AUTHORITY: Implementing and authorized by Section 5-25 of the Illinois Procurement Code [30 ILCS 500].

SOURCE: Adopted by emergency rulemaking at 22 Ill. Reg. 13905, effective July 1, 1998, for a maximum of 150 days; amended by emergency rulemaking at 22 Ill. Reg. 19096, effective October 1, 1998, for a period to expire November 27, 1998; adopted at 22 Ill. Reg. 20964, effective November 20, 1998; amended at 32 Ill. Reg. 16388, effective September 24, 2008; recodified, pursuant to PA 96-795, from 44 Ill. Adm. Code 526 to 44 Ill. Adm. Code 4 at 35 Ill. Reg. 10151; amended at 36 Ill. Reg. 10951, effective August 6, 2012; recodified Title heading at 39 Ill. Adm. Code 5903; amended at 40 Ill. Reg. 456, effective January 15, 2016; amended at 40 Ill. Reg. 11260, effective September 1, 2016; Subpart Q and R headers recodified at 42 Ill. Reg. 18550; amended at 43 Ill. Reg. 1781, effective February 15, 2019; amended at 44 Ill. Reg. 3884, effective March 13, 2020; amended at 46 Ill. Reg. 2921, effective February 18, 2022.

SUBPART A: GENERAL

 

Section 4.1  Title

 

This Part may be cited as the Higher Education Standard Procurement Rules.

 

(Source:  Amended at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.3  Authority

 

a)         This Part is promulgated by the Chief Procurement Officer for Public Institutions of Higher Education (CPO-HE) in accordance with the provisions of the Illinois Procurement Code (Code) [30 ILCS 500].  This Part may be amended in accordance with the Code and the Illinois Administrative Procedure Act [5 ILCS 100/5].

 

b)         Section 10-20 of the Code creates four Chief Procurement Officers:  one for procurements for construction and construction-related services committed by law to the jurisdiction or responsibility of the Capital Development Board; one for procurements for all construction, construction-related services, operation of any facility, and the provision of any construction or construction-related services or activity committed by law to the jurisdiction or responsibility of the Illinois Department of Transportation; one for all procurement actions made by a public institution of higher education; and one for all other procurements.  For purposes of this Part, any reference to Chief Procurement Officer or CPO-HE means the Independent Chief Procurement Officer for Public Institutions of Higher Education unless the context indicates otherwise.  This Part applies to all procurement actions and procurement rulemaking under the jurisdiction of the CPO-HE.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.5  Policy

 

The principles of competitive bidding and economical procurement practices shall apply to all purchases and contracts by or for the universities, except as otherwise provided by law, this Part and other applicable rules.  It is the policy of the CPO-HE that all activities of the State Purchasing Officers (SPOs) and others conducting procurement related activity maximize the value of the expenditure of public funds in procuring contracts, and that those appointed to conduct procurement related activity act in a manner that maintains public trust in the integrity of the process.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.8  Implementation of This Part

 

a)         This Part establishes rules necessary and appropriate to implement the procurement authority granted by the Code to the CPO-HE relating to the procurement of supplies, including inventory level, services, real estate and capital improvement leases, and, as applicable, construction and concessions, and necessary rulemaking under the authority of the Code.

 

b)         This Part is intended to make procurement actions of the public universities uniform and consistent among and within the universities under the jurisdiction of the CPO-HE to facilitate participation in procurements, encourage competition, and ensure that procurements are conducted in a fair and open manner.  Implementation by and within the universities shall be consistent with this Part.  Operational interpretations are to be made in a flexible manner designed to secure the universities' needs and protect the interests of the universities and the State of Illinois.

 

c)         The CPO-HE and each SPO and PCM owe a fiduciary duty in carrying out their responsibilities under the Code.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.9  Application

 

a)         The Code and this Part shall apply regardless of the source of the funds with which the contracts are paid, including federal assistance moneys, except as provided in Sections 4.10 and 4.13 of this Part [30 ILCS 500/1-10(b) and 1-13(a)].

 

b)         The Code and this Part apply to procurements for which bidders, offerors, potential contractors, contractors or vendors were first solicited on or after July 1, 1998.  [30 ILCS 500/1-10(a)]

 

c)         For purposes of this Part, the term bidder, offeror, potential contractor, contractor or vendor may be used interchangeably unless the context indicates otherwise.

 

(Source:  Added at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.10  General Exemptions

 

a)         Except as specifically provided in the Code, the Code and this Part do not apply to:

 

1)         contracts between the State and its political subdivisions or other governments, or between State governmental bodies. (For purposes of this subsection (a), "governmental bodies" includes the State universities and their governing boards, community colleges and their governing boards and school districts.  This provision applies to contracts between governmental entities; it does not apply to State universities use of contracts established by other governmental entities);

 

2)         grants, except for the filing requirements of Section 20-80 of the Code;

 

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 10 calendar days after the deed is recorded in the county of jurisdiction (This applies to purchases whether outright or by means of an installment purchase.  The exercise of an option to purchase in a real estate lease is exempt, but the underlying lease is not exempt from this Part).  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 the Code shall give his or her prior approval when the procuring entity is not one subject to the jurisdiction of the Governor.  Anticipated litigation is that which a university may prosecute or defend before a court or administrative body and actions necessary to prepare for and conduct the effective legal prosecution or defense of litigation, including, but not limited to, the retention of counsel, investigators, expert witnesses and court reporters.  This Section is applicable to equipment or services necessary in the furtherance of covert activities lawfully conducted by a university;

 

8)         Procurement expenditures by the Illinois Conservation Foundation when only private funds are used;

 

9)          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;

 

10)          Contracts for legal, financial, and other professional and artistic services entered into on or before December 31, 2018 by the Illinois Finance Authority in which the State of Illinois is not obligated.  Such contracts shall be awarded through a competitive process authorized by the Board of the Illinois Finance Authority and are subject to Sections 5-30, 20-160, 50-13, 50-20, 50-35, and 50-37 of the Code, as well as the final approval by the Board of the Illinois Finance Authority of the terms of the contract;

 

11)        Contracts for services, commodities, and equipment to support the delivery of timely forensic science services in consultation with and subject to the approval of the CPO as provided in Section 5-4-3a(d) of the Unified Code of Corrections [730 ILCS 5], except the requirements of Sections 20-60, 20-65, 20-70, and 20-160 and Article 50 of the Code; however, the CPO may, in writing with justification, waive any certification required under Article 50 of this Code.  For any contracts for services that are currently provided by members of a collective bargaining unit, the applicable terms of the collective bargaining agreement shall be followed.

 

12)        Contracts for participation expenditures required by a domestic or international trade show or exhibition of an exhibitor, member, or sponsor;

 

13)        Contracts with a railroad or utility that require the State to reimburse the railroad or utilities for the relocation of utilities for construction or other public purpose. [30 ILCS 500/1-10(b)]

 

b)         After October 1, 2017, universities shall publish in the Bulletin notice of each contract entered into under Section 1-10(b) of the Code, except for those procured under subsections (a)(1), (a)(2) and (a)(5) of this Section. Notice shall be published within 14 calendar days after contract execution. The CPO-HE shall prescribe the form and content of the notice.

 

c)         The CPO-HE shall submit a report to the Governor and General Assembly no later than November 1 of each year that shall include, at a minimum, an annual summary of the monthly information reported to the CPO-HE by the universities.  The CPO-HE will structure the required Bulletin publication to serve as a university's report, but the CPO-HE may request a report or additional information from a university if Bulletin publication is insufficient.  At a minimum, this information published to the Bulletin shall include:

 

1)         the name of the contractor;

 

2)         a description of the supply or service provided;

 

3)         the total amount of the contract;

 

4)         the term of the contract; and

 

5)          the exception to the Code utilized.

 

d)        A copy of any or all of these contracts shall be made available to the CPO-HE within 14 days after request, unless a more immediate response is required.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.13  Additional Exemptions Applicable to Higher Education

 

a)         Except as provided in this Section, the Code shall not apply to procurements made by or on behalf of universities for any of the following:

 

1)         Memberships in professional, academic, research, or athletic organizations on behalf of a university, an employee of a university, or a student at a university.

 

2)         Procurement expenditures for events or activities paid for exclusively by revenues generated by the event or activity, gifts or donations for the event or activity, private grants, or any combination thereof.

 

3)         Procurement expenditures for events or activities for which the use of specific potential contractors is mandated or identified by the sponsor of the event or activity, if the sponsor is providing a majority of the funding for the event or activity.

 

4)         Procurement expenditures necessary to provide athletic, artistic or musical services, performances, events, or productions by or for a university.

 

5)         Procurement expenditures for periodicals, books, subscriptions, database licenses, and other publications procured for use by a university library or academic department, except for expenditures related to procuring textbooks for student use or materials for resale or rental.

 

6)         Procurement expenditures for placement of students in externships, practicums, field experiences, and for medical residencies and rotations.

 

7)         Contracts for programing and broadcast license rights for university-operated radio and television stations.

 

8)         Procurement expenditures necessary to perform sponsored research and other sponsored activities under grants and contracts funded by the sponsor or by sources other than State appropriations.

 

9)         Contracts with a foreign entity for research or other educational activities, provided the foreign entity either does not maintain an office in the United States or is the sole source of the service or product. [30 ILCS 500/1-13(b)]

 

b)         Except as provided in this Section, the provisions of the Code shall not apply to contracts for:

 

1)         medical supplies;

 

2)         medical services necessary for the direct delivery of patient care and treatment at medical, dental, or veterinary teaching facilities utilized by:

 

A)        Southern Illinois University;

 

B)        the University of Illinois; or

 

C)        any university-operated health care center or dispensary that provides care, treatment, and medications for students, faculty and staff. [30 ILCS 500/1-13(b-5)]

 

c)         Procurements made on or behalf of universities for the fulfillment of a grant shall be made in accordance with the Code to the extent practicable.  [30 ILCS 500/1-13(c)].

 

1)         A university may request a waiver of contract, registration, certification, and hearing requirements if compliance is impracticable. 

 

2)         A university shall provide the CPO-HE with specific reasons for the waiver, including the necessity to contract with a particular contractor, and shall certify the university's good faith efforts to comply with the provisions of the Code.  The CPO-HE shall provide a written justification for any waiver granted to a university.

 

3)         Notwithstanding any waiver of the registration requirements of Section 20-160 of the Code, no business entity and any affiliated entity or person may make campaign contributions if otherwise prohibited under Section 50-37 of the Code.

 

4)         For purposes of this Section, "grant" means non-appropriated funding provided by a federal or private entity to support a project or program administered by a public institution of higher education and any non-appropriated funding provided to a sub-recipient of the grant. [30 ILCS 500/1-13(f)]

 

d)         Notice of each contract entered by a university identified in subsections (a) and (b) and each waiver issued in subsection (c) shall be published in the Bulletin within 14 calendar days after contract execution. The CPO-HE shall prescribe the form and content of the notice.

 

e)         The CPO-HE shall submit a report to the Governor and General Assembly no later than November 1 of each year that shall include, at a minimum, an annual summary of the monthly information reported to the CPO-HE by the universities. The CPO-HE will structure the required Bulletin publication to serve as the university's report, but the CPO-HE may request a report or additional information from a university if Bulletin publication is insufficient.  At a minimum, this information published to the Bulletin shall include:

 

1)         the name of the contractor;

 

2)         a description of the supply or service provided;

 

3)         the total amount of the contract,

 

4)         the term of the contract;

 

5)         the exception to the Code utilized; and

 

6)         the justification for any waiver granted under subsection (c).

 

f)         A copy of any or all of these contracts shall be made available to the CPO-HE within 14 days after request, unless a more immediate response is required.

 

(Source:  Former Section 4.13 repealed at 40 Ill. Reg. 456, effective January 15, 2016; new Section 4.13 added at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.14  Certification, Hearing and Registration Waivers Applicable to Higher Education (Repealed)

 

(Source:  Repealed at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.15  Definition of Terms Used in This Part

 

As used throughout this Part, terms defined in the Illinois Procurement Code shall have the same meaning as in the Code and as further defined in this Section, and each term listed in this Section shall have the meaning set forth unless its use clearly requires a different meaning.  Terms may be defined in particular Sections for use in that Section.

 

"Amendment" − A written modification to a contract.  An amendment may memorialize an action authorized by specific language in the contract (e.g., exercise of an option or showing price decrease or increase based on CPI), or may memorialize nonmaterial changes (e.g., change in names of notice contacts or number of periodic status meetings).  An amendment may also be a change order as defined in this Section.

 

"Best Interest of the State" – For purposes of this Part, best interest of the State also includes best interest of the procuring university.

 

"Bid" − The response submitted by a bidder in a competitive sealed bidding process, to an Invitation for Bid or to a multi-step sealed bidding process.

 

"Bidder" − One who submits a response in a competitive sealed bidding process, to an invitation for bid, or to a multi-step sealed bidding process. [30 ILCS 500/1-15.02]

 

"Brand Name or Equal Specification" − A specification that uses one or more manufacturers' names or catalogue numbers to describe the standard of quality, performance and other characteristics needed to meet university requirements and that allows the submission of equivalent products.

 

"Brand Name Specification" − A specification limited to one or more items by manufacturers' names or catalogue numbers.

 

"Building Services" – Repairs to or maintenance of the structure, but does not include janitorial, window washing services, or services provided by university employees.

 

"Bulletin" – The volume of the Illinois Procurement Bulletin published by the CPO-HE, unless the context clearly means the volume of another CPO or the Illinois Procurement Bulletin generally.

 

"Change Order" – A change in a contract term, other than as specifically provided for in the contract, which is determined necessary to address needs that are best met by the contract holder, and that authorizes or necessitates any increase or decrease in the cost of the contract or the time for completion. [30 ILCS 500/1-15.12]  A change order is an amendment to the contract.

 

"Chief Procurement Office" – The offices to which the Chief Procurement Officers are appointed pursuant to Section 10-20 of the Code. [30 ILCS 500/1-15.13]

 

"Chief Procurement Officer" or "CPO-HE" – The Chief Procurement Officer for Public Institutions of Higher Education, as created by Section 10-20(3) of the Code, or a designee.

 

"Code" − The Illinois Procurement Code [30 ILCS 500].

 

"Concession" – The right granted by a license, lease or other agreement to use State property, whether tangible or intangible. Also includes the right to engage in a certain activity on the lessor's property (e.g., a refreshment or parking concession).

 

"Construction" – As used in this Part, building, altering, repairing, improving, or demolishing any public structure or building, or making improvements of any kind to public real property.  Construction does not include the routine operation, routine repair or routine maintenance of existing structures, buildings, or real property. [30 ILCS 5/1-15.20]

 

"Construction Agency" – The Capital Development Board for construction or remodeling of State-owned facilities; the Illinois Department of Transportation for construction or maintenance of roads, highways, bridges, and airports; the Illinois Toll Highway Authority for construction or maintenance of toll highways; the Illinois Power Agency for construction, maintenance, and expansion of Agency-owned facilities, as defined in Section 1-10 of the Illinois Power Agency Act [20 ILCS 3855]; and any other State agency (including universities) entering into construction contracts as authorized by law or by delegation from the Chief Procurement Officer. [30 ILCS 500/1-15.25]

 

"Construction Manager Services" – Services provided in the planning, pre-construction and construction phases of a construction project.

 

"Construction-related Professional Services" – Services performed that are governed by the Architectural, Engineering, and Land Surveying Qualifications‑Based Selection Act [30 ILCS 535].  "Professional Services" as used in this Part means those services within the scope of the practice of architecture, professional engineering, structural engineering, or registered land surveying, as defined by the laws of this State.

 

"Construction Support" – Equipment, supplies and services necessary to the operation of a construction agency's construction program, but does not include construction-related services.

 

"Consulting Services" – Services provided by a business or person as an independent contractor to advise and assist a university in solving specific management or programmatic problems involving the organization, planning, direction, control or operations of a university.  The services may or may not rise to the level of professional and artistic as defined in the Code and this Part.

 

"Contract" − All types of State agreements, regardless of what they may be called, for the procurement, use, or disposal of supplies, services, professional or artistic services, or construction or for leases of real property for which the State is the lessee, or capital improvements, and including renewals, master contracts, contracts for financing through use of installment or lease-purchase arrangements, renegotiated contracts, amendments to contracts, and change orders. [30 ILCS 500/1-15.30]  The term "contract" includes, but is not limited to purchase, installment purchase, lease and rental contracts.  The term contract, as used in the Code and this Part, does not include: supplies or services the terms governing which are established by tariff of the Illinois Commerce Commission or the Federal Communications Commission, and for which there is no authorized competition, bonds, Certificates of Participation or contracts relating to bonds or Certificates of Participation issued by or on behalf of a State agency when the contractor or vendor is neither selected nor paid by the State agency.  Also referred to as a "State contract" or a "university contract".

 

"Contract Award" – Except as otherwise defined in this Section for specific categories of procurements, the determination that a particular vendor has been selected from among other potential vendors to receive a contract, subject to resolution of any protest and the successful completion of final negotiations.  "Contract award" is evidenced by the posting of a Notice of Award or a Notice of Intent to Award to the respective volume of the Illinois Procurement Bulletin after all State agency required and SPO approvals have been obtained. [30 ILCS 500/15-25(b-5)]

 

"Contract Let" – The act of awarding a contract to a bidder that responded to an invitation for bids as part of a letting.

 

"Contractor" or "Vendor" − An individual, firm, partnership, corporation, joint venture or other legal entity that seeks, or has entered into, a contract with a State agency as defined in Section 1-15.30 of the Code.  The terms contractor and vendor are used interchangeably for the purposes of the Code and this Part.  In appropriate circumstances, the term shall also include subcontractors.

 

"Day" − Calendar day.  In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a State or university holiday, as applicable, in which event the period shall run to the end of the next business day.

 

"Designee" – A person or category of persons identified by the CPO-HE or an SPO, in writing, to exercise procurement authority or to assist with the procurement process.  A designee acts under procurement authority of the CPO‑HE or SPO and has the responsibility for taking procurement actions in accordance with applicable laws, rules and policies, as limited by the terms of the delegation.

 

"Domestic Product" – A product that meets the requirements of the Procurement of Domestic Products Act [30 ILCS 517].

 

"Electronic Procurement" – The conducting of some or all procurement functions over the internet. [30 ILCS 500/1-15.40]

 

"Emergency Statement" – The statement filed with the Auditor General and the Procurement Policy Board setting forth the actual or estimated amount expended, the name of the contractor involved, and the conditions and circumstances requiring the emergency procurement.

 

"Emergency Contract Award" – For purposes of an emergency contract, an emergency contract is awarded on the earlier of the date a State agency communicates to a vendor to start work, notice is published on the Illinois Procurement Bulletin identifying the vendor of the required supplies or services, or the date the contract is signed by both parties.

 

"Estimated Cost" – The amount expected to be paid for a procurement transaction.  It is representative of all known work and may include potential and expected unscheduled work arising out of the requirements.  The total estimated contract cost is not necessarily equivalent to the maximum cost.

 

"Evaluation Criteria" – The standards or factors by which the vendor and its bid or offer may be evaluated. These criteria may include, but are not limited to, specialized experience, technical qualifications, competence, capacity to perform, past performance, experience with similar projects, assignment of personnel to the project, and other appropriate factors.

 

"Expatriated Entity" – A foreign incorporated entity that is treated as an inverted domestic corporation under section 835(b) of the Homeland Security Act of 2002 (6 USC 395(b)) or any subsidiary of that entity.  The federal regulations found at 26 CFR 1.7874-3 may be used to determine when 6 USC 395(b)(3) applies. [30 ILCS 500/1-15.120]

 

"Fiduciary Duty" – A CPO's, SPO's, or PCM's obligation to serve the best interest of the State of Illinois.

 

"Germane" – Closely or significantly related to, arising out of, or directly incidental to the original contract.  Additional work or materials are germane if they are of small or minor importance, or are ordinary and comparatively unimportant departures from the details in the specifications.  Changes that are a substantial departure from the nature, scope or scale of the original contract are not germane.  (See Attorney General Opinion S-939.)

 

"Grant" – Unless otherwise specified, the furnishing by the State of assistance, whether financial or otherwise, to any person to support a program authorized by law.  It does not include an award the primary purpose of which is to procure an end product for the direct benefit or use of the State agency making the grant, whether in the form of goods, services, or construction.  A contract that results from such an award is not a grant and is subject to the Code. [30 ILCS 500/1-15.42]  When a grantor provides a grant or award to a university that authorizes or allows the university to award subgrants or subawards, the subgrant or subaward shall also be deemed a grant that is made by the university as agent of the grantor.

 

"Grounds Services" – Lawn care, landscaping, and snow and ice removal services.

 

"HUBZone Business" – A business that operates and employs people in Historically Underutilized Business Zones (HUBZone) as designated by the federal HUBZone Empowerment Act (15 USC 657a). [30 ILCS 500/45-95(a)].

 

"Invitation for Bids" or "IFB" − The process by which a purchasing agency requests information from bidders, including all documents, whether attached or incorporated by reference, used for soliciting bids. [30 ILCS 500/1-15.45] Also referred to as "Competitive Sealed Bidding".

 

"Items" − Anything that may be procured under the Code and this Part.

 

"Letting" – A construction agency's act of advertising an invitation for bids for one or more construction projects.

 

"Master Contract" – A definite quantity, indefinite quantity or requirements contract awarded under the Code through which universities may place purchase orders.  Master contracts include use by a single university, or for multiple State purchasing entities or other entities as authorized under the Governmental Joint Purchasing Act [30 ILCS 525]. 

 

"Multiple Award" – An award that is made to two or more bidders or offerors for similar supplies, services, or construction-related services.

 

"Natural Resources Services" – Services consist of non-supervisory activities of a routine, repetitive, non-discretionary nature not needing special expertise, training or education.  These services include, but are not limited to, assisting in the operation of tree nurseries, fish hatcheries, game farms and sanctuaries; cleaning and maintenance of specialized facilities; repairing fences and building cages; mowing; and trail and ancillary facility repair.

 

"Offer" or "Proposal" – The response submitted by an offeror in a competitive sealed proposal process or to a Request for Proposals or Request for Information for real estate or capital improvement leases.

 

"Offeror" or "Respondent" – Any person who submits a proposal in response to a competitive sealed proposal process or a request for proposals. [30 ILCS 500/1-15.52]

 

"Person" – Any business, public or private corporation, partnership, individual, union, committee, club, unincorporated association or other organization or group of individuals, or other legal entity. [30 ILCS 500/1-15.55]

 

"Procurement Compliance Monitor" or "PCM" – An individual appointed by the Executive Ethics Commission under Section 10-15 of the Code to oversee and review procurement processes.

 

"Procurement Officer" − The Chief Procurement Officer or appropriate State Purchasing Officer who is responsible for the particular procurement action.

 

"Procurement Policy Board" or "PPB" – The body created by Section 5-5 of the Code.

 

"Proposal" or "Offer" − The response to a Request for Proposals or Request for Information for real estate or capital improvement leases.

 

"Protest Review Office" – The office of the person designated in the solicitation document to whom protests must be directed.  This person will respond to or coordinate the response to the protest.

 

"Purchase of Care" − A contract with a person for the furnishing of medical, educational, psychiatric, vocational, rehabilitative, social, or human services directly to a recipient of a State aid program [30 ILCS 500/1-15.68].  Purchase of care includes the furnishing of services directly to recipients of State aid programs or applicants for a State aid program.  Purchase of care contracts may include some services that are administrative in nature, as long as the contract primarily provides direct care to recipients of State aid programs. Examples of purchase of care contracts include, but are not limited to, contracts related to care coordination programs under Title XIX of the Social Security Act, including contracts with managed care organizations; primary care case management services; prepaid ambulatory health plans; prepaid inpatient health plans; and direct care services provided under the Children and Family Services Act [20 ILCS 505].  Contracts that do not pertain to direct services to State aid recipients or that are primarily administrative in nature exceed the scope of the definition of a purchase of care contract and are not exempt from the requirements of the Code.

 

"Purchasing Agency" – A State agency that enters into a contract at the direction of a State Purchasing Officer authorized by a Chief Procurement Officer or at the direction of  a Chief Procurement Officer. [30 ILCS 500/1-15.70]

 

"Quality Based Selection" or "QBS" – The source selection method for architectural, engineering and land surveying services, as defined by the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535].

 

"Qualified HUBZone Small Business Concern" – A business that qualifies under the HUBZone program administered by the U.S. Small Business Administration. [30 ILCS 500/45-95(a)]

 

"Qualified Products List" − An approved list of supplies described by model or catalogue numbers that, prior to competitive solicitation, the State has determined will meet the applicable specification requirements.

 

"Renewal" – An agreement between the parties to a contract to authorize an additional contract period under the terms and conditions of the renewal provision in the original contract.  Any renewal of a real estate lease for which a renewal provision is not present may be allowed in accordance with Sections 4.4015 and 4.4025.

 

"Request for Information" or "RFI" – The process of requesting information from interested parties to aid the State in decision making.  This type of RFI is not a procurement method and will not result in a participant receiving a contract.

 

"Request for Information for Real Property or Capital Improvement Leases" or "RFI-Real Property Leases" or "RFI-RPL" – The process of seeking proposals for leases of real property or capital improvements as outlined under Article 40 of the Code.

 

"Request for Proposals" or "RFP" − The process by which a purchasing agency requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals. [30 ILCS 500/1-15.75]

 

"Request for Proposals-Professional and Artistic" or "RFP-P&A" − The process by which a purchasing agency requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals for professional and artistic services as defined in Section 1-15.60 of the Code.

 

"Requesting Agency" – The agency that requests that the CPO-HE or SPO conduct a procurement for its use.  All procurements reserved to the CPO-HE that have not been delegated must be initiated by a purchase request.

 

"Responsible Bidder", "Responsible Potential Contractor" or "Responsible Offeror" − A person who has the capability in all respects to perform fully the contract requirements and who has the integrity and reliability that will assure good faith performance.  A responsible bidder or offeror shall not include a business or other entity that does not exist as a legal entity at the time a bid or offer is submitted for a State contract. [30 ILCS 500/1-15.80]

 

"Responsive Bidder" − A person who has submitted a bid that conforms in all material respects to the Invitation for Bids. [30 ILCS 500/1-15.85]

 

"Responsive Offeror" – A person who has submitted an offer that conforms in all material respects to the Request for Proposals. [30 ILCS 500/1-15.86]

 

"Scoring Tool" – The document used to record the method used by the individuals evaluating the responses to a solicitation to judge qualifications or otherwise show whether or how well the responses met requirements set forth in the solicitation.

 

"Services" − The furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports or supplies that are incidental to the required performance and its financing. [30 ILCS 500/1-15.90]

 

"Site Technician Services – These services consist of non-supervisory activities of a routine, repetitive, non-discretionary nature not needing special expertise, training or education.  These services include, but are not limited to, the maintenance of the site, including operating small farm-type equipment and trucks that do not require a Class C or D driver's license.

 

"Solicitation" – The document (e.g., IFB, QBS, RFP, RFP-P&A, or RFI-Real Property Lease) posted to the Procurement Bulletin requesting interested parties to submit a response for evaluation by the State.  A request for information to determine if there is any interest on the part of a university in the supplies or services of a vendor or vendors, or on the part of a vendor or vendors in providing the supplies or services, is not considered a solicitation.

 

"Specification for a Common or General Use Item" − A specification that has been developed and approved for repeated use in procurements.

 

"Specifications" – Any description, provision or requirement pertaining to the physical or functional characteristics or of the nature of a supply, service or other item to be procured under a contract.  Specifications may include a description of any requirement for inspecting, testing or preparing a supply, service, professional or artistic service, construction, or other item for delivery. [30 ILCS 500/1-15.95]

 

"State" – As appropriate, collectively or individually, the State of Illinois, a State agency as defined in this Section, and all officers and employees of the foregoing.

 

"State Agency" – Generally, all boards, commissions, agencies, institutions, authorities, and bodies politic and corporate of the State, created by or in accordance with the constitution or statute, of the executive branch of State government and does include colleges, universities, and institutions under the jurisdiction of the governing boards of the University of Illinois, Southern Illinois University, Illinois State University, Eastern Illinois University, Northern Illinois University, Western Illinois University, Chicago State University, Governors State University, Northeastern Illinois University, and the Board of Higher Education.  However, this term does not apply to public employee retirement systems or investment boards that are subject to fiduciary duties imposed by the Illinois Pension Code [40 ILCS 5] or to the University of Illinois Foundation or any other university foundation.  "State agency" does not include units of local government, school districts, community colleges under the Public Community College Act [110 ILCS 805], and the Illinois Comprehensive Health Insurance Board. [30 ILCS 500/1-15.100]  For purposes of this Part, State agency means only State universities that are under the jurisdiction of the CPO-HE, unless the context indicates otherwise.

 

"State Purchasing Officer" or "SPO" – An individual appointed by the CPO-HE in accordance with Section 10-10 of the Code and assigned to exercise procurement authority at the direction of the CPO-HE.

 

"State Witness" – An employee of the State who observes the opening of bids or sealed proposals.

 

"Subcontract" – A contract between a person and another person who has a contract subject to the Code, pursuant to which the subcontractor provides to the contractor or, if the contract price exceeds $50,000, another subcontractor some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary contract and includes, among other things, subleases from a lessee of a State agency. For purposes of the Code, a "subcontract" does not include purchases of goods or supplies that are incidental to the performance of a contract by a person who has a contract subject to the Code.  [30 ILCS 500/1-15.107]

 

"Subcontractor" – A person or entity who enters into a contractual agreement with a total value of $50,000 or more with a person or entity who has a contract subject to the Code pursuant to which the person or entity provides some or all of the goods, services, real property, remuneration or other monetary forms of consideration that are the subject of the primary State contract, including subleases from a lessee of a State contract. For purposes of the Code, a person or entity is not a "subcontractor" if that person only provides goods or supplies that are incidental to the performance of a contract by a person who has a contract subject to the Code. [30 ILCS 500/1-15.108]

 

"Subfactor" – A subset of a main evaluation factor.  Main evaluation factors are identified in the solicitation.

 

"Supplies" − All personal property, including, but not limited to, equipment, materials, printing, and insurance and the financing of those supplies that can be procured regularly or are available on the commercial market. [30 ILCS 500/1‑15.110] For purposes of this Part, the term "goods" is equivalent to the term "supplies".

 

"Supplier" – Any person or entity providing supplies, including, but not limited to, equipment, materials, printing, and insurance, and the financing of those supplies that can be procured regularly or are available on the commercial market.[30 ILCS 500/1-15.111]

 

"University" – The colleges, universities and institutions under the jurisdiction of the governing boards identified in the definition of "state agency" in accordance with Section 1-15.100 of the Code.  For purposes of the Code and this Part only, "university" also includes the Illinois Math and Science Academy.  The terms "university" and "public institution of higher education" are used interchangeably for the purposes of the Code and this Part.

 

"Unsolicited Bid" or "Unsolicited Offer" or "Unsolicited Proposal" − Any bid, offer or proposal other than one submitted in response to a solicitation.

 

"Utilization Plan" − A form and additional documentations included in all bids or proposals that demonstrate a vendor's proposed utilization of vendors certified by the Business Enterprise Program (see 30 ILCS 575) and the Veterans Business Program (Section 45-57 of the Code) to meet the targeted goal. The utilization plan shall demonstrate that the vendor has either:

 

met the entire contract goal; or

 

requested a full or partial waiver and made good faith efforts towards meeting the goal.  [30 ILCS 575/2(A)(11)]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.25  Property Rights

 

No person shall have any right to a specific contract with the State unless that person has a contract that has been signed by an officer or employee of the purchasing agency with appropriate signature authority.  The State shall be under no obligation to issue an award or execute a contract. [30 ILCS 500/1-25]  No person who participates in a procurement action has any right to an award or subsequent contract.  No notice of award can be issued and no contract can be executed without the appropriate determination of all necessary State parties, including, as applicable, the CPO-HE, SPO, university purchasing director, or other required university staff.  Receipt of a solicitation or other procurement documents, or submission of any response to a solicitation or other procurement request, solicited or otherwise, confers no right to receive an award or contract, nor does it obligate the State  in any manner.

 

(Source:  Amended at 36 Ill. Reg. 10951, effective August 6, 2012)

SUBPART B: PROCUREMENT RULES, POLICIES AND PROCEDURES

 

Section 4.525  Rules

 

a)         Procurement under the jurisdiction of the CPO-HE or an appointed SPO shall be conducted in accordance with the Code and this Part, except as provided in this Section.

 

b)         If legislation or court decision invalidates any Section of this Part or requires a different interpretation, the rules will be implemented in accordance with the legislation or court decision.

 

c)         All proposed rules will be submitted to the Procurement Policy Board (PPB) during the public comment period established under the Illinois Administrative Procedure Act [5 ILCS 100].  Rulemaking, except for emergency rulemaking, shall be scheduled to allow the PPB at least 30 days to provide comments.

 

d)         Emergency rules will be submitted to the PPB for review and comment with as much notice as is reasonably possible. A copy of the adopted emergency rules shall be provided to the PPB.  The Board shall be given opportunity to comment on rules proposed to replace the emergency rules.

 

(Source:  Amended at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.530  Policies and Procedures

 

a)         The CPO-HE may issue policies and procedures to further implement the Code and this Part.  Policies and procedures shall be maintained in a structured format.  The CPO-HE shall periodically review policies and procedures and determine if any should be issued as an administrative rule.

 

b)         The CPO-HE shall notify the PPB of changes to policies or new policies.  The CPO-HE may give notice by including the PPB on standard distribution list.

 

(Source:  Added at 36 Ill. Reg. 10951, effective August 6, 2012)

SUBPART C: PROCUREMENT AUTHORITY

 

Section 4.1005  Procurement Authority

 

a)         The CPO-HE appointed by the Executive Ethics Commission will exercise the procurement authority created by the Code for the benefit of the State of Illinois and the universities under the jurisdiction of the CPO.  The Executive Ethics Commission may appoint a temporary acting CPO to act in the absence of the CPO-HE, such as during illness, vacation or other extended leave.

 

b)         The CPO-HE's procurement authority extends to supplies, services, construction not under the jurisdiction of the Capital Development Board or the Department of Transportation, real estate leases and all other categories of need subject to the Code.  The authority extends to all aspects of the procurement process, including, but not limited to: pre-solicitation activities, solicitation preparation, source selection, evaluation, award, approval or rejection of proposed contracts, dispute resolution and records subsequent to identification of need, except as otherwise provided for in the Code.

 

c)         Any reference in the Code or this Part directing or authorizing a university to take procurement action is subject to the overall procurement authority of the CPO-HE and SPO as set forth in the Code and this Part.

 

d)         The CPO-HE exercises procurement authority through one or more SPOs or temporary acting SPOs and university and other staff assigned to the procurement function.  The CPO-HE may assign an SPO to one or more universities or may make assignments on a functional basis.  The CPO-HE may appoint a temporary acting SPO with limited authority to act with an appointed SPO.  In the absence of an appointed SPO, the CPO-HE may exercise the procurement authority of an SPO or may appoint a temporary acting SPO.  Unless the Code or this Part prohibits a designee from performing a procurement action, the CPO-HE may delegate procurement action to an SPO or other designee.  The CPO-HE may reserve certain procurement activities to the CPO-HE and reserves the right to review and modify or overturn any action of an SPO or any other designee.

 

e)         An SPO will exercise procurement authority in accordance with direction and limitations established by the CPO-HE.  SPOs have roles and responsibilities established in Section 10-10 of the Code.  Each university shall recognize the SPOs' statutory roles and shall cooperate with SPOs in the conduct of their actions. The SPO will act primarily to review, authorize and approve university procurement actions.  The CPO-HE will determine and identify, in writing, procurement activities that must be conducted by the CPO-HE or an SPO.  Activities not reserved to the CPO-HE or SPO will be conducted by the university staff with CPO-HE/SPO oversight.

 

f)         Each university shall determine an appropriate number of qualified staff and related resources to meet the procurement needs of the university.  University staff remain university employees at all times, including while acting under authority of the CPO-HE.

 

g)         The university is responsible for determining the need for a particular procurement.  If the SPO or CPO-HE has a question regarding the need for a particular procurement, the SPO or CPO-HE may require a signed statement from a university official outside the procurement office confirming that the proposed procurement for the stated need is in the best interest of the university.

 

h)         University procurement staff are responsible for:

 

1)         ensuring that all procurement activities, including those submitted to the SPO or CPO-HE for review, authorization or approval, are in accordance with the Code, this Part, other applicable laws and rules, the policy direction of the CPO-HE and internal policies of the university; and

 

2)         obtaining all State and university approvals applicable to the particular stage of the procurement process.

 

i)          The CPO-HE and the SPO, at the direction of the CPO-HE, has the authority to review any contract or contract amendment prior to execution to ensure that applicable procurement and contracting standards were followed and approve or reject proposed contracts for a purchasing agency. [30 ILCS 500/10-10(a)]. In addition to this authority, the CPO-HE may authorize a university to enter into contracts without specific approval of the CPO-HE or SPO.

 

1)         The CPO-HE shall determine in writing which contracts must be reviewed by the CPO-HE or SPO for approval or rejection prior to execution by the university.  These approval authorities may be modified or revoked at any time by the CPO-HE or the SPO, when appropriate.  In the absence of written direction, the university shall enter into contracts for its needs.

 

2)         Any written determination regarding approval authorization by the CPO‑HE or SPO shall be maintained by the CPO-HE and distributed to the SPO, university head, university purchasing director and the State Comptroller.

 

3)         Because all fiscal authority for the universities is vested in their governing boards under their organizing statutes, only those contracts signed in accordance with board of trustees procedures are valid obligations of a university.  If the CPO-HE or SPO approves a proposed contract, the university must sign in order for the contract to be legally binding on the university.  The university may decline to sign a contract even if approved by the CPO-HE or SPO.

 

4)         If the CPO-HE or SPO approves a proposed contract for a university, in no event shall the CPO-HE or SPO have or assume any responsibility or obligation under the contract, financial or otherwise, to any party or person.

 

j)          Procurement Compliance Monitors (PCMs)

 

1)         PCMs have roles and responsibilities established in Section 10-15 of the Code.  This includes overseeing and reviewing the procurement process, having access to records and systems, and attending any procurement meeting.

 

2)         Each university shall recognize these statutory roles and shall cooperate with PCMs in the conduct of their actions.  Cooperation includes providing notice of, and access to, procurement meetings and access to all procurement related records in whatever format they may exist, including documents, databases and systems.  Failure to cooperate and resolve issues may be reported to the chief executive officer of the university and in certain cases may require reporting to the Office of the Executive Inspector General.

 

3)         Should a PCM request review of a contract before final execution, the university shall not execute the contract until approved by the SPO after consultation with the PCM and the university.

 

k)         Inquiries

Any offeror, respondent, SPO, State agency, university, subcontractor or person may contact the CPO-HE at http://www.cpohe.illinois.gov

concerning any procurement matter and obtain information concerning the procurement process or a pending procurement to meet the objectives of Section 1-5 of the Code and Section 4.5 of this Part. The CPO-HE shall take all measures, within its means and resources, in conformity with the Code and this Part, to address any inquiries to effectuate the aims of the Code and this Part. All contacts shall be placed in the procurement file and in compliance with Section 50-39 of the Code.

 

l)          Notification

In consultation with the CPO-HE, an SPO or PCM shall advise a university in writing of any misconduct, waste or inefficiency with respect to a university procurement and give the university opportunity to correct or resolve the issue.  If the university does not correct the issue, the SPO or PCM shall report the problem to the Office of the Inspector General and the CPO-HE. The Attorney General's Office shall also be notified if collusion or other anticompetitive practice is suspected.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.1010  Appointment of State Purchasing Officers (Repealed)

 

(Source:  Repealed at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.1011  Procurement Authority of the CPO (Repealed)

 

(Source:  Repealed at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.1030  Other Procurement Authority of the Universities (Repealed)

 

(Source:  Repealed at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.1060  Delegation

 

a)         Procurement actions not reserved in writing by the CPO-HE or delegated to an SPO or other designee shall be conducted by the university.

 

b)         The CPO-HE may delegate to any SPO or other designee or, in consultation with a university, to a university authority to conduct certain procurement actions or functions.  The CPO-HE may also delegate to any SPO the CPO-HE's authority to conduct on behalf of the CPO-HE specific procurements or classes of procurements for multiple university use.  An SPO may request that the CPO-HE delegate further authority to that SPO.  The SPO and university delegated authority shall remain subject to the authority of the CPO-HE and SPO as applicable.

 

c)         Any exercise of delegated authority shall be in accordance with the Code and this Part.

 

d)         Delegations shall be in writing and shall specify:

 

1)         the action or function authorized or not authorized;

 

2)         any limits or restrictions on the exercise of the delegated authority;

 

3)         whether the authority may be further delegated;

 

4)         the duration of the delegation; and

 

5)         any reporting requirements.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.1080  Illinois Mathematics and Science Academy

 

The Illinois Mathematics and Science Academy and its SPO shall procure supplies and services for the operation of the Academy through the CPO-HE.  All such procurements for the Academy shall be made in accordance with the requirements of this Part.

 

(Source:  Former Section 4.1080 repealed at 36 Ill. Reg. 10951, effective August 6, 2012; new Section 4.1080 added at 43 Ill. Reg. 1781, effective February 15, 2019)

SUBPART D: PUBLICIZING PROCUREMENT ACTIONS

 

Section 4.1501  Illinois Procurement Bulletin − Higher Education

 

a)         The Illinois Procurement Bulletin consists of four volumes, one for each of the Chief Procurement Officers designated in the Code.  Each volume  will contain  information relating to procurements under the authority  of the appropriate CPO. In relation to the CPO-HE volume, the official title of the volume is The Illinois Procurement Bulletin/Public Institutions for Higher Education.  In common use, this Bulletin may be referred to as the Public Higher Education Bulletin or as otherwise designated by the CPO-HE.  References in this Part to Bulletin mean the Higher Education volume unless the context indicates a different meaning.

 

b)         The CPO-HE shall consult with the universities regarding the Bulletin as necessary, but the CPO-HE shall have all rights in and to his or her volume of the Bulletin and shall publish this volume of the Bulletin.  The CPO-HE shall determine the content, design, form, function, organization and structure of this volume of the Illinois Procurement Bulletin and shall make revisions as necessary or desirable.  To the extent the universities provide funding for the Bulletin, any decisions regarding the Bulletin may not exceed these funds.  University personnel assigned to work on the Bulletin remain employees of the university and the CPO-HE will exercise no personnel authority regarding these employees.

 

c)         The CPO-HE may, through agreement with one or more other Chief Procurement Officers, publish the Higher Education volume of the Bulletin jointly with one or more other volumes of the Illinois Procurement Bulletin, in accordance with the Intergovernmental Cooperation Act [5 ILCS 220].

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.1510  Publication of Higher Education Bulletin

 

The CPO-HE will publish the Bulletin in electronic form and may update the Bulletin as needed.  A link to the Bulletin can be found on the CPO-HE maintained websites at http://www.procure.stateuniv.state.il.us and http://www.cpohe.illinois.gov.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.1515  Registration

 

Prospective vendors and other interested parties must complete the Bulletin registration screens to download solicitations and other procurement-related documents and to receive email notices, including notices of award.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.1525  Bulletin Content

 

a)         The Bulletin will contain all content required by the Code.  The Bulletin may include reference information of general interest (e.g., how to access the other volumes of the Illinois Procurement Bulletin, notice of new legislation, announcements and determinations) and may serve as the CPO-HE's website.  The CPO-HE shall determine whether the CPO-HE, SPO or a designee will publish notices to the Bulletin.  This determination shall be based upon considerations such as operational efficiencies, staff resources, system capabilities, workload and timing considerations.

 

b)         Notice of each procurement shall be published in the Illinois Procurement Bulletin for at least 14 days and contain at least the following information, as applicable:

 

1)         the name of the purchasing university;

 

2)         a brief description of the supplies or services sought in the particular solicitation;

 

3)         a procurement reference number, if used;

 

4)         the date the procurement is first offered (procurements that require notice shall not be distributed to vendors prior to the date the notice is first published in the Bulletin);

 

5)         the date, time and location for making submissions;

 

6)         the method of source selection;

 

7)         the name of the State Purchasing Officer in charge and the name of the university person on the purchasing staff assigned to the procurement (university buyer);

 

8)         instructions on how to obtain a comprehensive purchase description and any disclosure and contract forms;

 

9)         encouragement to prospective vendors to hire qualified:

 

A)        Veterans;

 

B)        Illinois minorities, women, persons with disabilities; and

 

C)        Residents discharged from any Illinois adult correctional center.

 

c)         Notice of each contract let or awarded that was subject of a notice in subsection (b) shall be placed in the Bulletin and shall be immediately issued electronically to those bidders or offerors submitting responses to the solicitation.  Bidders and offerors must register (see Section 4.1515) and sign up for email notices.  Should the Bulletin fail to send notice to bidders or offerors submitting responses to the solicitation, the time for filing a bid protest will be extended up to 7 days.

 

d)         The SPO shall publish the notice of award or notice of intent to award to the Bulletin for a minimum of 14 days prior to execution of the contract, unless a shorter time is authorized by the Code or this Part.  This notice shall contain at least the following information:

 

1)         all the information published in subsection (b)(1) through (7);

 

2)         the name of each vendor who submitted a response and the vendor selected for award;

 

3)         the contract price for the vendor selected for award;

 

4)         the total number of vendors who responded;

 

5)         the number of unsuccessful vendors;

 

6)         for each vendor who submitted a response, including the awarded vendor:

 

A)        BEP Firms

 

i)          the name or names of the certified Business Enterprise Program (BEP) firms identified in the vendor's submitted utilization plan;

 

ii))        the amount and percentage of business proposed to be conducted by businesses owned by BEP vendors, as reflected in each utilization plan;

 

B)        VBP Firms

 

i)          the name or names of the certified Veterans Business Program (VBP) firms identified in the vendor's submitted utilization plan;

 

ii)         the amount and percentage of business proposed to be conducted by businesses owned by VBP vendors, as reflected in each utilization plan;

 

iii)        the total number of VBP vendors that submitted responses; and

 

7)         the information recorded at the solicitation opening, including bid amount, and any other disclosures required to be published in the Bulletin.

 

e)         If a university wishes to award to other than the lowest responsive and responsible vendor in accordance with Sections 20-10(g) and 35-30(f) of the Code, an SPO must make a written determination that awarding to the lowest responsive and responsible vendor is not in the best interest of the university and must post in the Bulletin a written explanation with the notice of award.  The written explanation must also be filed by the SPO with the Legislative Audit Commission and must include:

 

1)         a description of the university's needs;

 

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

 

3)         a listing of all responsible and responsive bidders; and

 

4)         the name of the bidder selected, the total contract price, and the reasons for selecting that bidder.

 

f)         Notice of each contract renewal shall be approved by an SPO and posted in the Bulletin within 14 days after the determination by the university to execute a renewal of  the contract.  The date of the determination to execute a renewal shall be the date of the last approval required by the university to move forward with the renewal.  Each university shall identify the renewal approval process, including the requirements contained in Section 8i of the Business Enterprise for Minorities, Women and Persons with Disabilities Act [30 ILCS 578], and shall ensure the renewal notice contains the required information and is posted to the Bulletin within the prescribed time.  The notice shall include all information required by subsection (d) or shall reference this information electronically. The notice may include attachment of or reference to the original Bulletin notice.

 

g)         Notice of renegotiated contracts and change orders, or series of change orders, shall be conducted and published in accordance with Section 4.2067.

 

h)         The following information regarding emergency procurements shall be published in the Bulletin within 5 days after emergency contract award:

 

1)         name of the procuring university;

 

2)         name of the vendor selected for award;

 

3)         brief description of what services or supplies the vendor intends to provide;

 

4)         total cost (if only an estimate is known, it shall be published, but a subsequent notice repeating all required information shall be published when the final amount is known);

 

5)         reasons for using the emergency method of source selection;

 

6)         name of the CPO, SPO and name of the university buyer in charge of the procurement;

 

7)         name of the university person who authorized the emergency contract action; and

 

8)         statement of emergency procurement, if available, and, if not available, to be published as an amendment to the notice within 10 days after the emergency procurement.

 

i)          In addition to the requirements of subsection (h), notice of hearing to extend an emergency contract must be posted in the Bulletin no later than 14 days prior to the hearing. A completed emergency extension justification form as prescribed by the CPO-HE shall be published as part of the notice of hearing.

 

j)          The following information regarding intent to enter a sole source contract shall be published in the Bulletin at least 14 days prior to the required public hearing:

 

1)         name of the purchasing university;

 

2)         name of the intended sole source vendor;

 

3)         a description of what services or supplies the vendor intends to provide;

 

4)         name of the SPO and university buyer in charge of the procurement;

 

5)         the date, time and location of the scheduled public hearing, with an explanation that the hearing will be cancelled if no person registers to attend; and

 

6)         a completed sole source justification form as prescribed by the PPB.

 

k)         Each university shall post in the Bulletin a copy of its annual report of utilization of businesses owned by minorities, women, and persons with disabilities.  Posting is due within 10 days after the university submits its report to the Business Enterprise Council in accordance with Section 6(c) of the Business Enterprise for Minorities, Women, and Persons with Disabilities Act.

 

l)          The CPO-HE shall allow the universities to post in the Bulletin, at least annually, the reports of the granting of university concession required by Section 53-25 of the Code.

 

m)        Notice of other matters shall be published as required by law or at the direction of the CPO-HE.

 

n)         The CPO-HE may allow another CPO or another governmental entity to publish procurement related notices and other matters of public interest to the Bulletin.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.1535  Vendor Portal

 

a)         In consultation with the PPB and universities, the CPO-HE may establish a vendor portal, use another CPO's vendor portal, or jointly operate a vendor portal with other CPOs if a single portal better serves the needs of State agencies and the vendor community.  A vendor portal shall allow potential vendors to:

 

1)         Provide certifications, disclosures, registrations and other documentation needed to do business with the State in advance of a particular procurement;

 

2)         Submit the vendor's registration number, with a confirmation that the vendor portal information is accurate and current, as part of the vendor's response to a competitive solicitation or other contracting process, and with the understanding that the universities will be relying on the information when evaluating solicitation responses and awarding contracts.

 

b)         The CPO-HE may accept the registration number of a vendor from another CPO's vendor portal provided that the vendor certifies that vendor portal information is current.

 

c)         Once registered in the vendor portal, vendors must reregister annually to continue utilizing their vendor portal number in lieu of paper and this update satisfies the annual recertification for contracts and subcontracts of more than one year in duration or for any renewal term required by Section 50-2 of the Code.

 

d)         A vendor is not required to register in the vendor portal as a condition of conducting business with any university.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.1545  Supplemental Notice (Repealed)

 

(Source:  Repealed at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.1550  Error in Notice

 

a)         When a required publication contains an error, the error may be corrected by a single notice published in the Bulletin within a reasonable time after the original publication.

 

b)         The SPO must approve any correction that results in a change of procurement method or a material change in the requirements set forth in a solicitation.  These corrections may require extension of the time to respond to the original solicitation or cancellation of the solicitation in appropriate circumstances.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.1560  Alternate and Supplemental Notice

 

a)         If the electronic Bulletin cannot be published, the CPO-HE may publish notice in one of the other CPO's Procurement Bulletins on an interim basis.  If no electronic version of the Bulletin can be published, the CPO-HE may designate its website as its volume of the Bulletin.  If necessary, the CPO-HE may designate the Official State Newspaper or other newspaper of general circulation as its volume of the Bulletin.  All newspaper notices will be published in the Bulletin when it becomes available, but that publication will not extend any procurement-related timeframes.

 

b)         Publication in the Bulletin may be supplemented by publication elsewhere at the discretion of the CPO-HE or SPO.  Examples include publication in:

 

1)         the Official State Newspaper;

 

2)         a newspaper of general circulation;

 

3)         a newspaper of local circulation in the area pertinent to the procurement;

 

4)         industry media; or

 

5)         agency website.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.1580  Direct Solicitation

 

In addition to giving notice in the Bulletin, the SPO or university staff authorized by the SPO may directly contact prospective vendors by providing copies of solicitations or other procurement information.  Direct solicitation may be oral or in writing, but all vendors shall receive the same information as provided in the Bulletin. No direct solicitation shall be made prior to publication of any required notice in the Bulletin.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.1585  Notice Time

 

Each solicitation shall be published in the Bulletin at least 14 days prior to the date set for opening, unless a shorter time is authorized by the Code or this Part.

 

(Source:  Added at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.1595  Availability of Solicitation Document

 

Procurements that require notice shall not be distributed to vendors prior to publication of the notice in the Bulletin.  A copy of the solicitation shall be made available for public inspection at the university procurement office.  This copy shall be available as of the date and time the solicitation is published in the Bulletin.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

SUBPART E: SOURCE SELECTION AND CONTRACT FORMATION

 

Section 4.2005  General Provisions

 

a)         Method of Source Selection.  Unless otherwise authorized by law, all State contracts shall be awarded by competitive sealed bidding, in accordance with Section 20-10 of the Code, except as provided elsewhere in the Code.  The CPO‑HE may determine the method of solicitation and contract for all procurements pursuant to the Code.  The CPO-HE shall have the sole authority to develop and distribute uniform documents for the solicitation, review and acceptance of all bids, offers and responses and the award of contracts. [30 ILCS 500/20-5, 20-155]

 

b)         Solicitation Response

A solicitation may contain forms that must be returned or may require compliance in a prescribed format.  If a form or format is prescribed, prospective vendors shall submit those forms as instructed.

 

1)         All bids/offers received shall be date and time-stamped and stored in a secure manner (e.g., locked file cabinet, safe, locked room, secure electronic portal, or other secure location) by the person responsible for receiving bids and offers.

 

2)         No information regarding bids/offers received shall be disclosed to anyone prior to opening, except as authorized by the SPO.  The SPO, in consultation with the university purchasing director, shall determine who is authorized to have information prior to opening.  The name and title of the person authorized to have this information and the name and title of the person disclosing the information shall be documented in the procurement file.  University personnel may confirm receipt of the bid or offer to the bidder or offeror, but no information is to be given otherwise.

 

3)         If a bid or offer is opened for identification purposes or in error, the procurement file shall include a signed statement explaining the reason for the mistake or error, including the name of every person involved.  The bid or offer shall be re-sealed until the time set for the opening of the solicitation.

 

c)         Late Bids or Proposals, Late Withdrawals and Late Modifications

 

1)         Any bid or proposal (include any modification, withdrawal or other procurement-related submission) received after the time and date for receipt, or at other than the specified location, is late.  A submission that is delivered to the wrong location but is subsequently delivered to the correct location by the date and time specified shall be considered.  State employees shall not be responsible for ensuring subsequent delivery of misdelivered items.  Delivery at the specified location and time shall be the sole responsibility of the bidder or offeror.

 

2)         No late submission will be considered unless the SPO determines it would have been timely but for the action or inaction of State personnel directly serving the procurement activity (e.g., providing the wrong address).  It is the responsibility of the bidder or offeror to ensure delivery at the time and to the place specified.  Vendors submitting a late response will be notified and given the opportunity to retrieve the submission at their cost.  Late submissions not returned to the vendor will be destroyed after all related procurement activity is complete and the resulting contract has been executed.

 

3)         Records shall be made and kept for each late bid or proposal, late modification, or late withdrawal.

 

4)         Any other submission that has a time or date deadline shall be treated in the same manner as a late bid or late proposal.

 

d)         Solicitation Modifications

 

1)         The SPO may, prior to the date or time for submitting a bid or proposal, approve an extension of the date or time for the convenience of the university.

 

2)         The SPO may approve modification to the bid or proposal for reasons other than extending the date or time.

 

3)         If notice cannot be made at least 72 hours in advance of the time the responses are due, the SPO shall approve an extension of time to respond for a reasonable period of time or shall authorize cancellation of the solicitation. The SPO, after consultation with the university, shall determine which action best meets the needs and interests of the university and best promises transparency, competitiveness and other policies of the Code.

 

4)         All notices under this subsection (d) shall be published in the Bulletin.

 

e)         Bid/Proposal Firm Time

 

1)         Unless otherwise provided in the solicitation, the vendor's bid/proposal must be kept firm for at least 30 days after the opening date.

 

2)         After opening bids or proposals, the SPO may request bidders or offerors to extend the time during which the university may accept the bids or proposals, provided that, with regard to bids, no other change is permitted.  This extension does not provide an opportunity for others to submit bids or proposals.

 

f)         Electronic and Fax Submissions and Communications

 

1)         Solicitation responses, notices and other official procurement-related communications may be made in electronic form if stated in the solicitation.  The CPO-HE shall establish or approve the use and method of electronic submission.  Submissions that must be secure will be opened at the designated date, time and place only by an authorized person.

 

2)         Procurement-related communications that reflect final agreements or settlements in relation to protests, suspensions, debarments or contract matters must be signed by submitting a scanned copy of an original signature or by digital signature using an approved security process.  Electronic communications must meet the same substantive requirements as paper communications except as allowed to reflect the different means of communication.

 

3)         Electronic signatures must meet the minimum security requirements established by the Department of Central Management Services [5 ILCS 175/25-101(c)] and the accompanying regulations (14 Ill. Adm. Code 105).

 

4)         Fax or email submissions are acceptable for small purchases.

 

g)         Only One Bid or Proposal Received

 

1)         If only one bid or proposal is received, the SPO may award to the single bidder or offeror if the SPO finds:

 

A)        the price submitted is fair and reasonable, and other prospective bidders or offerors had reasonable opportunity to respond; or

 

B)        there is not adequate time for resolicitation.

 

2)         Otherwise the SPO may cancel the procurement.

 

h)         Alternate or Multiple Bids or Proposals

 

1)         Alternate bids or proposals may be accepted if permitted by the solicitation and in accordance with instructions in the solicitation.

 

2)         Multiple bids or proposals may be accepted if permitted by the solicitation and submitted in accordance with instructions in the solicitation.

 

i)          Multiple Items

A solicitation may call for pricing of multiple items of similar or related type.  Award shall be as specified in the solicitation based on an individual line item, a group total of certain items, a core list, a "market basket" of related items representative of the total requirement, a grand total of all items, or other grouping method.

 

j)          All or None Bids or Proposals

All or none bids or proposals may be accepted if the evaluation shows an all or none award to be the lowest cost or best value of those submitted.

 

k)         Conditioning Bids or Proposals Upon Other Awards

Any bid or proposal that is conditioned upon receiving award of the particular contract being solicited and one or more other State contracts shall be rejected.

 

l)          Unsolicited Bids or Offers

An award may not be made based on an unsolicited offer in place of the notice and competition requirements of the Code and this Part.

 

m)        Clarification of Bids and Proposals

The university may request that a vendor clarify its bid or proposal as a part of the evaluation process.  A copy of the clarification request must be provided to the SPO.  A clarification is not an opportunity to make material changes or for submission of best and final offers as authorized elsewhere in this Part.

 

n)         Assignment, Novation or Change of Name

 

1)         Assignment and Novation.  All assignments and novations must be in writing.  No university contract may be assigned or novation entered into  without the prior written consent of the CPO-HE or SPO, provided, however, that a vendor may assign money receivable under a contract after due notice to the State.  The assignee or transferee, except in the case of assignment of payment only, must meet all requirements for contracting with the university.  Any purported assignment or novation without prior written consent shall be null and void.

 

2)         Recognition of a Successor in Interest; Novation.  When in the best interest of the university, a successor in interest may be recognized in a written novation agreement in which the transferor and the transferee agree that:

 

A)        the transferee assumes all of the transferor's obligations;

 

B)        the transferee meets all requirements for contracting with the university;

 

C)        the transferor waives all rights under the contract as against the university, and it is understood that the university does not waive any applicable right or remedy against the transferor unless expressly stated in the Novation Agreement; and

 

D)        unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the university, furnish a satisfactory performance bond.

 

3)         Change of Name.  A vendor may submit to the university a written request to change the name in which it holds a contract with the university.  The name change shall not alter the parties, any of the terms and conditions of the contract or the obligations of the vendor.

 

o)         Contracting for Installment Purchase Payments, Including Interest

Contracts may provide for installment purchase payments, including interest charges, over a period of time.  The interest rate may not exceed that established by law, including the Bond Authorization Act [30 ILCS 305].

 

p)         Incorporation by Reference

A solicitation may incorporate documents by reference provided that the solicitation specifies where the documents can be obtained.

 

q)         Use of Source Selection Method that is Not Required

For procurements that are subject to the Procurement Code, if a university uses a method of source selection that it is not, by law, required to use (e.g., use of a competitive sealed bid for a small purchase), the university is bound to compliance with the Code and this Part governing the method of source selection used.

 

r)          Vendor Signature

A bid or proposal submitted unsigned will be evaluated if the vendor submits a written signature acceptable to the SPO within the time specified by the SPO.

 

s)         Stringing

Dividing or planning procurements to avoid use of competitive procedures (stringing) is prohibited.  Periodic purchases of similar supplies from several different vendors to maintain inventory is not stringing unless the purchases are planned to avoid use of competitive procedures. When the university or SPO identifies three or more purchases of the same item or similar items with a total value exceeding the small purchase limit during any12 month period, the university purchasing director and the SPO shall jointly determine whether the circumstances, including, but not limited to, frequency of purchases, cost of individual purchases and future needs, warrant issuing a competitive or other consolidated procurement.

 

t)          Confidential Data

A vendor must clearly identify, by page and paragraph, any information submitted to the State claimed to be exempt from the disclosure requirement of the Illinois Freedom of Information Act [5 ILCS 140] (FOIA), including information the vendor claims is a trade secret or other competitively sensitive, confidential or proprietary information belonging to the vendor.

 

1)         The vendor must identify the basis of the claim of exemption from FOIA and show how that basis applies to the request for exemption.  Information submitted without a claim of exemption from FOIA may be disclosed to the public without notice or permission.

 

2)         Information submitted with a claim of confidentiality or exemption from FOIA may still be disclosed to the public if determined under applicable law that the claim or exemption does not meet the requirements for withholding the information under FOIA.

 

u)         Notice of Subcontractor

 

1)         Any contract entered into under this Part shall state whether the services of a subcontractor will be used.  The contract shall include the names and addresses of all known subcontractors with subcontracts with an annual value of more than $50,000, the general type of work to be performed by each subcontractor, and the expected amount of money each will receive under the contract. [30 ILCS 500/20-120(a)]  A subcontract shall include all certifications required by Article 50 of the Code.

 

2)         If, at any time during the term of the contract, a contractor desires to add or change any subcontractors with subcontracts with an annual value of more than $50,000, the contractor shall promptly notify the university, in writing, of the names and addresses of the proposed subcontractors, the general type of work to be performed by the proposed subcontractor, and the expected amount of money each new or replaced subcontractor will receive under the contract.

 

3)         No contractor shall change a subcontractor listed in the original bid or proposal, except for documented good cause.  Any substitute subcontractor must meet all requirements of the Code applicable to subcontractors.

 

A)        Good cause may include, but is not limited to:

 

i)          failure of the subcontractor to execute a written contract after a reasonable period of time after the written contract is presented to the subcontractor by the contractor;

 

ii)         bankruptcy of the subcontractor;

 

iii)        death or disability of the subcontractor, if the subcontractor is an individual;

 

iv)        dissolution of the subcontractor, if the subcontractor is a corporation or partnership;

 

v)         failure of the subcontractor to meet bond requirements as specified in the solicitation;

 

vi)        subcontractor becomes ineligible to perform on the subcontract because the subcontractor is suspended, debarred or otherwise ineligible to perform;

 

vii)       a series of failures by the subcontractor to perform in accordance with the specifications, terms and conditions of its subcontract;

 

viii)      failure of the subcontractor to comply with a requirement of law applicable to the subcontractor; or

 

ix)        failure or refusal of the subcontractor to perform the subcontract.

 

B)        A request of a contractor for a substitution of a listed subcontractor shall be submitted in writing to the university and shall include the reasons for the request.  Consent of the university for a substitution shall be made in writing and be included in the procurement file. 

 

C)        Any substitution of an approved BEP subcontractor must be approved in accordance with 30 ILCS 575 and 44 Ill. Adm. Code 10 as it applies to universities.

 

D)        Failure of a contractor to comply with this Section may result in cancellation of its contract and be grounds for suspension or debarment.

 

v)         Pre-Solicitation Assistance

 

1)         For purposes of this subsection (v), "business" includes all individuals with whom a business is affiliated, including, but not limited to, any officer, agent, employee, consultant, independent contractor, director, partner, manager or shareholder of a business. [30 ILCS 500/50-10.5(e)]

 

2)         Non-Prohibited Acts.  This Section does not prohibit a person or business from submitting a bid or proposal or entering into a contract if the person or business:

 

A)        Initiated a communication with an employee of the university to provide general information about products, services or industry best practices.

 

B)        Responded to a communication initiated by an employee of the university for the purposes of providing information to evaluate new products, trends, services or technologies.

 

C)        Provided written material to a university employee obtained from public sources, such as through an internet search, or literature packets obtained in conjunction with an event such as a trade show.

 

D)        Provided, at the request of the university, general marketing material or makes a general sales presentation to show the person's qualifications or product capabilities.  Material may be personalized for the procuring agency provided any personalization is obtained from publicly available sources.

 

E)        Provided technology, supplies or services demonstrated to the university that represent industry trends and innovation and is not specifically tailored to meet the university's needs.

 

F)         Asked for clarification on a published solicitation provided:

 

i)          the response did not provide a competitive advantage to the person or business who asked for clarification; and

 

ii)         the question and answer were published to the Bulletin as an addendum to the solicitation.

 

G)        Provided market costs or production time to a person performing construction-related services to help determine the estimated costs and time to complete a construction project.

 

3)         Prohibited Acts

 

A)        Specifications.  With the exception of standard specifications that a vendor makes available to any potential purchaser, a person or business may not submit specifications to a university for a particular transaction unless requested by a university employee.  An SPO or person designated by the SPO must approve an employee's request for the specifications.

 

B)        Assistance to University Employees.  A person or business is prohibited from bidding on a solicitation and from having a contract or subcontract if the person or business assisted an employee of the university who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a contract.  Assistance to a university employee may include any of the following:

 

i)          Drafting (writes or assists the university with writing all or part of the procurement document);

 

ii)         Reviewing (reads the document or comments on the procurement document or signified approval or disapproval);

 

iii)        Directing (giving instructions or commands or in supervising or overseeing the preparation of the procurement document);

 

iv)        Preparing (any activity relating to organizing or distributing the documents, including through the Procurement Bulletin); or

 

v)         Providing similar assistance (e.g., conducting research or providing any advice used in drafting, reviewing, directing or preparing procurement documents).

 

C)        A person (and its affiliated or related entities) that contracts with a university to write specifications for a particular procurement may not submit a bid or proposal or receive a contract or subcontract for that procurement.

 

4)         Exceptions. 

 

A)        Any person or business who responds to an advertised request for information or other publicly available opportunity to provide information related to the procurement need or to review drafts of all or part of proposed procurement documents shall not be disqualified by virtue of responding to the State's publicly advertised request.

 

B)        The CPO-HE may permit a university to accept a bid or enter into a contract or subcontract with a business that assisted a university in determining need or that assisted in reviewing, drafting or preparing documents related to a bid or contract, provided:

 

i)          The bid or contract is essential to research administered by the university;

 

ii)         The CPO-HE determines it is in the best interest of the university to accept the bid or contract; and

 

iii)        Written approval is provided by the Executive Ethics Commission.

 

w)       Pre-Submission Conference

 

1)         A pre-submission conference may be conducted to enhance potential vendors' understanding of the procurement requirements.  The pre-submission conference shall be announced as part of the solicitation notice. The conference may be designated as "attendance mandatory" or "attendance optional".  For mandatory pre-submission conferences, a university shall document attendance on a form prescribed by the CPO-HE, which shall include the name of the attendee, the business represented, and the attendee's position within the business.

 

2)         The conference shall be held long enough after the solicitation has been issued to allow potential vendors to become familiar with it, and sufficiently before solicitation opening to allow consideration by vendors of conference results in preparing their responses. 

 

3)         Supporting documentation of the conference shall be supplied to all prospective vendors known to have received a solicitation by posting the information on the Bulletin. 

 

4)         Nothing stated at the pre-submission conference shall change the solicitation unless a change is made by written modification to the solicitation.  Amendments shall be supplied to all those prospective vendors through posting on the Bulletin.

 

x)        Federally Funded Purchases

For purchases funded in whole or in part by United States Government funds, the solicitation will identify the federal agency providing the funds, the name of the fund and contact information where interested parties can obtain requirements for contracting in relation to those funds.

 

y)         Evaluation Committee

 

1)         Evaluation committee members shall be determined by the university, tailored to the particular solicitation, and include, as appropriate, technical or other personnel with expertise to ensure a comprehensive evaluation of offers. 

 

2)         Evaluation committee members and any technical or other personnel with expertise assisting with the evaluation must not have any conflicts of interest or apparent conflicts of interest and must commit to the time necessary to complete all evaluations and attend any necessary evaluation meetings.

 

3)         Scoring and recommendation of any committee member who does not complete the entire evaluation and scoring will not be considered in determining the final scores. 

 

4)         After consultation with the university purchasing director, evaluation committee members may be removed by the SPO for failure to comply with instructions or directions or to ensure the integrity of the procurement.  The SPO shall state in writing the reasons for removing a committee member. 

 

5)         The SPO has the right to attend all evaluation meetings.

 

z)         Confidentiality and Conflicts

 

1)         To protect the integrity of the procurement process, persons having access to confidential procurement information or participating in the procurement process may be required to execute a confidentiality and conflict of interest form as prescribed by the CPO-HE.

 

2)         Bids and offers and any modifications shall be opened in a manner to avoid disclosing contents to competitors. Until an award recommendation is made, no university personnel or contractual agents, other than the evaluation committee and those assigned to the procurement, may review the bids or offers, except with justification from the purchasing director and approved by the SPO. 

 

3)         While the procurement is on-going, a university shall not disclose any information related to the procurement to any other bidder, offeror, or any other person not assigned to the procurement, other than information that was recorded, read and made publicly available at the opening of the bids or offers.  After completion of the evaluation and award recommendation, the university may conduct discussions with management and the board of trustees if necessary to obtain approval for award prior to publishing the award in the Bulletin. 

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2010  Competitive Sealed Bidding

 

a)         Application

Competitive sealed bidding, also referred to as Invitation for Bids, is the required method of source selection except as allowed by the Code and this Part.  The provisions of this Section apply to each procurement required to be conducted by competitive sealed bidding.

 

b)         Invitation for Bids

 

1)         Use.  An Invitation for Bids is used to initiate a competitive sealed bid procurement.

 

2)         Content.  An IFB shall include, at a minimum, the following:

 

A)        instructions and information to potential bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the address of the location to which bids are to be delivered and the maximum time for bid acceptance by the university;

 

B)        the purchase description, evaluation factors, delivery or performance schedule and such inspection and acceptance requirements as are not included in the purchase description;

 

C)        the contract terms and conditions;

 

D)        State mandated certifications, disclosures and registration requirements; and

 

E)        A form or format that will specify or organize the manner of price submission.

 

3)         Delivery-Related Costs.  Unless otherwise provided in the solicitation, the bid price includes transportation, transit insurance, delivery, installation and any other costs.

 

c)         Amendments to Invitations for Bids

 

1)         Form.  Amendments to IFBs shall be clearly identified and shall reference the portion of the IFB they amend.

 

2)         Distribution.  Amendments shall be made available by posting on the Bulletin.

 

3)         Timeliness.  Amendments shall be made available at least 72 hours prior to the date or time for submitting a bid to allow prospective bidders to consider them in preparing their bids. If notice cannot be made at least 72 hours in advance of the time responses are due, the solicitation shall be cancelled and reissued or the SPO shall extend the time to respond for a reasonable period of time. The SPO, after consultation with the university, shall determine which action best meets the needs and interests of the university and best promotes transparency, competitiveness and other policies of the Code.

 

d)         Pre-Opening Modification or Withdrawal of Bids

 

1)         Procedure.  Bids may be modified or withdrawn by written notice received at the location designated in the IFB prior to the time and date set for bid opening.

 

2)         Disposition of Bid Security.  If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.

 

3)         Records.  All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

 

e)         Opening and Recording of Bids

 

1)         Bids and modifications shall be opened publicly at the time, date and place designated in the IFB in the presence of a State witness or through an electronic procurement system approved by the CPO-HE. 

 

2)         The person opening bids shall not serve as witness.  The name of the person opening the bids, the name of the person serving as the State witness, the name of each bidder, the bid price, and such other information determined by the CPO-HE or SPO shall be recorded on a form prescribed by the CPO-HE, read aloud, signed by the person opening the bids and the State witness, and otherwise made available through an electronic procurement system approved by the CPO-HE. The person opening the bid and the State witness may sign electronically.

 

f)         Bid Evaluation and Award

 

1)         General.  The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the IFB, except as permitted in the Code and this Part.  The IFB shall set forth the requirements and criteria that will be used to determine the lowest responsive bidder.  No bid shall be evaluated on the basis of any requirements or criteria that are not disclosed in the IFB.

 

2)         Responsibility.  Responsibility of prospective vendors is covered by Section 4.2046 (Responsibility).

 

3)         Responsiveness.  A bid must conform in all material respects to the IFB.

 

A)        Product or Service Acceptability.  The IFB shall set forth any evaluation criteria to be used in determining product or service acceptability.  It may require the submission of bid samples, descriptive literature, technical data, references, licenses, or other information or material.  It may also provide for accomplishing any of the following prior to award:

 

i)          inspection or testing of a product or service prior to award for such characteristics as quality or workmanship;

 

ii)         examination of such elements as appearance, finish, taste or feel;

 

iii)        other examinations to determine whether the product or service conforms to any other purchase description requirements.

 

B)        The acceptability evaluation is not conducted for the purpose or determining whether one bidder's product or service capability is superior to another, but only to determine that a bidder's offering is acceptable as set forth in the IFB.  Any bidder's offering that does not meet the acceptability requirements shall be rejected.

 

4)         Price 

 

A)        Following determination of product or service acceptability as set forth in this subsection (f), bids will be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in the IFB.  Only objectively measurable criteria that are set forth in the IFB shall be applied in determining the lowest bidder.  Examples of such criteria include, but are not limited to, transportation cost, administrative cost and ownership or life-cycle cost formulas.  Evaluation factors need not be precise predictors of actual future costs, but, to the extent possible, the evaluation factors shall be reasonable estimates based upon information the State has available concerning future use and shall treat all bids equitably. 

 

B)        The IFB shall identify in the solicitation what parts or features of the work are essential and what options may be included in the project.  An option is a right to purchase additional supplies or services identified in the solicitation and directly relates to additional features or services of the underlying supply or service. All options must be clearly identified in the solicitation as optional work. 

 

C)        The solicitation shall identify how the university will evaluate bids to determine the lowest cost for award purposes by identifying whether options will or will not be included in the price evaluation.  

 

D)        The State expects prices for the required and optional supplies and services to be the lowest competitive market prices available for a customer of like type and of like circumstance.  If the university solicits required and optional supplies or services, but awards based on the required supplies and services, the university may reject any response to the solicitation if the required or optional prices are materially unbalanced in relation to each other.  For example, if a vendor submits an artificially low price for the required supplies and services but has submitted an artificially high price for the options, the prices are presumed to be unbalanced.  Unbalanced prices are not conducive to competitive comparison and may not be in the best interests of the State.  

 

E)        Evaluation of options does not obligate the university to exercise those options.  If a university adds, during the contract term or renewal, options not accepted at the time of contract award, a change order shall be executed based on the price provided in the contract.  Notice of the exercise of the options shall be published to the Bulletin 14 days in advance of exercise of the options.

 

F)         Pricing for any renewal terms identified in the solicitation shall be applied in determining the lowest cost to the university. A renewal term is not an option.

 

G)        Negotiations.  Negotiations are permitted with the lowest responsible bidder to obtain a reduction in the price of the bid.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2012  Multi-Step Sealed Bidding

 

a)         Definition

Multi-step sealed bidding is a two-phase process consisting of a technical first phase composed of one or more steps in which bidders submit unpriced technical offers to be evaluated by the State, and a second phase in which those bidders whose technical offers are determined to be acceptable during the first phase have their price bids considered.

 

b)         Conditions for Use

The multi-step sealed bidding method may be used when it is determined in writing by the SPO that it is not practical to prepare initially a definitive purchase description that will be suitable to permit an award based on price.  Multi-step sealed bidding may be used when it is considered desirable:

 

1)         to invite and evaluate possible diverse technical offers to determine their acceptability to fulfill the purchase description requirements; and

 

2)         to conduct discussions for the purposes of facilitating understanding of the technical offer and purchase description requirements and, when appropriate, obtain supplemental information, permit revisions of technical offers, or amend the purchase description.

 

c)         Pre-Submission Conference in Multi-Step Sealed Bidding

Prior to the submission or evaluation of unpriced technical offers, a pre-submission conference as contemplated by Section 4.2005(w) (Pre-Submission Conference) may be conducted by the SPO or designee.

 

d)         Procedure for Phase One of Multi-Step Sealed Bidding

 

1)         Form.  Multi-step sealed bidding shall be initiated by the issuance of an Invitation for Bids in the form required by Section 4.2010 (Competitive Sealed Bidding), except as otherwise provided in this subsection (d).  In addition to the requirements set forth in Section 4.2010, the multi-step IFB shall state:

 

A)        that it is a multi-step sealed bid procurement, that only unpriced technical offers are requested, and that priced bids will be considered only in the second phase and only from those bidders whose unpriced technical offers are found acceptable in the first phase;

 

B)        the criteria to be used in the evaluation of the unpriced technical offers;

 

C)        that the SPO or designee may conduct oral or written discussions of the unpriced technical offers; and

 

D)        that the item being procured shall be furnished generally in accordance with the bidder's technical offer as found to be finally acceptable and shall meet the requirements of the IFB.

 

2)         Amendments to the IFB.  After receipt of unpriced technical offers, amendments to the IFB shall be distributed only to bidders who submitted unpriced technical offers, and those bidders shall be permitted to submit new unpriced technical offers or to amend those submitted.  If, in the opinion of the SPO, a contemplated amendment will significantly change the nature of the procurement, the IFB may be canceled in accordance with Section 4.2040 (Cancellation of Solicitation; Rejection of Bids or Proposals) and a new IFB issued.

 

3)         Receipt and Handling of Unpriced Technical Offers.  Unpriced technical offers submitted by bidders shall be opened in the presence of at least one State witness or through an electronic procurement system approved by the CPO-HE.

 

4)         Evaluation of Unpriced Technical Offers.  Unpriced technical offers submitted by bidders shall be evaluated solely in accordance with the criteria set forth in the IFB.

 

5)         Unacceptable Unpriced Technical Offer.  When the SPO determines a bidder's unpriced technical offer does not meet criteria, the offer shall be rejected.

 

6)         Discussions.  The university, in consultation with the SPO, may conduct discussions with a bidder to determine in greater detail the bidder qualifications and to explore with the bidder its ability to provide the specific supply or service and the bidder proposed method of performance.  Each bidder shall be given fair opportunity to make revisions authorized as a result of discussions.

 

e)         Procedure for Phase Two

 

1)         Initiation.  Upon the completion of phase one, the SPO or designee shall either:

 

A)        open priced bids submitted in phase one (if priced bids were required to be submitted) from bidders whose unpriced technical offers were found to be acceptable; or

 

B)        if priced bids have not been submitted, invite each acceptable bidder to submit a priced bid.

 

2)         Conduct.  Phase two shall be conducted as any other competitive sealed bid procurement except that only price and related factors are evaluated.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2013  Reverse Auctions

 

a)         CPO-HE Authorization 

A university may procure supplies or services (other than for professional and artistic services, telecommunications services, communication services, information services, and construction projects, including design professional services) through means of a reverse auction if the CPO-HE has made a determination that use of a reverse auction is in the best interests of the State.  The CPO-HE shall publish in the Bulletin that bids will be received in an electronic auction manner as part of the notice of IFB.

 

b)         Reverse Auction Process 

The CPO-HE or designee shall conduct a reverse auction through a two-step IFB process consisting of bid prequalification and price submission.

 

1)         Prequalification

 

A)        An invitation to prequalify shall be issued requesting the submission of information addressing vendor qualifications and responsibility; addressing vendor specifications and/or samples; confirming acceptance of auction procedures; and requiring agreement to accept a contract using State contract terms and conditions if selected for award in the price only part of the process.  No pricing information shall be submitted or considered in the prequalification step of the process.

 

B)        The prequalification bids shall not be opened publicly, but the opening shall be recorded and witnessed by a State witness or through an electronic procurement system approved by the CPO-HE.  Prequalification information will be evaluated on a pass/fail basis and vendors will be notified directly as to whether they met or did not meet the prequalification criteria.

 

2)         Price

 

A)        An IFB shall be sent to those vendors who passed prequalification.  The response shall be limited to the submission of prices in the form specified in the IFB.  The IFB shall establish any minimum bid increments.

 

B)        Prices shall be submitted electronically.  The CPO-HE or designee shall cause the prices to be displayed as submitted, but the prices as displayed will not identify the name of the vendor.  Vendors may reduce their price at any time during the active period of the auction. 

 

C)        When the low price is substantially lower than other prices submitted, the CPO-HE or designee may request that the bidder confirm the price and, if an error has occurred, may allow withdrawal in accordance with the Code and this Part.

 

c)         Technical Difficulties

 

1)         The auction time may be extended or rescheduled by the CPO-HE or designee if technical difficulties at the State site do not allow the auction to be conducted as intended.  Participants will be notified of an extension or a rescheduling.

 

2)         If technical difficulties occur at a vendor site such that the vendor cannot electronically submit a price, the CPO-HE or designee may accept a fax and will then enter the price for the vendor.  Faxed prices will not be accepted later than 5 minutes before the originally scheduled end of the auction or if the faxed prices are higher than the then-existing low price.

 

d)         Reverse Auction Training

The CPO-HE or designee may provide instructions or training to prequalified vendors regarding auction procedures and technology.

 

e)         Disclosure of Reverse Auction Information

After the end of the reverse auction, the names of those who participated in either step of the process and the final price submitted by each participant shall be published to the Bulletin.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2015  Competitive Sealed Proposals

 

a)         Competitive Sealed Proposals may be used whenever permitted by the Code and as described in this Part.

 

b)         The Competitive Sealed Proposal method of source selection may be used to procure the following categories. Note that the following services, if they are professional and artistic, must be procured in accordance with Section 4.2035.

 

1)         electronic data processing equipment, software and services;

 

2)         telecommunications equipment, software and services;

 

3)         consulting services;

 

4)         employee benefits and management of those benefits; and

 

5)         insurance and banking services.

 

c)         Competitive Sealed Proposals may be used on a case-by-case basis to procure other needs when it is determined in writing by the SPO that competitive sealed bidding is either not practicable or advantageous.

 

d)         The Competitive Sealed Proposal method differs from competitive sealed bidding in two ways:  it permits discussions with competing offerors and changes in their proposals, including price and it allows comparative judgmental evaluations to be made when selecting among acceptable proposals for award of the contract.  Factors to be considered in determining whether competitive sealed bidding is either not practical or advantageous include:

 

1)         When evaluation factors involve the relative abilities of offerors to perform, including degrees of experience or expertise, when the types of supplies or services may require the use of comparative, judgmental evaluations to evaluate them adequately, or when the type of need to be satisfied involves weighing aesthetic values to the extent that price is a secondary consideration;

 

2)         whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;

 

3)         whether offerors may need to be afforded the opportunity to revise their proposals, including price;

 

4)         whether award may need to be based upon a comparative evaluation, as stated in the Request for Proposals, of differing price, quality and contractual factors in order to determine the most advantageous offering to the State.  Quality factors include technical and performance capability and the content of the technical proposal;

 

5)         whether the primary consideration in determining award may not be price; and

 

6)         if prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State.

 

e)         Content of the Request for Proposals

The RFP shall be prepared in accordance with Section 4.2010 (Competitive Sealed Bidding), provided that it shall also include:

 

1)         a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award;

 

2)         a statement of when and how price should be submitted.

 

A)        The RFP shall identify in the solicitation what parts or features of the work are essential and what options may be included in the project.  An option is a right to purchase additional supplies or services identified in the solicitation and directly relates to additional features or services of the underlying supply or service. All options must be clearly identified in the solicitation as optional work.

 

B)        The solicitation shall identify how the university will evaluate offers to determine the most advantageous proposal for award purposes by identifying whether options will or will not be included in the evaluation.

 

C)        The State expects prices for the required and optional supplies and services to be the lowest competitive market prices available for a customer of like type and of like circumstance.  If the university solicits required and optional supplies or services, but awards based on the required supplies and services, the university may reject any response to the solicitation if the required or optional prices are materially unbalanced in relation to each other.  For example, if a vendor submits an artificially low price for the required supplies and services but has submitted an artificially high price for the options, the prices are presumed to be unbalanced.  Unbalanced prices are not conducive to competitive comparison and may not be in the best interests of the State.

 

D)        Evaluation of options does not obligate the university to exercise those options.  If the university adds options not accepted at the time of contract award, a change order shall be executed based on the price provided in the contract.  Notice of the exercise of the options shall be published to the Bulletin 14 days in advance of exercise of the options.

 

E)        Pricing for any renewal terms identified in the solicitation shall be applied in determining the price.  A renewal term is not an option; and

 

3)         a statement that revisions may be requested, after discussions, for the purpose of obtaining best and final offers.

 

f)         Receipt and Registration of Proposals

 

1)         Proposals and modifications shall be opened publicly at the time, date and place designated in the RFP in the presence of a State witness, or through an electronic procurement system approved by the CPO-HE.

 

2)         The person opening the proposals shall not serve as a witness.  The name of the person opening the proposals, the name of the person serving as the State witness, the name of each offeror, the number of modifications received (if any), a description sufficient to identify the supply or service item offered, a notation that the package contains a price proposal, and such other information as determined by the CPO-HE or SPO shall be recorded on a form prescribed by the CPO-HE, read aloud, and otherwise made available through an electronic procurement system approved by the CPO-HE. 

 

g)         Evaluation of Proposals

 

1)         Evaluation Factors in the RFP. The RFP shall state all of the evaluation factors, including price, and their relative importance.  Evaluation subfactors, if any, and their relative importance must be finalized prior to the opening and made available for inspection and copying upon opening.  However, all price subfactors and their relative ranking must be shown in the RFP.

 

A)        Demonstrations or presentations may be part of the evaluation criteria if provided for in the solicitation.  The results of a demonstration or presentation may be included in scoring the proposal or to confirm the validity of the written proposal.

 

B)        The criteria for demonstrations or presentations shall relate to the performance and intended use of the supply or service.

 

C)        The RFP shall state the criteria for being invited to provide a demonstration or presentation.

 

D)        Demonstrations or presentations shall be conducted in a manner that provides fair and equitable treatment to offerors.

 

2)         Evaluation. The evaluation shall be based solely on the evaluation factors set forth in the RFP and no other factors shall be considered, except as communicated in advance to each proposer with opportunity to make necessary adjustments to the proposal. 

 

A)        Numerical rating systems shall be used unless another scoring tool is authorized by the SPO.  Any scoring tool shall reflect the evaluation criteria and ranking set forth in the RFP and any subfactors identified at the opening.

 

B)        Proposals shall be submitted in three parts:  the first, covering the price; the second, covering commitment to diversity; and third, covering all other items. Each part shall be evaluated and ranked independent of all other parts of all proposals.  Each member of the evaluation committee must read and evaluate the third part individually and independently of all other members.  All fields of the individual scoring sheet must be completed by each member of the evaluation committee.

 

i)          The second part must include a Commitment to Diversity.  (See Sec. 20-15 of the Code.)  The evaluators shall consider the information provided in the response and the quality of that information when evaluating responses.  Offerors must show a demonstrated commitment to diversity and require the allotment of points for Commitment to Diversity.  Commitment to Diversity must account for 20% of the total points assigned to the third part.

 

ii)         Factors to be considered in the award of points for the Commitment to Diversity component include, but are not limited to:

 

▪           whether or how well the offeror, on the solicitation being evaluated, met the goal of contracting or subcontracting with businesses owned by women, minorities, or persons with disabilities;

 

▪           whether the offeror, on the solicitation being evaluated, assisted businesses owned by women, minorities, or persons with disabilities in obtaining lines of credit, insurance, necessary equipment, supplies, materials, or related assistance or services;

 

▪           the percentage of prior year revenues of the offeror that involve businesses owned by women, minorities, or persons with disabilities;

 

▪           whether the offeror has a written supplier diversity program, including, but not limited to, use of diverse vendors in the supply chain and a training or mentoring program with businesses owned by women, minorities, or persons with disabilities; and

 

▪           the percentage of members of the offeror’s governing board, senior executives, and managers who are women, minorities, or persons with disabilities. [30 ILCS 500/20-15(e-5)]

 

C)        After completion of the individual evaluations, the evaluation committee may meet to discuss the proposals to ensure full understanding of the proposals. The evaluation committee shall meet if significant or substantial variance of scores, divergent scoring comments, or other information suggests the need for further discussion. 

 

D)        No committee member shall attempt to unduly influence another member's scores by virtue of the member's individual or organizational rank within the university.  After consideration of comments, individual evaluators may, for good cause, adjust their scores on their individual scoring sheets. 

 

E)        Evaluation of the parts may be conducted simultaneously, provided different evaluators are used to evaluate each part and no information is exchanged between the evaluators prior to completion of the evaluation.  The price proposal shall be opened in the presence of a State witness and distributed to the appropriate evaluators. 

 

h)         Proposal Discussions with Individual Offerors

 

1)         Purposes of Discussions. Discussions are held to:

 

A)        promote understanding of the University's requirements and the offerors' proposals (e.g., determine in greater detail milestones, deliverables and timelines for completion of work); and

 

B)        facilitate arriving at a contract that will be most advantageous to the State, taking into consideration price and the other evaluation factors set forth in the RFP.

 

2)         Conduct of Discussions. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and clarifications of proposals. Discussion may be conducted by the university, in consultation with the SPO, with vendors reasonably susceptible of being awarded a contract based on qualifications and price. If during the discussions it is determined there is a need for any substantial revision of, or change to, the RFP, the RFP shall be canceled and may be resolicited to incorporate the clarification or change. Auction techniques (revealing one offeror's price to another) and disclosure of any information from competing proposals are prohibited. Any substantial oral clarification of a proposal shall be reduced to writing by the offeror.

 

3)         Best and Final Offers. The SPO may request best and final offers from those offerors deemed acceptable after completion of any discussions. Best and final offers shall be submitted by a specified date and time. The SPO may conduct additional discussions or require another submission of best and final offers. The scope of the best and final offer and the number of vendors allowed to participate shall be defined by the SPO. The primary objective of best and final offers is to maximize the university's ability to obtain best value, based on the requirements and the evaluation factors set forth in the solicitation.  If an offeror does not submit either a notice of withdrawal or another best and final offer, the offeror's immediately previous offer will be construed as its best and final offer.

 

i)          Award

An award shall be made by the SPO pursuant to a written determination showing the basis on which the award was found to be most advantageous to the State, taking into consideration price and evaluation factors set forth in the RFP.  The contract file shall contain the basis on which the award is made. Any changes negotiated after award, other than reduction in price, must be submitted to the SPO for approval prior to contract execution.

 

(Source:  Amended at 46 Ill. Reg. 2921, effective February 18, 2022)

 

Section 4.2020  Small Purchases

 

a)         When making a small purchase, the university shall ensure maximum reasonable competition and promote small businesses, diversity, transparency and other statutory policies. For all small purchases of $20,000 or more, quotes must be sought from at least three vendors whenever practical, be in writing, and be maintained in the procurement file.

 

b)         Small Purchase Threshold

 

1)         Individual procurements of $100,000 or less for supplies or services, other than professional and artistic, may be made without the notice or level of competition otherwise required of competitive sealed solicitations.

 

2)         Procurements for construction and construction-related services of $100,000 or less may be made without the notice or level of competition otherwise required of competitive sealed solicitations.

 

3)         Procurements of $100,000 or less for professional and artistic services and that have a nonrenewable term of one year or less may be made without the prior notice or level of competition otherwise required of competitive sealed solicitations. Notice of award of these small professional and artistic service contracts must be published in the Bulletin within 14 days after contract execution, and shall include the name of the SPO, reason for the exception, description of the procurement, name of the university decision maker, contract reference number and contract price.

 

c)         Determination and Application of CPI

 

1)         Each April the CPO-HE will determine the CPI adjustment to the small purchase thresholds applicable to the next fiscal year.

 

2)         If the CPI is greater than zero, the thresholds identified in Section 20-20(a) of the Code will be reduced in an amount that, with the CPI increase, would result in the small purchase thresholds remaining as stated in subsection (b).

 

3)         By July 1, 2019 and every five years thereafter, the CPO-HE will review the small purchase thresholds to determine if a modification to the thresholds is needed. If a modification is needed, the CPO-HE shall consult with the Procurement Policy Board.

 

d)         Determination of Small Purchase Status

 

1)         In determining whether a contract is under the small purchase limit, the stated value of the supplies or services, plus any optional supplies and services, and the value of any renewals, determined in good faith, shall be utilized.  Trade-in value is not to be considered in determining whether a contract is under the small purchase limit.  When the value is calculated month-to-month or in a similar fashion, the amount shall be calculated for a 12 month period.

 

2)         If only a unit price or hourly rate is known, the contract shall be considered small and shall have a not-to-exceed limit applicable to the type of procurement (see subsection (a)).

 

3)         If, after signing the contract, the actual cost of completing the contract is determined to exceed the small purchase amount, and the SPO determines that a supplemental procurement is not economically feasible or practicable because of the immediacy of the agency's needs or other circumstances, the SPO shall follow the procedures for sole source or emergency procurement, whichever is applicable, to complete the contract.

 

e)         Purchases shall not be artificially divided so as to avoid a competitive procurement.

 

f)         Repetitive Need

If there is a repetitive need for small procurements of the same type (which may be evidenced by a pattern of small purchases, as determined by the university or the SPO), the university shall consult with the SPO to consider whether issuing a competitive sealed bid or proposal for procurement of those needs is in the best interests of the State.

 

(Source:  Amended at 44 Ill. Reg. 3884, effective March 13, 2020)

 

Section 4.2025  Sole Source and Sole Economically Feasible Source Procurement

 

a)         Application

The provisions of this Part apply to procurements from a sole source and sole economically feasible source unless the estimated amount of the procurement is within the limit set in Section 4.2020 (Small Purchases) or unless emergency conditions exist as defined in Section 4.2030 (Emergency Procurements), in which case those other procedures may be used.

 

b)         Conditions for Use of Sole Source and Sole Economically Feasible Source Procurement Method

Sole source procurement is permissible when a requirement is available from only a single supplier.  Sole economically feasible source is permissible when only one supplier is deemed economically feasible.  A requirement for a particular proprietary item does not justify a sole source procurement if more than one vendor is authorized to provide that item.  The following are examples of circumstances that could necessitate sole source and sole economically feasible source procurement, but are not exhaustive:

 

1)         compatibility of equipment, accessories, replacement parts or service is a paramount consideration;

 

2)         items are needed for trial use or testing of a specific product or service;

 

3)         item is for commercial resale and obtained from the manufacturer or sole authorized distributor;

 

4)         noncompetitive public utility services;

 

5)         item is copyrighted or patented and the item or service is not available except from the holder of the copyright or patent;

 

6)         media for advertising;

 

7)         art, entertainment services or athletic events;

 

8)         radio and television broadcast rights;

 

9)         procurements related to participation in mandated educational, professional, research, public service or athletic activities of organizations of which the university is a member.  These procurements may include, but are not limited to, dues and membership fees, travel and lodging and facility usage fees;

 

10)        federal or State grant requires a specific named vendor as a condition of the grant;

 

11)        items required by an existing franchise agreement;

 

12)        items that are required for research and no other source is able to meet the need as documented by the principal researcher; or

 

13)        new, latest edition textbooks that are only available from the publisher or sole distributor in classroom quantities.

 

c)         Sole Source Determination

 

1)         As soon as a need is identified by the university, the SPO must be contacted to determine the appropriate procurement method.  The final determination as to whether a procurement shall be made as a sole source or sole economically feasible source procurement shall be made by the SPO, based on a request made by a university.  The request shall be in writing on a form prescribed by the PPB and shall include the basis for the sole source or sole economically feasible source determination.  Prior to authorizing the university to enter into a contract based on the sole source or sole economically feasible source request, the CPO-HE shall offer to conduct a public hearing and make a final determination as required by Section 20-25(a) of the Code. Any request for hearing must be made at least 5 calendar days prior to the date of the scheduled hearing.  If no request for hearing is made, the hearing will be cancelled.  No sole source or sole economically feasible source procurement may proceed without final approval by the CPO-HE.

 

2)         To support a sole source request, the university may use research material available from the internet, trade shows, publications, peer networking and similar sources.  A justification must be provided detailing why the need could not be obtained through a competitive process.  That a vendor has supplied samples, demonstrated its product, provided the supplies or services through prior small purchases, or engaged in a pilot project is not sufficient justification, in and of itself, to support a sole source.

 

d)         Hearing

Any hearing required shall be conducted in accordance with Subpart U.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2030  Emergency Procurements

 

a)         Authority to Make Emergency Procurements

The provisions of this Part apply to every procurement over the small purchase limit set in Section 4.2020 (Small Purchases) made under emergency conditions.  A university shall have the authority to make emergency procurements when an emergency condition arises and the need cannot be met through normal procurement methods.

 

b)         Statutory Emergency Conditions

A statutory emergency condition exists:

 

1)         when there exists a threat to public health or public safety;

 

2)         when immediate expenditure is needed for repairs to university property in order to protect against further loss or damage to university property;

 

3)         to prevent or minimize serious disruption in critical university services that affect health, safety, or collection of substantial State revenues; or

 

4)         to ensure the integrity of university records.

 

c)         Quick Purchase.  The quick purchase emergency method of source selection is allowed in certain situations, including, but not limited to:

 

1)         protecting the health and safety of any person;

 

2)        items are available on the spot market or at discounted prices for a limited time so that good business judgment mandates a "quick purchase" immediately to take advantage of the availability and price;

 

3)         rare items, such as articles of historical value or art collections, are available for a limited time;

 

4)         the opportunity to obtain entertainment, speakers and athletic and other events or performances (not exempt under Section 1-13 of the Code) is available for a limited time;

 

5)         immediate action is necessary to avoid lapsing or loss of federal or donated funds.

 

d)         Scope of Emergency Conditions

Emergency procurement shall be limited to those supplies, services, construction or other items necessary to meet the emergency need.  In certain situations, the purchase to meet the immediate need (i.e., the temporary solution) may, by necessity, also be the permanent solution.  In this event, the notice shall describe that circumstance.

 

e)         Source Selection Methods

Any method of source selection, whether or not identified in this Part, may be used to conduct the procurement in emergency situations.  Whenever practical, existing State contracts shall be utilized.  Such competition as is practicable shall be obtained recognizing the need to obtain the item in time to meet the emergency need. Documentation of all efforts made to obtain competition, including efforts at diversity, shall be made part of the procurement file.

 

f)         Determination and Record of Emergency Procurement

 

1)         Determination.  The university shall make a written determination stating the basis for an emergency procurement, showing that the situation meets criteria for an emergency established by the Code and this Part and providing the reason for selecting the particular vendor.  These determinations shall be kept in the contract file.

 

2)         Emergency Contract Award.  For purposes of an emergency contract, an emergency contract is awarded on the earliest of the date a university communicates to a vendor when to start work, the date of publication on the Illinois Procurement Bulletin identifying the selected vendor of the required supplies or services, or the date the contract is signed by both parties.  Documentation of the contract award date shall be part of the procurement file.

 

3)         Statement.  The university shall prepare a statement for each emergency procurement (including statutory, quick purchases and extensions of emergency contracts beyond 90 days) and shall file it with the CPO-HE, PPB and Auditor General within 10 days after the contract is awarded. The statement shall be submitted electronically through the Bulletin, but if the Bulletin is not available, the statement shall be submitted through alternate means.  The statement shall include the following information:

 

A)        the vendor's name;

 

B)        the amount and type of the contract (if only an estimate of the amount is available immediately, the record shall be supplemented with the final amount once known);

 

C)        a description of what the vendor will do or provide;

 

D)        the reasons for using the emergency method of source selection.

 

4)         Publication.  Notice of the emergency procurement shall be published in the Bulletin as specified in Sections 15-25(c) and 20-30 of the Code no later than 5 days after the contract is awarded and shall include a description of the procurement, the reasons for the emergency procurement, the emergency statement, and the total cost.  When only an estimate of the total cost is known at the time of publication, the estimate shall be identified as an estimate and published.  When the total cost is determined, it shall also be published in like manner before the 10^th day of the next succeeding month. 

 

g)         Duration of Emergency Contract

 

1)         The term of the temporary solution emergency contract shall be limited to the time reasonably needed for a competitive procurement for the permanent solution, not to exceed 90 days.

 

2)         A temporary solution emergency contract may be extended beyond 90 days if the CPO-HE determines additional time is necessary and the contract scope and duration are limited to the emergency.  Prior to execution of the extension, a public hearing shall be held at which any person may present testimony.

 

3)         Notice of Extension.  Notice of intent to extend an emergency contract shall be published in the Bulletin at least 14 days prior to a public hearing.  Notice shall include at least a description of the need for the emergency extension, the vendor, and the date, time and location of the public hearing.

 

4)         The initial determination as to whether an emergency shall be extended for a term longer than 90 days shall be requested by the university, in the form of an extension request submitted to the SPO using the form prescribed by the CPO-HE.  The request shall include the justification for the extension.  Prior to execution of the extension, a public hearing shall be held at which any person may present testimony.  The CPO-HE may conduct the hearing or may authorize a hearing officer to hold the hearing and make a recommendation. The CPO-HE shall make a final determination as required by Section 20-30(a) of the Code.  The final determination shall be published in the Bulletin.  The term of the proposed contract extension may be shortened or lengthened as determined by the CPO-HE.

 

h)         Contract Extension Hearing

The hearing shall be conducted in accordance with Subpart U.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2033  Best Value Procurements

 

a)         Definition − A best value procurement means a contract award determined by objective criteria related to price, features, functions, and life-cycle costs that may include:

 

1)         total cost of ownership, including warranty, under which all repair costs are borne solely by the warranty provider; repair costs; maintenance costs; fuel consumption; and salvage value;

 

2)         product performance, productivity, and safety standards;

 

3)         the supplier's ability to perform to the contract requirements; and

 

4)         environmental benefits, including reduction of greenhouse gas emissions, reduction of air pollutant emissions, or reduction of toxic or hazardous materials.

 

b)         A best value source selection may only be used for purchases of heavy mobile fleet vehicles and off-road construction equipment.  The total annual value of vehicles and equipment purchased through the best value source selection shall not exceed $20,000,000 per university.  [30 ILCS 500/25-85]  Each university shall track expenditures made under this method of source selection and shall report annually the cumulative value of these expenditures to the CPO-HE.

 

c)         A best value procurement shall be conducted in accordance with Section 4.2015 (Competitive Sealed Proposals). In addition to the requirements of Section 4.2015, the solicitation document shall:

 

1)         Specify what performance factors will be given weighted value. 

 

2)         Identify all evaluation factors to be used in determining the successful offeror. 

 

3)         Give substantial weight to pricing in the evaluation of the successful offeror.

 

d)         Award will be made to the offeror proposing the best combination of performance, qualifications, price and other factors identified in the evaluation criteria.

 

e)         In addition to the publication requirements contained in Section 4.1525(d) (Bulletin Content), upon the written request of any person or entity that submitted an offer, notice of award shall be posted 24 hours in advance of contract execution in a public place at the offices of the university.  The solicitation document shall identify where the notice of award shall be posted.

 

f)         Protests may be filed by any person or entity that submitted an offer and will be conducted in accordance with Section 4.5550 (Protests).  Within 10 days after filing a protest, the protesting offeror shall file a full and complete statement with the CPO-HE or Protest Review Officer identifying the grounds for the protest and any facts in support of the protest.

 

(Source:  Added at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2035  Competitive Selection Procedures for Professional and Artistic Services

 

a)         Application

 

1)         The provisions of this Section apply to every procurement of professional and artistic services except those subject to the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and except as provided in subsection (e).

 

2)         "Professional and artistic services" means those services provided under contract to a university by a person or business, acting as an independent contractor, qualified by education, experience and technical ability [30 ILCS 500/1-15.60].

 

b)         Professional and artistic services are further defined as follows:

 

1)         "Qualified by education" means the individual who would perform the services must have the level of experience appropriate to the task, as specified in the Request for Proposals.

 

2)         "Qualified by experience" means the individual who would perform the services must have the level of general experience specified in the Request for Proposals.

 

3)         "Qualified by technical ability" means the individual who would perform the services demonstrates a high degree of skill or ability in performing services that are the same, similar or closely related in nature to those specified in the Request for Proposals.

 

4)         An essential element distinguishing professional services from other services is confidence, trust and belief in not only the ability, but the talent, of the individual performing the service.

 

5)         Professional and artistic services are primarily for intellectual or creative skills.  Contracts for services primarily involving manual skills or labor are not professional and artistic services contracts.

 

6)         If the professional or artistic contract is with a firm or other business entity, the individuals whose education, experience and technical ability provided the basis on which the firm or other business entity was selected must meet the qualifications.

 

7)         When a university requires services that meet the requirements of this subsection (b), the competitive selection procedures described in this Section must be followed.  Services that do not meet the requirements of this Section must be procured in accordance with the other methods of source selection authorized by the Code and this Part.

 

c)         The categories of services enumerated in this subsection (c) shall be considered and procured as professional and artistic services.  With regard to other services, the SPO may determine whether the factors identified in subsection (b), when applied to particular services to be procured, require the services to be procured as professional and artistic under these competitive selection procedures, or as services that are subject to one of the other methods of source selection authorized by the Code and this Part.  The following categories are examples of disciplines that would always be professional and artistic services:

 

1)         law;

 

2)         accounting;

 

3)         medicine;

 

4)         dentistry;

 

5)         clinical psychology; and

 

6)         custom-produced art.

 

d)         Architect, engineering and land surveying services shall be procured in accordance with the source selection procedures of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and are subject to the procedures for all other professional services established in the Code or this Part. For professional services with an estimated basic professional service fee of $25,000 or more, the SPO shall publish notice of award or notice of intent to award to the Bulletin for a minimum of 14 days prior to execution of the contract.

 

e)         Conditions for Use of Competitive Selection Procedures.

Except as authorized under Section 20-25 (Sole Economically Feasible Source Procurement) or Section 20-30 (Emergency Procurements) of the Code, these competitive selection procedures shall be used for all procurements of professional and artistic services of more than $100,000. 

 

1)         Services of $100,000 or less and for a nonrenewable term of one year or less may be procured in accordance with Section 4.2020 (Small Purchases) of this Part, except notice of the contract must be published as provided in accordance with Section 35-35(b) of the Code and include the name of the CPO-HE or SPO and a brief explanation of the reason for the exception.

 

2)         Dividing or planning procurements to avoid use of competitive procedures (stringing) is prohibited.  If there is a repetitive need for small professional and artistic procurements of the same type that may be evidenced by a pattern of small purchases, as determined by the university or the SPO, the university shall consult with the SPO to consider whether issuing a competitive sealed proposal for those needs is in the best interests of the State.

 

f)         Request for Proposals

Professional and artistic services shall be procured using an RFP.

 

1)         Contents.  The RFP shall be in the form specified by the CPO-HE and shall contain at least the following information:

 

A)        the type of services required;

 

B)        a description of the work involved;

 

C)        an estimate of when and for how long the services will be required;

 

D)        the type of contract to be used;

 

E)        a date by which proposals for the performance of the services shall be submitted;

 

F)         a statement of the minimum information that the proposal shall contain, which may, by way of example, include:

 

i)          the name of the offeror, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract;

 

ii)         if deemed relevant, the age of the offeror's business and average number of employees over a previous period of time, as specified in the RFP;

 

iii)        the abilities, qualifications and experience of all persons who would be assigned to provide the required services;

 

iv)        a listing of other contracts under which services similar in scope, size or discipline to the required services were performed or undertaken within a previous period of time, as specified in the RFP;

 

v)         a plan giving as much detail as is practical explaining how the services will be performed;

 

G)        price (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package);

 

H)        the factors to be used in the evaluation and selection process and their relative importance; and

 

I)         a plan for post-performance review to be conducted by the university after completion of services and before final payment and made part of the procurement file.

 

2)         Evaluation.  Proposals shall be evaluated on the basis of evaluation factors stated in the RFP.  The relative importance of the evaluation factors will vary according to the type of services being procured. The minimum evaluation factors are:

 

A)        the plan for performing the required services;

 

B)        ability to perform the services as reflected by technical training and education, general experience, specific experience in providing the required services and the qualifications and abilities of personnel proposed to be assigned to perform the services;

 

C)        the personnel, equipment and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and

 

D)        a record of past performance of similar work.

 

g)         Receipt and Handling of Proposals

Proposals shall be submitted to and opened by the university unless otherwise directed by the CPO-HE or SPO.

 

1)         Proposals and modifications shall be opened publicly at the time, date and place designated in the RFP in the presence of a State witness, or through a secure electronic procurement system approved by the CPO-HE.

 

2)         The person opening the proposals shall not serve as a State witness.  The name of the person opening the proposals, the name of the person serving as the State witness, the name of each offeror, the number of modifications received (if any), a description sufficient to identify the supply or service offered, a notation that the package contains a price proposal, and any such information determined by the CPO-HE or SPO shall be recorded on a form prescribed by the CPO-HE, read aloud, and otherwise made available through an electronic procurement system approved by the CPO-HE. 

 

3)         Proposals and modifications shall be opened in a manner to avoid disclosing contents to competitors.  Until an award recommendation is made, no university personnel or contractual agents other than the evaluation committee and those assigned to the procurement may review the proposals, except with justification from the purchasing director and approved by the SPO.  The university conducting the procurement shall not disclose any information contained in any proposal with any other offeror other than information that was recorded, read and made publicly available at the opening of the bids.  After completion of the evaluation and award recommendation, the university may conduct discussions with management and board of trustees if necessary to obtain approval for award prior to publishing the award in the Bulletin.  If discussions within the university are necessary to evaluate the proposals, the SPO shall require that confidentiality and conflict of interest statements be executed.

 

h)         Discussions

 

1)         Discussions Permissible.  The CPO-HE or SPO may conduct discussions with any offeror to:

 

A)        determine in greater detail the offeror's qualifications; and

 

B)        explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance and the relative utility of alternative methods of approach.  The CPO-HE or SPO may request revisions after discussions for the purpose of obtaining best and final offers.

 

2)         Discussions shall not disclose any information derived from proposals submitted by other offerors, and the university conducting the procurement shall not disclose any information contained in any proposals with any other offeror.

 

i)          Selection of the Best Qualified Offerors

After conclusion of validation of qualifications, evaluation and discussion, the SPO shall rank the acceptable offerors in the order of their respective qualifications.

 

j)          Evaluation of Pricing Data

Ranking by price is required for all professional and artistic proposals with an annualized value that is more than $100,000. When annualized value cannot be determined, ranking by price is required.

 

1)         If the low price is submitted by the most qualified vendor, the SPO may award to that vendor.

 

2)         If the price of the most qualified vendor is not low and if it is not more than $100,000 annually, the SPO but not a designee may award to that vendor.

 

3)         If the price of the best qualified vendor is not low and if it is more than $100,000 annually, the SPO, but not a designee, may award to that vendor but must state why a vendor other than the low-priced vendor was selected and that determination shall be published in the Bulletin.

 

k)         Negotiation and Award of Contract

 

1)         General.  The university, in consultation with the SPO, shall attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation.  The university, in consultation with the SPO, may, in the interest of efficiency, negotiate with the next highest ranked vendor, while negotiating with the best qualified vendor.

 

2)         Elements of Negotiation.  At a minimum, contract negotiations shall be directed toward:

 

A)        making certain that the offeror has a clear understanding of the scope of the work, specifically, the essential requirements involved in providing the required services;

 

B)        determining that the offeror will make available the necessary personnel and facilities to perform the services within the required time; and

 

C)        agreeing upon compensation that is fair and reasonable, taking into account the estimated value of the required services and the scope, complexity and nature of those services.

 

3)         Successful Negotiation of Contract with Best Qualified Offeror

 

A)        If compensation, contract requirements and contract documents can be agreed upon with the best qualified offeror, the contract shall be awarded to that offeror, unless the procurement is canceled.

 

B)        Compensation must be determined in writing to be fair and reasonable. Fair and reasonable compensation shall be determined by the university, in consultation with the SPO, based on the circumstances of the particular procurement, including, but not limited to, the nature of the services needed, qualifications of the offerors, consideration of range of prices received in the course of the procurement, other available pricing information and the university's identified budget.

 

C)        Contracts entered into under this Section shall provide:

 

i)          the duration of the contract, with a schedule for delivery when applicable;

 

ii)         the method for charging and measuring cost (hourly, daily, etc.);

 

iii)        the rate of remuneration;

 

iv)        the maximum price; and

 

v)         whether the services of subcontractors will be used.

 

4)         Failure to Successfully Negotiate Contract with Best Qualified Offeror

 

A)        If compensation, contract requirements or contract documents cannot be agreed upon with the best qualified offeror, a written record stating the reasons shall be placed in the file.  The university, in consultation with the SPO, shall advise the offeror of the termination of negotiations.

 

B)        Upon failure to successfully negotiate a contract with the best qualified offeror, the university, in consultation with the SPO, may enter into negotiations with the next most qualified offeror.

 

l)          Multiple Awards

The SPO may authorize a solicitation for professional and artistic services that includes an intent to make multiple awards based upon a need demonstrated by the university to have multiple vendors under contract.  Any multiple awards shall be conducted in accordance with Section 4.2036(b).

 

m)        Notice of Award

 

1)         Notice of award shall be in accordance with Section 4.1525(d) and (e). 

 

2)         Notice of award of professional and artistic service contracts that are nonrenewable, are one year or less in duration, and have a value of $100,000 or less must be published in the Bulletin in accordance with Section 35-35(b) of the Code.  The notice shall include the name of the SPO and a brief explanation of the procurement.

 

n)         Prequalification

Prequalification of professional and artistic vendors shall not be used to bar or prevent an otherwise qualified person from responding to a request for proposal for professional and artistic services.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2036  Other Methods of Source Selection

 

Notice of the results of any of the following methods must be published in the Bulletin in the form and format specified by the CPO-HE.

 

a)         Split Award

An award of a definite quantity requirement may be split between bidders or offerors if necessary to obtain the total quantity needed.  Each portion shall be for a definite quantity and the sum of the portions shall be the total definite quantity required.

 

b)         Multiple Award

An award may be made to two or more vendors for similar supplies or services when there is a need that cannot reasonably be met by a single award as determined by the university and SPO.

 

1)         Supplies and services may be solicited with the intent to make multiple awards.  The solicitation must state this intent and describe the type of multiple award in detail and the methodology for determining which vendor from among the multiple awardees will receive an as-needed individual order.

 

2)         Types of Multiple Awards

 

A)        Progressive (Primary with Alternates)

A multiple award may be made to a primary and one or more alternate vendors when there is a need for multiple vendors to ensure immediate performance.  The primary vendor shall have first refusal for all orders with others contacted in progressive order.  Ranking of the alternates shall be by price or value depending on the methodology (IFB or RFP) used in the solicitation.  Selection to meet the particular need shall be by low price or best value as appropriate to the underlying solicitation.  If appropriate and within legal requirements, an alternate progressive award for the same items may be made to promote statutory preferences, goals, policies and programs (e.g., small business set-aside). 

 

B)        Pre-qualified Pool of Vendors

 

i)          When it may be more efficient or more appropriate based on the nature of the item to establish a pool of qualified vendors and then select from among that pool as needs arise, the university may use an RFP to identify vendors who meet the criteria for the pre-qualified pool.  The university may select the pool from among the vendors ranked most qualified, but the number in the pool shall be the minimum necessary to meet the need, and generally not exceed 10.  Once selected, these vendors shall be considered of equal rank.  If appropriate and within legal requirements, an alternate pool for the same item may be established to promote statutory preferences, goals, policies and programs (e.g., Business Enterprise for Minorities, Women, and Persons with Disabilities (BEP) Act, Veterans Business Program (VBP), and small business set-aside).

 

ii)         When there is a specific need, each pool vendor will be contacted directly in writing and asked to submit a price, timeline for completion and any other information necessary to address the need by a specified date.  The vendor submitting the response that meets stated needs and is the lowest price or that provides the best value will have the award.  The method of selection shall be identified in the request for quotation.

 

iii)        If it is not practicable for the university to discuss the particular need with each pool vendor, the university may, with SPO approval, select the two most qualified, based on the initial selection of the pool, to discuss the particular need.  The university must detail the reasons for the selection and obtain SPO approval.  Documentation to the procurement file must contain the reason why pre-selection discussions with all pool vendors were not practicable.

 

3)         Exception for Conflict or Capacity

If there is a known conflict of interest or the vendor otherwise eligible for the order is not available to perform, the next low or next best value vendor shall be offered the order.

 

4)         Type of Contract

Multiple award contracts shall be considered master ordering agreements.  Supplies or services ordered under these contracts shall be documented on the order that refers to that agreement.  A multiple award contract is not a requirements contract and does not guarantee any level of ordering activity by the university.

 

5)         If a particular quantity requirement arises that exceeds the university's normal requirement or a quantity or amount specified in the contract, a separate solicitation may be issued.

 

6)         Despite the existence of a multiple award, the need may be met by a separate single award solicitation.

 

c)         Term and Condition Contracts

 

1)         A term and condition contract contains agreed contractual terms and conditions established for the convenience of the parties to be used in conjunction with a subsequent procurement and processed in accordance with the requirements of the Code and this Part.  A term and condition contract is not a procurement.  It creates no obligation on the part of the university to procure from the vendor, nor does it create an authorization for a university to order based on that term and condition contract, except as provided by subsection (c)(2).

 

2)         Orders may be placed against term and condition contracts without use of any method of source selection specified in the Code for convenience of processing sole source, emergency or small procurements. 

 

d)         Auction

Purchases may be made at auction in accordance with the procedural requirements applicable to the particular auction.  Prior notice and competition is not required and the amount payable shall be the amount bid and accepted plus any required buyer's premium.

 

e)         Federal Requirements

The SPO for any university receiving federal aid funds, grants or loans or otherwise subject to federal entity requirements may conduct procurements in accordance with federal requirements that are necessary to receive or maintain those federal aid funds, grants or loans or to remain in compliance with federal requirements, except as provided in Section 1-13 of the Code.

 

f)         Foreign Country Procurement

Procurements to meet the needs of university offices located in, or university programs operated in, foreign countries shall comply with the provisions of the Code to the extent practical. [30 ILCS 500/20-90]  Procurements conducted solely in a foreign country to meet the needs of a university office or program located in that country are delegated to the university.  The university shall provide a summary of the procurement or a copy of the procurement file to the SPO upon request.

 

g)         Donations

 

1)         When a procurement will have the majority of funding from a donation, the terms of which require use of a named vendor or the procurement of a particular good or service, the SPO shall comply with those requirements, but shall otherwise follow the Code and this Part.

 

2)         Donations may be acknowledged by the donee university in a manner appropriate to the type of donation and the program activity associated with the donation.  Acknowledgment may include, but need not be limited to, public announcement at the event or in donee university publications, and inviting the donor to attend the program activity associated with the donation.

 

h)         Broker Method for Obtaining Certain Insurance Coverages

 

1)         Notwithstanding anything to the contrary in this Part, the CPO-HE, but not a designee, may, on a case-by-case basis, authorize the use of this broker method to obtain insurance coverages when use of the methods of source selection set forth in Article 20 of the Code is not practicable or advantageous because, for example:

 

A)        Due to the structure of the insurance industry, the types of insurance coverages needed cannot reasonably be obtained from "direct writers" who would provide quotes directly to university in a bid or RFP process; or

 

B)        The process of obtaining quotes for needed insurance coverages cannot be accomplished within the normal procurement timeframes.

 

2)         If the CPO-HE determines that this broker method is preferable for designated coverages, a two-part procurement process will be used to obtain the coverages.

 

A)        A broker will be selected in accordance with the RFP process authorized by Section 20-15 of the Code, and the resulting contract will be subject to all requirements of the Code.  The broker contract will be issued for a term of years, and during the term of the contract the broker will assist the university in obtaining  coverages as set forth in subsection (i)(2)(B) of this Section as well as providing customary services such as issuing certificates of insurance and servicing policies.

 

B)        The broker will assist the university by serving as broker of record in obtaining insurance coverages through the industry process of going to market to obtain quotes.  The university will use an evaluation team to test the market for competitiveness, review the quotes, and select the insurers and products best fitting its needs.  The solicitation, evaluation and selection process will be documented in writing and become a part of the public procurement file.  The insurance coverages obtained, the term of coverage, and the premiums charged will be posted on the Bulletin as attachments to the broker award notice.

 

i)          Job Order Contracting

 

1)         Definition − A Job Order Contract is a competitively bid, indefinite quantity contract intended for new construction, renovation and repairs with pre-established unit prices in which a university provides a definition of the work scope and a vendor selected from a list of qualified vendors furnishes all management, documentation, design and incidental drawings, labor, materials, supplies, parts, transportation, equipment and supervision needed to perform the work as required.  Ordering is accomplished by means of issuance of a Work Order against the Job Order Contract.

 

2)         Conditions of Use − The Chief Procurement Officer may authorize the use of a Job Order Contract upon a determination in writing that such use is necessary for adequate delivery, service or product compatibility, and that the methods of source selection set forth in Article 20 of the Code is either not practicable or advantageous because, for example, the program needs of a university cannot reasonably be met within the normal procurement timeframes, or that the type and variety of needs are such that a single award will not assure the needed availability or diversity of vendors.

 

3)         Procedure − A Job Order Contract shall be initiated by the issuance of an Invitation for Bids in the form required by Section 4.2010 (Competitive Sealed Bidding), except as otherwise provided in this subsection (j)(3).  In addition to the requirements set forth in Article 30 of the Code and Section 4.2010, the Job Order Contract Invitation for Bid shall include:

 

A)        A detailed description of the scope of the Job Order Contract, including performance, technical requirements and specifications, and minimum and maximum work order amounts;

 

B)        the reasons for using a Job Order Contract;

 

C)        a description of the process that will be used to evaluate qualifications and proposals, including a method for determining each Vendor's Price Adjustment Factors utilizing the published Construction Task Catalog^® and Technical Specifications documents; and

 

D)        that the SPO may conduct oral or written discussions of the offers.

 

4)         Award − Those vendors meeting minimum qualifications shall be offered non-exclusive indefinite quantity contracts against which a university may later place one or more work orders on an as needed basis in accordance with the allocation of work procedure set forth in subsection (j)(5). 

 

5)         Allocation of Work − Work Orders shall be allocated among qualifying vendors on an as needed basis.  Once a need is identified, the university shall allocate work for that project using Job Order Contracting from the list of qualified vendors.  The university shall select the vendor that best addresses its needs for the project based on the work order allocation method specified in the IFB, which shall include such factors as price, capacity, past performance, geographic location, experience and knowledge.  If the low price vendor is not selected, the university shall justify the alternative selection and submit the order to the SPO for approval.  The SPO or PCM will periodically review any allocation of Work Orders and report to the CPO-HE with a recommendation for future action.

 

6)         It shall be the affirmative obligation of each vendor with a Job Order Contract to update information provided to the contracting university regarding its continued ability to provide the contracted service.  Job Order Contracts may provide that vendors who cannot perform the required services when contacted and who have not provided the updated information may be taken out of consideration for Work Orders for a period of time, including until the next prequalification.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2037  Tie Bids and Proposals

 

a)         Tie bids or proposals are those from responsive and responsible vendors that are, in the case or bids, identical in price and, in the case of proposals, identical in rank after evaluation.

 

b)         Tie bids or proposals will be treated as follows:

 

1)         If the tied vendors include only one Illinois resident vendor, the Illinois resident vendor shall be given the award.  "Illinois resident vendor" has the meaning ascribed in Section 4.4510 (Resident Bidder and Offeror Preference).

 

2)         If the award cannot be determined after applying the Illinois resident vendor preference, the bidder or offeror who is a BEP or VBP certified vendor shall be given the award.

 

3)         In all other situations, the award shall be made by lot unless the SPO determines that:

 

A)        awarding to one of the vendors is in the State's best interest because, for example, that vendor is likely to be more reliable or responsive to the State's needs, based on past performance; provides a better quality of the supply or service; provides quicker delivery; or, in the case of proposals, because of a desire to take advantage of the lower price; or

 

B)        splitting the award is in the State's best interest because of a need to ensure delivery of the supply or service, or is necessary or desirable to promote future competition, and provided the affected vendors agree to the split award. 

 

c)         Records

Records shall be made of all procurements on which tie bids or proposals are received, showing at least the following information:

 

1)         the identification number of the solicitation;

 

2)         a description of what was procured; and

 

3)         a listing of all the bidders or offerors and the prices submitted.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2038  Modification or Withdrawal of Bids or Proposals

 

a)         Modification or Withdrawal

A bidder or offeror may withdraw or modify a bid or proposal if notice of the withdrawal or modification is received by the SPO before the latest time specified for receipt of bids or proposals.  Any modification or withdrawal, however, must be made in writing and received by the SPO prior to the scheduled bid or proposal opening.  When time is of the essence, the SPO may agree to receive modifications or withdrawals by printed form conveyed by electronic mail, fax or telephone.  An originally signed written confirmation of a telephone modification or withdrawal shall be mailed or delivered by the bidder or offeror on the same day.  Withdrawal of bids or proposals after bid or proposal opening will not ordinarily be permitted; however, in those cases in which, in the judgment of the SPO, based on clear and demonstrable evidence, the bidder or offeror has made a bona fide error in the preparation of the bid or proposal and that error will result in a substantial loss to the bidder or offeror, an exception may be made.

 

b)         Minor Informalities

A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State or to other bidders or offerors (i.e., the effect on price, quality, quantity, delivery or contractual conditions is negligible).  The SPO shall waive these informalities or allow the bidder to correct them depending on which is in the best interest of the State. Minor informalities include insignificant mistakes that have an effect on price, quantity, quality, delivery or contractual conditions is negligible.

 

c)         Documentation Required

When a bid or proposal is corrected or withdrawn, or correction or withdrawal is denied, a written determination shall be prepared by the SPO showing that relief was granted or denied in accordance with this Part.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.2039  Mistakes

 

a)         General

Corrections to bids, proposals or other procurement processes are allowed, but only to the extent not contrary to the best interest of the State or the fair treatment of other offerors.

 

b)         Mistakes Discovered Before Opening

A vendor may correct mistakes discovered before the time and date set for opening by withdrawing or correcting the error in writing, or in person at the opening location, before the time and date set for opening.

 

c)         Confirmation of Mistake After Opening

When the SPO knows or has reason to conclude that a mistake has been made, the SPO shall request the vendor to confirm the information.  Situations in which confirmation should be requested include obvious or apparent errors on the face of the document or a price unreasonably lower than the others submitted.  If the vendor alleges a mistake, the bid or proposal may be corrected or withdrawn if the conditions set forth in this Section, as applicable, are met.

 

d)         Mistakes Discovered after Opening but Before Award

 

1)         Minor Informalities

A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on price, quality, quantity, delivery or contractual conditions is negligible).  The SPO shall waive these informalities or allow correction depending on which is in the best interest of the State.  Examples of minor informalities as to form include the failure to:

 

A)        return the required number of signed copies required by the solicitation document;

 

B)        acknowledge receipt of an amendment to the solicitation, but only if:

 

i)          it is clear from the bid or proposal that the bidder or offeror received the amendment and intended to be bound by its terms; or

 

ii)         the amendment involved had a negligible effect on price, quantity, quality or delivery.

 

2)         Mistakes in Which the Intended Correct Information is Evident

If the mistake and the intended correct information are clearly evident on the face of the bid or proposal document, the information shall be corrected and the bid or proposal may not be withdrawn.  Examples of mistakes that may be clearly evident on the face of the solicitation document are typographical errors, errors in extending unit prices, transposition errors and arithmetical errors.

 

3)         Mistakes in Which the Intended Correct Information is Not Evident

The bid or proposal may be withdrawn if:

 

A)        a mistake is clearly evident on the face of the bid or proposal document but the intended correct bid or proposal is not similarly evident; or

 

B)        there is proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made.

 

e)         During Discussions; Prior to Best and Final Offers

Once discussions are commenced with any offeror or after best and final offers are requested, any offeror may propose to correct any mistake, prior to the date set for conclusion of discussions or for receipt of best and final offers, provided the correction would not be contrary to the fair and equal treatment of other offerors.

 

f)         Mistakes Discovered after Award

Mistakes shall not be corrected after award of the contract except when the SPO finds it would be unconscionable (e.g., if the mistake resulted in a windfall to the State) not to allow the mistake to be corrected.

 

g)         Documentation Required

The reason for allowing correction or withdrawal of bids or proposals shall be made part of the procurement file and shall be available for public inspection.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.2040  Cancellation of Solicitations; Rejection of Bids or Proposals

 

a)         Policy

Any solicitation shall be cancelled before or after opening when a university requests or when the SPO determines cancellation to be in the State's best interest.  Any cancellation shall be justified in writing.  Prior to an SPO cancelling a solicitation, the SPO shall consult with the university in reaching a determination of whether cancellation is in the university's best interest.  Nothing shall compel the award of a contract.

 

b)         Cancellation of Solicitation; Rejection of All Bids or Proposals

 

1)         A solicitation may be canceled in whole or in part when the SPO determines in writing that the action is in the State's best interest for reasons including, but not limited to:

 

A)        the university no longer requires the supplies or services;

 

B)        the university no longer can reasonably expect to fund the procurement; 

 

C)        proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable;

 

D)        ambiguous or otherwise inadequate specifications;

 

E)        the solicitation did not provide for consideration of all factors of significance to the university;

 

F)         prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;

 

G)        all otherwise acceptable bids or proposals received are at clearly unreasonable prices; or

 

H)        there is reason to question whether the bids or proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.

 

2)         When a solicitation is cancelled, notice of cancellation shall be posted to the Bulletin.

 

3)         The notice of cancellation shall:

 

A)        identify the solicitation;

 

B)        briefly explain the reason for cancellation; and

 

C)        when appropriate, explain that an opportunity will be given to compete on any re-solicitation or any future procurements of similar supplies or services.

 

c)         Rejection of Individual Bids or Proposals

 

1)         Individual bids or proposals may be rejected for reasons including, but not limited to:

 

A)        the vendor that submitted the bid or proposal is non-responsible as determined under Section 4.2046 (Responsibility);

 

B)        the bid or proposal is not responsive, that is, it does not conform in all material respects to the solicitation, including submission requirements;

 

C)        the supply or service item offered in the bid or proposal is unacceptable by reason of its failure to meet the announced requirements of the solicitation, including but not limited to specifications or permissible alternates or other acceptability criteria set forth in the solicitation, statement of work or quotation; or

 

D)        the proposed price, including options, is clearly unreasonable.

 

2)         Notice of Rejection.  Upon request, bidders or offerors whose bid or proposal has been rejected shall be advised of the reasons for rejection.

 

d)         Documentation

The reason for cancellation or rejection shall be made a part of the procurement file and shall be available for public inspection.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

SUBPART F: SUPPLIERS, PREQUALIFICATION AND RESPONSIBILITY

 

Section 4.2043  Suppliers

 

A university may contract with any qualified source of supply, but shall use or consider, as applicable, the following special sources, from which procurements may be made without competition:

 

a)         Correctional Industries in accordance with Subpart N.

 

b)         State and Federal Surplus Warehouses under the jurisdiction of the Department of Central Management Services. (The State Property Control Act [30 ILCS 605/7a] requires that surplus furniture be considered before any purchase of new furniture valued at $500 or more per piece.)

 

c)         Qualified workshops for persons with significant disabilities in accordance with Subpart N.

 

d)         State agencies and other governmental units described in Section 1-10(b)(1) of the Code.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2044  Vendor List

 

Each university may maintain a list of vendors who have expressed interest in contracting with the university.  This list may be used to solicit for small purchases and emergency procurements, as well as to supplement Bulletin notices.  Inclusion in any university-maintained vendor list shall not be a requirement to be considered for future contracting opportunities.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.2045  Vendor Prequalification

 

a)         The SPO may prequalify prospective vendors when determination of vendor qualifications or preliminary evaluation of supplies or services prior to solicitation would promote the effective conduct of procurement.

 

b)         The SPO shall identify by publication in the Bulletin the qualifications or categories of supplies and services (including professional and artistic services) for which vendors of those supplies and services may prequalify for a particular solicitation.

 

c)         Any opportunity to prequalify shall be announced in the Bulletin.  The notice shall alert vendors that fail to participate in the prequalification process of the consequences.

 

d)         When prequalifying a vendor, the SPO may limit prequalification to particular matters (e.g., determining whether a vendor has been and is likely to be "responsible" or whether the vendor manufactures domestically).

 

e)         The fact that a prospective vendor has been prequalified generally does not necessarily represent a definitive finding of responsibility for a particular procurement.

 

f)         When prequalifying a vendor, the SPO may consider factors tailored to a specific procurement or type of procurement, which shall be announced in the prequalification notice in the Bulletin.

 

g)        Except in the case of professional and artistic services, distribution of and responses to a solicitation may be limited to prequalified vendors and award of a contract may be denied because a vendor was not prequalified.  If eligibility for the procurement will be limited to prequalified vendors, the solicitation shall state that fact.

 

h)         The prequalification may provide that any vendor who completes prequalification may refer to that prequalification when submitting responses to solicitation or in other procurement situations, instead of submitting that same information with a response. This does not alleviate a vendor from providing updated certifications and other information as part of the prequalification process.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2046  Responsibility

 

a)         Application

Before making an award or approving a contract, the SPO must be satisfied the prospective bidder or offeror is responsible. If there is doubt about responsibility, and if a bond or other security would adequately protect the university's interests, then that bidder or offeror may receive an award or contract upon receipt of the bond or other security.

 

b)         Standards of Responsibility

Factors to be considered in determining whether the standard of responsibility has been met include, but are not limited to, financial responsibility, insurability, effective equal opportunity compliance, payment of prevailing wages, if required by law, compliance with laws including goals and other preferences under the Code and the Business Enterprise for Minorities, Women, and Persons with Disabilities Act, capacity to produce or sources of supply, performance record in the business or industry, ability to provide required maintenance service and other matters relating to the bidder's or offeror's probable ability to deliver in the quality and quantity and within the time and price required under the contract, if it is awarded to the bidder or offeror.  A bidder or offeror must be a legal entity prior to submitting the bid, offer or proposal and authorized to transact business or conduct affairs in Illinois prior to execution of a contract.

 

c)         Information Pertaining to Responsibility

The university, in consultation with the SPO, may request information or conduct discussions with a bidder or offeror to determine in greater detail the bidder's or offeror's capability to perform and to determine prior compliance on State contracts with the standards of responsibility identified in subsection (b).  This discussion is not for the purpose of determining whether one bidder's or offeror's product or service capability is superior to another.  The prospective vendor shall supply information requested concerning the responsibility of such vendor.  The university may supplement this information from other sources and may require additional documentation at any time in determining whether a vendors is responsible. If the vendor fails to supply the requested information or if in the performance of prior State contracts the vendor breached the standards of responsibility and failed to timely cure the deficiency, the SPO may disqualify the vendor or may base the determination of responsibility upon any available information.

 

d)         Written Determination of Non-Responsibility Required

If a vendor who otherwise would have been awarded a contract is found non-responsible, a written determination of non-responsibility setting forth the basis of the finding shall be prepared by the university and approved by the SPO.  The final determination shall be made part of the procurement file.

 

e)         Affiliated Companies

Vendors that are newly formed business concerns having substantially the same owners, officers, directors or beneficiaries as a previously existing vendor that has been determined not responsible or has been suspended or debarred will also be determined to be not responsible.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

SUBPART G: BID, PROPOSAL AND PERFORMANCE SECURITY

 

Section 4.2047  Security Requirements

 

a)         Vendors shall furnish bid, proposal or performance security as specified in the solicitation or contract.  The cost of providing security will be borne by the vendor unless otherwise stated in the solicitation.

 

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

 

c)         Unless the amount is set by law, the university will determine the amount, in dollars or percentage of contract price, that will adequately protect the university's interests.  That amount will vary depending on the type of procurement and the risks and potential losses associated with delay or failure to complete the project, and for other such reasons.

 

d)         A vendor may be required to furnish up to 100% performance security at any time during contract performance and at its cost, if it appears that delivery or production schedules cannot be met, quality is poor, responsibility is questioned and for similar reasons.

 

e)         The vendor's source of supply may also be required to furnish security. If the vendor does not have a stock of the supplies in question in the amount required or the facilities to produce the item in that amount, the university may, in addition, require the vendor to have the source of supply furnish security acceptable to the university, conditioned on the source supplying the vendor as required in the solicitation.

 

f)         Bid or Proposal Security

 

1)         The bid or proposal security will be used to ensure the bidder or offeror meets all obligations imposed under the solicitation.  This includes, but is not limited to, the obligation to keep the price, bid or proposal firm for as long a period as specified in the solicitation, to enter into a contract, and to file a performance security.  The university may retain the bid or proposal security as damages if the bidder or offeror fails to meet its obligations.

 

2)         The bid or proposal security will be returned to the vendor as soon as is practicable after the bid or proposal opening..  Bid or proposal security will be returned to the unsuccessful vendors upon execution of the contract.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

SUBPART H: SPECIFICATIONS AND SAMPLES

 

Section 4.2050  Specifications and Samples

 

a)         Responsibilities Regarding Specifications

The university shall write the necessary specifications, including the statement of work, subject to the SPO's review and approval.  Any dispute with the SPO regarding the statement of work or scope of specifications can be escalated to the CPO-HE.

 

b)         Procedures for the Development of Specifications

 

1)         Specifications shall accurately reflect the university's needs.  Specifications shall clearly and precisely describe the salient technical or performance requirements without being unduly restrictive or having the effect of requiring a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice.  

 

2)         Any specifications or standards adopted by business, industry, not‑for‑profit organization, or governmental unit may be incorporated by reference.

 

3)         A specification may provide alternate descriptions when two or more design, functional, performance or other criteria will satisfactorily meet the university's requirements.

 

4)         Article 45 of the Code shall be considered and applied when required or appropriate, including language on reducing barriers to participation by small and diverse vendors.

 

5)         A solicitation or specification for a contract, or a contract, may not require, stipulate, suggest or encourage a monetary or other financial contribution or donation, cash bonus or incentive, economic investment, or other prohibited conduct as an explicit or implied term or condition for awarding or completing the contract. [30 ILCS 500/20-50]

 

6)         As used in this Section, "prohibited conduct" includes requested payments or other consideration by a third party to the university or State agency that is not part of the solicitation or that is unrelated to the subject matter or purpose of the solicitation.  "Prohibited conduct" does not include a payment from the vendor that is supported by additional consideration (such as exclusive rights to sell items or rights to advertise), other than the consideration of the State's awarding a contract to purchase goods and services. [30 ILCS 500/20-50]

 

7)         The solicitation shall identify what specifications are essential and what optional specifications may be included in the project.  All options must be identified in the invitation for bid or request for proposal as optional work.

 

c)         Brand Name or Equal Specification

 

1)         Brand name or equal specifications may be used in a competitive solicitation when:

 

A)        no specification for a common or general use specification or qualified products list is available;

 

B)        time does not permit the preparation of another form of specification;

 

C)        the nature of the product or the nature of the university's requirement makes use of a brand name or equal specification suitable for the procurement; or

 

D)        when the university determines that circumstances show this to be the most reasonable type of specification.

 

2)         Brand name or equal specifications shall seek to designate more than one brand as "or equal", and shall further state that substantially equivalent products to those designated will be considered for award.

 

3)         Unless the university determines in writing that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional or performance characteristics that are required.

 

4)         Where a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance and characteristics desired and is not intended to limit or restrict competition. "Or equal" submissions will not be rejected because of minor differences in design, construction or features that do not affect the suitability of the product for its intended use.  Burden of proof that the product is equal is on the vendor.

 

d)         Brand Name Only Specification

 

1)         A brand name only specification may be used in a competitive solicitation provided the university makes a written request justifying that only the identified brand name item will satisfy the university's needs and the SPO approves in writing the use of the brand name only specification.

 

2)         Brand name alone may be specified in order to fill medical prescription needs, to stock university retail-type operations, to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the SPO.  A university may, pursuant to an authorized competitive procedure, select a particular vendor to provide supplies or services for a specified period of time, and for that period the supplier of additional, related and updated supplies and services may be limited to the selected vendor or the brand initially selected.

 

3)         The university shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit those sources to achieve whatever degree of competition is practicable.  If only one source can supply the requirement, the procurement shall be made under Section 4.2025 (Sole Economically Feasible Source Procurement).

 

4)         The SPO shall provide a quarterly report to the CPO-HE of solicitations conducted using brand name only.

 

e)         Qualified Products List

 

1)         A qualified products list may be developed by the university, with approval of the SPO, when testing or examination of the supplies prior to issuance of the solicitation is desirable or necessary in order to best satisfy university requirements.

 

2)         When developing a qualified products list, notice shall be posted to the Bulletin soliciting potential suppliers to submit products for testing and examination to determine acceptability for inclusion in a qualified products list.

 

3)         Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with established requirements.

 

f)         Proven Products

The supply or service may be rejected if it has not been offered to other governmental or commercial accounts for at least one year prior to the notice date of a solicitation.  Specifications may require that the supply or services must have been used in government or commercial venues for a specified period of time to be considered.

 

g)         University Required Samples

 

1)         Samples or descriptive literature may be requested when it is necessary to evaluate required characteristics of the items bid.  Any required samples must be submitted as instructed in the solicitation, with transportation prepaid by the vendor.  Each sample must be labeled with the vendor's name, address and a means of matching the sample with the applicable bid or proposal.

 

2)         Any sample submitted must be representative of the item that would be delivered if a contract were awarded for that item.  Samples submitted by a successful vendor will be retained to check continuing quality and compliance with specifications.  Submission of samples will not limit the university's right to require adherence to specifications.

 

3)         No payment will be made for samples.  Samples not destroyed or consumed by examination or testing will be returned upon request and at vendor's expense.  The request must be made at time of submission with return collect or prepayment provisions and instructions for return accompanying the samples.

 

4)         Unsolicited samples or descriptive literature are submitted at the vendor's risk, may or may not be examined or tested, will not be deemed to vary any of the provisions of the solicitation, and may not be utilized by the vendor to contest a decision or understanding with the university.

 

h)         Product Demonstration

Subject to the requirements of Section 50-39 of the Code, a vendor may request to demonstrate a product or service. Agreement to allow a demonstration will be solely at the university's discretion and will not entitle the vendor to a contract nor shall payment for the demonstration be allowed unless a written contract had been executed prior to the demonstration.  No payment will be made for the demonstration period except as agreed to in advance. If the price exceeds the small purchase amount, the product must be acquired under Section 4.2025 of this Part.  The product demonstrated will be returned upon request and at the vendor's expense.  The request must be made prior to the time of product demonstration with return collect or prepayment provisions and instructions for return accompanying the product demonstration.

 

i)          Specifications Prepared by Other Than University Personnel

As provided in Section 4.2005(v), specifications may be prepared by other than university personnel, including, but not limited to, consultants, architects, engineers, designers and other drafters of specifications for public contracts provided there is no conflict of interest or an exception has been approved in accordance with Section 4.2005(v)(4)(B).  Contracts for the preparation of specifications by other than university personnel shall require the specification writer to adhere to university requirements and the terms of the Code, particularly Section 50-10.5, and this Part. The university must inform the SPO of specifications prepared by anyone other than university personnel.  The SPO retains the authority for final approval of the specifications.  Any dispute with the SPO regarding the statement of work or scope of specifications can be escalated to the CPO-HE.

 

j)          Pre-Solicitation Request for Information

When the university does not have sufficient information about available supplies or services to issue a solicitation, the university, in consultation with the SPO, may issue a pre-solicitation request for information inviting vendors to submit information about the availability of specified types of supplies and services.  Public notice of the pre-solicitation request for information shall be published in the Bulletin at least 14 days before the date set for the receipt of information.  The submission of information by a vendor in response to a pre-solicitation request for information is not a prerequisite for that vendor to respond to a subsequent solicitation for the types of supplies and services for which information was solicited, and the issuance of a pre-solicitation request for information does not commit the university to make any procurement of supplies or services of any kind.  Confidential information will not be accepted from a vendor in response to a pre-solicitation request for information.  All information received through a pre‑solicitation request for information will be part of the publicly available procurement file.  An RFI is to be used for information gathering only and is not a vehicle for procuring supplies or services.

 

k)         When procuring freight, small package delivery, and other forms of cargo shipping and transportation services, appropriate weight shall be given to the requirements of the Transportation Sustainability Procurement Program Act [30 ILCS 530].  [30 ILCS 500/20-165]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

SUBPART I: CONTRACTS

 

Section 4.2055  Types of Contracts

 

a)         Scope

This Section contains descriptions of types of contracts and limitations as to when they may be utilized by the university in its procurements. Types of contracts not mentioned in this Section may be utilized with approval of the SPO.

 

b)         Prohibition of Cost-Plus-a-Percentage-of-Cost Contracting

The cost-plus-a-percentage-of-cost contract is prohibited by Section 20-55 of the Code.  This type of contracting may not be used alone or in conjunction with an authorized type of contract.  A cost-plus-percentage-of-cost contract is one in which the vendor selects the supply or service on which the vendor's percentage is applied.

 

1)         A percentage mark-up from an agreed price list is not a cost-plus-a-percentage-of-cost contract.

 

2)         A percentage mark-up from the cost of a supply or service selected by the university or another vendor under contract to the university is not a cost‑plus-a-percentage-of-cost contract.

 

3)         A percentage mark-up from cost for parts needed in relation to a contract for services does not convert the services contract to a prohibited cost-plus-a-percentage-of-cost contract provided the parts supplied under the cost-plus-percentage-of-cost method do not exceed 20% of the value of the contract.

 

c)         Types of Fixed-Price Contracts

 

1)         Firm Fixed-Price Contract.  A firm fixed-priced contract provides a price that is not subject to adjustment because of variations in the vendor's cost of performing the work specified in the contract.

 

2)         Fixed-Price Contract with Price Adjustment

 

A)        A fixed-price contract with price adjustment provides for variation in the contract price under special conditions defined in the contract, other than customary provisions authorizing price adjustments due to modifications to the work.  The formula or other basis by which the adjustment in the vendor's price can be made shall be specified in the solicitation and the resulting contract. Adjustment allowed may be upward or downward only, or both upward and downward. Examples of conditions under which adjustments may be provided in fixed-price contracts are:

 

i)          changes in the vendor's labor agreement rates as applied to an industry or area (such as are frequently found in contracts for the purchase of coal);

 

ii)         changes due to rapid and substantial price fluctuations that can be related to an accepted index (such as contracts for gasoline, heating oils and dental gold alloy); and

 

iii)        in requirement contracts, in which a vendor is selected to provide all of the university's needs for the items specified in the contract, when a general price change applicable to all customers occurs, or when a general price change alters the base price (such as a change in a manufacturer's published price list or posted price to which a fixed discount is applied pursuant to the contract to determine the contract price).

 

B)        If the contract permits unilateral action by the vendor to bring about the condition under which a price increase may occur, the university shall have the right to reject the price increase and terminate without cost the future performance of the contract.

 

d)         Cost-Reimbursement Contracts

 

1)         Determination Prior to Use

 

A)        The university must submit to the SPO a justification for using any type of cost-reimbursement contract.  This justification must be sufficient to show that such a contract is likely to be less costly to the university than any other type or that it is impracticable to obtain the items through any other type of contract.  The SPO will consider the justification and any other relevant factors before making a written determination to authorize use of the cost‑reimbursement contract.

 

B)        Any reimbursement of travel expenses authorized in the solicitation and the terms of the contract must be in accordance with applicable travel control board regulations.

 

2)         Cost Reimbursement Contract.  A cost reimbursement contract provides that the vendor will be reimbursed for allowable costs incurred in performing the contract, but will not receive a fee. These contracts establish an estimate of total cost and must establish a ceiling that a vendor may not exceed.  The SPO must provide a written determination that this type of contract is likely to be less costly than any other type of contract or that it is impracticable to obtain the item required except under this type of contract.

 

3)         Cost-Plus-Fixed-Fee Contract.  This cost-reimbursement type contract provides for payment to the vendor of an agreed fixed fee in addition to reimbursement of allowable incurred costs.  The fee is established at the time of contract award and does not vary if the actual cost of contract performance is greater or less than the initial estimated cost established for the work. Thus, the fee is fixed but not the contract amount because the final contract amount will depend on the allowable costs reimbursed.  The fee may be adjusted to provide for an increase or decrease in the scope of work.  The adjustment must be made via a change order with approval of the SPO.

 

4)         Cost Incentive Contracts

 

A)        General.  A cost-incentive type of contract provides for the reimbursement to the vendor of allowable costs incurred up to the ceiling amount and establishes a formula whereby the vendor is rewarded for performing at less than target cost (that is, the parties' agreed best estimate of the cost of performing the contract will vary inversely with the actual, allowable costs of performance and consequently is dependent on how effectively the vendor controls cost in the performance of the contract).

 

B)        Fixed-Price Cost-Incentive Contract.  In a fixed-price cost-incentive contract, the parties establish at the outset a target cost, a target profit (that is, the profit that will be paid if the actual cost of performance equals the target cost), a formula that provides a percentage increase or decrease of the target profit depending on whether the actual cost of performance is less than or exceeds the target cost and a ceiling price.  After performance of the contract, the actual cost of performance is arrived at based on the total incurred allowable costs as provided in the contract.  The final contract price is then established in accordance with the formula using the actual cost of performance.  The final contract price may not exceed the ceiling price.  The vendor is obligated to complete performance of the contract and, if actual costs exceed the ceiling price, the vendor suffers a loss.

 

C)        Cost-Reimbursement Contract with Cost-Incentive Fee.

In a cost-reimbursement contract with cost-incentive fee, the parties establish at the outset a target cost; a target fee; a formula for increase or decrease of fee depending on whether actual cost of performance is less than or exceeds the target cost, with maximum and minimum fee limitations; and a cost ceiling that represents the maximum amount that the university is obligated to reimburse the vendor.  The vendor continues performance until the work is complete or costs reach the ceiling specified in the contract, including any modification thereof, whichever first occurs.  After performance is complete or costs reach the ceiling, the total incurred allowable costs reimbursed as provided in the contract are applied to the formula to establish the incentive fee payable to the vendor.

 

e)         Performance Incentive Contracts

In a performance incentive contract, the parties establish at the outset a pricing basis for the contract, performance goals and a formula that varies the profit or the fee if the specified performance goals are exceeded or not met.  For example, early completion may entitle the vendor to a bonus, while late completion may entitle the university to a price decrease.

 

f)         Time and Materials Contracts; Labor Hour Contracts

Time and materials contracts provide for an agreed basis for labor performed and payment for materials supplied.  Labor hour contracts provide only for the payment of labor performed.  The contracts shall contain a stated ceiling or an estimate that shall not be exceeded without prior approval. An estimated time and materials contract shall be treated as an indefinite quantity contract.

 

g)         Definite Quantity and Indefinite Quantity Contracts

 

1)         Definite Quantity.  A definite quantity contract is a fixed-price contract that provides for delivery of a specified quantity of supplies or services at specified times or when ordered, with deliveries or performance scheduled at designated locations upon order.

 

2)         Indefinite Quantity.  An indefinite quantity contract is a contract for an indefinite amount of supplies or services furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type.  Generally, an indefinite quantity contract is based on historical usage or the best information available as to quantity as stated in the solicitation and is not a guarantee of a quantity to be ordered.  The contract may provide a minimum quantity the university is obligated to order and may also provide for a maximum quantity provision that limits the university's ability to order.  If an estimated quantity is identified, the university may order up to 20% more than the estimate without written SPO approval. The SPO may authorize ordering beyond the stated 20%. Any such authorization shall be documented in writing and published in the Bulletin.  An increase of an indefinite quantity contract is not a change order.

 

3)         Requirements Contracts.  A requirements contract is an indefinite quantity contract for supplies or services that specifically obligates the university to order all its actual requirements during a specified period of time with deliveries or performance scheduled at designated locations upon order.  If identified in the solicitation as a requirements contract, all needed quantity, regardless of any stated estimate, must be ordered from that contract.  A requirements contract shall state a realistic estimated total quantity in the solicitation and resulting contract, but this is not a representation that the estimated quantity will be required or ordered, or that conditions affecting requirements will be stable or normal.

 

h)         Leases

A lease is a contract for the use of supplies or real property under which title will not pass to the university at any time, except pursuant to an option to purchase.  Leases of real property are governed in accordance with Article 40 of the Code and this Subpart M.

 

i)          Recovery Contracts

Contracts may provide for payment to the vendor of a percentage of the amount the vendor recovers or collects on behalf of the university.  The percentage may be fixed or may vary depending on amount of recovery or other factors, and the percentage may be paired with a fixed price or cost reimbursement method.

 

j)          State Produced Supplies and Services

Notwithstanding any provision in any contract, supplies or services available in‑house or from State programs, such as Illinois Correctional Industries, may be ordered without violating any contract.

 

k)         Extraordinary Quantities

Notwithstanding any provision in any contract, the university reserves the right to take bids separately if a particular quantity requirement arises that exceeds the university's normal needs or ordering requirements.

 

l)          Energy Conservation and Energy Savings Contracts

Notwithstanding Section 20-60(a) of the Code, university procurements of energy conservation measures, including guaranteed energy savings contract, are defined in the Code and Public University Energy Conservation Act [110 ILCS 62] (PUECA) and shall be made in accordance with the Code, this Part, and as otherwise authorized by PUECA.  Notwithstanding any other law, energy savings contracts or leases may include an alternative financing or lease to purchase option as part of the contract's terms.

 

m)        Printing Cost Offsets

In accordance with university policies, the university may provide advertising rights in printed products to a vendor or receive free copies of printed products from a vendor in order to reduce the overall cost of a printing contract.  Procurement by competitive sealed bid or competitive sealed proposal is required when the printing cost exceeds the small purchase limit of Section 4.2020 of this Part.

 

n)         Contracting for Installment Purchase Payments, Including Interest 

Contracts may provide for installment purchase payments, including interest charges, over a period of time.  The interest rate may not exceed that established by law, including the Bond Authorization Act [30 ILCS 305].

 

o)         Food Donation

A university may not enter into a contract to purchase food with a bidder or offeror if the bidder's or offeror's contract terms prohibit the university from donating food to food banks, including, but not limited to, homeless shelters, food pantries, and soup kitchens. Universities shall adopt policies that permit the donation of leftover food procured with State funds, in accordance with Section 55-20 of the Code.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2060  Duration of Contracts − General

 

a)         General

The term of a contract, including potential renewals, may not exceed 10 years.

 

1)         A software license designated as a perpetual license is not considered a multi-term contract; it is instead a one-time purchase.

 

2)         The length of a lease for real property or capital improvements shall be in accordance with Section 40-25 of the Code.

 

3)         The length of an energy conservation program contract or energy savings contract or leases shall be in accordance with Section 25-45 of the Code and the Public University Energy Conservation Act [110 ILCS 62].

 

4)         The length of a lease for State-owned dark fiber networks shall be in accordance with Section 20-60 of the Code.

 

b)         Subject to Appropriation

Each contract is contingent upon and subject to the availability of funds.  The State, at its sole option, may terminate or suspend a contract, in whole or in part and without penalty or further payment being required if the Illinois General Assembly or the federal funding source fails to make an appropriation sufficient to pay that obligation or if funds needed are insufficient for any reason.  Each contract payable in whole or in part by any funds appropriated by the Illinois General Assembly shall recite that the contract is subject to termination and cancellation for lack or insufficiency of funding.  A vendor will be notified in writing by the university of a failure or reduction or decrease of appropriation affecting a contract.  This provision applies to only those contracts that are funded in whole or in part by funds appropriated by the Illinois General Assembly or other governmental entity.

 

c)         Conditions for Use of Multi-Year Contracts

A multi-year contract may be used when:

 

1)         special production of definite quantities or the furnishing of long-term services is required to meet State needs; or

 

2)         a multi-year contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in State procurement.  The following factors are among those relevant to such a determination:

 

A)        firms that are not willing or able to compete because of high start-up costs or capital investment in facility expansion will be encouraged to participate in the competition when they are assured of recouping costs during the period of contract performance;

 

B)        lower production costs because of a larger quantity of service requirements, and substantial continuity of production or performance over a longer period of time, can be expected to result in lower unit prices;

 

C)        stabilization of the vendor's work force over a longer period of time may promote economy and consistent quality; or

 

D)        the cost and burden of contract solicitation, award and administration of the procurement may be reduced.

 

d)         Multi-Term Contract Procedure

The solicitation shall state:

 

1)         the proposed term;

 

2)         the amount of supplies or services required for the proposed contract period;

 

3)         the type of pricing requested (e.g., firm for term); and

 

4)         how award will be determined.

 

e)         Renewals

 

1)         The initial term of a contract plus available renewals may not exceed 10 years.  When the original contract specifically calls for an initial term plus renewals, the renewals may be exercised without further procurement activity, except for the publication of the renewal in the Bulletin as required by 30 ILCS 575/8i, Section 15-25 of the Code and Section 4.1525 of this Part, and review by the PPB under Section 5-30 of the Code. The renewal terms and conditions shall not change except as provided in the contract (such as price escalations tied to an index) and as provided by in 30 ILCS 575/8i.  Renewal options may be exercised by the university or by mutual agreement of the vendor, but may not be exercised solely at the option of the vendor.  Except as provided by 30 ILCS 575/8i, any renewal that requires modification to a material term or condition of the contract shall be treated as a new contract and shall be subject to appropriate procurement procedures established by the Code and this Part.

 

2)         A renewal may only be entered into if authorized by the original contract.

 

3)         At least 6 months prior to exercising a renewal, a university shall review the vendor's performance to determine if good faith efforts toward meeting contract goals identified in the vendor's utilization plan are being met by the vendor.  Except for construction and construction-related services, no renewal shall be authorized if the university determines good faith efforts were not exercised in meeting the contract goals agreed to in the utilization plan.

 

4)         All renewals must be in conformance with the underlying contract.  The procurement/contract file must contain any renewal justification form prescribed by the CPO-HE.

 

5)         When a renewal will result in the total term, counting the initial term and any previous renewals, exceeding 10 years, the university's need must be procured using one of the methods of source selection authorized by the Code and this Part.

 

6)         Renewals must be fully executed on or before expiration of the current contract term.  If the renewal is not exercised prior to expiration of the current contract term, the supplies or services must be procured anew using one of the methods of source selection authorized by the Code and this Part.

 

f)         Filing of Proposed Renewals and Extensions Exceeding $249,999

 

1)         Prior to executing a renewal or extension with a cost estimated to exceed $249,999, the proposed renewal or extension must be submitted to the PPB.  The PPB shall have up to 30 days to review and comment on the proposal.  The SPO assigned to the university may request a waiver of the review for reasons set forth in Section 20-60(c) of the Code.

 

2)         This subsection does not apply to any:

 

A)        emergency procurement;

 

B)        procurement conducted under Article 40 of the Code; or

 

C)        procurement exempted by Sections 1-10(b), 1-12 and 1-13 of the Code.

 

3)         A contract is exempt from this subsection if it is paid for in whole or in part with federal-aid funds, grants or loans and where the provisions of this subsection would result in loss of those federal funds. A university shall file notice of this exemption with the PPB prior to entering the proposed renewal or extension.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2065  Cancellation of Contracts

 

a)         In any of the following cases, the university shall have the right to terminate or rescind any contract entered into under this Part without penalty:

 

1)         The successful vendor fails to furnish a satisfactory performance bond within the time specified.

 

2)         The vendor fails to make delivery at the place or within the time specified in the contract or as ordered by the purchasing university.

 

3)         Any supplies or services provided under the contract are rejected (for not meeting specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the vendor.  If there are repeated rejections of the vendor's supplies or services, this shall be grounds for termination or rescission, even though the vendor offers to replace the supplies or services promptly.

 

4)         The vendor is guilty of misrepresentation (e.g., misbranding of food or drugs) in connection with another contract for the sale of supplies or services to the State such that the vendor cannot reasonably be depended upon to fulfill obligations as a responsible vendor under other contracts with the State.

 

5)         The vendor should be adjudged bankrupt; enter into receivership or make a general assignment for the benefit of creditors due to insolvency; disregard laws, rules, or instructions of the university; or act in violation of any provision of the contract; or if the contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.

 

6)         Any other breach of contract or other unlawful act by the vendor, including failure to achieve contract goals agreed to in the vendor's utilization plan.

 

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

 

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

 

b)         Damages

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

 

1)         the additional cost of supplies or services bought elsewhere;

 

2)         cost of repeating the procurement procedure;

 

3)         any expenses incurred because of delay in receipt of supplies or services; and

 

4)         any other damages caused by the vendor's breach of contract or unlawful act.

 

c)         Withholding Money to Compensate State for Damages

If a contract is terminated or rescinded under this Section, the university may deduct from whatever is owed the vendor on that or any other contract an amount sufficient to compensate the university for any damage resulting from termination or rescission.

 

d)          A university shall notify the SPO of any contract that is cancelled, terminated or rescinded under this Section.  The determination to terminate or rescind the contract may be used by a university or CPO-HE in future determinations of the vendor's responsibility.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2067  Contract Amendments and Change Orders

 

a)         Contract amendments memorialize actions:

 

1)         authorized by specific language in the contract (e.g., exercise of an option or showing price decrease or increase based on CPI), or changes that do not affect price or time of performance (e.g., change in names of notice contacts or number of periodic status meetings);

 

2)         not specifically authorized in a contract (e.g., material changes to terms and conditions that affect price or time of performance).  This type of amendment constitutes a change order.

 

b)         Change Orders

 

1)         A change order is defined in Section 4.15.  Renewals, change of a vendor's name, and orders against master contracts are not change orders.

 

2)         Change orders that increase or decrease the cost of a contract or an estimated contract by a total of $10,000 or more, or the time of completion by a total of 30 days or more, must be accompanied by a written determination that includes a statement that:

 

A)        the circumstances said to necessitate the change in performance was not reasonably foreseeable at the time the contract was signed;

 

B)        the change is germane to the original contract as signed; or

 

C)        the change order is in the best interest of the State. [720 ILCS 5/33E-9]  Universities may not divide change orders into smaller parts to avoid requirements for written determinations or publication.

 

3)         A change order shall be executed by the university and vendor evidencing the change.  All changes that require a written determination as provided in subsection (b)(2) shall be approved by the SPO.  Change orders that exceed the small purchase limit shall be published in the Bulletin in advance of execution of the change order.

 

4)         A change order to a contract for professional and artistic services made using the sole source method may not result in an increase in the amount paid under the contract by more than 5% of the initial award, or extend the contract term beyond the time reasonably needed for a competitive procurement, not to exceed two months. [30 ILCS 500/20-25(b)]

 

5)         The total contract term, including the initial term, renewals, extensions and change orders shall not exceed 10 years.  Any change order that would extend the total term beyond 10 years is void.  Any continuing need for supplies and services must be procured using one of the methods of source selection authorized by the Code and this Part.

 

6)         Prior to executing a change order with a cost estimated to exceed $249,999, the proposed change order must be submitted to PPB.  PPB shall have up to 14 days to review and comment on the change order.  The university may request a waiver of the review for reasons set forth in Section 20-60(c) of the Code.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

SUBPART J: PROCUREMENT FILES

 

Section 4.2080  Public Procurement File

 

a)         A procurement file shall be maintained for all contracts, regardless of the method of procurement.  The procurement file shall contain the basis on which the award is made, all submitted bids and proposals, all evaluation materials, score sheets and all other documentation related to or prepared in conjunction with evaluation, negotiation and the award process.  The procurement file shall contain a written determination, signed by the SPO, setting forth the reasoning for the contract award decision and any other determinations relative to the particular procurement.  The publicly available portion of the procurement file shall not include trade secrets or other competitively sensitive, confidential, or proprietary information.  The procurement file shall be open to public inspection within 7 calendar days following award of the contract. [30 ILCS 500/20-155(c)]

 

b)         The procurement files shall be maintained by or under the jurisdiction of the CPO-HE.

 

c)         Documentation of Procurement Actions

Each university, under the direction of the SPO, shall maintain in the procurement or associated contract file all substantive documents and records of communications that pertain to the procurement and any resulting contract.  This shall include, as applicable, but is not limited to:

 

1)         The records showing approvals to proceed at all stages;

 

2)         Procurement Bulletin postings;

 

3)         Solicitation document (e.g., IFB, RFP, etc.) and all amendments, clarifications and best and final requests;

 

4)         Vendors' responses, including clarifications and responses to best and final requests (losing responses may be stored elsewhere);

 

5)         Evaluation material (e.g., scoring guidelines and forms; completed score sheets for individual evaluators, including notes; evaluation committee's combined score sheets; evaluation committee's recommendation; and management's decision);

 

6)         Documentation establishing goals for solicitations and contract awards for certified vendors (Business Enterprise for Minorities, Women, and Persons with Disabilities (BEP) Act, Veterans Business Program (VBP), and small business) including all documentation or worksheets determining the scope of work included in the goal setting, the commodity or classification codes used to establish goals, whether any exemptions were granted or denied, any determinations of a vendor's good faith effort or lack of good faith effort to meet goals, and any goal waivers granted;

 

7)         Protest and resolution;

 

8)         Contract and any order, change, amendments, renewal or extension;

 

9)         Contractor Performance Reviews;

 

10)        All information from subsections (c)(1) through (c)(6), less information exempt from disclosure under the Freedom of Information Act [5 ILCS 140] or other law (for example, the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535], which exempts contractor performance reviews), shall be prepared and made available for inspection and copying within 7 days following award of the contract.  Any required contractor performance reviews shall be conducted timely and shall be made part of the procurement file prior to renewal or contract close out.  The performance review shall include, but is not limited to, evaluation of whether the contract goals agreed to in a vendor's utilization plan were met.  Universities shall provide the CPO-HE with notification of any vendor who does not demonstrate good faith efforts toward meeting the goals agreed to in the utilization plan.  The CPO-HE and universities may consider if a vendor did not meet its goal or show good faith efforts toward meeting the goal in future determination of a vendor's responsibility.  The CPO-HE will determine if any information is exempt under the Freedom of Information Act or other law.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2084  Record Retention

 

a)         Procurement information, including, without limitation, that pertaining to the Procurement Bulletin, and performance and payment under contracts and subcontracts shall be maintained in accordance with the State Records Act [5 ILCS 160].  Books and records that relate to performance of a contract, including subcontracts, and that support amounts charged shall be maintained:

 

1)         by a vendor, for three years from the date of final payment under the prime contract; and for such longer period of time as is necessary to complete ongoing or announced audits or to comply with federal requirements.

 

2)         by a subcontractor for three years from the date of final payment under the subcontract or completion of the subcontract, and for such longer period of time as is necessary to complete ongoing or announced audits.

 

b)         All contracts and subcontracts shall provide for all books and records required to be maintained by subsection (a) be available for review and audit by the Auditor General, CPO-HE, internal auditor and purchasing university.

 

c)         Every contract and subcontract shall require the contractor and subcontractor to cooperate fully with any audit or request for information from the Auditor General, CPO-HE, internal auditor and purchasing university.

 

d)         Failure to maintain books and records required by this Section establishes a presumption in favor of the university for the recovery of any funds paid by the university for which books and records are not available.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2086  Contract Filing

 

a)         Filing with Comptroller

 

1)         Whenever a grant, defined pursuant to accounting standards established by the State Comptroller, or a contract liability, except for contracts paid for from personal services, or contracts between the State and its employees to defer compensation in accordance with Article 24 of the Illinois Pension Code [40 ILCS 5], exceeding $20,000 is incurred by any university, a copy of the contract, purchase order, grant or lease shall be filed with the Comptroller within 30 calendar days thereafter.  [30 ILCS 500/20‑80(b)]

 

2)         For each State contract for supplies or services awarded on or after July 1, 2010, the contracting university shall provide the applicable rate and unit of measurement of the supplies or services on the contract obligation document as required by the Comptroller. [30 ILCS 500/20-80(b)]

 

3)         Any cancellation or modification to any such contract liability shall be filed with the Comptroller within 30 calendar days after its execution. [30 ILCS 500/20-80(b)]

 

4)         A contract filed with the Comptroller shall identify the method of source selection.

 

b)         Late Filing Affidavits

When a contract, purchase order, grant or lease required to be filed with the Comptroller by this Section has not been filed within 30 calendar days after execution, the Comptroller shall refuse to issue a warrant for payment thereunder until the university files with the Comptroller the contract, purchase order, grant or lease and an affidavit, signed by the chief executive officer of the agency or his or her designee, setting forth an explanation of why the contract liability was not filed within 30 calendar days after execution.  A copy of this affidavit shall be filed with the Auditor General and the CPO-HE. [30 ILCS 500/20-80(c)]

 

c)         Timely Execution of Contracts

 

1)         Except as otherwise provided by law, no voucher shall be submitted to the Comptroller for a warrant to be drawn for the payment of money from the State treasury or from other funds held by the State Treasurer on account of any contract unless the contract is reduced to writing before the services are performed and filed with the Comptroller.  Contractors shall not be paid for any supplies that were received or services that were rendered before the contract was reduced to writing and signed by all the necessary parties. [30 ILCS 500/20-80(d)]

 

2)         Upon written request of the university and with justification required by the CPO-HE, the CPO-HE may request an exception to Section 20-80(d) of the Code by submitting a written statement to the Comptroller and Treasurer setting forth the circumstances and reasons why the contract could not be reduced to writing before the supplies were received or services were performed.  A waiver of Section 20-80 (d) of the Code must be approved by the Comptroller and Treasurer.  Section 20-80 of the Code does not apply to emergency purchases if notice of the emergency purchase is filed with the PPB and published in the Bulletin as required by the Code.  [30 ILCS 500/20-80(d)]

 

3)         Regardless of the source of funds, contracts or change orders shall be reduced to writing before supplies are received or services are rendered. If supplies are received or services are performed prior to execution of a contract or change order, a written statement setting forth the circumstances and reasons why the contract or change order could not be reduced to writing before the supplies were received or the services were performed shall be maintained in the procurement file.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

SUBPART K: WORKING CONDITIONS

 

Section 4.2560  Prevailing Wage

 

a)         Responsible Vendors

 

1)         In order to be considered responsible under Section 4.2046, vendors of the following classifications of services must certify that wages to be paid to their employees are no less, and fringe benefits and working conditions of employees are not less favorable, than those prevailing in the locality where the proposed contract is to be performed:

 

A)        Printing;

 

B)        Janitorial cleaning services, window cleaning services, building and grounds services, site technician services, natural resources services, food services and security services having a total value of $2000 or more or $200 or more per month.

 

2)         This Section does not apply to services furnished under contracts for professional or artistic services or to vocational programs of training for person with physical or mental disabilities or to qualified not-for-profit agencies for persons with significant disabilities.

 

b)         Vendors awarded contracts or subcontracts on university public works projects shall comply with the requirements of the Prevailing Wage Act [820 ILCS 130].

 

c)         Prevailing wages, benefits and conditions will be determined by the Illinois Department of Labor.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2565  Contracts Performed Outside the United States

 

a)         All competitive solicitations and all contracts for services, as defined in Section 1-15.90 of the Code, shall identify where services shall be performed under that contract, including any subcontracts, and shall identify whether any services are anticipated to be performed outside the United States.

 

b)         The CPO-HE may consider the economic impact to the State of Illinois in awarding a contract in which services may or will be performed outside of the United States.

 

c)         If, during the term of the contract, the contractor or subcontractor shifts work outside the United States, the contractor or subcontractor shall be in breach of contract unless the CPO-HE determines in writing that termination of the contract is not in the best interest of the university.

 

(Source:  Added at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2570  Equal Employment Opportunity; Affirmative Action

 

In accordance with Section 2-101(J) of the Illinois Human Rights Act (IHRA) [775 ILCS 5], the Department of Human Rights (DHR) requires certain bidders or offerors to register with DHR in order to be eligible for the award of certain public contracts. "Eligible bidder" means a person who, prior to contract award or prior to bid opening for State contracts for construction or construction-related services, has filed with DHR a properly completed, sworn and currently valid employer report form, pursuant to the DHR's regulations. [775 ILCS 5/2-101(J)]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.2580  Successor Contractor

 

a)         To be considered a responsible bidder or offeror, in all solicitations for services as defined in Section 1-15.90 of the Code, all bidders or offerors must certify that they will:

 

1)         assume the collective bargaining obligations of the prior employer; and

 

2)         offer employment to all current employees employed in any existing bargaining unit performing substantially similar work that will be performed by the successor contractor.

 

b)         This Section does not apply to heating and air conditioning service contracts, plumbing service contracts, or electrical service contracts.

 

(Source:  Added at 43 Ill. Reg. 1781, effective February 15, 2019)

SUBPART L: CONSTRUCTION AND CONSTRUCTION RELATED PROFESSIONAL SERVICES

 

Section 4.3005  Construction and Construction Related Professional Services

 

a)         General Procedures

 

1)         Each contract for the construction, reconstruction, alteration, repair, improvement or maintenance of public works made by a public university shall contain a provision that steel products used or supplied in the performance of the contract or any subcontract thereto shall be manufactured or produced in the United States in accordance with the Steel Products Procurement Act [30 ILCS 565].  For example, a finished supply item that contains a steel component, such as an HVAC system, is not considered a steel product and would not be subject to the Act, but a steel I-beam would be subject to the Act.  This Section does not apply:

 

A)        When the contract involves an expenditure of less than $500.

 

B)        When the university president certifies in writing that:

 

i)          the specified products are not manufactured or produced in the United States in sufficient quantities to meet the university's requirements;

 

ii)         cannot be manufactured or produced in the United States within the necessary time in sufficient quantities to meet the university's requirements; or

 

iii)        obtaining the specified products manufactured or produced in the United States would increase the cost of the contract by more than 10%.

 

C)        When its application is not in the public interest. [30 ILCS 565/4]

 

2)         In the case of contracts for construction of buildings or for other construction work in or about buildings or grounds where the entire estimated cost of the work exceeds the amount stipulated by Section 20-20 of the Code, prospective contractors, as well as architects and engineers employed in connection with those projects may be prequalified to determine their responsibility (for architects, engineers and land surveyors, see the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535]).

 

3)         Estimated Cost of Work

 

A)        If the total estimated cost of the work exceeds the amount stipulated by Section 30-30 of the Code, separate specifications shall be prepared for all equipment, labor and materials in connection with, at a minimum, the following five subdivisions of work:

 

i)          Plumbing.

 

ii)         Heating, piping, refrigeration and automatic temperature control systems, including the testing and balancing of those systems.

 

iii)        Ventilating and distribution systems for conditioned air, including the testing and balancing of those systems.

 

iv)        Electrical wiring.

 

v)         General contract work.

 

B)        However, if the estimated value of the construction work exceeds $250,000 and the estimate for an individual division is less than the current small purchase limit for construction, that division's work may be combined with another division, or procured separately under the Small Purchase procedure of Section 4.2020.

 

4)         The specifications shall be drawn so as to permit separate and independent competitive bidding upon each of the above five subdivisions of work. All contracts awarded for any part of the work shall award the five subdivisions separately to responsible and reliable contractors engaged in these classes of work.  The contracts, at the discretion of the university, may be assigned to the successful bidder on the general contract work or to the successful bidder on the subdivision of work designated by the university prior to bidding as the prime subdivision of work, with the provision that all payments will be made directly to the contractors for the five subdivisions upon compliance with the conditions of the contract.  Any contract may be awarded for one or more buildings in any project to the same contractor.  Specifications shall require, however, that, unless the buildings are identical, a separate price shall be submitted for each building. The contract may be awarded to the lowest responsible bidder for all of the buildings included in the specifications.

 

b)         Request for Payment Form Specified by the University

To bill the university for construction work done, the vendor must submit a payment request in the form specified by the university.

 

c)         Periodic Payments

When provided in the contract, periodic payments can be made during the course of the work, provided a licensed architect or engineer issues a certificate indicating the proportionate amount of the total work has been completed satisfactorily.

 

d)         Retained Percentage

When periodic payments are made and if specified in the contract, the university shall retain a fixed percentage of the contract price to insure faithful completion of the contract.

 

e)         Additional Work

 

1)         No amount of funds, in addition to those provided for in a construction contract, may be obligated or expended unless the additional work to be performed or materials to be furnished are germane to the original contract. 

 

2)         Even if germane to the original contract, no additional expenditures or obligations may, in their total combined amount, be in excess of the percentage of the original contract amount as provided in Section 30-35(b) of the Code unless they have received the prior written approval of the university construction agency. 

 

3)         In the event that the total of the combined additional expenditures or obligations exceeds the percentages of the original contract amount set forth in Section 30-35(b) of the Code, the university construction agency shall investigate all the additional expenditures or obligations in excess of the original contract amount and shall in writing approve or disapprove subsequent expenditures or obligations and state in detail the reasons for the approval or disapproval. 

 

4)         Change orders that increase or decrease the cost of a contract by a total of $10,000 or more or the time for completion by a total of 30 days or more shall be in writing and contain the appropriate authorization from the university and SPO.  Vendors shall not perform any changed work prior to authorization from the university.

 

5)         Notices of additional expenditures or obligations in excess of the small purchase limit of Section 20-20 of the Code shall be published in the Bulletin.

 

f)         Improvements to Leased Real Estate

The procedures set forth in this Part shall apply, as appropriate, to contracts for improvements to real estate leased to the university.

 

g)         Construction Manager Services

 

1)         Procurement of Construction Manager Services, under the jurisdiction of the Capital Development Board, will be performed by the Capital Development Board (CDB) or through delegation from CDB.

 

2)         Construction Manager Services for projects not under the jurisdiction of CDB shall be procured by the university in accordance with Article 33 of the Code or applicable law.

 

h)         Architect, Engineer and Land Surveying Contracts.  Solicitations for the procurement of architecture, engineering and land surveying service professionals shall be in accordance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 500/535], the Illinois Procurement Code and this Part.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

SUBPART M: REAL PROPERTY LEASES AND CAPITAL IMPROVEMENT LEASES

 

Section 4.4005  Real Property Leases and Capital Improvement Leases

 

Real property leases and capital improvement leases are subject to, and shall be procured in accordance with, the Code and this Part.

 

(Source:  Amended at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.4010  Authority

 

SPOs shall have the authority to procure leases. Universities will establish standards and criteria for leased space and space assignment to meet the financial and administrative objectives to most efficiently and effectively provide adequate space to operate the university in accordance with its mission.

 

(Source:  Amended at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.4015  Method of Source Selection

 

a)         Leases shall be procured by using a Request for Information for Real Property or Capital Improvement Leases (RFI-RPL) process except as provided in subsection (b).

 

b)        Leases acquired under these exceptions shall be selected and entered into by negotiation.  Written summaries of all negotiations shall be maintained in lease files.

 

1)         Property of less than 10,000 square feet with rent of less than $100,000 per year.

 

2)         Duration of less than one year that cannot be renewed.  

 

3)         Specialized space available at only one location.  Specialized space is defined as space of unique function or configuration, not generally available on the market on an as built or turnkey basis.  Examples of specialized space include, but are not limited to:  laboratories, vehicle testing stations, correctional facilities, medical facilities, boat docks and evidence storage facilities.

 

4)         Renewal or extension of a lease, provided that:

 

A)       the CPO-HE determines in writing that the renewal or extension is in the best interest of the university;

 

B)        the CPO-HE submits his or her written determination and the renewal or extension to the PPB;

 

C)        the PPB does not object in writing to the renewal or extension within 30 days after its submission; and

 

D)       the CPO-HE or designee publishes notice of the renewal or extension in the Bulletin.

 

5)         Leases with other governmental units may be negotiated without using the RFI-Real Property Leases process when deemed by the CPO-HE to be in the best interest of the university. [30 ILCS 500/40-15(c)]

 

c)         None of the provisions of subsection (b) shall prohibit making a lease procurement under the RFI-RPL provisions if the CPO-HE deems it to be in the best interests of the university.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.4020  RFI-RPL Process

 

a)         RFI-Real Property Leases (RFI-RPL) Form

When required, an RFI-RPL shall be issued and shall include the following:

 

1)         the type of property to be leased;

 

2)         the proposed uses of the property;

 

3)         the duration of the lease;

 

4)         the preferred location of the property;

 

5)         a general description of the configuration desired; [30 ILCS 500/40-20(b)]

 

6)         special and standard lease terms and conditions, qualifications and responsibility requirements, disclosures and certifications;

 

7)         the address to which responses are to be sent;

 

8)         the criteria for evaluating responses based on the minimum standards and conditions for occupancy;

 

9)         response forms and instructions for completing forms;

 

10)         a copy of spatial and performance guidelines required to meet the needs of the university to occupy the real property being procured; and

 

11)         the date and time of responses.

 

b)         The university shall prepare the RFI-RPL for submission to the SPO for approval.

 

c)         Public Notice

Public notice of the RFI-RPL shall be published in the Bulletin at least 14 days before the date set forth in the request for receipt of responses and shall also be published in similar manner in a newspaper of general circulation in the community or communities where the university is seeking space. [30 ILCS 500/40-20(c)] All required documents of the RFI-RPL will be available in electronic format on the Bulletin.  Notice shall begin when first published electronically.  RFI-RPL document packages may also be mailed to owners of property that may meet the university's needs after the RFI-RPL has been published in the Bulletin.

 

d)         Response

The RFI-RPL response shall consist of written information sufficient to show that the respondent can meet minimum criteria set forth in the RFI-RPL. [30 ILCS 500/40-20(d)]  All responses to the RFI-RPL will be publicly opened on the announced date.  Names of all parties submitting proposals will be made available to the public immediately following the opening of the proposals.

 

e)         Negotiation and Determination

 

1)         The SPO may enter into discussions with respondents to the RFI-RPL for the purpose of clarifying university needs and the information supplied by the respondents.  On the basis of the information supplied and discussions, if any, the SPO shall make a written determination identifying the responses that meet the minimum criteria set forth in the RFI-RPL. Negotiations shall be entered into with all qualified respondents for the purpose of securing a lease that is in the best interest of the State. [30 ILCS 500/40-20(d)] Site visits may be made as part of the discussion and/or negotiation process.  The university shall document negotiation efforts with each qualified respondent.

 

2)         The CPO-HE or SPO reserves the right to reject any proposals and to request and evaluate "best and final" proposals.  Best and final offers shall be sought after a written determination is made by the SPO that it is in the best interest of the State to request best and final proposals.  A best and final proposal shall not be requested from any vendor deemed non-responsive or who does not meet the minimum criteria set forth in the RFI-RPL.

 

f)         Contract Award, Reporting and Filing

 

1)         The SPO shall review all relevant information and shall recommend to the CPO-HE which proposal shall be accepted based on the evaluation of all responsive proposals.  The CPO-HE shall make the final award, which will be published in the Bulletin.  Notification of award will be sent to all respondents.

 

2)         When the lowest response by price is selected, a written report of the negotiation shall be retained in the lease files and shall include the reasons for the final selection.

 

3)         When the lowest response by price is not recommended, the SPO shall forward to the CPO-HE, along with the lease, notice of the identity of the lowest respondent by price and written reasons for the recommendation of a different response.  The CPO-HE shall publish the written reasons for the selection in the next volume of the Bulletin. [30 ILCS 500/40-20(d)]  The written reasons for the selection of the vendor shall be retained in the lease files.

 

g)        PPB Review

The PPB shall review any proposed lease of real property of more than 10,000 square feet or any proposed lease of real property with annual rent payments of $100,000 or more.  The PPB shall have 30 days to review the proposed lease.  No contract may be entered into until the 30-day period has expired, unless the university requests in writing that the PPB waive the period and the PPB grants the waiver in writing.  If the PPB does not object within 30 days, the proposed lease shall become effective. [30 ILCS 500/40-20(e)]

 

h)        University Cooperation

A university shall provide any materials or provide any assistance the PPB determines is required for its review.  The PPB may request in writing from the university, and the university shall promptly, but in no event later than 5 business days after receipt of the request, provide to the PPB documentation of information in the possession of the university.  This does not preclude the university seeking any other available relief including termination for breach.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.4025  Lease Requirements

 

a)         Length of Leases

 

1)         Maximum Term.  Except when a longer term is authorized by law, leases, inclusive of renewals, shall be for a term not to exceed 10 years and shall include a termination option in favor of the State after 5 years. A lease for real property owned by the University of Illinois for use by the University of Illinois at Chicago for an ambulatory surgical center, which may include clinical and retail services, may be for a term not to exceed 30 years when:

 

A)        The lease requires the lessor to make capital improvements of $100,000 or more; and

 

B)        The Board of Trustees of the University of Illinois determines a term of more than 10 years is necessary and in the best interests of the University.

 

2)         Renewal Option. Leases may include a renewal option.  An option to renew may be exercised only when the CPO-HE determines in writing that renewal is in the best interest of the State.  The CPO-HE shall publish a notice of the intent to exercise the option in the Bulletin at least 60 days prior to the exercise of the option. [30 ILCS 500/40-25(b)] For purposes of this Section, "exercise" means the date of notification to the lessor to renew or extend the lease.

 

3)         All leases shall include a provision that they are subject to termination and cancellation in any year the General Assembly fails to make an appropriation to make payments under the terms of the lease. [30 ILCS 500/40-25(c)]

 

4)         Holdover.  No lease may continue on a month-to-month or other holdover basis for a total of more than 6 months after expiration of the underlying lease. [30 ILCS 500/40-25(d)]

 

b)         Lessor's Failure to Make Improvements

Each lease must provide for actual or liquidated damages upon the lessor's failure to make improvements agreed upon in the lease.  The actual or liquidated damages shall consist of a reduction in lease payments equal to the corresponding percentage of the improvement value to the lease value.  The actual or liquidated damages shall continue until the lessor complies with the lease and the improvements are certified by the CPO-HE and the leasing university. [30 ILCS 500/40-55] The penalty amount shall be retained by the university.  This does not preclude the university seeking any other available relief, including termination for breach.

 

c)         All leases shall be accompanied by a full written disclosure of the identity of every owner and beneficiary having any interest in the premises being leased.

 

1)         The disclosure shall be subscribed and sworn or otherwise affirmed on oath by an owner, authorized trustee, corporate official, partner, managing agent or other authorized person.

 

2)         The disclosure shall set forth all ownership interests.  By way of example, the disclosure should identify the names of the beneficiaries of a land trust in addition to the trustee, the names of all partners whether general or limited in nature, the names of all members or managers of a limited liability company and the names of all shareholders in a corporation who are entitled to receive more than 7½% of the total distributable income of the entity.  If the entity is publicly traded and no readily known individual owns more than a 7½% interest, then the requirements of this subsection (c) may be met by an officer or managing agent of the entity making an affirmative statement to this effect under oath.

 

3)         The disclosure shall set forth the identity of any State officer, employee or elected official, or the wife, husband, or minor child of that person having an ownership or beneficial interest under the lease.  In the event a person is so set forth, the disclosure shall include a specific designation of the percentage of the total distributable income to that person, together with that of the wife, husband or minor child of the person, is entitled to receive from any firm, partnership, association or corporation that is the lessor.

 

4)         It shall be the responsibility of the lessor to notify the CPO-HE, SPO or designee of any changes in ownership or beneficial interest and to submit updated disclosure statements reflecting the changes within 30 days after the change.

 

d)         Space that is not in compliance with accessibility regulations, or is not capable of being brought in compliance with the installation of minimum essential features of accessibility by the time of occupancy, shall not be considered for use. 

 

1)         Each RFI will contain specifications for accessibility.  Exceptions to the specifications will be allowed only upon request of the university if legitimate reasons are given and the request is otherwise in compliance with all federal and State laws regarding accessibility.  The CPO-HE, SPO or designee may waive certain specifications at his or her discretion in accordance with subsection (d)(2).

 

2)         Exceptions may be based upon one or more of the following criteria:

 

A)        No other suitable location exists within the geographic boundaries required by the operation/program at the site.

 

B)        No funds are appropriated to cover expenses for:

 

i)          Relocation to an accessible site;

 

ii)         Remodeling existing site to achieve accessibility; or

 

iii)        Construction of a new facility.

 

3)         The operations at the site are part of an on-going program that cannot be interrupted or terminated pending relocation, remodeling or new construction.

 

4)         The operations at the site are part of a new program that must be implemented without delay to avoid:

 

A)        Delay or interruption of vital services; and/or

 

B)        Loss of funds associated with the program

 

5)         The operations/programs at the site:

 

A)        Generate a low frequency of public use; and/or

 

B)        Provide a low number of job opportunities.

 

6)         For sites carrying out programs funded in whole or part by federal funds, exceptions will be granted only upon written certification from the university that alternative methods have been established to deliver services to disabled clients and the university will provide necessary structural modification for qualified disabled employees, unless the modification would cause the university to incur undue hardship.  This requirement is based on federal law (section 504 of the Rehabilitation Act of 1973 (29 USC 706)) and any federal regulations promulgated in accordance with that Act, including those promulgated by the U.S. Department of Health and Human Services.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4030  Purchase Option

 

Leases of all space in entire, free-standing buildings shall include an option to purchase exercisable by the university, unless the CPO-HE or SPO determines in writing that inclusion of that purchase option is not in the State's best interest.  The determination, including the reasons for making that determination, shall be published in the Bulletin.  Leases with governmental units and not-for-profit entities are exempt from the requirements of this Section.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4035  Rent Without Occupancy

 

Except when deemed by the PPB to be in the best interest of the university, no university may incur rental obligations before having occupancy or possession of the space rented.  For the purposes of this Section, the terms "occupancy" and "possession" shall have the same meaning.

 

(Source:  Amended at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.4040  Local Site Preferences

 

Upon the request of the chief executive officer of a unit of local government, leasing preferences may be given to sites located in enterprise zones, tax increment districts, or redevelopment districts.

 

Section 4.4042  Historic Area Preference

 

State agencies with responsibilities for leasing, acquiring or maintaining State facilities shall take all reasonable steps to minimize any regulations, policies and procedures that impede the goals of Section 17 of the Capital Development Board Act [20 ILCS 3105]. [30 ILCS 500/45-80]

 

(Source:  Added at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.4044  Emergency Lease Procurement

 

Emergency lease procurements may be made pursuant to Section 4.2030.

 

(Source:  Added at 36 Ill. Reg. 10951, effective August 6, 2012)

SUBPART N: PREFERENCES

 

Section 4.4505  Procurement Preferences

 

The procurement preferences identified in Article 45 of the Code must be considered in developing procurement documents, conducting evaluations and drafting contracts.  The Bulletin and solicitation document shall state whether a preference applies or may apply and the amount or type of preference. In the event multiple preferences are applicable, the order preferences shall be applied will be determined by lot.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4510  Resident Bidder and Offeror Preference

 

a)         "Illinois resident vendor", as used in this Section, means a person authorized to transact business in this State and having a bona fide establishment for transacting business within this State at which it was actually transacting business on the date when any competitive solicitation for a public contract was first advertised or announced, including a foreign corporation duly authorized to transact business in this State that has a bona fide establishment for transacting business within this State at which it was actually transacting business on the date when any competitive solicitation for a public contract was first advertised or announced.

 

b)         In breaking a tie bid or proposal as described in Section 4.2037, an Illinois resident vendor shall be given the award.

 

c)         An Illinois resident vendor shall be allowed a preference as against a non-resident vendor equal to any in-state vendor preference given or required by the state of the non-resident vendor.

 

d)         If only non-resident bidders or offerors are responding, the university has the right to specify that Illinois labor and manufacturing locations be used as part of the manufacturing process.  This specification may be negotiated as part of the solicitation process.

 

e)         This Section does not apply to any contract for any project for which federal funds are available for expenditure when its provisions may be in conflict with federal law or federal regulation.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4515  Soybean Oil-Based Ink and Vegetable Oil-Based Ink

 

a)         Contracts requiring the procurement of offset printing services shall specify the use of soybean oil-based ink or vegetable oil-based ink unless a State Purchasing Officer determines that another type of ink is required to assure high quality and reasonable pricing of the printed product.  [30 ILCS 500/45-15] The SPO will make this determination based on justification submitted by the university.

 

b)         This preference does not apply when a university requires digital printing services, a printing method that includes, but is not limited to, the electrostatic process of transferring ink or toner to a substrate and that may use photo imaging plates, photoreceptor drums, or belts that hold an electrostatic charge. Digital printing also includes the process of transferring ink through a print head directly to a substrate, such as ink-jet printers.

 

c)         Offset printing includes lithography, flexography, gravure or letterpress and involves the process of transferring ink through static or fixed image plates using an impact method of pressing ink into a substrate.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4520  Recycled Supplies

 

When a public contract is to be awarded to the lowest responsible bidder or offeror, an otherwise qualified bidder or offeror who will fulfill the contract through the use of products made of recycled supplies shall be given preference over other bidders or offerors unable to do so, provided that the cost included in the bid of supplies is equal or less than other bids or offers, unless the use of the product constitutes an undue practical hardship.  Nothing in this Section shall be construed to apply to a construction agency for the purposes of procuring construction and construction-related services. [30 ILCS 500/45-20] The SPO will make this determination based on justification submitted by the university.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4525  Recyclable Supplies (Paper)

 

All paper supplies purchased for use by universities must be recyclable paper unless a recyclable substitute cannot be used to meet the requirements of the universities or would constitute an undue economic or practical hardship.  [30 ILCS 500/45-25]  Universities shall make this determination and shall include this determination in the procurement file.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4526  Environmentally Preferable Procurement

 

Universities shall contract for supplies and services that are environmentally preferable, as that term is defined in Section 45-26(3) of the Code.  If, however, contracting for an environmentally preferable supply or service would impose an undue economic or practical hardship on the contracting university, or if an environmentally preferable supply or service cannot be used to meet the requirements of the university, then the university need not contract for an environmentally preferable supply or service.  Specifications for contracts, at the discretion of the contracting university, may include a price preference of up to 10% for environmentally preferable supplies or services. [30 ILCS 500/45-26(b)]  Universities shall make this determination and shall include this determination in the procurement file.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.4530  Correctional Industries

 

The CPO-HE shall distribute to each SPO and university the list of items in accordance with Section 45-30 of the Code that must be purchased from Illinois Correctional Industries (ICI) as determined by the CPO-HE. Procurements from ICI may be made without prior notice or competition. Notice of contracts that exceed the small purchase threshold will be published in the Bulletin prior to execution of the contract.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4535  Qualified Not-for-Profit Agencies for Persons with Significant Disabilities

 

a)         Contracts issued under this Section with qualified not-for-profit agencies for persons with significant disabilities should promote employment and training opportunities for persons with significant disabilities while meeting the needs of the university. "Qualified Not-for-Profit Agencies" are certified work centers or accredited vocational programs as defined in Section 45-35(a) of the Code.

 

1)         Subject to the requirements of this Section, a university may procure supplies and services from a qualified not-for-profit agency and may do so without having to provide prior notice on the Bulletin or having to seek competition.  The qualified not-for-profit agency must meet the specifications and needs of the using university and must agree to a fair and reasonable price.

 

2)         Except for small purchases, a proposed contract with a qualified not-for-profit agency must be approved by the SPO.

 

b)         The university and the State Use program (see Section 45-35(c) of the Code) staff will consult as necessary to ensure the contract effectively addresses the purpose of the program.  This review may include consideration of the total dollar value of the contract, the number of jobs performed by persons with significant disabilities, the amounts paid to those individuals and the amount of subcontracting, particularly with commercial entities, needed to fulfill contract requirements.

 

c)         The CPO-HE shall distribute to each SPO and university a list of supplies and services available from qualified not-for-profit agencies on the list maintained by the Department of Central Management Services.

 

d)         The CPO-HE shall identify to each SPO and university the supplies and services for which preference must be given to a qualified not-for-profit agency.  The preference shall require the university to give first refusal to a qualified not-for-profit agencies and the university shall purchase from the not-for-profit agencies unless the SPO approves a request for a waiver from the university.  A waiver may be requested if the university demonstrates to the SPO that factors including, but not limited to, geographic proximity, lack of availability of vendors, quality of product and price preclude purchase from a qualified not-for-profit agencies.  Any waiver request shall be on a form or in a format prescribed by the CPO-HE. 

 

e)         When a qualified not-for profit agency and a university enter a contract, each must comply with applicable provisions of the Code.

 

f)         State Use Committee

 

1)         Prior to contracting with a qualified not-for-profit agency, the State Use Committee  must determine in an open meeting that the price is fair and reasonable.  If any vendor protests the determination as a part of the open meeting, the Committee must resolve the protest before approving the proposed contract.  The State Use Committee shall inform the SPO and the university in writing of its determination.

 

2)         Prior to a qualified not-for-profit agency entering a subcontract or executing a change order, the State Use Committee must approve in an open meeting all subcontracts and must approve all change orders that exceed the competitive threshold.

 

A)        For purposes of this Section only, subcontract means any acquisition from another source of supplies, not including raw materials, or services required by a qualified not-for-profit agency to provide the supplies or services that are the subject of the contract between the State and the qualified not-for-profit agency. [30 ILCS 500/45-35(e)]

 

B)        The State Use Committee shall inform the SPO and the university in writing of its approval.

 

3)         After receipt of the Committee's determination or approval, the SPO shall post notice to the Bulletin of any proposed contract or change order that exceeds the competitive threshold.  The university may execute the contract or change order upon publication.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4540  Gas Mileage, Flex-Fuel, Biodiesel and Hybrid Requirements

 

Sections 25-75 and 45-40 of the Illinois Procurement Code impose requirements applicable to the purchase and, in some situations, the lease of passenger vehicles.  These requirements are:

 

a)         Section 25-75 (Flex Fuel, Hybrid or Biodiesel)

 

1)         Gasoline Power.  All gasoline powered automobiles and light trucks purchased with State funds must be flexible fuel or fuel efficient hybrid vehicles.  Station wagons, SUVs and crossovers, vans (including mini-vans), four-wheel drive (including AWD) vehicles, emergency vehicles, and police and fire vehicles are not exempt.

 

A)        Flexible fuel vehicles are automobiles or light trucks that operate on either gasoline or E-85 (85% ethanol, 15% gasoline) fuel.

 

B)        Fuel efficient hybrid vehicles are automobiles or light trucks that use a gasoline or diesel engine and an electric motor to power and gain a minimum of 20% increase in combined USEPA city/highway fuel economy over an equivalent or most-similar conventionally-powered model.

 

2)         Diesel Power.  All diesel powered automobiles and light trucks purchased with State funds shall be certified by the manufacturer to run on 5% biodiesel (B5) fuel.  Station wagons (including SUVs and crossovers), vans (including mini-vans), four-wheel drive (including AWD) vehicles, emergency vehicles, and police and fire vehicles are not exempt.

 

3)         "State funds" means, for the purpose of this Section, any funds appropriated by the General Assembly.  If State funds are used in whole or in part to purchase these vehicles, this Section applies.

 

b)         Section 45-40 (Mileage)

 

1)         Any new passenger automobiles, whether purchased or leased, must meet minimum fuel mileage standards.  This does not apply to station wagons, SUVs and crossovers, vans (including mini-vans), four-wheel drive (including AWD) vehicles, emergency vehicles, and police and fire vehicles.

 

2)         This fuel mileage requirement applies regardless of the source of funds used to purchase or lease the vehicle.

 

c)         Coordination of Sections 25-75 and 45-40. When procuring a vehicle, a university shall make reasonable attempts to identify one that meets the requirements of both subsections (a) and (b).  If no vehicle meets both of these requirements, the university shall purchase a vehicle or vehicles that satisfy the requirements of subsection (b); otherwise, the university may request a waiver as outlined in subsection (d).

 

d)         Waiver.  If a vehicle that meets the need of the institution cannot meet either or both requirements of subsections (a) and/or (b), then the institution may request a waiver of the appropriate requirement.  The CPO-HE may require use of a uniform form or format for requesting the waiver.  Vehicles requested under a waiver should come as close to satisfying the waived requirement as practical.

 

e)         Beginning January 1, 2016, 15% of all passenger vehicles purchased with State funds shall be vehicles fueled by electricity, electricity and gasohol (hybrids or plug-in hybrids), compressed natural gas, liquid petroleum gas, or liquid natural gas, including dedicated or non-dedicated fuel type vehicles.  For purposes of this Section, "State funds" means any funds appropriated by the General Assembly.  If State funds are used in whole or in part to purchase these vehicles, this Section applies.

 

f)         In awarding contracts requiring the procurement of vehicles, preference may be given to an otherwise qualified bidder or offeror who will fulfill the contract through the use of vehicles powered by ethanol produced from Illinois corn or biodiesel fuels produced from Illinois soybeans. [30 ILCS 500/45-60]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4545  Small Businesses

 

a)         Authority to Establish Small Business Set-Aside

The CPO-HE, in consultation with the universities, may determine categories of construction, supplies or service procurements that will be set aside for small businesses in Illinois.  A set-aside designation shall be for a stated period of time.  An SPO, in consultation with a university, may determine to set aside for small business individual contracts not in a set-aside category.  A set-aside may be established for competitive solicitations or for small purchases.

 

b)         Certified Small Business List

The CPO-HE, in consultation with the universities, may develop its own list, or may use a list maintained by another CPO, of vendors that meet the criteria of small business.

 

c)         Contract Set-Aside

 

1)         Any procurement proposed for set-aside to small businesses shall be so identified in the Bulletin notice and the solicitation documents.  Bids or proposals received from large businesses will be rejected as nonresponsive.  Vendors desiring to submit bids or proposals or to otherwise contract for items set aside for small businesses must be certified as a small business by one or more CPOs or shall submit information as specified verifying that the vendor qualifies as a small business under this Part.  A business that fits the definition of small on the day of award or proposal opening will be considered small for the duration of the contract.

 

2)         When conducting a small purchase in a set-aside category, the university shall consult the list of certified small businesses and shall solicit at least three vendors under the commodity codes or classifications representing the supplies or services being solicited.  Vendors outside a reasonable geographic area need not be contacted.

 

3)         The SPO may waive the requirement for set-aside on individual transactions based upon a request from the university that a set-aside is not conducive to meeting its need.

 

4)         Withdrawal of Set-Aside

If the SPO determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the SPO may reject all bids or proposals and withdraw the designation of small business set-aside for the procurement in question.  When a small business set-aside is withdrawn, notification shall be published in the Bulletin with an explanation.  After withdrawal of the small business set-aside, the procurement shall be conducted in accordance with this Part but without the small business designation.

 

d)         Criteria for Small Business

 

1)         Unless the CPO-HE provides a definition for a particular procurement that reflects industrial characteristics, a small business is a business that is independently owned and operated and is not dominant in its field of operation.

 

A)        A wholesale business is a small business if its annual sales for its most recently completed fiscal year do not exceed $13,000,000.

 

B)        A retail business or business selling services is a small business if its annual sales and receipts for its most recently completed fiscal year do not exceed $8,000,000.

 

C)        A manufacturing business is a small business if it employs no more than 250 persons.  A manufacturing business shall calculate how many people it employs by determining its average full-time equivalent employment, based on the number of persons employed on a full-time, part-time, temporary or other basis, for its most recently ended fiscal year.  If a manufacturing business has been in existence for less than a full fiscal year, its average employment shall be calculated for the period through one month prior to the bid or proposal due date.

 

D)        A construction business is a small business if its annual sales and receipts for its most recently completed fiscal year do not exceed $14,000,000.

 

E)        If a business is any combination of retailer, wholesaler or construction business, then the annual sales for each component may not exceed the higher of $13,000,000 for a wholesaler, $8,000,000 for a retailer, $14,000,000 for a construction business or the amounts shown in Section 45-45 of the Code.  For example, a business that is both a retailer and a wholesaler may not have total sales exceeding $21,000,000 and the retail component may not exceed $8,000,000 and the wholesale component may not exceed $13,000,000.  If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed 250.

 

2)         A small business in Illinois is defined as a company that meets the criteria in subsection (e)(1) and is a sole proprietor whose primary residence is in Illinois or is a business incorporated or organized as a domestic corporation under the Business Corporation Act of 1983 [805 ILCS 5/1.80], is a business organized as a domestic limited liability company under the Limited Liability Company Act [805 ILCS 180], is a business organized as a domestic partnership under the Uniform Partnership Act of 1997 [805 ILCS 206], or a business organized as a domestic limited partnership under the Uniform Limited Partnership Act of 2001 [805 ILCS 215].

 

3)         A small business that is not dominant in its field of operations means the business does not exercise a controlling or major influence in the kind of business activity in which it is engaged.  In determining dominance, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.

 

4)         Businesses artificially divided to qualify as small business will be disallowed.  When computing the size status of a vendor and whether the vendor qualifies as a small business, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates, concerns and related entities shall be included.  Concerns and related entities are affiliates of each other when one directly or indirectly controls or has the power to control the other, or when a third party or parties controls or has the power to control both.  It does not matter whether control is exercised, so long as the power to control exists.  In determining whether concerns and related entities are independently owned and operated and whether affiliation exists, consideration shall be given to all appropriate factors, including use of common facilities, common ownership and management, identity of interest (substantially identical business or economic interests such as family members, individuals or firms with common investments, or firms that are economically dependent through contractual or other relationships) and contractual arrangements.  In determining whether affiliation exists, the CPO-HE will consider the totality of the circumstances, and may find affiliation even though no single factor is sufficient to constitute affiliation.  A franchise relationship shall not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.

 

e)         Small Business Specialist

 

1)         The CPO-HE shall designate a small business specialist, who shall have the duties set forth in Section 45-45(e) and (f) of the Code, and who shall also act as coordinator of small business.  The designated small business specialist shall compile statistics provided by the university needed to make the small business annual report to the General Assembly required under Section 45-45(f) of the Code.

 

2)         The small business specialist shall provide written instruction to any business registered as a small business in accordance with Section 45-45 of the Code on how to register for the Public Higher Education Bulletin.  Notice shall be provided within 30 days after the small business certification.

 

f)         Small Business Contracts

 

1)         Goal

 

A)        It is the goal of the State of Illinois to award not less than 10% of the total dollar amount of State contracts to small businesses. 

 

B)        Small businesses are defined as those businesses meeting the criteria established in Section 45-45 of the Code and subsection (d) of this Section.  

 

2)         Goal Measurement

 

A)        The goal shall be measured on a full fiscal year basis. 

 

B)        Each university's expenditures, whether against contracts established by the university or against contracts established on behalf of a university, shall be included in the university's goal attainment statistics.

 

C)        A university may satisfy its goal, in whole or in part, by counting expenditures made by State vendors to subcontractors that are small businesses.

 

3)         University Compliance Plans

 

A)        Each university shall submit an annual compliance plan of how it intends to reach its goal and a timetable for reaching its goal.  The CPO-HE shall establish the format and timetable for submission of the compliance plan.  The CPO-HE shall approve the plan if it meets the requirements of the Code and this Part.

 

B)        Each university shall submit an annual utilization report of small business contracts during the preceding fiscal year, including lapse period spending and a mid-fiscal year utilization report.  The CPO-HE shall establish the format and timetable for submission of the utilization report.

 

C)        The CPO-HE or small business specialist appointed under Section 45-45 of the Code may recommend ways in which a university may reach its goal. Upon a finding by the CPO-HE that a university's compliance plan is insufficient to reach the university's goal, the CPO-HE shall recommend ways in which a university can reach its goal.  Those recommendations may include, but are not be limited to:

 

i)          using stronger and better focused solicitation efforts to obtain more small businesses as potential sources of supply;

 

ii)         division of job or project requirements, when economically feasible, into smaller, more manageable, tasks or quantities;

 

iii)        elimination of extended experience or capitalization requirements when programmatically feasible; and

 

iv)        identification of specific proposed contracts as particularly attractive or appropriate for participation by small businesses.

 

D)        If the compliance plans or utilization reports indicate a university's goal will not be reached, the CPO-HE may request that the university explain the university's noncompliance.  If the CPO-HE determines a university is not making a serious effort to reach the goal, the CPO-HE will prepare a report for submission to the Governor and General Assembly with recommendations for remedial action.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4550  Illinois Agricultural Products

 

In awarding contracts requiring the procurement of agricultural products, preference may be given to an otherwise qualified bidder or offeror who will fulfill the contract through the use of agricultural products grown in Illinois. [30 ILCS 500/45-50]

 

(Source:  Added at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.4555  Corn-Based Plastic Products

 

In awarding contracts requiring the procurement of plastic products, preference may be given to an otherwise qualified bidder or offeror who will fulfill the contract through the use of plastic products made from Illinois corn by-products. [30 ILCS 500/45-55]

 

(Source:  Added at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.4557  Veterans and Service-Disabled Veterans

 

In furtherance of the goal established by Section 45-57 of the Code, the CPO may make available information regarding the availability of small businesses owned by veterans and service-disabled veterans to the universities and to other vendors interested in doing business with the universities.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.4570  Contracting with Businesses Owned and Controlled by Minorities, Women, and Persons with Disabilities

 

Procurements made under the Code are subject to the requirements of the Business Enterprise for Minorities, Women, and Persons with Disabilities Act [30 ILCS 575]. Each university is responsible for establishing goals and taking other action in accordance with the Act, such as ensuring specifications are written to minimize barriers to participation and that diverse vendors are included in solicitation outreach and training.  Each solicitation conducted by a university, regardless of the source selection method, shall take into account the goals and policies set forth in the Act and any other laws of the State.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.4575  Domestic Products

 

a)         This Section applies unless an exception is provided by statute or, in the case of a small, emergency or sole economically feasible source situation.

 

b)         This Section applies to supplies purchased by the university that have undergone some manufacturing process that changes the raw material or components into a different product.  The following examples show how to interpret this Section:

 

1)         If the university needs grain, this Section would not apply because the university would be asking for a raw material.

 

2)         If the university needs flour, the purchase would be subject to this Section as the flour was subject to a manufacturing process.  The grain used in manufacturing the flour would not be subject to any domestic restriction.

 

3)         If the university needs bread, the bread would be subject to this Section.  The grain and flour used in creating the bread would not be subject to any domestic restriction.

 

4)         An item assembled domestically with components manufactured in another country is still considered a domestic product.

 

c)         Specifications for manufactured supplies shall include a reference to the preference established in this Section.

 

d)         The preference shall be as follows:

 

1)         The low bid or most advantageous proposal shall be identified without regard to whether the product is a domestic product.

 

2)         In the event of a tie in a competitive sealed bid procurement, the vendor that certifies it will provide domestic supplies shall be given preference.

 

3)         If the low bid or most advantageous proposal does not contain a certification that the supply items are domestic, then any responsive and responsible vendor that is within 2% of the identified vendor's price that has made that certification shall be evaluated as though its price was 2% lower, subject to a maximum dollar value of $50,000.

 

4)         The winning vendor will be determined after application of the preference.

 

5)         Notwithstanding the preference outlined in this subsection (d), if the appropriate SPO determines that the price differential calculated using the preference is not acceptable given the particular procurement and the economic circumstances, the award may be conditioned on receipt of an acceptable price reduction. If the price cannot be reduced to an acceptable level, the original low priced or most advantageous proposal may be selected for award.

 

e)         Each procuring university shall include in the procurement file documentation showing the application of any preference given and any determination that the preference was not subject to the Procurement of Domestic Products Act [30 ILCS 517].

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.4578  Bio-Based Products

 

When a State contract is to be awarded to the lowest responsible bidder, an otherwise qualified bidder who will fulfill the contract through the use of bio-based products may be given preference over other bidders unable to do so, provided that the cost included in the bid of bio-based products is not more than 5% greater than the cost of products that are not bio-based. [30 ILCS 500/45-75]

 

(Source:  Added at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.4579  Notice of Preferences (Repealed)

 

(Source:  Repealed at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.4595  HUBZone Business Contracts

 

a)         This Section applies unless an exception is provided by statute or, in the case of a small, emergency or sole economically feasible source procurement.

 

b)         Specifications shall include a reference to the preference established in this Section.

 

c)         The preference shall be as follows:

 

1)         The low bid or most advantageous proposal shall be identified without regard to whether the vendor is a qualified HUBZone small business concern.

 

2)         If the low bid or most advantageous proposal does not contain a certification that the vendor is a qualified HUBZone small business concern, then any responsive and responsible vendor that has made that certification and is within 2% of the low bid or most advantageous proposal's price shall be evaluated as though its price was 2% lower, subject to a maximum dollar value of $50,000.

 

3)         The winning vendor will be determined after application of the preference.

 

4)         Notwithstanding the preference outlined in this subsection (c), if the appropriate SPO determines that the price differential calculated using the preference is not acceptable given the particular procurement and the economic circumstances, the award may be conditioned on receipt of an acceptable price reduction.  If the price cannot be reduced to an acceptable level, the original low priced or most advantageous proposal may be selected for award.

 

d)         Prior to making any award to a qualified HUBZone small business concern that includes a price preference, the CPO-HE or SPO shall verify the HUBZone business is qualified with the U.S. Small Business Administration at the time the bid is due and at the time of award of the contract in accordance with 13 CFR 126.

 

e)         This Section does not apply to construction, construction-related services, or the selection of construction-related professional services procurements.

 

(Source:  Added at 43 Ill. Reg. 1781, effective February 15, 2019)

SUBPART O: ETHICS

 

Section 4.5002  Continuing Disclosures; False Certification

 

a)         All contractors and subcontractors have a continuing obligation to supplement the disclosures and certifications required by this Section for the duration of the contract and shall immediately report any changes to their disclosures or certifications to the university and CPO-HE.

 

b)         The CPO-HE may prescribe a standard format for certification and may include certifications as part of a prequalification process.

 

c)         Should a vendor be unable to certify that it continues to meet requirements of Article 50 of the Code, the relevant information shall be submitted to the SPO for review and disposition.

 

d)         Annual certification through the vendor portal in accordance with Section 4.1535 satisfies the requirements of this Section.

 

e)         No continuing certification is required if a contractor or subcontractor continues to meet all of the requirements of Article 50 of the Code or if the work under the contract or subcontract is substantially completed.

 

f)         In addition to any other penalties or consequences described by law, a contractor or subcontractor that makes a false statement material to any given certification is subject to liability under the Illinois False Claims Act [740 ILCS 175] for submission of a false claim.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5005  Bribery

 

a)         Prohibition

No person or business shall be awarded a contract or subcontract who:

 

1)         Has been convicted under the laws of Illinois or any other state of bribery or attempting to bribe an officer or employee of the State of Illinois or any other state in that officer's or employee's official capacity; or

 

2)         Has made an admission of guilt of that conduct that is a matter of record but has not been prosecuted for that conduct. [30 ILCS 500/50-5(a)]

 

b)         Businesses

No business shall be barred from contracting with any unit of State or local government, or subcontracting under such a contract, as a result of a conviction under this Section of any employee or agent of the business if the employee or agent is no longer employed by the business and:

 

1)         The business has been finally adjudicated not guilty; or

 

2)         The business demonstrates to the governmental entity with which it seeks to contract, or that is a signatory to the contract to which the subcontract relates, and that entity finds that the commission of the offense was not authorized, requested, commanded or performed by a director, officer or high managerial agent on behalf of the business, as provided in Section 5-4(a)(2) of the Criminal Code of 2012 [720 ILCS 5].  [30 ILCS 500/50-5(b)]

 

c)         Conduct on Behalf of Business

For purposes of this Section, when an official, agent or employee of a business committed the bribery or attempted bribery on behalf of the business and in accordance with the direction or authorization of a responsible official of the business, the business shall be chargeable with the conduct.  [30 ILCS 500/50-5(c)]

 

d)        Certification

Every bid or offer submitted to every contract executed by the State, every subcontract subject to Section 20-120 of the Code, and every vendor's submission to a vendor portal shall contain a certification by the bidder, offeror, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor or subcontractor is not barred from being awarded a contract or subcontract under Section 50-5 of the Code, and acknowledges that the CPO-HE may declare the related contract void if any certifications required by that Section are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false.  A contractor or subcontractor who makes a false statement, material to the certification, commits a Class 3 felony. [30 ILCS 500/50-5(d)]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5009  Felons

 

a)         Unless otherwise provided, no person or business convicted of a felony shall do business with the State of Illinois or any university, or enter into a subcontract, from the date of conviction until 5 years after the date of completion of the sentence for that felony, unless no person held responsible by a prosecutorial office for the facts upon which the conviction was based continues to have any involvement with the business.  [30 ILCS 500/50-10]

 

b)         Every bid or offer submitted to the State, every contract executed by the State, every subcontract subject to Section 20-120 of the Code, and every vendor's submission to a vendor portal shall contain a certification by the bidder, offeror, potential contractor, contractor or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor or subcontractor is not barred from being awarded a contract or subcontract under Section 50-10.5 of the Code and acknowledges the CPO-HE may declare the related contract void if any of the certifications required by that Section are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-10.5(b)]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5010  Prohibited Bidders and Contractors

 

a)         Unless otherwise provided, no business shall bid, offer, enter into a contract or subcontract under the Code, or make a submission to a vendor portal if the business or any officer, director, partner or other managerial agent of the business has been convicted of a felony under the Sarbanes-Oxley Act of 2002 (PL 107-204) or a Class 3 or Class 2 felony under the Illinois Securities Law of 1953 [815 ILCS 5] for a period of 5 years from the date of conviction.  [30 ILCS 500/50-10.5(a)]

 

b)         Every bid and offer submitted to the State, every contract executed by the State, every vendor's submission to a vendor portal, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, offeror, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor, or subcontractor is not barred from being awarded a contract or subcontract under Section 50-10.5 of the Code and acknowledges that the CPO-HE shall declare the related contract void if any of the certifications completed pursuant to Section 50-10.5(b) of the Code are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false.  [30 ILCS 500/50-10.5(b)]

 

c)         If a business is not a natural person, the prohibition in subsection (a) applies only if:

 

1)         the business itself is convicted of a felony referenced in subsection (a); or

 

2)         the business is ordered to pay punitive damages based on the conduct of any officer, director, partner, or other managerial agent who has been convicted of a felony referenced in subsection (a).  [30 ILCS 500/50-10.5(c)]

 

d)         A natural person who is convicted of a felony referenced in subsection (a) remains subject to Section 50-10 of the Code. [30 ILCS 500/50-10.5(d)]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5011  Debt Delinquency

 

a)         No person shall submit a bid or offer for or enter into a contract or subcontract under this Code, or make a submission to a vendor portal if that person knows or should know that he or she or any affiliate is delinquent in the payment of any debt to the State, unless the person or affiliate has entered into a deferred payment plan to pay off the debt.  [30 ILCS 500/50-11(a)]  For purposes of this Section, terms shall have the meanings ascribed in Section 50-11 of the Code.

 

b)         Every bid and offer submitted to the State, every vendor's submission to a vendor portal, every contract executed by the State, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the contractor or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor or subcontractor and its affiliate is not barred from being awarded a contract or subcontract under this Section and acknowledges that the CPO-HE  may declare the related contract void if any of the certifications required by this Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 50-11(b)]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5012  Collection and Remittance of Illinois Use Tax

 

a)         No person shall enter into a contract with a university or enter into a subcontract unless the person and all affiliates of the person collect and remit Illinois Use Tax on all sales of tangible personal property into the State of Illinois in accordance with the provisions of the Illinois Use Tax Act [35 ILCS 105], regardless of whether the person or affiliate is a "retailer maintaining a place of business within this State" as defined in Section 2 of the Use Tax Act.  [30 ILCS 500/50-12]  For purposes of this Section, terms shall have the meanings ascribed in Section 50-12 of the Code.

 

b)        Every bid and offer submitted to the State, every submission to a vendor portal, every contract executed by the State, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, respondent, offeror, potential contractor, contractor or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor or subcontractor is not barred from bidding for or entering into a contract under Section 50-12(a) of the Code and acknowledges that the CPO-HE may declare the related contract void if any of the certifications required by this Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-12]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5013  Conflicts of Interest Prohibited by the Code

 

a)         Any bid, proposal, offer of acceptance, or proposed contract must be reviewed for conflicts of interest pursuant to Section 50-13 of the Code. If a potential conflict exists, no contract will be executed unless the CPO-HE requests and is granted an exemption by the Executive Ethics Commission under Section 50-20 of the Code.

 

1)         Office or Employment

It is unlawful for any person holding an elective office in this State, holding a seat in the General Assembly, or appointed to or employed in any of the offices or agencies of State government and who receives compensation for such employment in excess of 60% of the salary of the Governor of the State of Illinois, or who is an officer or employee of the Capital Development Board or the Illinois Toll Highway Authority, or who is the spouse or minor child of any such person, to have or acquire any contract, or any direct pecuniary interest in any contract therein, whether for stationery, printing, paper, or any services, materials, or supplies, that will be wholly or partially satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois or in any contract of the Capital Development Board or the Illinois Toll Highway Authority. [30 ILCS 500/50-13(a)]

 

2)         Financial Interests

It is unlawful for any firm, partnership, association, or corporation, in which any person as described in subsection (a) is entitled to receive more than 7½% of the total distributable income or an amount in excess of the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein.  [30 ILCS 500/13(b)]

 

3)         Combined Financial Interests

It is unlawful for any firm, partnership, association, or corporation, in which any person listed in subsection (a)(1) together with his or her spouse or minor children is entitled to receive more than 15%, in the aggregate, of the total distributable income or an amount in excess of 2 times the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein.  [30 ILCS 500/13(c)]

 

b)         For the purposes of this Part, an individual has a direct pecuniary interest in a contract when the individual is owed a payment or otherwise receives a direct financial benefit in conjunction with performance of a contract, including finder's fees and commission payments.

 

c)         For the purposes of this Part, "distributable income" means the income of a company after payment of all expenses, including employee salary and bonus, and retained earnings, which is distributed to those entitled to receive a share of the income.  In the case of a for-profit corporation, distributable income means "dividends".  When calculating entitlement to distributable income the entitlement shall be determined at the end of the company's most recent fiscal year.

 

d)         This Section applies to those elected to an office of Illinois State government.  This Section does not apply to those elected to local government offices, including school district offices, nor does it apply to those elected to federal offices in this State.  This Section does not apply to contracts with licensed professionals, provided those contracts are competitively bid.

 

e)         Additional exceptions to the application of this Part are listed in Section 50-13(f) of the Code.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5014  Environmental Protection Act Violations

 

a)         Unless otherwise provided, no person or business found by a court or the Pollution Control Board to have committed a willful or knowing violation of the Environmental Protection Act [415 ILCS 5] shall do business with the State of Illinois or any university or enter into a subcontract from the date of the order containing the finding of violation until 5 years after that date, unless the person or business can show that no person involved with the violation continues to have any involvement with the business.  [30 ILCS 500/50-14(a)]

 

b)         A person or business otherwise barred by Section 50-14(a) of the Code from doing business with the State of Illinois and any university or any subcontractors under the Code may be allowed to do business with the State of Illinois or any university if it is shown that there is no practicable alternative to the State to contracting with that person or business.  [30 ILCS 500/50-14(b)]

 

c)         Every bid or offer submitted to the State, every contract executed by the State, every submission to a vendor portal, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, offeror, potential contractor, contractor or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor or subcontractor is not barred from being awarded a contract or subcontract under Section 50-14 of the Code and acknowledges that the contracting university may declare the related contract void if any of the certifications required by that Section are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-14(c)]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5015  Lead Poisoning Prevention Act Violations

 

Owners of residential building who have committed a willful or knowing violation of the Lead Poisoning Prevention Act [410 ILCS 45] are prohibited from doing business with the State of Illinois or any State agency, or subcontracting under the Code, until the violation is mitigated. [30 ILCS 500/50-14.5]

 

(Source:  Added at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.5016  Negotiations for Future Employment

 

a)         It is unlawful for any person employed in or on a continual contractual relationship with any of the offices or agencies of State government to participate in contract negotiations on behalf of that office or agency with any firm, partnership, association or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment. [30 ILCS 500/50-15(a)]

 

b)         An individual who performs services pursuant to a contract and who meets the requirements of an "employee" as opposed to an independent contractor is in a "continual contractual relationship" from the effective date of the contract until the contract is terminated.

 

c)         An individual who performs services pursuant to a contract and who meets the requirements of an "independent contractor" as opposed to an "employee" is in a "continual contractual relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individual's option, is renewable unless the State must act to terminate, or has a definite term of at least three months.

 

(Source:  Added at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.5017  Expatriated Entities

 

a)         Except as provided in subsection (c), a university may not enter a contract with an expatriated entity or with any subsidiary of such an entity.

 

b)         Except as provided in subsection (c), no business or member of a unitary business group, as defined in the Illinois Income Tax Act [35 ILCS 5], shall submit a bid or offer or enter a contract with a university if that business or any member of the unitary business group is an expatriated entity.

 

c)         An expatriated entity or a member of a unitary business group with an expatriated entity as a member may enter a contract with a university if the CPO-HE determines:

 

1)         the contract is awarded as a sole source procurement under Section 20-25 of the Code, and the CPO-HE:

 

A)        includes in the notice of intent to enter a sole source contract a prominent statement that the intended sole source contractor is an expatriated entity; and

 

B)        holds a public hearing at which the CPO-HE and university present written justification for the use of a sole source contract with an expatriated entity and at which any member of the public may present testimony; or

 

2)         the purchase is of pharmaceutical products, drugs, biologics, vaccines, medical supplies, or devices used to provide medical and health care or treat disease or used in medical or research diagnostic tests, and medical nutritionals regulated by the Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act (21 USC 301 et seq.).  [30 ILCS 500/50-17]

 

(Source:  Added at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5020  Exemptions

 

If the university or SPO finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, the university shall make a recommendation to the SPO and include documentation of the university's position on the conflict.  The SPO shall forward the university's recommendation and documentation to the CPO-HE, along with the name of the vendor and a description of the proposed contract.  The CPO-HE shall decide whether to disapprove the contract or file a request for exemption with the Executive Ethics Commission to determine whether an exemption should be granted in accordance with Section 50-20 of the Code.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.5021  Bond Issuances

 

a)         Definitions.  For the purposes of this Part, the following listed terms shall have the same meaning as in the Code and as further defined in this subsection (a).

 

1)         "Entity" means brokers, dealers and municipal securities dealers as defined in, and subject to, Rule G-37 and Rule G-38 of the Municipal Securities Rulemaking Board (MSRB).

 

2)         "Independent Consultant" means a person used by the entity to obtain or retain securities business through direct or indirect communication by the person with a State official or employee (including an official or employee of the university) on behalf of the entity when the communication is undertaken by the person in exchange for or with the understanding of receiving payment form the entity or other person. "Independent Consultant" does not include a finance professional employed by the entity or a person whose sole basis of compensation from the entity is the actual provision of legal, accounting, or engineering advice, services or assistance in connection with the securities business that the entity seeks to obtain or retain. [30 ILCS 500/50-21(a)]

 

3)         "Issuance of bonds or other securities" means the purchase or placement of a primary offering of municipal securities on other than a competitive bid basis.

 

4)         "Issuance by the university" means the issuance of bonds or other securities by the university when acting as a governmental issuer ("Issuer") specified in MSRB Rule G-37.

 

5)         "MSRB Rule G-37" and "MSRB Rule G-38" refer to the Municipal Securities Rulemaking Board rules in effect on August 6, 2012 or any successor rules adopted by the MSRB on the same subject after August 6, 2012 as provided in Section 50-21(b) and (c) of the Code.  MSRB Rule G37 went into effect on April 25, 1994, and MSRB Rule G-38 went into effect on August 29, 2005.  Copies of G-37 and G-38 are available to the public at the MSRB website:  http://www.msrb.org, at the United States Security and Exchange Commission's website:  http://www.sec.gov, and at the office of the CPO-HE.  (See 30 ILCS 500/50-219(b) and (c).)

 

b)         Use of Independent Consultants

 

1)         Section 50-21(a) of the Code prohibits a university from entering into a contract with respect to the issuance of bonds or other securities by the university with any entity that uses an independent consultant to obtain or retain securities business through direct or indirect communications by the person with a State official or employee, including an official or employee of the university.  Use of an independent consultant is also prohibited by MSRB Rule G-38.  Every contract between the university and an entity relating to the issuance of bonds or other securities by the university shall include a certification that the entity did not use an independent consultant to obtain the contract and that the entity has not been found to knowingly violate MSRB Rule G-38 (or any successor rule) with respect to the prohibition on obtaining or retaining municipal securities business.

 

2)         In the event a federal agency finds that an entity knowingly violated MSRB Rule G-38 in the State of Illinois, the CPO-HE shall bar that entity from participating in any contract with respect to the issuance of bonds or other securities by any university for a period of one year as specified in Section 50-21(c) of the Code.

 

c)         Prohibited Political Contributions

 

1)         Section 50-21(b) of the Code requires that every contract between the State and an entity relating to the issuance of bonds or other securities by the State include a certification that the entity is and will remain for the duration of the contract in compliance with the MSRB Rule G-37 requirement for reporting political contributions and that the entity has not been found to have knowingly violated in Illinois MSRB Rule G-37 (or any successor rule) with respect to the making of prohibited political contributions or payments.  Failure to remain in compliance throughout the term of the contract shall make the contract voidable by the CPO-HE.

 

2)         In the event a federal agency finds that an entity knowingly violated MSRB Rule G-37 in the State of Illinois by making prohibited political contributions, the CPO-HE shall impose a penalty that is at least twice the fine assessed by the federal agency.  In addition, the CPO-HE shall bar the entity from participating in any contract with respect to the issuance of bonds or other securities by any of the universities for a period of one year as specified in Section 50-21(c) of the Code.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.5023  Other Conflicts of Interest

 

a)         Except as otherwise specified in the Public Officer Prohibited Activities Act [50 ILCS 105], no State official/member of the university's governing board shall be directly or indirectly interested in any contract to be made by the State official/Board for any purposes whatsoever.

 

b)         Any university that has its own policies regarding procurement conflict of interest relative to its own employees must provide notice of any potential conflict to the SPO along with the university's resolution.  This information may be used by the SPO when considering whether to award the contract.

 

(Source:  Amended at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.5030  Revolving Door Prohibition

 

a)         CPOs, SPOs, Procurement Compliance Monitors, their designees whose principal duties are directly related to State procurement, and executive officers confirmed by the Senate are expressly prohibited for a period of 2 years after terminating an affected position from engaging in any procurement activity relating to the State agency most recently employing them in an affected position for a period of at least 6 months. The prohibition includes, but is not limited to: lobbying the procurement process; specifying, bidding, proposing bids or contract documents; on their own behalf or on behalf of any firm, partnership, association or corporation.  This prohibition applies only to persons who terminate an affected position on or after January 15, 1999. [30 ILCS 500/50-30]

 

b)         The CPO-HE shall identify in writing any designees whose job, or whose position description, is at least 51% directly related to procurement.  Activities directly related to procurement include, but are not limited to:  drafting specifications, preparing solicitations, evaluating offers, negotiating contracts, administering contracts and supervising any of the foregoing.

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.5035  Disclosure of Financial Interests and Potential Conflicts of Interest

 

a)         Disclosures of financial interests and potential conflicts of interest shall be obtained for all submissions to a vendor portal and from all bidders, offerors, vendors, or contractors.

 

1)         For the purposes of Section 50-35(a) of the Code, "bids and offers from responsive bidders, offerors, vendors, or contractors" means bids, offers and quotes received pursuant to any source selection method, except for sole source and emergency procurements, and that has an annual value of more than $50,000.

 

2)         Disclosures are not required in sole source and emergency contracts, but shall be obtained in whole or in part when practical and when the annual value exceeds $50,000.

 

3)         Disclosures shall be obtained for small purchases annually exceeding $50,000, except as otherwise provided in this Section.  If a small purchase could qualify as an emergency or sole source, disclosures are not required but shall be obtained when practical.

 

4)         In certain circumstances (e.g., emergency and sole source procurements) in which the vendor refuses or is unable to provide disclosures, the SPO may authorize the university to move forward with the transaction.  The university must provide documentation of efforts to obtain compliance in a form prescribed by the PPB and CPO-HE.

 

b)         For purposes of:

 

1)         Section 50-35(b) of the Code, "parent entity" means an entity that owns 100% of the bidding entity.

 

2)         Section 50-35(b)(1) of the Code, "contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, that is by and between the State and the named individual.

 

c)          "Distributive Income" means income of a company after payment of all expenses, including employee salaries and bonuses and retained earnings, which is distributed to those entitled to receive a share of that income.  In the case of a for-profit corporation, distributive income means "dividends".  When calculating entitlement to distributive income, the entitlement shall be determined at the end of the company's most recent fiscal year.

 

d)        "Personal Services" shall be any contract for services subject to the Code, including, by way of example, professional and artistic services, repair services, cleaning and guard services, but excludes contracts with employees who are exempt from the Code under Section 1-10(b)(4).

 

e)         "Subject to Federal 10K Reporting" means subject to the reporting requirements of section 13 or 15(d) of the Securities Exchange Act of 1934.

 

f)         "10K Disclosure" means a report required under section 13 or 15(d) of the Securities Exchange Act of 1934.

 

g)         New disclosures are required on contract renewals.  New disclosures are not required for contract amendments.

 

h)         10K Disclosures

 

1)         Any vendor subject to federal 10K reporting requirements may submit its 10K to the university in satisfaction of the disclosure requirement of Section 50-35(b) of the Code.  The vendor may be required to identify the specific sections or parts in the 10K disclosure containing information, if any, pertaining to those who have an ownership interest or an interest in the distributive income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State.  If the financial interest or conflict of interest information requested by the university is not in the 10K, or in a document that may be submitted to the SEC in conjunction with or in lieu of the 10K, then that additional documentation shall be provided as well.

 

2)         10K disclosures are available for public review.  Any potential conflict of interest identified by the public and brought to the attention of the CPO-HE or SPO shall be investigated.

 

3)         In circumstances in which a vendor may submit a 10K disclosure in lieu of the specific disclosure requirements of the Code, the SPO or designee may consider information identified by the vendor in the 10K disclosure and any information disclosed pursuant to public review of the 10K disclosure in determining whether a potential conflict of interest exists.

 

i)          Form of Disclosure

The form of disclosures shall be prescribed by the CPO-HE and shall include at least the names, addresses and dollar or proportionate share of ownership of each person identified in this Section, their instrument of ownership or beneficial relationship, and notice of any potential conflict of interest.

 

j)          Intent of Disclosure

The disclosure required in subsection (i) is not intended to prohibit or prevent any contract.  The disclosure is meant to fully and publicly disclose any potential conflict to the CPO-HE, SPOs, their designees, and executive officers so they may adequately discharge their duty to protect the State. [30 ILCS 500/50-35(c)]

 

1)         Determination by Procurement Officer

A potential for a conflict of interest exists if a reasonable person would naturally and probably expect a conflict to come into existence even though one does not now exist.  Improbable or strained connections will not constitute a potential for a conflict.  The mere disclosure of one or more of the 10 relationships described in Section 50-35(b) of the Code is not sufficient, without a determination by the CPO-HE or SPO, to conclude a potential for a conflict exists.  When a potential conflict of interest is identified, discovered or reasonably suspected, it shall be reviewed by the CPO-HE or SPO, who will send the contract to PPB.  PPB shall recommend in writing to the CPO-HE whether to allow or void the contract, bid or offer or subcontract weighing the best interest of the State of Illinois.

 

2)         If the CPO-HE disagrees with the PPB's recommendation to void a contract, bid or offer, the Executive Ethics Commission will hold a hearing.  No contract with a potential conflict of interest shall be awarded before a hearing if the PPB recommends a contract, bid or offer be voided.  The written determination shall become a publicly available part of the contract, bid or proposal file.

 

3)         Requirements for Reasonable Care and Diligence

These thresholds for disclosure do not relieve the CPO-HE, SPO or their designees from reasonable care and diligence for any contract, bid, offer or submission to a vendor portal.  The CPO-HE, SPOs or their designees shall be responsible for using any reasonably known and publicly available information to discover any undisclosed potential conflict of interest and act to protect the best interest of the State of Illinois. [30 ILCS 500/50-35(e)]

 

4)         Inadvertent or Accidental Failure to Fully Disclose

Inadvertent or accidental failure to fully disclose shall render the contract, bid, offer, proposal, subcontract, or relationship voidable by the CPO-HE if he or she deems it in the best interest of the State of Illinois and, at his or her discretion, may be cause for barring from future contracts, bids, offers, proposals, subcontracts, or relationships with the State for a period of up to 2 years. [30 ILCS 500/50-35(f)]

 

5)         Intentional, Willful or Material Failure to Disclose

Intentional, willful or material failure to disclose shall render the contract, bid, offer, proposal, subcontract, or relationship voidable by the CPO-HE if he or she deems it in the best interest of the State of Illinois and shall result in debarment from future contracts, bids, offers, proposals, subcontracts, or relationships with the State for a period of not less than 2 years and not more than 10 years.  Reinstatement after 2 years and before 10 years must be reviewed and commented upon by the Governor, or by an executive ethics board he or she may designate. The comment shall be returned to the CPO-HE, who must rule in writing whether and when to reinstate.  [30 ILCS 500/50-35(g)]

 

6)         Other Procurements

In addition, all disclosures shall note any other current or pending contracts, bids, offers, proposals, subcontracts, leases or other ongoing procurement relationships the bidder, offeror, potential contractor, contractor, or subcontractor has with any other unit of State government and shall clearly identify the unit and the contract, offer, proposal, lease or other relationship.  [30 ILCS 500/50-35(h)]

 

7)         Continuing Obligation

The bidder, offeror, potential contractor, or contractor has a continuing obligation to supplement the disclosure required by this Section throughout the bidding process, during the term of any contract, and during the vendor portal registration process. [30 ILCS 500/50-35(i)]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5036  Disclosure of Business in Iran

 

a)         Each bid or offer submitted for a State contract, other than a small purchase, shall include a disclosure of whether the bidder, offeror or any of its corporate parents or subsidiaries, within the 24 months before submission of the bid or offer, had business operations that involved contracts with, or provision of supplies or services to, the Government of Iran, companies in which the Government of Iran has any direct or indirect equity share, consortiums or projects commissioned by the Government of Iran, or companies involved in consortiums or projects commissioned by the Government of Iran and:

 

1)         More than 10% of the company's revenue produced in or assets allocated in Iran involve oil-related activities or mineral extraction activities; less than 75% of the company's revenues produced or assets located in Iran involve contracts with or provision of oil-related or mineral-extraction products or services to the Government of Iran or a project or consortium created exclusively by that government; and the company has failed to take substantial action; or

 

2)         The company has, on or after August 5, 1996, made an investment of $20 million or more, or any combination of investments of at least $10 million each that in the aggregate equals or exceeds $20 million in any 12-month period, that directly or significantly contributes to the enhancement of Iran's ability to develop petroleum resources of Iran. [30 ILCS 500/50-36(b)]

 

b)         A bid or offer that does not include the disclosure required by subsection (a) may be given a period after the bid or offer is submitted to cure non-disclosure.  The CPO-HE may consider the disclosure when evaluating the bid or offer or awarding the contract. [30 ILCS 500/50-36(c)]

 

c)         The CPO-HE shall provide the State Comptroller with the names of each entity disclosed under subsection (a) as doing business or having done business in Iran.  The State Comptroller shall post that information on his or her official website. [30 ILCS 500/50-36(d)]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5037  Vendor Registration, Certification and Prohibition on Political Contributions

 

a)         Introduction

Illinois statute [10 ILCS 5/9-35 and 30 ILCS 500/20-160 and 50-37] restricts political contributions by vendors and affiliated entities, requires registration with the State Board of Elections (SBEL), and requires solicitation and contract certifications relative to the requirements of the statutes.  This Section supplements requirements found in the statutes and does not excuse compliance with any of those requirements.

 

b)         General Registration Requirements

 

1)         These requirements apply to contracts, bids and offers that are subject to the Code:

 

A)        Bids/offers referenced in this Section are those submitted in response to a competitive solicitation that is posted to the Bulletin, regardless of the value assigned to the procurement.

 

B)        Bids and offers include pending bids and offers.

 

C)        These requirements generally apply to a vendor whose existing State contracts have an aggregate value in excess of $50,000, or whose aggregate value of bids/offers for State contracts exceeds $50,000, or whose aggregate value of State contracts and bids/offers exceeds $50,000.

 

D)        This value is calculated on a calendar-year basis.

 

2)         On a calendar-year basis, each vendor or potential vendor must keep track of the value of contracts and bids/offers.  Vendors must register with SBEL when the vendor determines that the value of the contracts and bids/offers meets the threshold for registration.

 

3)         An "executive employee" means:

 

A)        the President, Chairman of the Board, Chief Executive Officer and/or other individuals who fulfill equivalent duties as the President, Chairman of the Board or Chief Executive Officer; and/or

 

B)        any employee whose compensation is determined directly, in whole or in part, by the award or payment of contracts by a State agency to the entity employing the employee, irrespective of the employee's title or status in the business entity.  For the purposes of this subsection (b)(3)(B), compensation determined directly by award or payment of contracts means a payment over and above regular salary that would not be made if it were not for the award of the contract.

 

4)         Businesses required to register have a continuing duty to ensure that the registration is accurate in accordance with Sections 20-160 and 50-37 of the Code.

 

c)         Bids and Proposals

 

1)         In order to be considered for award, a vendor who meets the requirements for registration must be registered with SBEL as of the date the bid or offer is due and shall be able to produce a copy of the Registration Certificate on that date. 

 

2)         If a vendor who meets the requirements for registration is not registered by the date the bid or offer is due, the CPO-HE shall review the bid or offer to determine whether the bidder or offeror made a good faith effort to comply with the registration requirements prior to the bid or offer being due.

 

A)        Good faith effort may consist of, but is not limited to, an attempt to register either as a parent or subsidiary, registration under a prior name, acts of God that made registration impossible, or other demonstrated effort to register in advance of the bid or offer being due.

 

B)        If the CPO-HE finds good faith efforts were made to register, the CPO-HE shall notify the bidder or offeror it has 5 business days to achieve compliance with the registration requirements.

 

3)         Prior to award or execution of a contract, the SPO, or a designee of the SPO, shall verify that the vendor who meets the requirements for registration has registered with SBEL and shall document vendor compliance.

 

4)         Annual certification through the vendor portal in accordance with Section 4.1535 satisfies the requirements of this Section.

 

5)         A bid or offer that fails to meet the requirements for registration with SBEL shall be rejected as non-responsive.

 

d)         Contracts

Documentation of vendor compliance must be in the procurement file in relation to any contract for which a vendor is required to register as set forth in this subsection (d), unless the vendor certifies it is not required to register.

 

1)         For contract renewals and extensions, if the value of the renewal or extension by itself, or in combination with the contract being renewed/extended and other contracts and bids/proposals exceeds $50,000, the vendor must provide documentation of vendor compliance upon request and make the appropriate contract certification, if it has not already done so.  The Registration Certificate or other evidence of vendor compliance may be provided by reference to and incorporation of the vendor's prequalification by the CPO-HE.

 

2)         A university shall identify in the solicitation whether the contract is estimated to exceed $50,000 annually.  Vendors submitting bids or offers for master contracts estimated to exceed $50,000 annually regardless of consumption are required to register with SBEL.

 

3)         For indefinite quantity/estimated value contracts that are not estimated to exceed $50,000 annually, a vendor who is otherwise not required to register shall register with SBEL when the value of orders placed pursuant to an indefinite/estimated value contract plus all other contracts and bids/proposals exceeds $50,000.

 

4)         For change orders, if the value of the change order, by itself or in combination with the contract being renewed plus other contracts and bids/proposals exceeds $50,000 annually, the vendor must provide the Registration Certificate or other evidence of vendor compliance upon request and make the appropriate contract certification, if it has not already done so.

 

5)         Any contracts mistakenly executed in violation of this Section must be amended to include the contract certifications, and the vendor must supply the Registration Certificate or other evidence of vendor compliance upon request.  If any violation by the vendor is not cured within 5 business days after receipt of notification of the violation, the contract is voidable by the State without penalty.

 

6)         Contract certification required by Section 20-160 of the Code shall be included in or added to each contract that must be filed with the State Comptroller in accordance with Section 20-80 of the Code and those written two-party contracts that need not be filed with the Comptroller.  Universities may require written confirmation of the rule-imposed certification at any time.

 

e)         Each solicitation issued and contract executed by the State shall be deemed to contain a statement that the contract is voidable under Section 50-60 of the Code if the bidder, offeror or contractor fails to comply with Section 20-160 of the Code.

 

f)         Prohibited Political Contributions

 

1)         Upon discovery of a political contribution that is potentially prohibited by Section 50-37 of the Code, the CPO-HE, within 5 business days, shall send a letter requesting response from the business entity that made the potential prohibited contribution acknowledging or denying that the contribution was prohibited.

 

2)         If the CPO-HE determines that a political contribution was prohibited, all contracts held by the contributing business entity are voidable, and the CPO-HE shall determine if the circumstances surrounding the prohibited political contribution warrant the voiding of these contracts.

 

3)         If a business entity violates Section 50-37(b) of the Code three or more times within a 36 month period, the CPO-HE shall void all contracts with the business entity and the business entity shall be prohibited from responding to any solicitation issued by any State agency or entering into a contract with any university for three years from the date of the last violation.

 

4)         If the CPO-HE determines that a prohibited political contribution is grounds to suspend a business entity pursuant to Section 4.5560(b), the business entity shall have the right to a hearing in accordance with Section 4.5560(h), to be conducted in accordance with Subpart V.

 

g)         Notice

 

1)         Notice of each violation of Section 50-37 and any penalty imposed for each violation shall be published in the Illinois Register and the Bulletin.

 

2)         The CPO-HE shall directly notify a political committee in receipt of a prohibited political contribution that payment equal to the amount of the contribution is due the State of Illinois within 30 days after publication of the violation in the Illinois Register.

 

3)         If an amount owed by a political committee as a result of a prohibited political contribution is not paid and is deemed uncollectible for any reason, notice of the political committee's nonpayment shall be published in the Illinois Register and the Bulletin.

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5038  Lobbying Restrictions

 

a)         A person or business that is let or awarded a contract is not entitled to receive any payment, compensation or other remuneration from the State to compensate the person or business for any expenses related to travel, lodging or meals that are paid by the person or business to any officer, agent, employee, consultant, independent contractor, director, partner, manager or shareholder.  [30 ILCS 500/50-38(a)]

 

b)         Disclosure

 

1)         Any bidder, offeror, potential contractor, or contractor on a State contract that hires a person required to register under the Lobbyist Registration Act [25 ILCS 170] to assist in obtaining a contract shall:

 

A)        Disclose all costs, fees, compensation, reimbursement and other remunerations paid or to be paid to the lobbyist related to the contract;

 

B)        Not bill or otherwise cause the State of Illinois to pay for any of the lobbyist's costs, fees, compensation, reimbursements or other remuneration;

 

C)        Sign a verification certifying that none of the lobbyist's costs, fees, compensation, reimbursements or other remuneration were billed to the State.

 

2)         The information in subsection (b)(1)(A), along with all supporting documents, shall be filed with the agency awarding the contract and with the Secretary of State.  The CPO-HE shall post this information, together with the contract award notice, in the Bulletin.  [30 ILCS 500/50-38(b)]

 

c)         No person or entity shall retain a person or entity required to register under the Lobbyist Registration Act to attempt to influence the outcome of a procurement decision for compensation contingent in whole or in part upon the decision or procurement.  Any person who violates this subsection (c) is guilty of a business offense and shall be fined not more than $10,000.  [30 ILCS 500/50-38(c)]

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

 

Section 4.5039  Procurement Communication Reporting Requirement

 

a)         Reporting Requirement

Any written or oral communication received by a State employee who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a contract and that imparts or requests material information or makes a material argument regarding potential action concerning an active procurement matter, including, but not limited to, an application, a contract or a project, shall be reported to the Procurement Policy Board in accordance with rules of the Executive Ethics Commission (2 Ill. Adm. Code 1620).  [30 ILCS 500/50-39(a)]

 

b)         Excepted Communications

 

1)         Reportable communications do not include the following:

 

A)        statements made by a person publicly in a public forum.  However, communications made in a public forum, if privately, must be reported;

 

B)        statements regarding matters of procedure and practice, such as format, the number of copies required, the manner of filing, and the status of a matter;

 

C)        statements made by a State employee to:

 

i)          the State employee's agency head;

 

ii)         other employees of that agency;

 

iii)        employees of the Executive Ethics Commission, including the CPO-HE, SPOs, PCMs and other CPO-HE staff; or

 

iv)        an employee of another State agency who, through the communication, is either:

 

•           exercising his or her experience or expertise in the subject matter of the particular procurement in the normal course of business, for official purposes, and at the initiation of the purchasing agency or the appropriate SPO; or

 

•           exercising oversight, supervisory, or management authority over the procurement in the normal course of business and as part of official responsibilities;

 

D)        Unsolicited communications providing general information about products, services, or industry best practices before those products or services become involved in a procurement matter;

 

E)        Communications received in response to procurement solicitations, including, but not limited to, vendor responses to:

 

i)          an IFB, RFI, RFP, Request for Qualifications, small purchase, sole source or emergency procurement; or

 

ii)         questions or answers posted to the Bulletin to supplement the procurement action, provided that the communications are made in accordance with instructions contained in the procurement solicitation, procedures, or guidelines;

 

F)         Communications that are privileged, protected or confidential under law; and

 

G)        Communications that are part of a formal procurement process as set out by statute, rule, or solicitation, guidelines, or procedures, including but not limited to:

 

i)          the posting of procurement opportunities;

 

ii)         the process for approving a procurement business case or its equivalent;

 

iii)        fiscal approval;

 

iv)        submission of bids or offers;

 

v)         the finalization of contract terms and conditions with an awardee or apparent awardee; and

 

vi)        any other similar formal procurement process.

 

2)         The provisions of this Section shall not apply to communications regarding the administration and implementation of an existing contract, except communications regarding change orders or the renewal or extension of a contract. [30 ILCS 500/50-39(a)]

 

3)         The reporting requirement does not apply to communications asking for clarification on a published solicitation provided:

 

A)        the response did not provide a competitive advantage to the person or business who asked for clarification; and

 

B)        the question and answer were published to the Bulletin as an addendum to the solicitation.

 

4)         No trade secret or other proprietary or confidential information shall be included in any communication reported to the Procurement Policy Board. [30 ILCS 500/50-39(b)]

 

c)         When an oral communication made by a person required to register under the Lobbyist Registration Act [25 ILCS 170] is received by a State employee that is covered under this Section, all individuals who initiate or participate in the oral communication shall submit a written report to that State employee that memorializes the communication and includes, but is not limited to, the items listed in Section 50‑39 of the Code.  [30 ILCS 500/50-39(c)]

 

(Source:  Amended at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5040  Reporting and Anticompetitive Practices 

 

a)         Every vendor, bidder, offeror, potential contractor, contractor, CPO-HE, SPO, designee, elected official, or State or university employee is required to report in writing any suspected collusion or other anticompetitive practice to the Office of the Executive Inspector General, the Office of the Illinois Attorney General, and the CPO-HE. 

 

b)         The notice shall include all known or relevant facts that support the suspected collusion or anticompetitive practice.

 

(Source:  Added at 43 Ill. Reg. 1781, effective February 15, 2019)

 

Section 4.5055  Supply Inventory

 

Universities shall manage their inventory of supplies in compliance with the 12-month inventory restriction of Section 50-55 of the Code.

 

(Source:  Added at 36 Ill. Reg. 10951, effective August 6, 2012)

 

Section 4.5080  Sexual Harassment Policy

 

Every bidder, offeror, potential contractor, contractor or subcontractor shall have a sexual harassment policy in accordance with Section 2-105(A)(4) of the Illinois Human Rights Act.  A copy of the policy shall be available to the CPO-HE or the university upon request.

 

(Source:  Added at 43 Ill. Reg. 1781, effective February 15, 2019)

SUBPART P: CONCESSIONS

 

Section 4.5325  Concessions

 

a)         Each public institution of higher education may enter into concessions, including the right to engage in activity on the lessors property (e.g., a refreshment or parking concession), and including the assignment, license, sale, or transfer of interests in or rights to discoveries, inventions, patents, or copyrightable works, for property, whether tangible or intangible, over which it has jurisdiction. Concessions shall be reduced to writing and shall be awarded at the discretion of the institution with jurisdiction over the property. Notice of the award of a concession shall be published in the Bulletin.

 

b)         The duration and terms of concessions and leases for personal property shall be at the discretion of the institution with jurisdiction over the property.

 

c)         Notwithstanding any other provision of law, if the Illinois Finance Authority issues bonds for the financing of buildings, structures, or facilities that are determined by the governing board of a public institution of higher education to be either required by or necessary for the use or benefit of that public institution of higher education, then the duration of any lease for real property entered into by that public institution of higher education, as lessee or lessor, in connection with the issuance of those bonds shall be at the discretion of that public institution of higher education. [30 ILCS 500/53-25]

 

(Source:  Amended at 40 Ill. Reg. 456, effective January 15, 2016)

SUBPART Q: JOINT AND COOPERATIVE PURCHASING