97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5313

 

Introduced 2/8/2012, by Rep. Jason Barickman

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Amends the Illinois Procurement Code. Provides that the Code shall not apply to contracts for services to public institutions of higher education (now, to Northern Illinois University) by a person, acting as an independent contractor who is selected by negotiation for the purpose of providing educational (now, non-credit educational) services. Provides that determinations by a public institution of higher education related to its ability to adequately fulfill its academic and research missions shall be made in writing by the institution. Makes changes to provisions concerning notice and hearing requirements for sole source procurements and emergency purchases. Provides that a public institution of higher education may accept modified vendor qualifications if it determines that failure to accept such modified qualifications may impair its ability to adequately fulfill its academic and research missions. Provides that certain statements are exempt from reporting requirements for procurement communications. Provides that a State employee who knowingly and intentionally violates the reporting requirements for procurement communications may (rather than shall) be subject to suspension or discharge. Amends the Governmental Joint Purchasing Act. Provides that joint purchases under that Act shall be made by competitive selection (rather than competitive bids). Provides that a public institution of higher education may purchase property, supplies, and services jointly with governmental or other entities, where such joint purchasing is in the best interests of the institution. Effective immediately.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB5313LRB097 16200 PJG 61353 b

1    AN ACT concerning finance.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Procurement Code is amended by
5changing Sections 1-10, 20-25, 20-30, 20-43, 25-15, and 50-39
6and adding Section 1-35 as follows:
 
7    (30 ILCS 500/1-10)
8    Sec. 1-10. Application.
9    (a) This Code applies only to procurements for which
10contractors were first solicited on or after July 1, 1998. This
11Code shall not be construed to affect or impair any contract,
12or any provision of a contract, entered into based on a
13solicitation prior to the implementation date of this Code as
14described in Article 99, including but not limited to any
15covenant entered into with respect to any revenue bonds or
16similar instruments. All procurements for which contracts are
17solicited between the effective date of Articles 50 and 99 and
18July 1, 1998 shall be substantially in accordance with this
19Code and its intent.
20    (b) This Code shall apply regardless of the source of the
21funds with which the contracts are paid, including federal
22assistance moneys. This Code shall not apply to:
23        (1) Contracts between the State and its political

 

 

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1    subdivisions or other governments, or between State
2    governmental bodies except as specifically provided in
3    this Code.
4        (2) Grants, except for the filing requirements of
5    Section 20-80.
6        (3) Purchase of care.
7        (4) Hiring of an individual as employee and not as an
8    independent contractor, whether pursuant to an employment
9    code or policy or by contract directly with that
10    individual.
11        (5) Collective bargaining contracts.
12        (6) Purchase of real estate, except that notice of this
13    type of contract with a value of more than $25,000 must be
14    published in the Procurement Bulletin within 7 days after
15    the deed is recorded in the county of jurisdiction. The
16    notice shall identify the real estate purchased, the names
17    of all parties to the contract, the value of the contract,
18    and the effective date of the contract.
19        (7) Contracts necessary to prepare for anticipated
20    litigation, enforcement actions, or investigations,
21    provided that the chief legal counsel to the Governor shall
22    give his or her prior approval when the procuring agency is
23    one subject to the jurisdiction of the Governor, and
24    provided that the chief legal counsel of any other
25    procuring entity subject to this Code shall give his or her
26    prior approval when the procuring entity is not one subject

 

 

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1    to the jurisdiction of the Governor.
2        (8) Contracts for services to public institutions of
3    higher education Northern Illinois University by a person,
4    acting as an independent contractor, who is qualified by
5    education, experience, and technical ability and is
6    selected by negotiation for the purpose of providing
7    non-credit educational services and service activities or
8    products by means of specialized programs offered by the
9    university.
10        (9) Procurement expenditures by the Illinois
11    Conservation Foundation when only private funds are used.
12        (10) Procurement expenditures by the Illinois Health
13    Information Exchange Authority involving private funds
14    from the Health Information Exchange Fund. "Private funds"
15    means gifts, donations, and private grants.
16        (11) Public-private agreements entered into according
17    to the procurement requirements of Section 20 of the
18    Public-Private Partnerships for Transportation Act and
19    design-build agreements entered into according to the
20    procurement requirements of Section 25 of the
21    Public-Private Partnerships for Transportation Act.
22    (c) This Code does not apply to the electric power
23procurement process provided for under Section 1-75 of the
24Illinois Power Agency Act and Section 16-111.5 of the Public
25Utilities Act.
26    (d) Except for Section 20-160 and Article 50 of this Code,

 

 

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1and as expressly required by Section 9.1 of the Illinois
2Lottery Law, the provisions of this Code do not apply to the
3procurement process provided for under Section 9.1 of the
4Illinois Lottery Law.
5    (e) This Code does not apply to the process used by the
6Capital Development Board to retain a person or entity to
7assist the Capital Development Board with its duties related to
8the determination of costs of a clean coal SNG brownfield
9facility, as defined by Section 1-10 of the Illinois Power
10Agency Act, as required in subsection (h-3) of Section 9-220 of
11the Public Utilities Act, including calculating the range of
12capital costs, the range of operating and maintenance costs, or
13the sequestration costs or monitoring the construction of clean
14coal SNG brownfield facility for the full duration of
15construction.
16    (f) This Code does not apply to the process used by the
17Illinois Power Agency to retain a mediator to mediate sourcing
18agreement disputes between gas utilities and the clean coal SNG
19brownfield facility, as defined in Section 1-10 of the Illinois
20Power Agency Act, as required under subsection (h-1) of Section
219-220 of the Public Utilities Act.
22    (g) (e) This Code does not apply to the processes used by
23the Illinois Power Agency to retain a mediator to mediate
24contract disputes between gas utilities and the clean coal SNG
25facility and to retain an expert to assist in the review of
26contracts under subsection (h) of Section 9-220 of the Public

 

 

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1Utilities Act. This Code does not apply to the process used by
2the Illinois Commerce Commission to retain an expert to assist
3in determining the actual incurred costs of the clean coal SNG
4facility and the reasonableness of those costs as required
5under subsection (h) of Section 9-220 of the Public Utilities
6Act.
7(Source: P.A. 96-840, eff. 12-23-09; 96-1331, eff. 7-27-10;
897-96, eff. 7-13-11; 97-239, eff. 8-2-11; 97-502, eff. 8-23-11;
9revised 9-7-11.)
 
10    (30 ILCS 500/1-35 new)
11    Sec. 1-35. Determinations by public institutions of higher
12education. Determinations by a public institution of higher
13education related to its ability to adequately fulfill its
14academic and research missions shall be made in writing by the
15institution.
 
16    (30 ILCS 500/20-25)
17    Sec. 20-25. Sole source procurements.
18    (a) In accordance with standards set by rule, contracts may
19be awarded without use of the specified method of source
20selection when there is only one economically feasible source
21for the item. A State contract may not be awarded as a sole
22source procurement unless approved by the chief procurement
23officer. If any person files an objection to the notice of a
24sole source procurement during the notice period required by

 

 

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1subsection (c), the chief procurement officer shall provide
2following a public hearing at which the chief procurement
3officer, State purchasing officer, or State agency presents and
4purchasing agency present written justification for the
5procurement method. The Procurement Policy Board and the public
6may present testimony.
7    (b) This Section may not be used as a basis for amending a
8contract for professional or artistic services if the amendment
9would result in an increase in the amount paid under the
10contract of more than 5% of the initial award, or would extend
11the contract term beyond the time reasonably needed for a
12competitive procurement, not to exceed 2 months. This
13subsection does not apply to the amendment of contracts by
14public institutions of higher education if the institution
15determines that failure to enter into any such amendment may
16impair its ability to adequately fulfill its academic and
17research missions.
18    (c) Notice of intent to enter into a sole source contract
19shall be provided to the Procurement Policy Board and published
20in the online electronic Bulletin at least 14 days before the
21public hearing required in subsection (a). The notice shall
22include the sole source procurement justification form
23prescribed by the Board, a description of the item to be
24procured, the intended sole source contractor, and the date,
25time, and location of the public hearing. A copy of the notice
26and all documents provided at the hearing shall be included in

 

 

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1the subsequent Procurement Bulletin.
2    (d) By August 1 each year, each chief procurement officer
3shall file a report with the General Assembly identifying each
4contract the officer sought under the sole source procurement
5method and providing the justification given for seeking sole
6source as the procurement method for each of those contracts.
7(Source: P.A. 96-795, eff. 7-1-10 (see Section 5 of P.A. 96-793
8for the effective date of changes made by P.A. 96-795); 96-920,
9eff. 7-1-10.)
 
10    (30 ILCS 500/20-30)
11    Sec. 20-30. Emergency purchases.
12    (a) Conditions for use. In accordance with standards set by
13rule, a purchasing agency may make emergency procurements
14without competitive sealed bidding or prior notice when there
15exists a threat to public health or public safety, or when
16immediate expenditure is necessary for repairs to State
17property in order to protect against further loss of or damage
18to State property, to prevent or minimize serious disruption in
19critical State services that affect health, safety, or
20collection of substantial State revenues, or to ensure the
21integrity of State records; provided, however, that the term of
22the emergency purchase shall be limited to the time reasonably
23needed for a competitive procurement, not to exceed 90 days. A
24contract may be extended beyond 90 days if the chief
25procurement officer determines additional time is necessary

 

 

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1and that the contract scope and duration are limited to the
2emergency. If any person files an objection to the notice of
3extension required by subsection (b), the chief procurement
4officer shall provide a public hearing at which the chief
5procurement officer, State purchasing officer, or State agency
6presents written justification for the extension. The
7Procurement Policy Board and members Prior to execution of the
8extension, the chief procurement officer must hold a public
9hearing and provide written justification for all emergency
10contracts. Members of the public may present testimony.
11Emergency procurements shall be made with as much competition
12as is practicable under the circumstances. A written
13description of the basis for the emergency and reasons for the
14selection of the particular contractor shall be included in the
15contract file.
16    (b) Notice. Notice of all emergency procurements shall be
17provided to the Procurement Policy Board and published in the
18online electronic Bulletin no later than 3 business days after
19the contract is awarded. Notice of intent to extend an
20emergency contract shall be provided to the Procurement Policy
21Board and published in the online electronic Bulletin at least
2214 days before the public hearing. Notice shall include at
23least a description of the need for the emergency purchase, the
24contractor, and if applicable, the date, time, and location of
25the public hearing. A copy of this notice and all documents
26provided at the hearing shall be included in the subsequent

 

 

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1Procurement Bulletin. Before the next appropriate volume of the
2Illinois Procurement Bulletin, the purchasing agency shall
3publish in the Illinois Procurement Bulletin a copy of each
4written description and reasons and the total cost of each
5emergency procurement made during the previous month. When only
6an estimate of the total cost is known at the time of
7publication, the estimate shall be identified as an estimate
8and published. When the actual total cost is determined, it
9shall also be published in like manner before the 10th day of
10the next succeeding month.
11    (c) Affidavits. A chief procurement officer making a
12procurement under this Section shall file affidavits with the
13Procurement Policy Board and the Auditor General within 10 days
14after the procurement setting forth the amount expended, the
15name of the contractor involved, and the conditions and
16circumstances requiring the emergency procurement. When only
17an estimate of the cost is available within 10 days after the
18procurement, the actual cost shall be reported immediately
19after it is determined. At the end of each fiscal quarter, the
20Auditor General shall file with the Legislative Audit
21Commission and the Governor a complete listing of all emergency
22procurements reported during that fiscal quarter. The
23Legislative Audit Commission shall review the emergency
24procurements so reported and, in its annual reports, advise the
25General Assembly of procurements that appear to constitute an
26abuse of this Section.

 

 

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1    (d) Quick purchases. The chief procurement officer may
2promulgate rules extending the circumstances by which a
3purchasing agency may make purchases under this Section,
4including but not limited to the procurement of items available
5at a discount for a limited period of time.
6    (e) The changes to this Section made by this amendatory Act
7of the 96th General Assembly apply to procurements executed on
8or after its effective date.
9(Source: P.A. 96-795, eff. 7-1-10 (see Section 5 of P.A. 96-793
10for the effective date of changes made by P.A. 96-795).)
 
11    (30 ILCS 500/20-43)
12    Sec. 20-43. Bidder or offeror authorized to do business in
13Illinois. In addition to meeting any other requirement of law
14or rule, a person (other than an individual acting as a sole
15proprietor) may qualify as a bidder or offeror under this Code
16only if the person is a legal entity authorized to do business
17in Illinois prior to submitting the bid, offer, or proposal. A
18public institution of higher education may consider a bid or
19offer from a person not authorized to do business in Illinois
20if the institution determines that failure to accept a bid or
21offer may impair its ability to adequately fulfill its academic
22and research missions and if such authorization to do business
23in Illinois, if required, is obtained prior to execution of
24contract.
25(Source: P.A. 96-795, eff. 7-1-10 (see Section 5 of P.A. 96-793

 

 

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1for the effective date of P.A. 96-795).)
 
2    (30 ILCS 500/25-15)
3    Sec. 25-15. Method of source selection.
4    (a) Competitive sealed bidding. Except as provided in
5subsection (b) and Sections 20-20, 20-25, and 20-30, all State
6contracts for supplies and services shall be awarded by
7competitive sealed bidding in accordance with Section 20-10.
8    (b) Other methods. Unless otherwise provided by law, the
9The chief procurement officer may establish by rule (i)
10categories of purchases, including non-governmental joint
11purchases, that may be made without competitive sealed bidding
12and (ii) the most competitive alternate method of source
13selection that shall be used for each category of purchase.
14    (c) Academic and research mission needs of public
15institutions of higher education. A public institution of
16higher education may accept modified vendor qualifications,
17including applicable registrations, certifications,
18disclosures, and other requirements if it determines in writing
19that failure to accept such modified qualifications may impair
20its ability to adequately fulfill its academic and research
21missions.
22(Source: P.A. 90-572, eff. date - See Sec. 99-5.)
 
23    (30 ILCS 500/50-39)
24    Sec. 50-39. Procurement communications reporting

 

 

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1requirement.
2    (a) Any written or oral communication that (i) is received
3by a State employee who, by nature of his or her duties has the
4authority to participate personally and substantially in the
5award of a State contract and (ii) that imparts or requests
6material information or makes a material argument regarding
7potential action concerning a procurement matter, including,
8but not limited to, an application, a contract, or a project,
9shall be reported to the Procurement Policy Board, and, with
10respect to the Illinois Power Agency, by the initiator of the
11communication, and may be reported also by the recipient. When
12multiple State employees are party to the same communication,
13only one need report. Any person communicating orally, in
14writing, electronically, or otherwise with the Director or any
15person employed by, or associated with, the Illinois Power
16Agency to impart, solicit, or transfer any information related
17to the content of any power procurement plan, the manner of
18conducting any power procurement process, the procurement of
19any power supply, or the method or structure of contracting
20with power suppliers must disclose to the Procurement Policy
21Board the full nature, content, and extent of any such
22communication in writing by submitting a report with the
23following information:
24        (1) The names of any party to the communication.
25        (2) The date on which the communication occurred.
26        (3) The time at which the communication occurred.

 

 

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1        (4) The duration of the communication.
2        (5) The method (written, oral, etc.) of the
3    communication.
4        (6) A summary of the substantive content of the
5    communication.
6    These communications do not include the following: (i)
7statements by a person publicly made in a public forum; (ii)
8statements regarding matters of procedure and practice, such as
9format, the number of copies required, the manner of filing,
10and the status of a matter; and (iii) statements made by a
11State employee of the agency to the agency head or other
12employees of that agency or to the employees of the Executive
13Ethics Commission; (iv) statements made by an employee of a
14State agency or a public institution of higher education
15concerning cooperative procurement activities among or between
16State agencies or public institutions of higher education and
17any institutional cooperatives, organizations, and entities
18where a public institution of higher education is a member; (v)
19communications related to grants, research, or sponsored
20programs administered by public institutions of higher
21education; (vi) communications regarding transactions less
22than the small purchase amount set forth in this Code for
23procurements made on behalf of public institutions of higher
24education; and (vii) proprietary information. The provisions
25of this Section shall not apply to communications regarding the
26administration and implementation of an existing contract,

 

 

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1except communications regarding change orders or the renewal or
2extension of a contract.
3    (b) The report required by subsection (a) shall be
4submitted monthly and include at least the following: (i) the
5date and time of each communication; (ii) the identity of each
6person from whom the written or oral communication was
7received, the individual or entity represented by that person,
8and any action the person requested or recommended; (iii) the
9identity and job title of the person to whom each communication
10was made; (iv) if a response is made, the identity and job
11title of the person making each response; (v) a detailed
12summary of the points made by each person involved in the
13communication; (vi) the duration of the communication; (vii)
14the location or locations of all persons involved in the
15communication and, if the communication occurred by telephone,
16the telephone numbers for the callers and recipients of the
17communication; and (viii) any other pertinent information.
18    (c) Additionally, when an oral communication made by a
19person required to register under the Lobbyist Registration Act
20is received by a State employee that is covered under this
21Section, all individuals who initiate or participate in the
22oral communication shall submit a written report to that State
23employee that memorializes the communication and includes, but
24is not limited to, the items listed in subsection (b).
25    (d) The Procurement Policy Board shall make each report
26submitted pursuant to this Section available on its website

 

 

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1within 7 days after its receipt of the report. The Procurement
2Policy Board may promulgate rules to ensure compliance with
3this Section.
4    (e) The reporting requirements shall also be conveyed
5through ethics training under the State Officials and Employees
6Ethics Act. An employee who knowingly and intentionally
7violates this Section may shall be subject to suspension or
8discharge. The Executive Ethics Commission shall promulgate
9rules, including emergency rules, to implement this Section.
10    (f) This Section becomes operative on January 1, 2011.
11(Source: P.A. 96-795, eff. 7-1-10 (see Section 5 of P.A. 96-793
12for the effective date of changes made by P.A. 96-795); 96-920,
13eff. 7-1-10; 97-333, eff. 8-12-11; 97-618, eff. 10-26-11.)
 
14    Section 10. The Governmental Joint Purchasing Act is
15amended by changing Sections 2, 3, and 4 as follows:
 
16    (30 ILCS 525/2)  (from Ch. 85, par. 1602)
17    Sec. 2. Joint purchasing authority.
18    (a) Any governmental unit may purchase personal property,
19supplies and services jointly with one or more other
20governmental units. All such joint purchases shall be by
21competitive selection bids as provided in Section 4 of this
22Act. The provisions of any other acts under which a
23governmental unit operates which refer to purchases and
24procedures in connection therewith shall be superseded by the

 

 

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1provisions of this Act when the governmental units are
2exercising the joint powers created by this Act.
3    (a-5) The Department of Central Management Services may
4purchase personal property, supplies, and services jointly
5with a governmental entity of another state or with a
6consortium of governmental entities of one or more other
7states. Subject to provisions of the joint purchasing
8solicitation, the Department of Central Management Services
9may designate the resulting contract as available to
10governmental units in Illinois.
11    (b) Any not-for-profit agency that qualifies under Section
1245-35 of the Illinois Procurement Code and that either (1) acts
13pursuant to a board established by or controlled by a unit of
14local government or (2) receives grant funds from the State or
15from a unit of local government, shall be eligible to
16participate in contracts established by the State.
17    (c) Illinois public institutions of higher education may
18purchase personal property, supplies, and services jointly
19with a governmental, educational, medical, research, or
20similar entity, or with a consortium of such entities, where
21such joint purchasing is in the best interests of the
22institution. If a public institution of higher education is not
23the lead party to the joint purchase, Sections 3 and 4 are not
24applicable.
25(Source: P.A. 96-584, eff. 1-1-10.)
 

 

 

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1    (30 ILCS 525/3)  (from Ch. 85, par. 1603)
2    Sec. 3. Conduct of competitive selection bid-letting.
3Under any agreement of governmental units that desire to make
4joint purchases pursuant to subsection (a) of Section 2, one of
5the governmental units shall conduct the competitive selection
6process letting of bids. Where the State of Illinois is a party
7to the joint purchase agreement, the Department of Central
8Management Services or designated public institution of higher
9education shall conduct the competitive selection process
10letting of bids. Expenses of such competitive selection
11processes bid-letting may be shared by the participating
12governmental units in proportion to the amount of personal
13property, supplies or services each unit purchases.
14    When the State of Illinois is the lead a party to the joint
15purchase agreement pursuant to subsection (a) of Section 2, the
16acceptance of competitive selection process responses bids
17shall be in accordance with the Illinois Procurement Code and
18rules promulgated under that Code. When the State of Illinois
19is not the lead a party to the joint purchase agreement, the
20acceptance of competitive selection process responses bids
21shall be governed by the agreement.
22    When the State of Illinois is a party to a joint purchase
23agreement pursuant to subsection (a-5) of Section 2, the State
24governmental unit may act as the lead procurement entity state
25or as a participant state. When the State of Illinois
26procurement entity is the lead procurement entity state, all

 

 

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1such joint purchases shall be conducted in accordance with the
2Illinois Procurement Code. When Illinois is a participant
3state, all such joint purchases shall be conducted in
4accordance with the procurement laws of the procurement
5entity's lead state; provided that all such joint procurements
6must be by competitive selection process sealed bid. For those
7contracts where the governmental unit is the lead procurement
8entity, all All resulting awards shall be published in the
9appropriate volume of the Illinois Procurement Bulletin as may
10be required by Illinois law governing publication of the
11solicitation, protest, and award of Illinois State contracts.
12Contracts resulting from a joint purchase shall contain all
13provisions required by Illinois law and rule to the extent
14practical.
15    The personal property, supplies or services involved shall
16be distributed or rendered directly to each governmental unit
17taking part in the purchase. The person selling the personal
18property, supplies or services may bill each governmental unit
19separately for its proportionate share of the cost of the
20personal property, supplies or services purchased.
21    The credit or liability of each governmental unit shall
22remain separate and distinct. Disputes between bidders and
23governmental units shall be resolved between the immediate
24parties.
25(Source: P.A. 96-584, eff. 1-1-10.)
 

 

 

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1    (30 ILCS 525/4)  (from Ch. 85, par. 1604)
2    Sec. 4. Bids and proposals. The purchases of all personal
3property, supplies and services under this Act shall be based
4on competitive, sealed bids and proposals. For purchases
5pursuant to subsection (a) of Section 2, bids or proposals
6shall be solicited by public notice inserted at least once in a
7newspaper of general circulation in one of the counties where
8the materials are to be used and at least 5 calendar days
9before the final date of submitting bids or proposals. Where
10the State of Illinois is a party to the joint purchase
11agreement, public notice of the seeking of soliciting the bids
12or proposals shall be publicized inserted in the appropriate
13volume of the Illinois Procurement Bulletin. Such notice shall
14include a general description of the personal property,
15supplies or services to be purchased and shall state where all
16blanks and specifications may be obtained and the time and
17place for the opening of bids or proposals. The governmental
18unit conducting the competitive selection process bid-letting
19may also solicit sealed bids or proposals by sending requests
20by mail to prospective suppliers and by posting notices on a
21public bulletin board in its office.
22    All purchases, orders or contracts shall be awarded to the
23lowest responsible bidder or proposer, taking into
24consideration the qualities of the articles or services
25supplied, their conformity with the specifications, their
26suitability to the requirements of the participating

 

 

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1governmental units and the delivery terms.
2    Where the State of Illinois is not a party, all bids or
3proposals may be rejected and new bids or proposals solicited
4if one or more of the participating governmental units believes
5the public interest may be served thereby. Each bid or
6proposal, with the name of the bidder, shall be entered on a
7record, which record with the successful bid or proposal
8indicated thereon shall, after the award of the purchase or
9order or contract, be open to public inspection. A copy of all
10contracts shall be filed with the purchasing agent or clerk or
11secretary of each participating governmental unit.
12(Source: P.A. 96-584, eff. 1-1-10.)
 
13    Section 99. Effective date. This Act takes effect upon
14becoming law.

 

 

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1 INDEX
2 Statutes amended in order of appearance
3    30 ILCS 500/1-10
4    30 ILCS 500/1-35 new
5    30 ILCS 500/20-25
6    30 ILCS 500/20-30
7    30 ILCS 500/20-43
8    30 ILCS 500/25-15
9    30 ILCS 500/50-39
10    30 ILCS 525/2from Ch. 85, par. 1602
11    30 ILCS 525/3from Ch. 85, par. 1603
12    30 ILCS 525/4from Ch. 85, par. 1604