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90_HB1248
5 ILCS 100/1-5 from Ch. 127, par. 1001-5
30 ILCS 505/5.2 from Ch. 127, par. 132.5-2
30 ILCS 505/6 from Ch. 127, par. 132.6
Amends the Illinois Purchasing Act. Establishes
suspension and debarment procedures for contractors, bidders,
or other persons who breach a public contract or commit an
act that indicates a lack of business integrity or honesty.
Provides that a debarment from contracts, subcontracts, and
related services may be for 5 years or more and that a
suspension from them may be for 5 years or less. Provides
that a State agency may not enter into a contract with a
suspended or debarred contractor unless upon the written
determination of the agency director that the contract would
be in the best interest of the State. Amends the Illinois
Purchasing Act and the Illinois Administrative Procedure Act
to provide that the contested case procedures of the Illinois
Administrative Procedure Act do not apply to the suspension
and debarrment procedures under the Illinois Purchasing Act.
Effective immediately.
LRB9002035PTcw
LRB9002035PTcw
1 AN ACT concerning State contract procedures.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Illinois Administrative Procedure Act is
5 amended by changing Section 1-5 as follows:
6 (5 ILCS 100/1-5) (from Ch. 127, par. 1001-5)
7 Sec. 1-5. Applicability.
8 (a) This Act applies to every agency as defined in this
9 Act. Beginning January 1, 1978, in case of conflict between
10 the provisions of this Act and the Act creating or conferring
11 power on an agency, this Act shall control. If, however, an
12 agency has existing procedures on July 1, 1977, specifically
13 for contested cases or licensing, those existing provisions
14 control, except that this exception respecting contested
15 cases and licensing does not apply if the Act creating or
16 conferring power on the agency adopts by express reference
17 the provisions of this Act. The contested case procedures of
18 this Act do not apply to the suspension and debarrment
19 procedures under subsection d of Section 6 of the Illinois
20 Purchasing Act. Where the Act creating or conferring power on
21 an agency establishes administrative procedures not covered
22 by this Act, those procedures shall remain in effect.
23 (b) The provisions of this Act do not apply to (i)
24 preliminary hearings, investigations, or practices where no
25 final determinations affecting State funding are made by the
26 State Board of Education, (ii) legal opinions issued under
27 Section 2-3.7 of the School Code, (iii) as to State colleges
28 and universities, their disciplinary and grievance
29 proceedings, academic irregularity and capricious grading
30 proceedings, and admission standards and procedures, and (iv)
31 the class specifications for positions and individual
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1 position descriptions prepared and maintained under the
2 Personnel Code. Those class specifications shall, however,
3 be made reasonably available to the public for inspection and
4 copying. The provisions of this Act do not apply to hearings
5 under Section 20 of the Uniform Disposition of Unclaimed
6 Property Act.
7 (c) Section 5-35 of this Act relating to procedures for
8 rulemaking does not apply to the following:
9 (1) Rules adopted by the Pollution Control Board
10 that, in accordance with Section 7.2 of the Environmental
11 Protection Act, are identical in substance to federal
12 regulations or amendments to those regulations
13 implementing the following: Sections 3001, 3002, 3003,
14 3004, 3005, and 9003 of the Solid Waste Disposal Act;
15 Section 105 of the Comprehensive Environmental Response,
16 Compensation, and Liability Act of 1980; Sections 307(b),
17 307(c), 307(d), 402(b)(8), and 402(b)(9) of the Federal
18 Water Pollution Control Act; and Sections 1412(b),
19 1414(c), 1417(a), 1421, and 1445(a) of the Safe Drinking
20 Water Act.
21 (2) Rules adopted by the Pollution Control Board
22 that establish or amend standards for the emission of
23 hydrocarbons and carbon monoxide from gasoline powered
24 motor vehicles subject to inspection under Section
25 13A-105 of the Vehicle Emissions Inspection Law and rules
26 adopted under Section 13B-20 of the Vehicle Emissions
27 Inspection Law of 1995.
28 (3) Procedural rules adopted by the Pollution
29 Control Board governing requests for exceptions under
30 Section 14.2 of the Environmental Protection Act.
31 (4) The Pollution Control Board's grant, pursuant
32 to an adjudicatory determination, of an adjusted standard
33 for persons who can justify an adjustment consistent with
34 subsection (a) of Section 27 of the Environmental
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1 Protection Act.
2 (5) Rules adopted by the Pollution Control Board
3 that are identical in substance to the regulations
4 adopted by the Office of the State Fire Marshal under
5 clause (ii) of paragraph (b) of subsection (3) of Section
6 2 of the Gasoline Storage Act.
7 (d) Pay rates established under Section 8a of the
8 Personnel Code shall be amended or repealed pursuant to the
9 process set forth in Section 5-50 within 30 days after it
10 becomes necessary to do so due to a conflict between the
11 rates and the terms of a collective bargaining agreement
12 covering the compensation of an employee subject to that
13 Code.
14 (Source: P.A. 87-823; 88-533.)
15 Section 10. The Illinois Purchasing Act is amended by
16 changing Sections 5.2 and 6 as follows:
17 (30 ILCS 505/5.2) (from Ch. 127, par. 132.5-2)
18 Sec. 5.2. Rules. The provisions of the Illinois
19 Administrative Procedure Act are hereby expressly adopted and
20 incorporated herein as though a part of this Act, except as
21 provided in subsection d of Section 6.
22 (Source: P.A. 87-860.)
23 (30 ILCS 505/6) (from Ch. 127, par. 132.6)
24 Sec. 6. State agency purchasing procedures. State
25 agencies may provide that prospective contractors be
26 prequalified to determine their responsibility, as required
27 by this Act. State agencies shall also provide, among other
28 matters which are not in conflict with the policies and
29 principles herein set forth:
30 a. That all purchases, contracts and expenditure of
31 funds shall be awarded pursuant to a competitive selection
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1 procedure which may provide that contracts be awarded to the
2 lowest responsible bidder considering conformity with
3 specifications, terms of delivery, quality and
4 serviceability, except as provided in paragraphs e, f, g and
5 h of this Section.
6 However, a competitive selection procedure need not be
7 followed in the following cases:
8 (1) Where the goods or services to be procured are
9 economically procurable from only one source, such as
10 contracts for local exchange telephone service,
11 electrical energy, and other public utility services,
12 books, pamphlets and periodicals, and specially designed
13 business and research equipment and related supplies.
14 (2) Where the services required are for
15 professional or artistic skills pursuant to a written
16 contract.
17 (3) In emergencies involving public health, public
18 safety, or where immediate expenditure is necessary for
19 repairs to State property in order to protect against
20 further loss of or damage to State property, to prevent
21 or minimize serious disruption in State services or to
22 insure the integrity of State records.
23 If funds are expended in an emergency under this
24 subdivision a(3), by purchase, contract, or otherwise,
25 the person authorizing the expenditure shall file an
26 affidavit with the Auditor General within 10 days after
27 the purchase or contract, setting forth the amount
28 expended, the name of the vendor or contractor, and the
29 circumstances requiring the emergency purchase. If only
30 an estimate of the cost is available at the time of
31 filing, the person authorizing the expenditure must
32 report the actual cost to the Auditor General as soon as
33 that cost is determined.
34 The Auditor General shall file with the Legislative
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1 Audit Commission and the Governor, at the end of each
2 fiscal quarter, a complete listing of all emergency
3 purchases and contracts reported during that fiscal
4 quarter. The Legislative Audit Commission shall make a
5 thorough review of all emergency purchases so reported,
6 and in its annual report to the General Assembly the
7 Commission shall identify any emergency purchase that
8 appears to constitute an abuse of the authority granted
9 under this subdivision a(3).
10 (4) In case of expenditures for personal services
11 paid to employees or officers of a State agency. As used
12 in this paragraph, "personal services" has the meaning
13 ascribed to that term in Section 14 of the State Finance
14 Act.
15 (5) Contracts for repairs, maintenance, remodeling,
16 renovation, or construction of a single project involving
17 an expenditure not to exceed $10,000 and not involving a
18 change or increase in the size, type or extent of an
19 existing facility.
20 (6) Contracts for repairs, maintenance, or any
21 other services not specifically exempt from a competitive
22 selection procedure under this Act where individual
23 orders for such services do not exceed $25,000.
24 (7) Purchases of commodities and equipment where
25 individual orders are less than $25,000.
26 (8) Contracts for the maintenance or servicing of,
27 or provision of repair parts for equipment which are made
28 with the manufacturers or authorized service agent of
29 that equipment where the provision of parts, maintenance
30 or servicing can best be performed by the manufacturer or
31 authorized service agent or such a contract would
32 otherwise be advantageous to the State, but the exception
33 provided in this sub-paragraph (8) does not apply to the
34 subdivisions of work listed in paragraph a-1-a of this
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1 Section.
2 (9) Where the goods or services are procured from
3 another governmental agency.
4 (10) Purchases and contracts for the use, purchase,
5 delivery, movement or installation of data processing
6 equipment, software or services and telecommunications
7 and inter-connect equipment, software and services.
8 (11) Personal service contracts made by members,
9 officers, committees, or commissions of the General
10 Assembly.
11 (12) Any contract for duplicating machines and
12 supplies.
13 (13) Any contract for the purchase of natural gas
14 when the cost is less than that offered by a public
15 utility.
16 (14) Any contract for State Lottery tickets or
17 shares or for other State Lottery game related services.
18 (15) Purchases of and contracts for office
19 equipment and associated supplies when such contracts
20 provide for prices that are equal to or lower than
21 Federal General Services Administration contracts and
22 when such contracts or pricing result in economical
23 advantage to the State.
24 (16) Purchases and contracts by the Department of
25 State Police for the use, purchase or installation of
26 forensic science laboratory analytical equipment and
27 analytical data processing equipment used for forensic
28 science laboratory purposes only, including equipment
29 which is microprocessor controlled or controllable, and
30 its software. Prior to the purchase of or contract for
31 such equipment, the Director of the Department of State
32 Police shall certify to the Comptroller and the Auditor
33 General that such equipment is necessary and an integral
34 component of the Department of State Police's statutory
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1 investigatory duties and that competitive bidding will
2 hamper such statutory duties. Such certification shall
3 include the prices of and specifications of the equipment
4 to be purchased or contracted for and the prices,
5 specifications and reasons for rejection of comparative
6 equipment by the Department of State Police. The
7 Comptroller shall file such certification with any
8 purchase vouchers or files maintained for the purchase.
9 The Auditor General shall require such certification to
10 be noted in audits performed at his direction.
11 (17) Purchases and contracts by the Department of
12 Nuclear Safety for the use, purchase or installation of
13 radiochemistry laboratory equipment, instruments and
14 equipment used to detect radiation or radioactivity, and
15 data processing equipment used for purposes of detecting
16 radiation or radioactivity. Prior to the purchase of or
17 contract for such equipment, the Director of the
18 Department of Nuclear Safety shall certify to the
19 Comptroller that such equipment is necessary and an
20 integral component of the Department of Nuclear Safety's
21 emergency response or radiation monitoring programs and
22 that competitive bidding will hamper such programs. Such
23 certification shall include the prices of and
24 specifications of the equipment to be purchased or
25 contracted for and the prices, specifications and reasons
26 for rejection of comparable equipment by the Department
27 of Nuclear Safety. The Comptroller shall file such
28 certification with any purchase vouchers or files
29 maintained for the purchase.
30 a-1. In case of contracts for the construction of
31 buildings, or for other construction work in or about
32 buildings and grounds, where the entire estimated cost of
33 such work exceeds $25,000, State agencies may provide that
34 prospective contractors, as well as architects and engineers
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1 employed in connection with such projects, be prequalified to
2 determine their responsibility. Such prequalification may
3 require, without limitation, that the applicant for
4 prequalification list all public works contracts he has
5 performed within 2 years of the date of application, or the 4
6 most recent public works contracts he has performed,
7 whichever is fewer, and state whether he complied with the
8 Illinois Wage Assignment Act in performing such contracts.
9 Such statement shall be made under oath or affirmation and if
10 made falsely is punishable as perjury under Section 32-2 of
11 the Criminal Code of 1961.
12 a-1-a. Separate specifications shall be prepared, with
13 the exception of the Cardinal Creek Housing project and 2
14 grade schools associated with the Scott Joint-Use Airport in
15 St. Clair County which shall be permitted, as a one-time
16 exclusion, to allow turn-key development of the required
17 facilities on the basis of competitive quality, performance,
18 and price, for all equipment, labor and materials in
19 connection with the following 5 subdivisions of the work to
20 be performed:
21 1. Plumbing.
22 2. Heating, piping, refrigeration and automatic
23 temperature control systems, including the testing and
24 balancing of such systems.
25 3. Ventilating and distribution systems for
26 conditioned air, including the testing and balancing of
27 such systems.
28 4. Electric wiring.
29 5. General contract work.
30 Such specifications shall be so drawn as to permit
31 separate and independent competitive bidding upon each of the
32 above 5 subdivisions of work; provided, however, if the total
33 estimated cost of all such work is less than $250,000,
34 separate and independent specifications are not required.
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1 All contracts awarded for any part thereof shall award the 5
2 subdivisions of such work separately to responsible and
3 reliable persons, firms or corporations engaged in these
4 classes of work. Such contracts, at the discretion of the
5 awarding authority, may be assigned to the successful bidder
6 on the general contract work, or to the successful bidder on
7 the subdivision of work designated by the awarding authority
8 prior to competitive bidding as the prime subdivision of
9 work; provided that all payments will be made directly to the
10 contractors for the 5 subdivisions of such work upon
11 compliance with the conditions of the contract. A contract
12 may be let for one or more buildings in any project to the
13 same contractor. The specifications shall require, however,
14 that unless the buildings are identical, a separate price
15 shall be submitted for each building. The contract may be
16 awarded to the lowest responsible bidder for each or all of
17 the buildings included in the specifications.
18 As used in this subdivision a-1-a, "competitive bidding"
19 means bidding in which (i) bids are publicly solicited and
20 opened, (ii) the terms and conditions of the solicitation and
21 the bidding process apply equally to all bidders, (iii) bids
22 are awarded to the lowest responsive responsible bidder, and
23 (iv) the procedures used and imposed by the agency conform to
24 any applicable agency rules. A solicitation for bids may not
25 impose restrictions on source, supplier, or manufacturer,
26 except as otherwise provided in this Section. Competitive
27 bidding constitutes a competitive selection procedure for the
28 purposes of this Act.
29 Whenever any contract entered into by a State agency for
30 the repair, remodeling, renovation or construction of a
31 building or structure or for the construction or maintenance
32 of a highway, as those terms are defined in Article 2 of the
33 Illinois Highway Code, or for the reclamation of abandoned
34 lands as those terms are defined in Article I of the
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1 Abandoned Mined Lands and Water Reclamation Act, provides for
2 retention of a percentage of the contract price until final
3 completion and acceptance of the work, upon the request of
4 the contractor and with the approval of the State agency the
5 amount so retained may be deposited under a trust agreement
6 with an Illinois bank of the contractor's choice and subject
7 to the approval of the State agency. The contractor shall
8 receive any interest thereon. Upon application by the
9 contractor, the trust agreement must contain, as a minimum,
10 the following provisions:
11 A. the amount to be deposited subject to the trust;
12 B. the terms and conditions of payment in case of
13 default of the contractor;
14 C. the termination of the trust agreement upon
15 completion of the contract; and
16 D. the contractor shall be responsible for
17 obtaining the written consent of the bank trustee, and
18 any costs or service fees shall be borne by the
19 contractor.
20 The trust agreement may, at the discretion of the State
21 agency and upon request of the contractor, become operative
22 at the time of the first partial payment in accordance with
23 existing statutes and the State agency procedures.
24 a-2. In case of contracts for the purchase of supplies,
25 materials, commodities and equipment, wherever feasible
26 proposals shall be required to be itemized as to kind and the
27 solicitation for proposals shall state, with such degree of
28 particularity as the nature of the case permits, the quantity
29 of each item required.
30 a-3. That all contracts for the rental or lease of
31 electronic data processing equipment shall include a clause
32 that if more favorable terms are granted by the lessor,
33 supplier, dealer, or manufacturer to any similar state or
34 local governmental agency in any state in contemporaneous
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1 leases or rental agreements covering data processing
2 equipment let under the same or similar financial terms and
3 circumstances, the more favorable terms shall be applicable
4 to all agreements or contracts made by any similar Illinois
5 state agency for the rental or lease of comparable data
6 processing equipment from the lessor, supplier, dealer, or
7 manufacturer.
8 b. That competitive procurement procedures shall be in
9 conformance with accepted business practices.
10 c. That proposals shall be publicly opened at the day
11 and hour and at the place specified in the solicitations.
12 d. That any bidder, contactor, or person may be
13 suspended or debarred in accordance with rules that establish
14 the procedures for the determination of the suspension or
15 debarment from contracts, subcontracts, and related services
16 including but not limited to the supply and delivery of
17 material and equipment. The rules shall extend to associated
18 organizations and business entities of the bidder,
19 contractor, or person related by common control, management,
20 or ownership that remains unsevered or undivested during the
21 period of suspension or debarment.
22 The procedures adopted shall be as informal as
23 practicable to protect the interests of the State but shall
24 afford notice of the proposed debarment or suspension, the
25 reasons for the proposed debarment or suspension in terms
26 sufficient to indicate the conduct or transaction upon which
27 it is based, the cause relied upon for the proposed debarment
28 or suspension, and the potential effect and duration of an
29 actual debarment or suspension. The procedures shall afford
30 the opportunity to submit a written response providing
31 relevant information and argument in opposition to the
32 proposed action. The procedures may also afford a hearing in
33 order to submit, in person or in writing, information and
34 argument in opposition to the proposed debarment or
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1 suspension. The establishment of the power in this Act to
2 suspend or debar and the adoption of procedures applicable
3 thereto in accordance with this Act do not establish any
4 right to contract with a State agency. The contested case
5 rules as defined in the Illinois Administrative Procedure Act
6 shall not apply. A suspension or debarment shall not be
7 required prior to an adverse determination of responsibility
8 made pursuant to a competitive selective procedure.
9 (1) The causes based upon adequate evidence for which a
10 State agency may impose debarment are as follows:
11 (A) Conviction of an offense or having a civil
12 judgment entered against the bidder, contractor, or
13 person in the jurisdiction of this State, any other
14 state, or the United States that indicates a lack of
15 business integrity or business honesty of the bidder,
16 contractor, or person including but not limited to fraud,
17 collusion, anti-competitive activity, embezzlement,
18 theft, forgery, bribery, falsification or destruction of
19 records, making false statements, receiving stolen
20 property, making false claims, or obstruction of
21 justice.
22 (B) Breach of the terms of a public contract of
23 this State, any other state, or the United States that
24 indicates a lack of business integrity and honesty
25 including but not limited to a failure to perform one or
26 more contracts; a record of more than one unsatisfactory
27 performance of contracts; or a violation of a statutory
28 or regulatory mandate included in a contract.
29 (C) Any other cause of a serious nature that
30 indicates a lack of business integrity and honesty of a
31 bidder, contractor, or person including but not limited
32 to doing business with a debarred or suspended bidder,
33 contractor, or person in connection with a public
34 contract of this State during the period of suspension or
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1 debarment; violation of the competitive procurement
2 procedures of any State agency; or failure to conform to
3 specifications or terms of delivery.
4 (2) The causes based upon adequate evidence for which a
5 State agency may impose suspension are as follows:
6 (A) A cause for debarment.
7 (B) Breach of the terms of a public contract of
8 this State, any other state, or the United States
9 including but not limited to a failure to perform;
10 unsatisfactory performance; violation of the competitive
11 procurement procedures of any State agency; or failure to
12 conform to specifications or terms of delivery.
13 (C) Indictment for any criminal offense under the
14 laws of this State, any other state, or the United
15 States, a conviction of which would be cause for
16 debarment under this Section.
17 A debarment shall be for a period of time commensurate
18 with the seriousness of the cause or causes. A debarment may
19 be permanent but in no event shall a debarment be for a
20 period less than 5 years. A suspension shall be for
21 temporary period of time commensurate with the seriousness of
22 the cause or causes. In no event shall a suspension exceed 5
23 years. No State agency shall enter into a contract with a
24 debarred or suspended bidder, contractor, or person or shall
25 approve any subcontract or related service, with or by any
26 suspended bidder, contractor, or person, in connection with a
27 contract entered into or approved by the State agency during
28 the period. A State agency may grant an exception permitting
29 a suspended or debarred bidder, contractor, or person to
30 participate in a particular contract upon the written
31 determination by the agency head that the participation is in
32 the best interest of the State and setting forth the
33 circumstances requiring the exception. The written exception
34 shall be filed with the Auditor General within 10 days after
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1 the determination. The Auditor General shall report on all
2 exceptions and file them in the manner as provided for
3 emergency purchases in subdivision a(3) of this Act. That any
4 contractor may be suspended for not more than one year for
5 violation of the competitive procurement procedures of any
6 State agency or for failure to conform to specifications or
7 terms of delivery.
8 e. When a public contract is to be awarded under
9 competitive selection procedures, a resident contractor must
10 be allowed a preference as against a non-resident bidder from
11 any state which gives or requires a preference to contractors
12 from that state. The preference is to be equal to the
13 preference given or required by the state of the non-resident
14 contractor. Further, if only non-resident contractors are
15 under consideration, the purchasing agency is within its
16 right to specify that Illinois labor and manufacturing
17 locations be used as a part of the manufacturing process, if
18 applicable. This specification may be negotiated, as part of
19 the solicitation process.
20 f. "Resident contractor" as used in this Section means a
21 person authorized to transact business in this State and
22 having a bona fide establishment for transacting business
23 within this State at which it was actually transacting
24 business on the date when any competitive solicitation for a
25 public contract is first advertised or announced, including a
26 foreign corporation duly authorized to transact business in
27 this State which has a bona fide establishment for
28 transacting business within this State at which it was
29 actually transacting business on the date when any
30 competitive solicitation for a public contract is first
31 advertised or announced.
32 g. Paragraphs e and f of this Section do not apply to
33 any contract for any project as to which federal funds are
34 available for expenditure when such paragraphs may be in
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1 conflict with federal law or federal regulation.
2 h. When a public contract is to be awarded under
3 competitive procurement procedures, an otherwise qualified
4 bidder who will fulfill the contract through the use of
5 products made of recycled materials may, on a pilot basis or
6 pursuant to a pilot study, be given preference over other
7 contractors unable to do so, provided that the cost included
8 in the proposal of products made of recycled materials is not
9 more than 10% greater than the cost of such products not made
10 of recycled materials.
11 i. That every contract for the provision of goods or
12 services shall provide that the vendor or contractor shall
13 maintain, for a minimum of 5 years after the completion of
14 the contract, adequate books, records, and supporting
15 documents to verify the amounts, recipients, and uses of all
16 disbursements of funds passing in conjunction with the
17 contract; that the contract and all books, records, and
18 supporting documents related to the contract shall be
19 available for review and audit by the Auditor General; and
20 that the contractor agrees to cooperate fully with any audit
21 conducted by the Auditor General and to provide full access
22 to all relevant materials. Failure to maintain the books,
23 records, and supporting documents required by this Section
24 shall establish a presumption in favor of the State for the
25 recovery of any funds paid by the State under the contract
26 for which adequate books, records, and supporting
27 documentation are not available to support their purported
28 disbursement.
29 j. A contract or expenditure that was made after June
30 30, 1992 and before the effective date of this amendatory Act
31 of 1995 shall not become invalid or be otherwise affected by
32 the changes to subdivision a-1-a of this Section made by this
33 amendatory Act of 1995.
34 (Source: P.A. 88-45; 89-254, eff. 8-8-95.)
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1 Section 99. Effective date. This Act takes effect upon
2 becoming law.