SB1647 98TH GENERAL ASSEMBLY

LRB098 08041 HLH 38132 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB1647

Introduced 2/13/2013, by Sen. Kwame Raoul

SYNOPSIS AS INTRODUCED:

New Act
20 ILCS 2705/2705-233 new
20 ILCS 3501/825-108 new
30 ILCS 500/1-10
30 ILCS 535/85 new
30 ILCS 570/2.8 new
30 ILCS 575/2.8 new
735 ILCS 30/15-5-47 new
820 ILCS 130/2	from Ch. 48, par. 39s-2

Creates the Design-Build and Construction Manager/General Contractor Transportation Infrastructure Act. Provides that the Department of Transportation is authorized to use the design-build project delivery method or the construction manager/general contractor delivery method for up to 5 transportation facilities for each delivery method. Contains provisions concerning the procurement process and terms of the contract. Provides that the Department of Transportation has eminent domain and quick take powers under the Act. Amends various other Acts to make conforming changes. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning State government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

ARTICLE 1. DESIGN-BUILD AND CONSTRUCTION MANAGER/GENERAL

CONTRACTOR TRANSPORTATION INFRASTRUCTURE ACT

Section 1-1. Short title. This Act may be cited as the Design-Build and Construction Manager/General Contractor Transportation Infrastructure Act.

Section 1-5. Legislative policy; procedures.

(a) It is the public policy of the State of Illinois to promote the development of infrastructure projects that serve the needs of the public.

(b) The design-build and construction manager/general contractor project delivery methods have the potential to safely deliver infrastructure projects on guaranteed or accelerated schedules, for guaranteed prices, potentially lower costs, and with the ability to shift risks to the private sector that are generally retained by the public in the conventional design-bid-build project delivery method.

(c) It is the intent of the General Assembly that the Illinois Department of Transportation be allowed to carry out a demonstration program related to the design-build and construction manager/general contractor project delivery methods.

(d) The powers granted in this Act are in addition to any other powers authorized under applicable law.

Section 1-10. Definitions. As used in this Act:

"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 the two-phase contract between the Department and a construction manager/general contractor, which includes a first phase addressing preconstruction services and a second phase addressing the construction of the transportation facility.

"Construction manager/general contractor delivery method" means a method of procurement and contracting that makes a construction manager/general contractor who enters in to a contract with the Department 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 and construction services used in this State, which incorporates the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act and the principles of competitive bidding set forth in the Illinois Procurement Code.

"Design-build project delivery method" means a method of procurement and contracting that provides responsibility within a single contract between the Department and a design-builder for the furnishing of architectural, engineering, construction, and related services for a transportation facility, and may also include responsibility for financing of that facility, procured on the basis of a combination of price and non-price factors.

"Design-build contract" means a contract between the Department and a design-builder under which the design-builder agrees to furnish architectural, engineering, construction, and related services for a transportation facility.

"Design-builder" means a proposer that has entered into a design-build contract under this Act.

"Evaluation criteria" means the standards and requirements established by the Department, in its sole discretion, 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.

"Metropolitan Planning Organization" means a metropolitan planning organization designated under 23 U.S.C. Section 134 whose metropolitan planning area boundaries are partially or completely within the State.

"Preconstruction services" means all non-construction-related services that a construction manager/general contractor is allowed to perform during the first phase of a construction manager/general contractor contract, which includes giving advice to the Department regarding scheduling, work sequencing, cost engineering, constructability, cost estimating, and risk identification.

"Proposal" means a proposal submitted by a proposer in response to a request for proposals.

"Proposer" means any individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity that proposes to be the design-builder or construction manager/general contractor for any transportation facility under this Act. A proposer and its members shall conduct themselves in accordance with the laws of this State and the related provisions of the Illinois Administrative Code, as referenced by the licensed design professionals Acts of this State.

"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 Department to solicit proposals 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 delivery method, as applicable.

"Request for qualifications" means the document issued by the Department 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 delivery method, as applicable.

"Scope and performance requirements" means the preferred constructed elements, activities, and standards of performance required by the Department to be complied with in the development of the transportation facility, which may include but not be 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 Department.

"Transportation facility" means any new or existing facility or group of facilities that are the subject of a design-build contract or construction manager/general contractor contract, and which may include highways, roads, bridges, tunnels, overpasses, ferries, airports or other aviation facilities, public transportation facilities, vehicle parking facilities, seaport facilities, rail facilities, intermodal facilities, transit facilities or similar facilities used for the transportation of persons or goods.

Section 1-15. Authorized Project Delivery Methods.

(a) Notwithstanding any other law, and as authority supplemental to its existing powers, the Department, in accordance with this Act, is authorized to use the design-build project delivery method or the construction manager/general contractor delivery method for up to 5 transportation facilities for each delivery method; provided that, prior to commencing a procurement under this Act for either a design-build contract or a construction manager/general contractor contract, the Department has first undertaken an analysis and made a written determination that it is in the best interests of this State to utilize the selected delivery method for that transportation facility. The best interests of the State analysis shall be made available to the public.

(b) The Department shall report to the General Assembly every 2 years on the progress of procurements and transportation facilities procured under this Act. The Department's obligation to submit a progress report for a particular transportation facility shall, as applicable, end two years after (i) the Department's termination of the procurement, (ii) early termination of the design-build contract or construction manager/general contractor contract, or (iii) completion of the transportation facility.

(c) Any transportation facility developed pursuant to this Act must be consistent with the regional plan then in existence of any metropolitan planning organization in whose boundaries the transportation facility is located.

Section 1-20. Preconditions to commencement of procurement. If the Department determines to use either the design-build project delivery method or construction manager/general contractor delivery method for a particular transportation facility, the Department may not commence a procurement for the transportation facility unless one of the following requirements is satisfied: (1) the transportation facility is included in the State's Multi-Year Highway Improvement Program, (2) the Department has issued a notice of intent to receive qualifications at least 14 days prior to the issuance of the request for qualifications, or (3) for a single phase procurement authorized pursuant to subsection (a) of Section 25, the Department has issued a notice of intent to receive proposals at least 14 days prior to the issuance of the request for proposals. If the Department issues one of the notices of intent described above, the Department shall publish the notice of intent in either the official procurement bulletin of the State or the professional services bulletin of the Department. The Department shall include a brief description of the proposed procurement in any notice of intent.

Section 1-25. Procurement process.

(a) The Department 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, requests for qualifications, short-listing of qualified proposers, requests for proposals, negotiations, and best and final offers. The Department shall use a two-phase procurement to select the successful proposer; provided that the Department may use a single phase procurement if the transportation facility is estimated to cost less than $10,000,000 or the Secretary of Transportation makes a written determination that the Department may use a single phase procurement for a particular transportation facility. In a two-phase procurement, the Department shall use the first phase to evaluate and short-list proposers based on qualifications, and then use the second phase to evaluate and select a proposer based on proposals submitted by the short-listed proposers. In a single phase procurement, the Department shall solicit proposers with a request for proposals, and shall evaluate and select a proposer based on proposals.

(b) The request for qualifications may contain any information deemed appropriate by the Department, in its discretion, including, without limitation, the following information:

(1) the anticipated scope of work for the transportation facility;

(2) a requirement that the proposer identify certain key personnel and certain key firms, and the experience of such personnel and firms;

(3) the evaluation criteria for the qualifications and the relative importance of those criteria; the evaluation criteria for qualifications shall, at a minimum, address the proposer's ability and past performance in meeting or exhausting good faith efforts to meet the utilization goals for business enterprises established in the Business Enterprise for Minorities, Females, and Persons with Disabilities Act and in complying with Section 2-105 of the Illinois Human Rights Act; the evaluation criteria for qualifications may also address, without limitation, the proposer's technical qualifications, such as specialized experience, technical competence, capability to perform, and past performance, including the proposer's safety record;

(4) the Department's normal prequalification, licensing and registration requirements to the extent deemed applicable by the Department, provided that nothing contained herein precludes the Department's use of additional prequalification criteria or pass/fail evaluation factors addressing minimum levels of technical experience or financial capabilities;

(5) the maximum number of proposers the Department will short-list to submit proposals; and

(6) any other relevant information.

(c) Upon completion of the qualifications evaluation, the Department shall, based on the evaluation criteria set forth in the request for qualifications, create a short-list of proposers. The Department shall short-list no fewer than 2 proposers unless (i) fewer than 2 proposers submit qualifications, (ii) fewer than 2 proposers meet the applicable prequalification and pass/fail requirements, or (iii) the Secretary of Transportation makes a finding that the Department may short-list fewer than 2 proposers.

(d) The request for proposals may contain any information deemed appropriate by the Department, in its discretion, including, without limitation, the following information:

(1) the scheduled date for completion of the transportation facility;

(2) the form and amount of required bid security;

(3) the material terms of the design-build contract or construction manager/general contractor contract, as applicable, including, but not limited to, scope and performance requirements, payment and performance security requirements, insurance requirements and the entity's plan to comply with disadvantaged business enterprises requirements and with Section 2-105 of the Illinois Human Rights Act;

(4) the proposed budget for the project;

(5) the requirements for the technical component of the proposal, including a description of the level of design, scope and type of renderings, drawings, and specifications to be provided in the proposals;

(6) the requirements for the price component of the 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 a percentage mark-up on those direct costs;

(7) the evaluation criteria for the proposals and the relative importance of those criteria, including any formulas to be employed by the Department; as the Department deems appropriate, the technical proposal evaluation criteria may, without limitation, include compliance with the Department's stated objectives for the project, the proposal's compliance with the request for proposal requirements, the level of quality of proposed products or materials, and the quality of the proposed design;

(8) in the case of a single phase procurement, requirements regarding the proposer's qualifications; or

(9) any other relevant information.

(e) The Department shall have the right to reject any and all qualifications or proposals, including, but not limited to the right to reject any proposal as non-responsive if the proposal does not meet all material requirements of the request for proposals. The Department shall not consider a proposal that does not include: (i) the proposer's plan to comply with requirements regarding utilization of minority and women business enterprises and economically disadvantaged firms established by the Department; or (ii) bid security in the form and amount designated in the request for proposals.

(f) The Department may offer to pay a stipend in an amount and on the terms and conditions determined by the Department to (i) all short-listed proposers if the Department cancels the procurement before the due date for proposals or (ii) each unsuccessful proposer that submits a responsive proposal. The Department may pay a stipend only to those proposers who agree that their proposal and other proposal-related submissions will become the property of the Department.

(g) The Department shall directly employ or retain a professional engineer licensed in the State to assist in the evaluation of the proposals' technical submissions under a design-build project delivery method and determine if the submissions are in accordance with generally accepted industry standards

(h) The date proposals are due must be at least 21 calendar days after the date of the issuance of the request for proposals. In the event the cost of the project is estimated to exceed $10,000,000, the proposal due date must be at least 28 calendar days after the date of the issuance of the request for proposals.

Section 1-30. Procedures for selection. Upon completion of the evaluation of proposals, if the Department decides to award a design-build contract or construction manager/general contractor contract, as applicable, the Department shall award the contract to the proposer whose proposal is determined to offer the best value to the public based on the evaluation criteria set forth in the request for proposals. Notwithstanding the above, if, for any reason, the proposer submitting the best value proposal is unable or unwilling to execute the contract, including the failure of the proposer and the Department to successfully complete negotiations of the contract, the Department may award the contract to the proposer whose proposal offers the public the next best value.

Section 1-35. Project records, confidentiality, and public disclosure.

(a) The Department shall maintain all written decisions, evaluations, scoring documents, selection evaluations, proposals and procurement documents in a contract file maintained by the Department.

(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. In order for the Department to consider confidential and proprietary information and trade secrets to be exempt from disclosure, the proposer shall do all of the following:

(1) request exclusion from disclosure upon submission of the information or other materials for which protection is sought;

(2) identify the data or other materials for which protection is sought;

(3) state the reasons why protection is necessary; and

(4) fully comply with the federal Freedom of Information Act and any other applicable provisions of State law with respect to information the proposer contends should be exempt from disclosure.

(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, qualifications, proposals, other information and documents submitted by proposers and the Department's evaluation records shall not be subject to release or disclosure by the Department until execution of the design-build contract or construction manager/general contractor contract, as applicable. If the Department rejects all qualifications submitted in response to a request for qualifications, or rejects all proposals submitted in response to a request for proposals, the exemption from release or disclosure under this section shall remain in place until the Department 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 Department does not commence the re-procurement of the transportation facility within one year of its rejection of the responses to the request for qualifications or request for proposals.

Section 1-40. Design-build contract. A design-build contract may include any provisions the Department determines are necessary or appropriate, including but not limited to provisions regarding the following:

(1) compensation or payments to the design-builder;

(2) grounds for termination of the design-build contract, including the Department's right to terminate for convenience;

(3) liability for damages and nonperformance;

(4) events of default and the rights and remedies available to the design-builder and the Department in the event of a default or delay;

(5) terms for the design-builder's compliance with disadvantaged business enterprises requirements and with Section 2-105 of the Illinois Human Rights Act;

(6) the identification of any technical specifications that the design-builder must comply with when developing plans or performing construction work;

(7) the procedures for review and approval of the design-builder's plans;

(8) required performance and payment security;

(9) the terms and conditions of indemnification and minimum insurance requirements; or

(10) any other terms and conditions.

Section 1-45. Construction Manager/General Contractor Contract.

(a) The construction manager/general contractor contract shall divide the construction manager/general contractor's services into two phases. The first phase shall address preconstruction services and the procedures the parties will 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;

(2) a requirement that, during the first phase of the contract, the construction manager/general contractor use a competitive bidding process to procure subcontracts for at least 70% of the construction work, provided that (i) compliance with this requirement will be based on an estimated cost for the construction work approved by the Department prior to the start of the competitive bidding process and (ii) the construction manager/general contractor may not use subcontracts with wholly or partially owned subsidiaries, parent companies or affiliates to satisfy this obligation;

(3) the process the Department and construction manager/general contractor will use to determine a lump sum or guaranteed maximum price for the construction work, which shall include a requirement that the Department conduct an independent cost estimate for the construction work; and

(4) grounds for termination of the construction manager/general contractor contract, including the Department's right to terminate the contract and not proceed with the construction phase of the project if the Department and construction manager/general contractor are unable to negotiate a guaranteed maximum price for the construction work.

(c) In addition to the provisions set forth in subsection (b), a construction manager/general contractor contract may include any other provisions the Department 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 available to the construction manager/general contractor and the Department in the event of a default or delay;

(3) terms for the construction manager/general contractor's compliance with disadvantaged business enterprises requirements and with Section 2-105 of the Illinois Human Rights Act for any construction work performed under the construction manager/general contractor contract;

(4) the identification of any technical specifications that the construction manager/general contractor must comply with when aiding the Department with developing plans or performing construction work;

(5) required performance and payment security for the construction phase of the contract;

(6) the terms and conditions of indemnification and minimum insurance requirements; and

(7) any other terms and conditions.

(d) If the construction manager/general contractor contract is terminated for any reason, the Department may, in its sole discretion, re-advertise 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 Department may use any work product developed by the construction manager/general contractor to complete the transportation facility. The construction manager/general contractor whose contract was terminated may not bid on or join a team that is bidding on the subsequent contract or contracts for the transportation facility.

Section 1-50. Labor.

(a) The design-builder and construction manager/general contractor, and all subcontractors to them, shall comply with the requirements of the Prevailing Wage Act, the Equal Pay Act of 2003, the Public Works Employment Discrimination Act, the Employment of Illinois Workers on Public Works Act, Section 2-105 of the Illinois Human Rights Act, and federal equal employment laws and practices, unless the application of those requirements would jeopardize the receipt or use of federal funds for a transportation facility.

(b) The design-builder and construction manager/general contractor, and all subcontractors to them, shall comply with the requirements of federal disadvantaged business laws and practices or the Business Enterprise for Minorities, Females, and Persons with Disabilities Act. Disadvantaged business enterprise program compliance, enforcement, and monitoring shall be as established by federal law.

(c) The Department shall consider requiring the use of a project labor agreement in connection with the development of a transportation facility under this Act.

Section 1-55. Funding and financing.

(a) The Department may utilize any lawful source of funding and financing to compensate a design-builder and construction manager/general contractor for work and services performed under a design-build contract or construction manager/general contractor contract, as applicable, and the Department may combine federal, State, local, and private funds to finance a transportation facility.

(b) The Department may impose financing obligations and other financial responsibilities on a design-builder or construction manager/general contractor in order to finance a portion of the costs of a transportation facility.

(c) Subject to appropriation by the General Assembly of the required amounts, the Department may obligate and make expenditures of funds as and when needed to satisfy its payment obligations under a design-build contract or construction manager/general contractor contract.

Section 1-60. Acquisition of property and related agreements. The Department may exercise any and all powers of condemnation or eminent domain, including quick-take powers, to acquire lands or estates or interests in land for a transportation facility under this Act or to the extent the Department finds that the action serves the public purpose of this Act and deems the action appropriate in the exercise of its powers under this Act. In addition, the Department and a design-builder or construction manager/general contractor may enter into leases, licenses, easements, and other grants of property interests that the Department determines necessary to carry out this Act.

Section 1-65. Administrative Procedure Act. The Illinois Administrative Procedure Act applies to all administrative rules and procedures of the Department under this Act except that nothing herein shall be construed to render any prequalification or other responsibility criteria as a "license" or "licensing" under that Act.

Section 1-70. Federal requirements. In the procurement of design-build contracts and construction manager/general contractor contracts, the Department shall comply with federal law and regulations and take all necessary steps to adapt its rules, policies, and procedures to remain eligible for federal aid.

Section 1-75. Powers. The powers granted to the Department under this Act shall be liberally construed to accomplish its purpose, are in addition to any existing powers of the Department, and shall not affect or impair any other powers authorized under applicable law. This includes powers to procure and enter into design-build contracts and construction manager/general contractor contracts under this Act.

Section 1-80. Rules. The Department may adopt rules to carry out the provisions of this Act.

Section 1-85. Repealer. This Act is repealed on the date that is 5 years after the effective date of this Act; provided that any design-build contracts and construction manager/general contractor contracts entered into before such date or any procurement of a transportation facility under this Act commenced before such date, and the contracts resulting from those procurements, shall remain effective.

ARTICLE 5. AMENDATORY PROVISIONS

Section 5-5. The Department of Transportation Law of the Civil Administrative Code of Illinois is amended by adding Section 2705-233 as follows:

(20 ILCS 2705/2705-233 new)

Sec. 2705-233. Design-build and construction manager/general contractor for transportation infrastructure. The Department may exercise all powers granted to it under the Design-Build and Construction Manager/General Contractor Transportation Infrastructure Act, including the power to enter into all contracts or agreements necessary or incidental to the performance of its powers under the Act, and powers related to any transportation facility implemented pursuant to that Act.

Section 5-10. The Illinois Finance Authority Act is amended by adding Section 825-108 as follows:

(20 ILCS 3501/825-108 new)

Sec. 825-108. Transportation project financing. For the purpose of financing a transportation facility undertaken under the Design-Build and Construction Manager/General Contractor Transportation Infrastructure Act, the Authority is authorized to apply for an allocation of tax-exempt bond financing authorization provided by Section 142(m) of the United States Internal Revenue Code, as well as financing available under any other federal law or program.

Section 5-15. The Illinois Procurement Code is amended by changing Section 1-10 as follows:

(30 ILCS 500/1-10)

Sec. 1-10. Application.

(a) This Code applies only to procurements for which contractors were first solicited on or after July 1, 1998. This Code shall not be construed to affect or impair any contract, or any provision of a contract, entered into based on a solicitation prior to the implementation date of this Code as described in Article 99, including but not limited to any covenant entered into with respect to any revenue bonds or similar instruments. All procurements for which contracts are solicited between the effective date of Articles 50 and 99 and July 1, 1998 shall be substantially in accordance with this Code and its intent.

(b) This Code shall apply regardless of the source of the funds with which the contracts are paid, including federal assistance moneys. This Code shall not apply to:

(1) Contracts between the State and its political subdivisions or other governments, or between State governmental bodies except as specifically provided in this Code.

(2) Grants, except for the filing requirements of Section 20-80.

(3) Purchase of care.

(4) Hiring of an individual as employee and not as an independent contractor, whether pursuant to an employment code or policy or by contract directly with that individual.

(5) Collective bargaining contracts.

(6) Purchase of real estate, except that notice of this type of contract with a value of more than $25,000 must be published in the Procurement Bulletin within 7 days after the deed is recorded in the county of jurisdiction. The notice shall identify the real estate purchased, the names of all parties to the contract, the value of the contract, and the effective date of the contract.

(7) Contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations, provided that the chief legal counsel to the Governor shall give his or her prior approval when the procuring agency is one subject to the jurisdiction of the Governor, and provided that the chief legal counsel of any other procuring entity subject to this Code shall give his or her prior approval when the procuring entity is not one subject to the jurisdiction of the Governor.

(8) Contracts for services to Northern Illinois University by a person, acting as an independent contractor, who is qualified by education, experience, and technical ability and is selected by negotiation for the purpose of providing non-credit educational service activities or products by means of specialized programs offered by the university.

(9) Procurement expenditures by the Illinois Conservation Foundation when only private funds are used.

(10) Procurement expenditures by the Illinois Health Information Exchange Authority involving private funds from the Health Information Exchange Fund. "Private funds" means gifts, donations, and private grants.

(11) Public-private agreements entered into according to the procurement requirements of Section 20 of the Public-Private Partnerships for Transportation Act and design-build agreements entered into according to the procurement requirements of Section 25 of the Public-Private Partnerships for Transportation Act.

(c) This Code does not apply to the electric power procurement process provided for under Section 1-75 of the Illinois Power Agency Act and Section 16-111.5 of the Public Utilities Act.

(d) Except for Section 20-160 and Article 50 of this Code, and as expressly required by Section 9.1 of the Illinois Lottery Law, the provisions of this Code do not apply to the procurement process provided for under Section 9.1 of the Illinois Lottery Law.

(e) This Code does not apply to the process used by the Capital Development Board to retain a person or entity to assist the Capital Development Board with its duties related to the determination of costs of a clean coal SNG brownfield facility, as defined by Section 1-10 of the Illinois Power Agency Act, as required in subsection (h-3) of Section 9-220 of the Public Utilities Act, including calculating the range of capital costs, the range of operating and maintenance costs, or the sequestration costs or monitoring the construction of clean coal SNG brownfield facility for the full duration of construction.

(f) This Code does not apply to the process used by the Illinois Power Agency to retain a mediator to mediate sourcing agreement disputes between gas utilities and the clean coal SNG brownfield facility, as defined in Section 1-10 of the Illinois Power Agency Act, as required under subsection (h-1) of Section 9-220 of the Public Utilities Act.

(g) This Code does not apply to the processes used by the Illinois Power Agency to retain a mediator to mediate contract disputes between gas utilities and the clean coal SNG facility and to retain an expert to assist in the review of contracts under subsection (h) of Section 9-220 of the Public Utilities Act. This Code does not apply to the process used by the Illinois Commerce Commission to retain an expert to assist in determining the actual incurred costs of the clean coal SNG facility and the reasonableness of those costs as required under subsection (h) of Section 9-220 of the Public Utilities Act.

(h) This Code does not apply to the process to procure or contracts entered into in accordance with Sections 11-5.2 and 11-5.3 of the Illinois Public Aid Code.

(i) (h) Each chief procurement officer may access records necessary to review whether a contract, purchase, or other expenditure is or is not subject to the provisions of this Code, unless such records would be subject to attorney-client privilege.

(j) Except for Section 20-160 and Article 50 of this Code, the provisions of this Code do not apply to design-build contracts or construction manager/general contractor contracts entered into according to the procurement requirements of the Design-Build and Construction Manager/General Contractor Transportation Infrastructure Act.

(Source: P.A. 96-840, eff. 12-23-09; 96-1331, eff. 7-27-10; 97-96, eff. 7-13-11; 97-239, eff. 8-2-11; 97-502, eff. 8-23-11; 97-689, eff. 6-14-12; 97-813, eff. 7-13-12; 97-895, eff. 8-3-12; revised 8-23-12.)

Section 5-20. The Architectural, Engineering, and Land Surveying Qualifications Based Selection Act is amended by adding Section 85 as follows:

(30 ILCS 535/85 new)

Sec. 85. Design-Build and Construction Manager/General Contractor Contracts. This Act shall not apply to the procurement of or contracting for transportation facilities pursuant to design-build contracts or construction manager/general contractor contracts under the Design-Build and Construction Manager/General Contractor Transportation Infrastructure Act.

Section 5-25. The Employment of Illinois Workers on Public Works Act is amended by adding Section 2.8 as follows:

(30 ILCS 570/2.8 new)

Sec. 2.8. Design-build and construction manager/general contractor contracts. This Act applies to any construction work undertaken pursuant to design-build contracts and construction manager/general contractor contracts entered into under the Design-Build and Construction Manager/General Contractor Transportation Infrastructure Act.

Section 5-26. The Business Enterprise for Minorities, Females, and Persons with Disabilities Act is amended by adding Section 2.8 as follows:

(30 ILCS 575/2.8 new)

Sec. 2.8. Design-build and construction manager/general contractor contracts. This Act applies to any design-build contracts and construction manager/general contractor contracts entered into under the Design-Build and Construction Manager/General Contractor Transportation Infrastructure Act.

Section 5-27. The Eminent Domain Act is amended by adding Section 15-5-47 as follows:

(735 ILCS 30/15-5-47 new)

Sec. 15-5-47. Eminent domain powers in new Acts. The following provisions of law may include express grants of the power to acquire property by condemnation or eminent domain: The Design-Build and Construction Manager/General Contractor Transportation Infrastructure Act; Department of Transportation; for the purposes of constructing a transportation facility under the Act and to serve the public purpose of the Act.

Section 5-30. The Prevailing Wage Act is amended by changing Section 2 as follows:

(820 ILCS 130/2) (from Ch. 48, par. 39s-2)

Sec. 2. This Act applies to the wages of laborers, mechanics and other workers employed in any public works, as hereinafter defined, by any public body and to anyone under contracts for public works. This includes any maintenance, repair, assembly, or disassembly work performed on equipment whether owned, leased, or rented.

As used in this Act, unless the context indicates otherwise:

"Public works" means all fixed works constructed or demolished by any public body, or paid for wholly or in part out of public funds. "Public works" as defined herein includes all projects financed in whole or in part with bonds, grants, loans, or other funds made available by or through the State or any of its political subdivisions, including but not limited to: bonds issued under the Industrial Project Revenue Bond Act (Article 11, Division 74 of the Illinois Municipal Code), the Industrial Building Revenue Bond Act, the Illinois Finance Authority Act, the Illinois Sports Facilities Authority Act, or the Build Illinois Bond Act; loans or other funds made available pursuant to the Build Illinois Act; or funds from the Fund for Illinois' Future under Section 6z-47 of the State Finance Act, funds for school construction under Section 5 of the General Obligation Bond Act, funds authorized under Section 3 of the School Construction Bond Act, funds for school infrastructure under Section 6z-45 of the State Finance Act, and funds for transportation purposes under Section 4 of the General Obligation Bond Act. "Public works" also includes (i) all projects financed in whole or in part with funds from the Department of Commerce and Economic Opportunity under the Illinois Renewable Fuels Development Program Act for which there is no project labor agreement; (ii) all work performed pursuant to a public private agreement under the Public Private Agreements for the Illiana Expressway Act; and (iii) all projects undertaken under a public-private agreement under the Public-Private Partnerships for Transportation Act; and (iv) all transportation facilities undertaken under a design-build contract or construction manager/general contractor contract pursuant to the Design-Build and Construction Manager/General Contractor Transportation Infrastructure Act. "Public works" also includes all projects at leased facility property used for airport purposes under Section 35 of the Local Government Facility Lease Act. "Public works" also includes the construction of a new wind power facility by a business designated as a High Impact Business under Section 5.5(a)(3)(E) of the Illinois Enterprise Zone Act. "Public works" does not include work done directly by any public utility company, whether or not done under public supervision or direction, or paid for wholly or in part out of public funds. "Public works" does not include projects undertaken by the owner at an owner-occupied single-family residence or at an owner-occupied unit of a multi-family residence.

"Construction" means all work on public works involving laborers, workers or mechanics. This includes any maintenance, repair, assembly, or disassembly work performed on equipment whether owned, leased, or rented.

"Locality" means the county where the physical work upon public works is performed, except (1) that if there is not available in the county a sufficient number of competent skilled laborers, workers and mechanics to construct the public works efficiently and properly, "locality" includes any other county nearest the one in which the work or construction is to be performed and from which such persons may be obtained in sufficient numbers to perform the work and (2) that, with respect to contracts for highway work with the Department of Transportation of this State, "locality" may at the discretion of the Secretary of the Department of Transportation be construed to include two or more adjacent counties from which workers may be accessible for work on such construction.

"Public body" means the State or any officer, board or commission of the State or any political subdivision or department thereof, or any institution supported in whole or in part by public funds, and includes every county, city, town, village, township, school district, irrigation, utility, reclamation improvement or other district and every other political subdivision, district or municipality of the state whether such political subdivision, municipality or district operates under a special charter or not.

The terms "general prevailing rate of hourly wages", "general prevailing rate of wages" or "prevailing rate of wages" when used in this Act mean the hourly cash wages plus fringe benefits for training and apprenticeship programs approved by the U.S. Department of Labor, Bureau of Apprenticeship and Training, health and welfare, 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 on public works.

(Source: P.A. 96-28, eff. 7-1-09; 96-58, eff. 1-1-10; 96-186, eff. 1-1-10; 96-913, eff. 6-9-10; 96-1000, eff. 7-2-10; 97-502, eff. 8-23-11.)

ARTICLE 99. EFFECTIVE DATE AND SEVERABILITY

Section 99-97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 99-99. Effective date. This Act takes effect upon becoming law.