with respect to such proposal or proposals, shall:

(1) submit the proposal or proposals to the Commission on Government Forecasting and Accountability, which, within 20 days of submission by the transportation agency, shall complete a review of the proposal or proposals and report on the value of the proposal or proposals to the State;

(2) hold one or more public hearings on the proposal or proposals, publish notice of the hearing or hearings at least 7 days before the hearing, and include the following in the notice: (i) the date, time, and place of the hearing and the address of the transportation agency, (ii) the subject matter of the hearing, (iii) a description of the agreement to be awarded, (iv) the determination made by the transportation agency that such proposal or proposals best serve the public purpose of this Act and satisfy the criteria set forth in the request for proposals, and (v) that the public may be heard on the proposal or proposals during the public hearing; and

(3) determine whether or not to recommend to the Governor that the Governor approve the proposal or proposals.

The Governor may approve one or more proposals recommended by the Department or the Authority based upon the review, evaluation, and recommendation of the transportation agency, the review and report of the Commission on Government Forecasting and Accountability, the public hearing, and the best interests of the State.

(k) In addition to any other rights under this Act, in connection with any procurement under this Act, the following rights are reserved to each transportation agency:

(1) to withdraw a request for information, a request for qualifications, or a request for proposals at any time, and to publish a new request for information, request for qualifications, or request for proposals;

(2) to not approve a proposal for any reason;

(3) to not award a public-private agreement for any reason;

(4) to request clarifications to any statement of information, qualifications, or proposal received, to seek one or more revised proposals or one or more best and final offers, or to conduct negotiations with one or more private entities that have submitted proposals;

(5) to modify, during the pendency of a procurement, the terms, provisions, and conditions of a request for information, request for qualifications, or request for proposals or the technical specifications or form of a public-private agreement;

(6) to interview proposers; and

(7) any other rights available to the transportation agency under applicable law and regulations.

(l) If a proposal is approved, the transportation agency shall execute the public-private agreement, publish notice of the execution of the public-private agreement on its website and in a newspaper or newspapers of general circulation within the county or counties in which the transportation project is to be located, and publish the entire agreement on its website. Any action to contest the validity of a public-private agreement entered into under this Act must be brought no later than 60 days after the date of publication of the notice of execution of the public-private agreement.

(m) For any transportation project with an estimated construction cost of over $50,000,000, the transportation agency may also require the approved proposer to pay the costs for an independent audit of any and all traffic and cost estimates associated with the approved proposal, as well as a review of all public costs and potential liabilities to which taxpayers could be exposed (including improvements to other transportation facilities that may be needed as a result of the approved proposal, failure by the approved proposer to reimburse the transportation agency for services provided, and potential risk and liability in the event the approved proposer defaults on the public-private agreement or on bonds issued for the project). If required by the transportation agency, this independent audit must be conducted by an independent consultant selected by the transportation agency, and all information from the review must be fully disclosed.

(n) The transportation agency may also apply for, execute, or endorse applications submitted by private entities to obtain federal credit assistance for qualifying projects developed or operated pursuant to this Act.

(Source: P.A. 97-502, eff. 8-23-11; 97-858, eff. 7-27-12.)