97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5388

 

Introduced 2/15/2012, by Rep. Ann Williams

 

SYNOPSIS AS INTRODUCED:
 
30 ILCS 500/50-33 new
30 ILCS 500/50-60
740 ILCS 175/4  from Ch. 127, par. 4104

    Amends the Illinois Procurement Code. Requires all State contracts to contain a certification that vendors are in compliance with various anti-fraud and anti-corruption statutes. Provides that the chief procurement officer may declare the contract void if the vendor's certification is false. Amends the Illinois False Claims Act. Provides that certain false claim actions must, unless opposed by the State, be dismissed by the court if substantially the same allegations or transactions as alleged in the action were publicly disclosed. Redefines "original source". Provides that a civil action for relief from retaliatory actions may not be brought more than 3 years after the date when the retaliation occurred.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1    AN ACT concerning State government.
 
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 Section 50-60 and by adding Section 50-33 as follows:
 
6    (30 ILCS 500/50-33 new)
7    Sec. 50-33. Lawful and ethical conduct.
8    (a) No person shall enter into or perform a contract with a
9State agency or enter into or perform a subcontract under this
10Code if that person has engaged in conduct, alone or in concert
11with any other person, relating to the contract or subcontract
12that would constitute a violation of Section 17-9, Section
1317-10.2, Section 17-10.3, Section 17-24, Article 33, or Article
1433E of the Criminal Code of 1961, or any similar federal
15offense.
16    (b) Every bid submitted and contract executed by the State
17and every subcontract subject to Section 20-120 of this Code
18shall contain a certification by the bidder, contractor, or
19subcontractor, respectively, that the bidder, contractor, or
20subcontractor is not barred from bidding for, entering into, or
21performing a contract under subsection (a) of this Section and
22that he or she acknowledges that the chief procurement officer
23may declare the related contract void if any of the

 

 

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1certifications completed pursuant to this subsection (b) are
2false.
 
3    (30 ILCS 500/50-60)
4    Sec. 50-60. Voidable contracts.
5    (a) If any contract or amendment thereto is entered into or
6purchase or expenditure of funds is made at any time in
7violation of this Code or any other law, the contract or
8amendment thereto may be declared void by the chief procurement
9officer or may be ratified and affirmed, provided the chief
10procurement officer determines that ratification is in the best
11interests of the State. If the contract is ratified and
12affirmed, it shall be without prejudice to the State's rights
13to any appropriate damages.
14    (b) If, during the term of a contract, the chief
15procurement officer determines that the contractor is
16delinquent in the payment of debt as set forth in Section 50-11
17of this Code, the chief procurement officer may declare the
18contract void if it determines that voiding the contract is in
19the best interests of the State. The Debt Collection Bureau
20shall adopt rules for the implementation of this subsection
21(b).
22    (c) If, during the term of a contract, the chief
23procurement officer determines that the contractor is in
24violation of Section 50-10.5 of this Code, the chief
25procurement officer shall declare the contract void.

 

 

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1    (d) If, during the term of a contract, the contracting
2agency learns from an annual certification or otherwise
3determines that the contractor no longer qualifies to enter
4into State contracts by reason of Section 50-5, 50-10, 50-12,
550-14, or 50-14.5, or 50-33 of this Article, the chief
6procurement officer may declare the contract void if it
7determines that voiding the contract is in the best interests
8of the State.
9    (e) If, during the term of a contract, the chief
10procurement officer learns from an annual certification or
11otherwise determines that a subcontractor subject to Section
1220-120 no longer qualifies to enter into State contracts by
13reason of Section 50-5, 50-10, 50-10.5, 50-11, 50-12, 50-14, or
1450-14.5, or 50-33 of this Article, the chief procurement
15officer may declare the related contract void if it determines
16that voiding the contract is in the best interests of the
17State.
18    (f) The changes to this Section made by Public Act 96-795
19apply to actions taken by the chief procurement officer on or
20after July 1, 2010.
21(Source: P.A. 96-493, eff. 1-1-10; 96-795, eff. 7-1-10 (see
22Section 5 of P.A. 96-793 for the effective date of changes made
23by P.A. 96-795); 96-1000, eff. 7-2-10.)
 
24    Section 10. The Illinois False Claims Act is amended by
25changing Section 4 as follows:
 

 

 

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1    (740 ILCS 175/4)  (from Ch. 127, par. 4104)
2    Sec. 4. Civil actions for false claims.
3    (a) Responsibilities of the Attorney General and the
4Department of State Police. The Attorney General or the
5Department of State Police shall diligently investigate a civil
6violation under Section 3. If the Attorney General finds that a
7person violated or is violating Section 3, the Attorney General
8may bring a civil action under this Section against the person.
9    The State shall receive an amount for reasonable expenses
10that the court finds to have been necessarily incurred by the
11Attorney General, including reasonable attorneys' fees and
12costs. All such expenses, fees, and costs shall be awarded
13against the defendant. The court may award amounts from the
14proceeds of an action or settlement that it considers
15appropriate to any governmental entity or program that has been
16adversely affected by a defendant. The Attorney General, if
17necessary, shall direct the State Treasurer to make a
18disbursement of funds as provided in court orders or settlement
19agreements.
20    (b) Actions by private persons.
21        (1) A person may bring a civil action for a violation
22    of Section 3 for the person and for the State. The action
23    shall be brought in the name of the State. The action may
24    be dismissed only if the court and the Attorney General
25    give written consent to the dismissal and their reasons for

 

 

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1    consenting.
2        (2) A copy of the complaint and written disclosure of
3    substantially all material evidence and information the
4    person possesses shall be served on the State. The
5    complaint shall be filed in camera, shall remain under seal
6    for at least 60 days, and shall not be served on the
7    defendant until the court so orders. The State may elect to
8    intervene and proceed with the action within 60 days after
9    it receives both the complaint and the material evidence
10    and information.
11        (3) The State may, for good cause shown, move the court
12    for extensions of the time during which the complaint
13    remains under seal under paragraph (2). Any such motions
14    may be supported by affidavits or other submissions in
15    camera. The defendant shall not be required to respond to
16    any complaint filed under this Section until 20 days after
17    the complaint is unsealed and served upon the defendant.
18        (4) Before the expiration of the 60-day period or any
19    extensions obtained under paragraph (3), the State shall:
20            (A) proceed with the action, in which case the
21        action shall be conducted by the State; or
22            (B) notify the court that it declines to take over
23        the action, in which case the person bringing the
24        action shall have the right to conduct the action.
25        (5) When a person brings an action under this
26    subsection (b), no person other than the State may

 

 

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1    intervene or bring a related action based on the facts
2    underlying the pending action.
3    (c) Rights of the parties to Qui Tam actions.
4        (1) If the State proceeds with the action, it shall
5    have the primary responsibility for prosecuting the
6    action, and shall not be bound by an act of the person
7    bringing the action. Such person shall have the right to
8    continue as a party to the action, subject to the
9    limitations set forth in paragraph (2).
10        (2)(A) The State may dismiss the action
11    notwithstanding the objections of the person initiating
12    the action if the person has been notified by the State of
13    the filing of the motion and the court has provided the
14    person with an opportunity for a hearing on the motion.
15        (B) The State may settle the action with the defendant
16    notwithstanding the objections of the person initiating
17    the action if the court determines, after a hearing, that
18    the proposed settlement is fair, adequate, and reasonable
19    under all the circumstances. Upon a showing of good cause,
20    such hearing may be held in camera.
21        (C) Upon a showing by the State that unrestricted
22    participation during the course of the litigation by the
23    person initiating the action would interfere with or unduly
24    delay the State's prosecution of the case, or would be
25    repetitious, irrelevant, or for purposes of harassment,
26    the court may, in its discretion, impose limitations on the

 

 

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1    person's participation, such as:
2            (i) limiting the number of witnesses the person may
3        call:
4            (ii) limiting the length of the testimony of such
5        witnesses;
6            (iii) limiting the person's cross-examination of
7        witnesses; or
8            (iv) otherwise limiting the participation by the
9        person in the litigation.
10        (D) Upon a showing by the defendant that unrestricted
11    participation during the course of the litigation by the
12    person initiating the action would be for purposes of
13    harassment or would cause the defendant undue burden or
14    unnecessary expense, the court may limit the participation
15    by the person in the litigation.
16        (3) If the State elects not to proceed with the action,
17    the person who initiated the action shall have the right to
18    conduct the action. If the State so requests, it shall be
19    served with copies of all pleadings filed in the action and
20    shall be supplied with copies of all deposition transcripts
21    (at the State's expense). When a person proceeds with the
22    action, the court, without limiting the status and rights
23    of the person initiating the action, may nevertheless
24    permit the State to intervene at a later date upon a
25    showing of good cause.
26        (4) Whether or not the State proceeds with the action,

 

 

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1    upon a showing by the State that certain actions of
2    discovery by the person initiating the action would
3    interfere with the State's investigation or prosecution of
4    a criminal or civil matter arising out of the same facts,
5    the court may stay such discovery for a period of not more
6    than 60 days. Such a showing shall be conducted in camera.
7    The court may extend the 60-day period upon a further
8    showing in camera that the State has pursued the criminal
9    or civil investigation or proceedings with reasonable
10    diligence and any proposed discovery in the civil action
11    will interfere with the ongoing criminal or civil
12    investigation or proceedings.
13        (5) Notwithstanding subsection (b), the State may
14    elect to pursue its claim through any alternate remedy
15    available to the State, including any administrative
16    proceeding to determine a civil money penalty. If any such
17    alternate remedy is pursued in another proceeding, the
18    person initiating the action shall have the same rights in
19    such proceeding as such person would have had if the action
20    had continued under this Section. Any finding of fact or
21    conclusion of law made in such other proceeding that has
22    become final shall be conclusive on all parties to an
23    action under this Section. For purposes of the preceding
24    sentence, a finding or conclusion is final if it has been
25    finally determined on appeal to the appropriate court, if
26    all time for filing such an appeal with respect to the

 

 

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1    finding or conclusion has expired, or if the finding or
2    conclusion is not subject to judicial review.
3    (d) Award to Qui Tam plaintiff.
4        (1) If the State proceeds with an action brought by a
5    person under subsection (b), such person shall, subject to
6    the second sentence of this paragraph, receive at least 15%
7    but not more than 25% of the proceeds of the action or
8    settlement of the claim, depending upon the extent to which
9    the person substantially contributed to the prosecution of
10    the action. Where the action is one which the court finds
11    to be based primarily on disclosures of specific
12    information (other than information provided by the person
13    bringing the action) relating to allegations or
14    transactions in a criminal, civil, or administrative
15    hearing, in a legislative, administrative, or Auditor
16    General's report, hearing, audit, or investigation, or
17    from the news media, the court may award such sums as it
18    considers appropriate, but in no case more than 10% of the
19    proceeds, taking into account the significance of the
20    information and the role of the person bringing the action
21    in advancing the case to litigation. Any payment to a
22    person under the first or second sentence of this paragraph
23    (1) shall be made from the proceeds. Any such person shall
24    also receive an amount for reasonable expenses which the
25    court finds to have been necessarily incurred, plus
26    reasonable attorneys' fees and costs. The State shall also

 

 

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1    receive an amount for reasonable expenses which the court
2    finds to have been necessarily incurred by the Attorney
3    General, including reasonable attorneys' fees and costs.
4    All such expenses, fees, and costs shall be awarded against
5    the defendant. The court may award amounts from the
6    proceeds of an action or settlement that it considers
7    appropriate to any governmental entity or program that has
8    been adversely affected by a defendant. The Attorney
9    General, if necessary, shall direct the State Treasurer to
10    make a disbursement of funds as provided in court orders or
11    settlement agreements.
12        (2) If the State does not proceed with an action under
13    this Section, the person bringing the action or settling
14    the claim shall receive an amount which the court decides
15    is reasonable for collecting the civil penalty and damages.
16    The amount shall be not less than 25% and not more than 30%
17    of the proceeds of the action or settlement and shall be
18    paid out of such proceeds. Such person shall also receive
19    an amount for reasonable expenses which the court finds to
20    have been necessarily incurred, plus reasonable attorneys'
21    fees and costs. All such expenses, fees, and costs shall be
22    awarded against the defendant. The court may award amounts
23    from the proceeds of an action or settlement that it
24    considers appropriate to any governmental entity or
25    program that has been adversely affected by a defendant.
26    The Attorney General, if necessary, shall direct the State

 

 

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1    Treasurer to make a disbursement of funds as provided in
2    court orders or settlement agreements.
3        (3) Whether or not the State proceeds with the action,
4    if the court finds that the action was brought by a person
5    who planned and initiated the violation of Section 3 upon
6    which the action was brought, then the court may, to the
7    extent the court considers appropriate, reduce the share of
8    the proceeds of the action which the person would otherwise
9    receive under paragraph (1) or (2) of this subsection (d),
10    taking into account the role of that person in advancing
11    the case to litigation and any relevant circumstances
12    pertaining to the violation. If the person bringing the
13    action is convicted of criminal conduct arising from his or
14    her role in the violation of Section 3, that person shall
15    be dismissed from the civil action and shall not receive
16    any share of the proceeds of the action. Such dismissal
17    shall not prejudice the right of the State to continue the
18    action, represented by the Attorney General.
19        (4) If the State does not proceed with the action and
20    the person bringing the action conducts the action, the
21    court may award to the defendant its reasonable attorneys'
22    fees and expenses if the defendant prevails in the action
23    and the court finds that the claim of the person bringing
24    the action was clearly frivolous, clearly vexatious, or
25    brought primarily for purposes of harassment.
26    (e) Certain actions barred.

 

 

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1        (1) No court shall have jurisdiction over an action
2    brought by a former or present member of the Guard under
3    subsection (b) of this Section against a member of the
4    Guard arising out of such person's service in the Guard.
5        (2)(A) No court shall have jurisdiction over an action
6    brought under subsection (b) against a member of the
7    General Assembly, a member of the judiciary, or an exempt
8    official if the action is based on evidence or information
9    known to the State when the action was brought.
10        (B) For purposes of this paragraph (2), "exempt
11    official" means any of the following officials in State
12    service: directors of departments established under the
13    Civil Administrative Code of Illinois, the Adjutant
14    General, the Assistant Adjutant General, the Director of
15    the State Emergency Services and Disaster Agency, members
16    of the boards and commissions, and all other positions
17    appointed by the Governor by and with the consent of the
18    Senate.
19        (3) In no event may a person bring an action under
20    subsection (b) which is based upon allegations or
21    transactions which are the subject of a civil suit or an
22    administrative civil money penalty proceeding in which the
23    State is already a party.
24        (4)(A) The court shall dismiss an action or claim under
25    this Section, unless opposed by the State, if substantially
26    the same allegations or transactions as alleged in the

 

 

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1    action or claim were publicly disclosed: No court shall
2    have jurisdiction over an action under this Section based
3    upon the public disclosure of allegations or transactions
4            (i) in a criminal, civil, or administrative
5        hearing in which the State or its agent is a party; ,
6            (ii) in a State legislative, State administrative,
7        or Auditor General, or other State General's report,
8        hearing, audit, or investigation; , or
9            (iii) from the news media,
10    unless the action is brought by the Attorney General or the
11    person bringing the action is an original source of the
12    information.
13        (B) For purposes of this paragraph (4), "original
14    source" means an individual who either (i) prior to a
15    public disclosure under subparagraph (A) of this paragraph
16    (4), has voluntarily disclosed to the State the information
17    on which allegations or transactions in a claim are based,
18    or (ii) has knowledge that is independent of and materially
19    adds to the publicly disclosed allegations or
20    transactions, has direct and independent knowledge of the
21    information on which the allegations are based and who has
22    voluntarily provided the information to the State before
23    filing an action under this Section which is based on the
24    information.
25    (f) State not liable for certain expenses. The State is not
26liable for expenses which a person incurs in bringing an action

 

 

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1under this Section.
2    (g) Relief from retaliatory actions.
3        (1) In general, any employee, contractor, or agent
4    shall be is entitled to all relief necessary to make that
5    employee, contractor, or agent whole, if that employee,
6    contractor, or agent is discharged, demoted, suspended,
7    threatened, harassed, or in any other manner discriminated
8    against in the terms and conditions of employment because
9    of lawful acts done by the employee, contractor, or agent
10    on behalf of the employee, contractor, or agent, or
11    associated others in furtherance of an action under this
12    Section or other efforts to stop one or more violations of
13    this Act.
14        (2) Relief under paragraph (1) shall include
15    reinstatement with the same seniority status that the
16    employee, contractor, or agent would have had but for the
17    discrimination, 2 times the amount of back pay, interest on
18    the back pay, and compensation for any special damages
19    sustained as a result of the discrimination, including
20    litigation costs and reasonable attorneys' fees. An action
21    under this subsection (g) may be brought in the appropriate
22    circuit court for the relief provided in this subsection
23    (g).
24        (3) A civil action under this subsection may not be
25    brought more than 3 years after the date when the
26    retaliation occurred.

 

 

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1(Source: P.A. 96-1304, eff. 7-27-10.)