TITLE 44: GOVERNMENT CONTRACTS, GRANTMAKING, PROCUREMENT AND PROPERTY MANAGEMENT
SUBTITLE B: SUPPLEMENTAL PROCUREMENT RULES
CHAPTER XX: ATTORNEY GENERAL
PART 1300 ATTORNEY GENERAL'S PROCUREMENT
SECTION 1300.2035 COMPETITIVE SELECTION PROCEDURES FOR PROFESSIONAL AND ARTISTIC SERVICES
Section 1300.2035 Competitive Selection Procedures for Professional and Artistic Services
The provisions of this Section apply to every procurement of professional and artistic services except those professional and other services necessary to prepare for anticipated litigation, enforcement actions or investigations, which are exempt from the requirements of the Code and this Part. "Professional and artistic services" means those services provided under contract to a State agency by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability [30 ILCS 525/1-15.60].
b) Professional and artistic services are further defined as follows:
1) "Qualified by education" means the individual who would perform the services must have obtained the level of education specified in the RFP.
2) "Qualified by experience" means the individual who would perform the services must have the level of general experience specified in the RFP.
3) "Qualified by technical ability" means the individual who would perform the services must demonstrate 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 RFP.
4) An essential element distinguishing professional and artistic services from other services is confidence, trust, and belief in not only the ability, but the talent, of the individual performing the service. These services are primarily for intellectual or creative skills. Contracts for services primarily involving manual skills or labor are not professional and artistic services contracts. (See Illinois Attorney General Opinion S-256, January 20, 1971.)
5) 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.
6) When a State agency 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 other methods of source selection authorized by the Code and this Part.
c) The categories of services enumerated below 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 such 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:
4) dentistry; and
5) clinical psychology.
d) Conditions for Use of Competitive Selection Procedures
Except as authorized under Section 20-25 (Sole 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 $20,000 or more. Any procurement of such services in an amount of less than $20,000 and for a nonrenewable term of less than one year may be procured in accordance with Section 1300.2020 (Small Purchases) of this Part.
e) Determinations Required Prior to Use of Competitive Selection Procedures
The CPO shall determine in writing, prior to announcing the need for any such services:
1) that the services to be acquired are professional or artistic;
2) the nature of the relationship to be established between the OAG and the vendor by the proposed contract; and
3) that the OAG has developed, and fully intends to implement, a written plan for utilizing such services which will be included in the contractual statement of work.
The CPO shall maintain a list of prequalified professional and artistic vendors in accordance with Sections 1300.2044 and 1300.2045 of this Part. Persons may amend statements of qualifications at any time by filing a new statement.
g) Public Notice in Competitive Selection Procedures
Notice of the need for professional and artistic services shall be made by the Procurement Officer in the form of an RFP. Adequate public notice shall be given as provided in Section 1300.2010 (Competitive Sealed Bidding, Public Notice), and additionally may consist of distributing Requests for Proposals to prequalified persons interested in performing the services required by the proposed contract.
h) Request for Proposals
1) Contents. The RFP shall be in the form specified by the CPO and 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 shall include:
i) the name of the offer or, 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 by the Procurement Officer, 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); and
H) the factors to be used in the evaluation and selection process and their relative importance.
2) Evaluation. Proposals shall be evaluated only on the basis of evaluation factors stated in the RFP. Price will not be evaluated until after selection of the most qualified vendor. The relative importance of the evaluation factors will vary according to the type of services being procured. The minimum 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.
i) Pre-Proposal Conferences
Pre-proposal conferences, as appropriate, may be conducted in accordance with Section 1300.2010 (Competitive Sealed Bidding).
j) Receipt and Handling of Proposals
Registration. Proposals and modifications shall be sent to the Procurement Officer as directed in the solicitation and shall be time-stamped upon receipt and held in a secure place until the established due date and time, at which time they will be opened by the Procurement Officer. Proposals shall not be opened publicly nor disclosed to unauthorized persons, but shall be opened in the presence of at least one witness. A register of proposals shall be established which shall include, for all proposals, the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the services offered. The register of proposals shall be open to public inspection only after award of the contract.
k) Request for Nondisclosure of Data
If the offeror selected for award has requested in writing the nondisclosure of trade secrets and other proprietary data so identified, the head of the agency conducting the procurement or a designee of such officer shall examine the request in the proposal to determine its validity prior to entering negotiations. If the parties do not agree as to the disclosure of data in the contract, the Procurement Officer shall reject the proposal.
1) Discussions Permissible. The Procurement Officer shall evaluate all proposals submitted and may conduct discussions with any offeror. The purposes of such discussions shall be to:
A) determine in greater detail such 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.
2) No Disclosure of Information. Discussions shall not disclose any information derived from proposals submitted by other offerors, and the agency conducting the procurement shall not disclose any information contained in any proposals until after award of the proposed contract has been made. The proposal of the offeror awarded the contract shall be open to public inspection.
m) Selection of the Best Qualified Offerors
After conclusion of validation of qualifications, evaluation, and discussion, the Procurement Officer shall rank the acceptable offerors in the order of their respective qualifications.
n) Evaluation of Pricing Data
Pricing submitted for all acceptable proposals shall be opened and ranked. If the low price is submitted by the most qualified vendor, negotiation of price shall commence. If the price of the most qualified is not low and if it is under $25,000, the Procurement Officer, but not a designee, may award to that vendor. If the price is over $25,000, the Procurement Officer, but not a designee, must state why the qualifications were deemed more important than price and such determination shall be published in the Bulletin.
o) Negotiation and Award of Contract
1) General. The Procurement Officer shall negotiate a contract with the best qualified offeror for the required services at compensation determined in writing to be fair and reasonable.
2) Elements of Negotiation. 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 such services.
3) Successful Negotiation of Contract with Best Qualified Offeror. 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 cancelled.
4) Failure to 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 for the lack of agreement shall be placed in the file and the Procurement Officer shall advise the offeror of the termination of negotiations.
B) Upon failure to negotiate a contract with the best qualified offeror, the Procurement Officer may enter into negotiations with the next most qualified offeror, and so on in that manner until an award is made or the procurement is cancelled.
p) Notice of Award
Written notice of award shall be public information and made a part of the contract file. The CPO shall publish the names of the responsible decision makers of the OAG, the successful vendor, a contract reference number or other identifier, and the value of the contract. Publication shall be in the next available issue of the Bulletin.
q) A CPO may allow the SPO responsible for conducting a small, sole source or emergency procurement of professional and artistic services to publish notices of those procurements.
r) Post Performance Review
The SPO shall require the using division to provide a synopsis of the contract and shall rate the vendor's performance using the form developed by the SPO. A copy of the completed form shall be provided to the SPO.
(Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012)