AUTHORITY: Implementing the Illinois Procurement Code [30 ILCS 500] and authorized by Section 21 of the State Comptroller Act [15 ILCS 405/21].

SOURCE: Adopted by emergency rulemaking at 22 Ill. Reg. 12087, effective July 1, 1998, for a maximum of 150 days; emergency expired November 27, 1998; adopted at 23 Ill. Reg. 858, effective January 8, 1999; amended at 25 Ill. Reg. 14380, effective November 10, 2001; amended at 37 Ill. Reg. 3075, effective March 1, 2013; recodified Title of the Part at 39 Ill. Reg. 5903; amended at 42 Ill. Reg. 6682, effective March 30, 2018.

SUBPART A: GENERAL

 

Section 1120.1  Title

 

This Part may be cited as the Comptroller's Procurement Rules.

 

(Source:  Renumbered from Section 1120.01 to 1120.1 at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.5  Policy

 

All procurements for the Office of the Comptroller (IOC) shall be accomplished in the most economical, expeditious and commercially reasonable manner that is in accordance with statute, this Part and other applicable rules.

 

(Source:  Renumbered from Section 1120.05 to 1120.5 at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.8  Illinois Procurement Code

 

Articles 1, 15, 20, 25, 30, 33, 35, 40, 43, 45, 50 and 53 of the Illinois Procurement Code [30 ILCS 500/Arts. 1, 15, 20, 25, 30, 33, 35, 40, 43, 45, 50 and 53] (the Code) will be referenced in this Part.  The Office of the Comptroller shall procure its needs in a manner substantially in accordance with the requirements of the Code. [30 ILCS 500/1-30(a)]  For purposes of this Part, any reference in the Code or this Part to the Chief Procurement Officer (CPO) means the employee appointed by the Comptroller to serve in that capacity.

 

(Source:  Renumbered from Section 1120.08 to 1120.8 at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.10  Application

 

a)         The Code and this Part apply to those procurements for which the vendors were first solicited on or after July 1, 1998.

 

b)         Procurements for which vendors were first solicited on or before June 30, 1998, shall be conducted pursuant to legal requirements in effect at the time of the solicitation.  The terms and conditions and the rights and obligations under contracts resulting from such procurements shall not be impaired.

 

c)         A solicitation occurs on or before June 30, 1998, as follows:

 

1)         When advertising was required in the Official State Newspaper, the first advertisement must run no later than June 30, 1998.

 

2)         When advertising was not required:

 

A)        but if the procurement was advertised, the first advertisement must have run no later than June 30, 1998;

 

B)        if the procurement was by direct solicitation by mail, the solicitation must have been postmarked or placed in the control of a private carrier no later than June 30, 1998;

 

C)        if the procurement was by direct solicitation by fax, the fax must show a transmission date no later than June 30, 1998;

 

D)        if the procurement was solicited in-person or by telephone, the solicitation must have occurred no later than June 30, 1998, and the individual who made the solicitation must state in writing when the procurement was discussed, and must name the party with whom the discussion took place.

 

3)         In all circumstances, the solicitations must be for the procurement of particular needs.  A general discussion to determine if there is any interest is not considered a solicitation.

 

d)         This Part shall not apply to:

 

1)         agreements among governments, or between State governmental bodies, except as specifically provided in the Code;

 

2)         grants;

 

3)         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;

 

4)         collective bargaining contracts;

 

5)         purchase of real estate; or

 

6)         contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations, provided that the Comptroller's chief legal counsel shall give prior approval.

 

Section 1120.15  Definitions 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 in this Section unless its use clearly requires a different meaning.  Terms may be defined in particular Sections for use in that Section.

 

"Amendment" – A written unilateral or bilateral modification to a contract term, as permitted by the original contract.  These modifications shall alter the performance and completion of the contract, including, but not limited to, such matters as extra work and increases or decreases in quantities of goods not included within the scope of the original contract.

 

"Award" – The selection of a vendor for a contract.

 

"Bid" − The response to an Invitation for Bids.

 

"Bidder" − Any person who submits a bid.

 

"Bidder or Offeror Authorized to do Business in Illinois" – A person that is a legal entity authorized to do business in Illinois by the Secretary of State- Department of Business Services.

 

"Brand Name or Equal Specification" − A specification that uses one or more manufacturer's names or catalogue numbers to describe the standard of quality, performance, and other characteristics needed to meet State 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.

 

"Bulletin" – The Illinois Procurement Bulletin.

 

"Change Order" – A change order shall have the same meaning as an "amendment".

 

"Chief Procurement Officer" or "CPO" means the Chief Procurement Officer for the Illinois Office of the Comptroller.

 

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

 

"Concession" – The right or a lease to engage in a certain activity for profit on the lessor's premises (e.g., a refreshment or parking concession).

 

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

 

"Contract" − A contract may be in written or oral form.  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, bonds issued by or on behalf of any State agency, or contracts, other than for "concessions", that the State agency signs but under which it has no financial obligation to the other parties.

 

"Contractor" or "Vendor" – The terms contractor and vendor are used interchangeably for purposes of the Code and this Part.

 

"CPO-GS" means the Chief Procurement Officer for General Services as established by Section 10-20(a)(4) of the Illinois Procurement Code.

 

"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 holiday, in which event the period shall run to the end of the next business day.

 

"DCMS" − The Department of Central Management Services.

 

"IOC" − The Illinois Office of the Comptroller.

 

"Items" – Anything that may be procured under the Code.

 

"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]

 

"Multi-Year Contract" – A contract with a performance term of more than 12 months.

 

"Offeror" – A person who responds to an IFB, RFP or other form of solicitation.

 

"Procurement Officer" − The Chief Procurement Officer (CPO) or his or her designee.

 

"Proposal" − The response to a Request for Proposals.

 

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

 

"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 extension of an original contract that contains terms materially identical to the original contract.

 

"Request for Information" or "RFI" – The process by which a purchasing agency requests information from offerors for all State contracts and leases of real property or capital improvements.

 

"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]

 

"Responsible Bidder or Offeror" – A person who has the capability in all respects to perform fully the contract requirements and 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 the bid or proposal is submitted for State contract.

 

"Reverse Auction" – A source selection technique that allows for purchase of supplies or services through a competitive auction process.  A reverse auction allows bidders to electronically submit prices for an IFB during a predefined time period and is designed to obtain the lowest cost for supplies and services.

 

"Service" – 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 [30 ILCS 500/1-15.90], and the financing of that labor, time or effort.

 

"Solicitation" – An IFB, RFP or other request to one or more vendors to respond to a procurement need expressed by the State.

 

"Specification" − Any description of the physical, functional, or performance characteristics of, or of the nature of, a supply, service, or construction item.  A specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply, service, or construction item for delivery. Unless the context requires otherwise, the terms "specification" and "purchase description" are used interchangeably throughout this Part.

 

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

 

"Subcontract" – A contract between one person and another person who has or is seeking 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, property, remuneration or other form of consideration that are the subject of the primary contract, and includes, among other things, subleases from a lessee of a State agency.

 

"Subcontractor" – A person or entity that 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]

 

"Supplies" or "Goods" – All personal property, including, but not limited to, equipment, materials, printing, and insurance, and the financing of those supplies. [30 ILCS 500/1-15.110]

 

"Unsolicited Offer" – Any offer other than one submitted in response to a solicitation.

 

(Source:  Amended at 42 Ill. Reg. 6682, effective March 30, 2018)

 

Section 1120.25  Property Rights

 

Receipt of an Invitation for Bids or other procurement document, or submission of any response thereto, or other offer confers no right to receive an award or contract, nor does it obligate the State in any manner.

SUBPART B: PROCUREMENT RULES

 

Section 1120.525  Rules

 

a)         To the extent practicable, the IOC may avail itself of master, scheduled or open-ended contracts established by the CPO-GS; items available from the Paper and Printing Warehouse; and the CPO-GS contracts for telecommunications equipment, software and services, paper and envelopes, and vehicles and vehicle services. The CPO or his/her designee may submit purchase requests to the CPO-GS or a designated agency in accordance with rules promulgated by the CPO-GS.

 

b)         The IOC shall procure its capital needs in a manner substantially in accordance with the requirements of this Part and will promulgate rules specifically for capital construction that are no less restrictive than the requirements of the Code.  Until specific Comptroller rules can be promulgated for this purpose, the IOC will conform its capital procurement activities to the requirements of the Code by following the administrative rules of the CPO for Capital Development Board (44 Ill. Adm. Code 8), the Capital Development Board (44 Ill. Adm. Code 950 and 980) and the CPO-GS (44 Ill. Adm. Code 1).

 

(Source:  Amended at 42 Ill. Reg. 6682, effective March 30, 2018)

SUBPART C: PROCUREMENT AUTHORITY

 

Section 1120.1002  Conduct and Oversight of Procurements

 

a)         Chief Procurement Officer 

 

1)         The Comptroller shall appoint a Chief Procurement Officer (CPO) for purposes of the Code and this Part.

 

2)         The CPO may conduct any or all procurements on behalf of the IOC.

 

3)         The CPO shall:

 

A)        have at least 5 or more years of experience in state or corporate budgeting activities, or shall be a certified professional public buyer or certified public purchasing officer; and 

 

B)        be a resident of the State of Illinois; and

 

C)        serve in his or her capacity as CPO for a term not to exceed 5 years from the date of appointment; and 

 

D)        owe a fiduciary duty to the State; and

 

E)        perform duties as required by law.

 

4)         The CPO is responsible for signing all written award determination letters stating the reasoning for any contract award decision.

 

5)         The CPO may designate one or more Procurement Officers to conduct procurements on behalf of the CPO in accordance with conditions specified in the terms of the CPO's appointment and this Part.

 

b)         Procurement Compliance Monitor.  The IOC Ethics Officer, appointed pursuant to the State Officials and Employees Ethics Act [15 ILCS 430], or his/her designee, shall serve as the Procurement Compliance Monitor.  If a designee is appointed to serve as the monitor, that designee shall be classified as a Senior Public Service Administrator or above and, upon attaining certified status, shall have the employment protections afforded by that status.  It shall be the duty of the monitor to oversee and review the procurement processes.  The monitor shall have direct communication with the Comptroller.  The monitor shall:

 

1)         have the right to review all contracts, attend any procurement meetings, and access reports and files;

 

2)         issue reports to the CPO regarding outstanding procurement problems;

 

3)         ensure transparency and compliance with procurement laws;

 

4)         report findings of waste to IOC departments.  If the department does not correct circumstances causing the waste, the monitor shall report to the CPO and the Inspector General; and

 

5)         perform other duties as required by law.

 

c)         Procurement Policy Board.  The Comptroller shall appoint an Office of the Comptroller Procurement Policy Board (IOC PPB).  The IOC PPB shall consist of 3 members who are employees of the Comptroller.  In making appointments to the IOC PPB, the Comptroller shall consider an individual's knowledge and experience in State government procurements and operations.  The members shall receive no additional compensation for serving on the IOC PPB other than reimbursement for expenses.  Except as provided in subsection (d), the IOC PPB shall:

 

1)         meet a minimum of three times annually and be contacted in writing prior to the publication of any RFI exceeding $100,000;

 

2)         be authorized to review, comment upon, and recommend rules and practices governing the procurement, management, control and disposal of supplies, services, professional or artistic services, construction and capital improvements procured by IOC;

 

3)         be authorized to review any proposal, bid or contract, and may issue recommendations regarding procurement matters;

 

4)         be notified by the CPO if a conflict of interest is identified, discovered or reasonably suspected to exist.  In the event of a notification, the IOC PPB is to recommend action and give its recommendations to the CPO and Comptroller.  The IOC PPB's recommendation shall be published in the next available issue of the Bulletin;

 

5)         report to the Inspector General whenever the PPB has cause to believe there has been a violation of the Procurement Code; and

 

6)         perform other duties as required by law.

 

d)         Chief Internal Auditor.  The Comptroller shall appoint a chief internal auditor.  The auditor must have a Bachelor's degree, and must be either a certified internal auditor, a certified public accountant with at least 4 years of auditing experience, or an auditor with 5 years of experience.  The chief internal auditor shall report directly to the Comptroller.  Subject to the approval of the Comptroller, and consistent with the Fiscal Control and Internal Auditing Act [30 ILCS 10], the chief internal auditor shall:

 

1)         direct the internal audit functions and activities;

 

2)         prepare audit reports and assess program goals;

 

3)         be responsible for the preparation of an annual audit plan for submission to and subject to the approval of the Comptroller; and

 

4)         perform other duties as required by law.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

SUBPART D: PUBLICIZING PROCUREMENT ACTIONS

 

Section 1120.1510  Illinois Procurement Bulletin

 

Notice of any procurement action required by the Code to be publicized in the Illinois Procurement Bulletin will be forwarded to the CPO-GS for inclusion in the appropriate volume of the Bulletin in accordance with rules promulgated by the CPO-GS (44 Ill. Adm. Code 1).

 

(Source:  Amended at 42 Ill. Reg. 6682, effective March 30, 2018)

 

Section 1120.1560  Supplemental Notice

 

Publication in the Bulletin may be supplemented by publication elsewhere at the discretion of the IOC.

 

Section 1120.1570  Error in Notice

 

When a required publication contains an error, the error may be corrected by a single notice published in the Bulletin.

 

Section 1120.1580  Direct Solicitation

 

In addition to giving notice in the Bulletin, the IOC may directly contact prospective vendors.  Direct solicitation may be oral or in writing, but care should be taken to ensure that all vendors solicited in this manner receive the same information.  When making direct solicitations, at least three vendors should be contacted.  No direct solicitation shall be made prior to the date any required notice first appears in the Bulletin.

SUBPART E: SOURCE SELECTION AND CONTRACT FORMATION

 

Section 1120.2005  General Provisions

 

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

 

1)         Definition.  Any bid or proposal received after the time and date for receipt, and at other than the specified location, is late. A bid that is delivered to the wrong location but that is subsequently delivered to the correct location by the date and time specified shall be considered, but the IOC shall not be responsible for ensuring such subsequent delivery.  Any withdrawal or modification of a bid or proposal received after the time and date set for opening of bids or proposals is late. If received at other than the specified location, the submission is late.

 

2)         Treatment.  No late bid or proposal, late modification, or late withdrawal will be considered unless the CPO, and not a designee, determines it would have been timely but for the action or inaction of IOC personnel directly serving the procurement activity (e.g., providing the wrong address).

 

3)         Records.  Records shall be made and, in accordance with the State Records Act [5 ILCS 160], kept for each late bid or proposal, late modification, or late withdrawal.

 

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

 

b)         Extension of Time

 

1)         The Procurement Officer may, prior to the date or time for submitting or modifying, extend the date or time for the convenience of the IOC.  Reasons for extension include, but are not limited to, allowing additional time for submissions to account for inclement weather or accidents and for other such reasons.

 

2)         All notices under this subsection (b) will be provided electronically and posted on the Illinois Procurement Bulletin.

 

c)         Electronic and Facsimile Submissions

 

1)         The IFB or RFP may state that electronic and facsimile machine submissions will be considered if  they are received at the designated office by the time and date set for receipt.  Any required attachments will be submitted as stated in the IFB or RFP.

 

2)         Electronic submissions authorized by specific language in the IFB or RFP will be opened in accordance with electronic security measures in effect at the IOC at the time of opening.  Unless the electronic submission procedures provide for a secure receipt, vendor assumes risk of premature disclosure due to submission in unsealed form.

 

3)         Fax submissions authorized by specific language in the IFB or RFP will be placed in a sealed container upon receipt and opened as other submissions. Vendor assumes risk of premature disclosure due to submission in unsealed form.

 

d)         Intent to Submit

The IFB or RFP may require that vendors submit, by a certain time and date, a notice of their intent to submit a bid or proposal in response to the IFB or RFP.  Bids and proposals submitted without complying with the notice of intent requirement may be rejected.

 

e)         Only One Bid or Proposal Received

If only one bid or proposal is received, an award may be made to the single bidder or offeror if the CPO finds that the price submitted is fair and reasonable, and that either other prospective bidders had reasonable opportunity to respond or there is not adequate time for resolicitation. Otherwise:

 

1)         new bids or offers may be solicited, including under sole source (Section 1120.2025) or emergency (Section 1120.2030) procedures;

 

2)         the procurement may be canceled.

           

f)         Alternate or Multiple Bids or Proposals

Alternate bids or proposals may be accepted if:

 

1)         permitted by the solicitation and in accordance with instructions in the solicitation; or

 

2)         only one vendor responded, in which case the alternate submission may be evaluated and treated in accordance with Section 1120.2025; or

 

3)         the low bidder, who has met all requirements of the solicitation, has provided a lower cost alternative that meets all of the material requirements of the specifications.

 

g)         Multiple Items

An IFB or RFP may call for pricing of multiple items of similar or related type with award based on individual line item, group total of certain items, or grand total of all items.

 

h)         "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 in the State's best interest.

 

i)          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:

 

1)         be rejected unless the vendor removes the condition; or

 

2)         be evaluated and award made to that vendor if the vendor is also independently evaluated as the winner of the other IFBs or RFPs, provided the agency need not delay procurement actions to accommodate the vendor's all or none condition.

                                                           

j)          Clarification of Bids and Proposals

The Procurement Officer may request that a vendor clarify its bid or proposal as a part of the evaluation process.  A vendor shall not be allowed to materially change its bid or proposal in response to a request for clarification.

 

k)         Extension of Time on Indefinite Quantity Contracts.

The time of performance of an indefinite quantity contract may be extended upon agreement of the parties, provided the extension is for 90 days or less and the Procurement Officer determines in writing that it is not practical to award another contract at the time of the extension. A clarification is not an opportunity for discussion or for submission of Best & Finals as authorized elsewhere in this Part.

 

l)          Increase in Quantity on Definite Quantity Contracts

 

1)         The quantity that may be ordered from a definite quantity contract without additional notice and competition may be increased by up to 20% provided the Procurement Officer determines that separate bidding for the additional quantity is not likely to achieve lower pricing.

 

2)         The quantity may be increased by any percentage provided the dollar value of the increase does not exceed the small purchase threshold applicable to the type of good or service.

 

m)        Subsequent Purchase Request 

If, within 30 days after making an award to a particular vendor pursuant to a competitive sealed bid on behalf of IOC, the CPO receives a purchase request for the same item and for the same or lesser quantity, the CPO may contract with that vendor on the same terms and conditions, including price, without additional notice and competition, if such a contract is acceptable to the vendor.

 

n)         Novation or Change of Name

 

1)         Assignment.  No IOC contract is transferable, or otherwise assignable, without the written consent of the Procurement Officer; however, a vendor may assign monies receivable under a contract after due notice to the IOC.  Assignment may require the execution of a contract with the assignee and, in those cases, the assignee must meet all requirements for contracting with the IOC.

 

2)         Recognition of a Successor in Interest; Novation.  When in the best interest of the State, a successor in interest may be recognized in a 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 State;

 

C)        the transferor waives all rights under the contract as against the IOC; and

 

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

 

3)         Change of Name.  A vendor may submit to the Procurement Officer a written request to change the name in which it holds a contract with the State.  The name change shall not alter 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)         Use of Source Selection Method that is Not Required 

If IOC uses a method of source selection that it is not required by law to use (e.g., use of competitive sealed bid for a small purchase), the IOC is not bound to strict compliance with the Code and the rules governing the method of source selection used.

 

q)         Vendor Signature 

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

 

r)          Stringing 

Dividing or planning procurements to avoid the use of competitive procedures (stringing) is prohibited.

 

s)         Confidential Data 

Vendors must clearly identify any information that is exempt from the disclosure requirement of the Freedom of Information Act [5 ILCS 140] and must request special handling of that material.  It is the sole obligation of vendors to redact confidential information from bids or offers submitted to IOC.  Failure to submit redacted copies will result in the release of bids or offers in response to requests made pursuant to the Freedom of Information Act.

 

t)          Documentation of Procurement Actions 

 

1)         The Procurement Officer 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:

 

A)        Procurement Bulletin postings;

 

B)        Solicitation documents (e.g., IFBs) and all amendments, clarifications and Best & Final requests;

 

C)        Vendor's responses, including clarifications and responses to Best & Final requests;

 

D)        Evaluation materials (e.g., scoring guidelines and forms, completed score sheets for individual evaluators (including notes), evaluation committee's combined score sheets, evaluation committee's recommendations, and management's decision);

 

E)        Protests and resolutions;

 

F)         Contracts and any orders, changes, amendments, renewals or extensions.

 

2)         All information from subsection (t)(1), less any information exempt from disclosure under the Freedom of Information Act, shall be prepared and made available for inspection and copying, with information from subsections (t)(1)(A) through (D) made available on the date any award is posted to the Bulletin.

 

u)         Communications Related to Procurement

 

1)         Any IOC employee who receives a written or oral communication that imparts or requests material information or makes a material argument regarding potential action concerning a procurement matter, including but not limited to an application, contract or project, shall report the communication to the IOC PPB.

 

2)         A communication must be reported if it is material, if it regards a potential action, if it relates to a procurement matter and if it is not otherwise excluded from reporting.

 

A)        Materiality

 

i)          "Material information" is information that a reasonable person would deem important in determining his or her course of action.  It is information pertaining to significant issues, including, but not limited to, price, quantity and terms of payment or performance.

 

ii)         A "material argument" is a communication that a reasonable person would believe was made for the purpose of influencing a decision relating to a procurement matter.  It does not include general information about products, services or industry best practices, or a response to communications initiated by an employee of the IOC for purposes of providing information for the evaluation of new products, trends, services or technologies.

 

iii)        In determining whether a communication is material, the State employee may consider:

 

•           Whether the information conveyed is new or already known to the IOC (or repeated or restated privately) and other participants in the communication; and

 

•           The likelihood that the information would influence a pending procurement matter.

 

B)        A "potential action" is one that a reasonable person would believe could affect the initiation, development or outcome of a procurement matter.

 

3)         This Section does not apply to the following communications:

 

A)        Communication regarding the procurement of items that have a contract value less than the small purchase amount stated in Section 1120.2020;

 

B)        Communications made in a public forum;

 

C)        Communications regarding matters of procedure and practice, such as format, the number of copies required, the manner of filing, and the status of the matter;

 

D)        Communications regarding the administration and implementation of an existing contract (see 30 ILCS 500/50-39(a));

 

E)        Communication between the IOC employee and:

 

i)          the Comptroller;

 

ii)         other State employees of the IOC;

 

iii)        employees of the Executive Ethics Commission;

 

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 CPO; or

 

•           exercising oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities;

 

F)         Unsolicited communications providing general information about products, services or industry best practices, prior to those products or services becoming involved in a procurement matter;

 

G)        Communications received in response to procurement solicitations pursuant to the Code, including, but not limited to, vendor responses to an RFI, RFP, Request for Qualifications or IFB, or a small purchase, sole source or emergency solicitation, and questions and answers posted to the Bulletin to supplement the procurement action.  This exemption is not applicable unless the communications are made in accordance with the instructions contained in the procurement solicitation, procedures or guidelines;

 

H)        Communications that are privileged, protected or confidential under law;

 

I)         Communications that are part of the formal procurement process as set out by statute, rule or procedure, such as the posting of procurement opportunities, the process for approving a Procurement Business Case (as defined in 2 Ill. Adm. Code 1620.825(i)) or its equivalent, fiscal approval, submission of bids, the finalizing of contract terms and conditions with an awardee or apparent awardee, and similar formal procurement processes.

 

4)         Notwithstanding any exemption provided in subsection (u)(3), an IOC employee must report any communication that imparts or requests material information or makes a material argument regarding a potential action concerning a procurement matter if the employee reasonably believes the communication was made for any improper purpose, including, but not limited to, providing an improper benefit, monetary or non-monetary, to any person or entity.

 

5)         As soon as is practicable, but in no event more than 30 days after receipt of the communication or the first of a series of communications described in subsection (u)(2), the State employee shall report the communication in accordance with Section 50-39 of the Code.

 

6)         For purposes of this Section, "State employee" means:

 

A)        any person employed full-time, part-time or pursuant to a personal services contract with the State and whose employment duties are subject to the direction and control of an employer with regard to the material details of how the work is to be performed; or

 

B)        any appointed or elected commissioner, trustee, director or member of a board of a State agency; or

 

C)        any other person appointed to a position in or with a State agency, regardless of whether the position is compensated.

 

7)         For purposes of this Section, "public forum" includes any meeting that satisfies the notice requirements contained in Section 2.02 of the Open Meetings Act [5 ILCS 120/2.02], but also other public events that are advertised and generally open to the public.  A meeting may be a public forum even if a reasonable fee is required.  Examples include educational seminars and conferences.

 

(Source:  Amended at 42 Ill. Reg. 6682, effective March 30, 2018)

 

Section 1120.2010  Competitive Sealed Bidding

 

a)         Application

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

 

b)         Invitation for Bids (IFB)

 

1)         Use.  The IFB is used to initiate a competitive sealed bid procurement.

 

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

 

A)        instructions and information to bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the address of the office to which bids are to be delivered, the maximum time for bid acceptance by the State, and any other special information;

 

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

 

C)        the contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

 

3)         Incorporation by Reference.  The IFB may incorporate documents by reference provided that the IFB specifies where those documents can be obtained.

 

c)         Bidding Time

Bidding time is the period of time between the date of notice or distribution of the IFB and the time and date set for receipt of bids.  In each case, bidding time will be set to provide bidders a reasonable time to prepare their bids.  A minimum of 14 days shall be provided unless a shorter time is authorized by the Code or this Part.

 

d)         Bidder Submissions

 

1)         Bid Form.  The IFB may provide a form that shall include space in which the bid price shall be inserted and that the bidder shall sign and submit along with all other necessary submissions.

 

2)         Bid Samples and Descriptive Literature.

 

A)        Bid samples or descriptive literature may be required when necessary to evaluate required characteristics of the items bid.

 

B)        Unsolicited bid samples or descriptive literature is submitted at the bidder's risk, may not be examined or tested, will not be deemed to vary any of the provisions of the IFB, and may not be utilized by the vendor to contest a decision or understanding with the State.

 

e)         Public Notice

 

1)         Publication.  Every procurement for supplies and services in excess of the small purchase limit that must be procured using an IFB shall be publicized in the next available issue of the Bulletin.

 

2)         Public Availability.  A copy of the IFB shall be made available for public inspection.

 

f)         Pre-Bid Conference

 

1)         A pre-bid conference may be conducted to enhance understanding of the procurement requirements.

 

2)         The pre-bid conference shall be announced as a part of the IFB notice.

 

3)         The conference may be designated as "attendance mandatory" or "attendance optional".

 

4)         The conference should be held long enough after the IFB has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids.

 

5)         Nothing stated at the pre-bid conference shall change the IFB unless a change is made by written amendment to the IFB.

 

6)         Amendments shall be supplied to all those prospective bidders known to have received an IFB.

 

7)         If the conference is mandatory, the amendment shall be supplied to attendees only.

 

g)         Amendments to Invitations for Bids

 

1)         Form.  Amendments to IFBs shall be clearly identified, shall reference the portion of the IFB they amend and shall be publicized in the next available issue of the Bulletin.

           

2)         Timeliness.  Amendments shall be made available within a reasonable time to allow prospective bidders to consider them in preparing their bids.  If the time and date set for receipt of bids will not permit such consideration, the amendment shall extend the response time.  If necessary, the response time may be extended by publication in the next available issue of the Bulletin.

 

h)         Pre-Opening Modification or Withdrawal of Bids

 

1)         Procedure.  Bids may be modified or withdrawn by written notice received in the office designated in the IFB prior to the time and date set for bid opening.  A fax modification or withdrawal, or withdrawal received by telephone prior to the time and date set for bid opening, will be effective if followed in writing.

 

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

 

i)          Receipt, Opening and Recording of Bids

 

1)         Receipt.  Upon its receipt, each bid and modification shall be time-stamped but not opened and shall be stored in a secure place until the time and date set for bid opening.  If a bid is opened in error, the file shall so state.

 

2)         Opening and Recording

 

A)        Bids and modifications shall be opened publicly at the time, date, and place designated in the IFB.  Opening shall be witnessed by a State employee or any other person present, but the person opening bids shall not serve as witness.  The name of each bidder, the bid price, and such other information as is deemed appropriate by the Procurement Officer shall be recorded and the name of each bidder read aloud or otherwise made available. The names of witnesses shall also be recorded at the opening.

 

B)        The winning bid shall be available for public inspection after award, along with the record of each unsuccessful bid.

 

3)         Confidential Data.  The Procurement Officer shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing.  If the parties do not agree as to the disclosure of data or other information, the bid shall be rejected as nonresponsive.

 

j)          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 for any requirements or criteria that are not disclosed in the IFB.

 

2)         Responsibility.  Responsibility of prospective vendors is covered by Section 1120.2046 (Responsibility) of this Part.

 

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 with any other purchase description requirements.

 

B)        The acceptability evaluation is not conducted for the purpose of 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)         Determination of Lowest Bidder.  Following determination of product or service acceptability as set forth in this subsection (j), 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 objectively measurable criteria include, but are not limited to, transportation cost and ownership or life-cycle cost formulas.  Evaluation factors need not be precise predictors of actual future costs, but to the extent possible evaluation factors shall be reasonable estimates based upon information the IOC has available concerning future use and shall treat all bids equitably.  Pricing for optional supplies or services, or for renewal terms, may not be considered, particularly when the pricing for the items or terms is unbalanced when compared to other pricing in the bid.

 

5)         Price Negotiation. This Section permits negotiations with the low bidder to obtain a lower price for the item bid.

 

k)         Documentation of Award

Following award, a record showing the successful bidder shall be made a part of the procurement file.

 

l)          Award to Other Than Low Bidder

 

1)         The CPO may award to other than the lowest responsible and responsive bidder upon a written determination that award to another bidder is in the State's best interest.  The written explanation must be published in the appropriate volume of the Procurement Bulletin.

 

2)         The name of the bidder selected, pricing, and the reasons for selecting this bidder instead of the low bidder must be published in the appropriate volume of the Bulletin.

 

3)         The explanation must include:

 

A)        a description of the needs of IOC;

 

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

 

C)        a listing of all reasonable and responsive bidders; and

 

D)        the name of the bidder selected, the pricing and the reasons for selecting that bidder.

 

4)         The explanation shall be filed with the Legislative Audit Commission and the IOC PPB.

 

m)        Publicizing Award

 

1)         The successful bidder shall be notified of award and the notification may be in the form of a letter, purchase order or other clear communication.

 

2)         In procurements over the small purchase limit set in Section 1120.2020, notice of award shall be published in the next available issue of the Bulletin.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.2012  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 IOC, 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 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 amendments of technical offers, or amend the purchase description.

 

c)         Pre-Bid Conferences in Multi-Step Sealed Bidding 

Prior to the submission or evaluation of unpriced technical offers, a pre-bid conference as contemplated by Section 1120.2010(f) (Pre-Bid Conference) may be conducted by the CPO.

 

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

 

1)         Form.  Multi-step sealed bidding shall be initiated by the issuance of an IFB in the form required by Section 1120.2010 (Competitive Sealed Bidding), except as provided in this Section.  In addition to the requirements set forth in Section 1120.2010, the multi-step IFB shall state:

 

A)        that unpriced technical offers are requested;

 

B)        whether priced bids are to be submitted at the same time as unpriced technical offers; if they are, such priced bids shall be submitted in a separate sealed envelope;

 

C)        that it is a multi-step sealed bid procurement, and 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;

 

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

 

E)        that the IOC, to the degree the CPO finds necessary, may conduct oral or written discussions of the unpriced technical offers;

 

F)         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 they shall be permitted to submit new unpriced technical offers or to amend those submitted. If, in the opinion of the CPO, a contemplated amendment will significantly change the nature of the procurement, the IFB may be canceled in accordance with Section 1120.2040 (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 witness.  These offers shall not be disclosed to unauthorized persons.  Bidders may request nondisclosure of trade secrets and other proprietary data identified in writing.

 

4)         Evaluation of Unpriced Technical Offers.

 

A)        The unpriced technical offers submitted by bidders shall be evaluated solely in accordance with the criteria set forth in the IFB.  The unpriced technical offers shall be categorized as:

 

i)          acceptable;

 

ii)         potentially acceptable, that is, reasonably susceptible of being made acceptable; or

 

iii)        unacceptable, in which case the Procurement Officer shall record in writing the basis for finding an offer unacceptable and make it part of the procurement file.

 

B)        The CPO may initiate phase two of the procedure if, in the CPO's opinion, there are sufficient acceptable unpriced technical offers to assure effective price competition in the second phase without technical discussions.  If the CPO finds that such is not the case, the CPO may commence discussions of the unpriced technical proposals.

 

5)         Discussion of Unpriced Technical Offers.  The Procurement Officer may conduct discussions with any vendor who submits an acceptable or potentially acceptable technical offer. During the course of the discussions, the Procurement Officer shall not disclose any information derived from one unpriced technical offer to any other bidder.  Any such bidder may submit supplemental information amending its technical offer at any time until the closing date established by the Procurement Officer.  The submission may be made at the request of the Procurement Officer or upon the bidder's own initiative.

 

6)         Unacceptable Unpriced Technical Offer.  When the CPO determines a bidder's unpriced technical offer to be unacceptable, the offeror shall not be afforded an additional opportunity to supplement its technical offer.

 

e)         Procedure for Phase Two

 

1)         Initiation.  Upon the completion of phase one, the CPO 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:

 

A)        no public notice need be given of this invitation to submit priced bids because notice was previously given;

 

B)        after award, the unpriced technical offer of the successful bidder shall be disclosed as follows:  The Procurement Officer shall examine written requests of confidentiality for trade secrets and proprietary data in the technical offer of the bidder to determine the validity of any such requests.  If the parties do not agree as to the disclosure of data, the CPO shall reject the offer. The technical offer shall be open to public inspection subject to any continuing prohibition on the disclosure of confidential data; and

 

C)        unpriced technical offers of bidders who are not awarded the contract shall not be open to public inspection.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.2015  Competitive Sealed Proposals

 

a)         Conditions for Use

When provided for under the Code or under this Part, or when the IOC determines in writing that the use of competitive sealed bidding is either not practicable or not advantageous to the IOC, a contract may be entered into by competitive sealed proposals.

 

b)         Request for Proposals (RFP)

Proposals shall be solicited through an RFP.

 

c)         Public Notice

Public notice of the RFP shall be published in the Bulletin at least 14 days prior to the date set in the RFP for the opening of proposals.

 

d)         Receipt of Proposals

Proposals shall be opened publically in the presence of one or more witnesses at the time and place designated in the RFP, but proposals shall be opened in a manner to avoid disclosure of contents to competing offerors during the process of negotiation.  A record of proposals shall be prepared and shall be open for public inspection after the contract is awarded.

 

e)         Evaluation Factors

The RFP shall state the relative importance of price and other evaluation factors.  Proposals shall be submitted in 2 parts: the first covering items except price and the second concerning price.  The first part of all proposals shall be evaluated and ranked independently of the second part of all proposals.

 

f)         Discussion with Responsible Offerors and Revisions of Proposals

As provided in the RFP and this Part, discussion may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarifying and assuring full understanding of and responsiveness to the solicitation requirements.  Those offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals.  Revisions may be permitted after submission and before award for the purpose of obtaining Best & Final offers.  In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors.  If information is disclosed to any offeror, it shall be provided to all competing offerors.

 

g)         Award

Awards shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the IOC, taking into consideration the price and the evaluation factors set forth in the RFP.  The contract file shall contain the basis on which the award is made.

 

(Source:  Amended at 37 Ill. Reg. 3075 effective March 1, 2013)

 

Section 1120.2020  Small Purchases

 

a)         Application

 

1)         Amount. Any individual procurement of supplies or services not exceeding $100,000 and any procurement of construction not exceeding $100,000, or any individual procurement of professional or artistic services not exceeding $100,000 may be made without competitive source selection. Procurements shall not be artificially divided so as to constitute a small purchase under this Section. [30 ILCS 500/20-20(a)]

 

2)         Adjustment. Each July 1, the small purchase maximum established in subsection (a)(1) shall be adjusted for inflation as determined by the Consumer Price Index for All Urban Consumers as determined by the United States Department of Labor and rounded to the nearest $100. [30 ILCS 500/20-20(b)]

 

b)         In determining whether a contract is under the limit, the stated value of the supplies or services, plus any optional supplies and services, determined in good faith, shall be utilized. When the value is calculated month-to-month or in a similar fashion, the amount shall be calculated for a 12 month period.

 

c)         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)).

 

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

 

e)         Notice of award shall be published in the Bulletin no later than 10 business days after the contract is awarded.

 

(Source:  Amended at 42 Ill. Reg. 6682, effective March 30, 2018)

 

Section 1120.2025  Sole Economically Feasible Source Procurement

 

a)         Application

The provisions of this Section apply to procurement from a sole economically feasible source (referred to as sole source) unless the estimated amount of the procurement is within the limit set in Section 1120.2020  or unless emergency conditions exist as defined in Section 1120.2030.

 

b)         Conditions for Use of Sole Source Procurement

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

 

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

 

2)         a sole supplier's items are needed for trial use or testing;

 

3)         a sole supplier's item is to be procured for commercial resale;

 

4)         public utility regulated services are to be procured;

 

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

 

6)         the procurement is of media and advertising;

 

7)         the procurement is of art or entertainment services; and

 

8)         existing contracts are being changed (see subsection (c)).

 

c)         Changes

 

1)         Changes to an existing contract that are germane and reasonable in scope and cost in relation to the original contract or program, that are necessary or desirable to complete the contract or program,  and that can be best accomplished by the contract holder may be procured under this Section when the CPO determines that the cost of delay or disruption to the contract or program, and the cost of new solicitation, clearly indicate that the existing vendor is the sole economically feasible source.

 

2)         A change (whether in cost or rate) that does not exceed the applicable small purchase limit as defined in Section 1120.2020 or that is an emergency as defined in Section 1120.2030, may be made in accordance with procedures governing those Sections and need not comply with these sole source procedures.  A change in the length of the contract that does not exceed 30 days and other minor, immaterial changes to the scope or administrative provisions of a contract shall not be considered changes subject to these sole source procedures.

 

d)         CPO to Determine

 

1)         The determination as to whether a procurement shall be made as a sole source shall be made by the CPO.  The determination and the basis for the determination shall be in writing.  The CPO may specify the application of the determination and the duration of its effectiveness.

 

2)         Any purchase request submitted to the CPO suggesting that a procurement be restricted to one potential vendor shall be accompanied by an explanation as to why no other vendor will be suitable or acceptable to meet the need.

 

e)         Publication of Sole Source Notice

The CPO shall publish in the Bulletin notice of intent to contract with that vendor at least 14 days prior to execution of the contract.

 

1)         If no challenge to this determination is made by a vendor within the 14 day period, the CPO may execute a contract with that vendor.

 

2)         If a challenge is received, the Procurement Officer shall consider the information and shall commence a competitive procurement if the CPO determines that more than one economically feasible source may be available and the sole source designation is, therefore, not appropriate, unless an emergency situation exists.

 

3)         Any person challenging a sole source determination may request a public hearing.

 

f)         Negotiation in Sole Source Procurement

The Procurement Officer shall conduct negotiations, as appropriate, to reach contract terms, including price, and shall maintain a record of each sole source procurement showing:

 

1)         the vendor's name;

 

2)         the amount and type of the contract; and

 

3)         a listing of the supplies, services or construction procured under each contract.

 

g)         Prohibition Against Amending a Contract for Professional or Artistic Services The provisions of this Part shall not apply to an amendment to a contract for professional or artistic services if:

 

1)         there is an increase in the amount paid under the contract of more than 5% of the initial award; or

 

2)         the term of the contract would extend by a period not to exceed the time reasonably needed for a competitive procurement or 2 months, whichever is less.

 

(Source:  Amended at 42 Ill. Reg. 6682, effective March 30, 2018)

 

Section 1120.2030  Emergency Procurements

 

a)         Applications

The provisions of this Section apply to every procurement over the small purchase limit set in Section 1120.2020, that is not a sole source procurement under Section 1120.2025, made under emergency conditions.

 

b)         Definition of Emergency Conditions

Procurements may be made under this Section in the following circumstances:

 

1)         Traditional circumstances include but are not limited to:

 

A)        public health or safety, including the health or safety of any particular person, is threatened;

 

B)        repairs to IOC property are needed to protect against further loss or damage to IOC property, or to prevent loss or damage to IOC property;

 

C)        action is needed to prevent or minimize serious disruption in State services;

 

D)        action is needed to ensure the integrity of State records;

 

E)        a supplier of goods or services announces bankruptcy, going out of business, or loss of franchise, or gives other similar reason such that making a purchase immediately is in the State's best interest;

 

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

 

G)        legal services to assist an agency in the formulation of policy, in drafting or evaluating documents, or in determining the extent of statutory authority that are needed sooner than the competitive process would allow;

 

H)        the need for items to protect or further State interests is immediate and use of other competitive source selection procedures under the Code and this Part cannot be accomplished without significant risk of causing serious disadvantage to the State;

 

I)         extending a contract is needed to conduct a competitive method of source selection;

 

J)         immediate action is necessary to avoid lapsing or loss of federal or donated funds; or

 

K)        immediate action is necessary to protect the collection of State revenue.

 

2)         After Unsuccessful Competitive Sealed Bidding or Proposals or Request for Proposals.  When bids or proposals received pursuant to a competitive sealed bid or competitive sealed proposal method are unreasonable or noncompetitive, or the price exceeds available funds, and time or other circumstances will not permit the delay required to resolicit competitive sealed bids or proposals, and if emergency conditions exist after an unsuccessful attempt to use competitive sealed bidding, an emergency procurement may be made.

 

3)         Extension to Allow Competition.  Extending an existing contract for such period of time as is needed to conduct a competitive method of source selection where terminating or allowing the contract to terminate would not be advantageous to the State.

 

4)         Quick Purchase

 

A)        A supplier announces bankruptcy, cessation of business, or loss of franchise, or gives other similar reason such that making a purchase immediately is more advantageous to the State than instituting a competitive procurement under the provisions of this Code for the supplies or services;

 

B)        Items are available on the spot market or at discounted prices for a limited time so that good business judgment mandates a purchase immediately to take advantage of the availability and price.

 

c)         Scope of Emergency Conditions

 

1)         Emergency procurement shall be limited to the supplies or services, quantity and term reasonably necessary to meet the emergency.

 

2)         Emergency procurements shall be limited to the time reasonably needed for a competitive procurement, but in no event shall that time exceed 90 days unless the CPO determines additional time is needed.

 

3)         In the event an emergency procurement exceeds 90 days, the contract scope and duration may be extended.  The extension shall be limited in items, quantity and days.

 

d)         Authority to Make Emergency Procurements

Authority to make emergency procurements is established by subsection (c), provided that, whenever practical, existing IOC contracts shall be utilized and, whenever practical, approval by the CPO shall be obtained prior to the procurement.  The CPO shall be responsible for making the filings required in Section 20-30 of the Code.

 

e)         Source Selection Methods

Any method of source selection, whether or not identified in the Code or this Part, may be used to conduct the procurement in emergency situations. Such competition as is practicable shall be obtained.

 

f)         Determination and Record of Emergency Procurement

 

1)         Determination.  The CPO shall make a written determination stating the basis for an emergency procurement and for the selection of the particular contractor.  The determinations shall be kept in the contract file.

 

2)         Record.  An affidavit of each emergency procurement shall be filed by the CPO with the IOC PPB and the Auditor General within 10 days after the procurement and 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.

 

3)         Notice of the emergency procurement shall be published in the Bulletin in accordance with Subpart D of this Part.

 

g)         Extensions of Emergencies

In the event an emergency procurement exceeds 90 days, the emergency procurement may be extended.  Prior to the execution of the extension:

 

1)         the CPO must determine additional time is necessary;

 

2)         the contract scope and duration must be limited to the emergency;

 

3)         a public hearing must be held;

 

4)         the CPO must provide written justification for the emergency contract; and

 

5)         notice of the intent to extend shall be provided to the IOC PPB and published in the Bulletin in accordance with Subpart D.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.2035  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 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 and except as provided in Section 1120.2020 and in subsection (c) of this Section.

 

2)         "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 500/1-15.60].

 

b)         Public Notice of Competitive Selection Procedures

 

1)         Notice of the need for professional and artistic services shall be made by the CPO in the form of an RFP.

 

2)         Notice shall be given as provided in Section 1120.2010(e).

 

3)         Notice shall also be distributed to prequalified persons interested in performing the services required by the proposed contract.

 

c)         Request for Proposals

 

1)         Contents.  The RFP shall be in the form specified by the CPO 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 include, but is not limited to:

 

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

 

iii)        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;

 

iv)        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 ranking of all proposals and identification 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.

 

d)         Pre-Proposal Conference

A pre-proposal conference may be conducted in accordance with Section 1120.2010(f).  The conference may be held at any time prior to the date established for submission of proposals.

 

e)         Receipt and Handling of Proposals

 

1)         Proposals and modifications shall be sent to the CPO as directed in the solicitation and shall be time-stamped upon receipt and held in a secure place until the due date and time at which they will be opened by the Procurement Officer.

 

2)         Proposals shall not be opened publicly nor disclosed to unauthorized persons, but shall be opened in the presence of at least one witness.

 

3)         A register of proposals shall be established that 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.

 

4)         The register of proposals shall be open to the public only after award of the contract.

 

f)         Discussions

 

1)         Discussions Permissible

 

A)        The Procurement Officer may conduct discussions with any offeror to:

 

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

 

ii)         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.

 

B)        The CPO may allow changes to the proposal based on those discussions.

 

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 except as otherwise provided in the contract.

 

g)         Selection of the Best Qualified Offerors

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

 

h)         Evaluation of Pricing Data

Pricing submitted for all proposals timely submitted shall be opened and ranked.

 

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

 

2)         If the price of the most qualified vendor is not low and if it is under $25,000, the CPO may award to that vendor.

 

3)         If the price is over $25,000, the CPO must state why the qualifications were deemed more important than price and that determination shall be published in the next available issue of the Bulletin.

 

i)          Negotiation and Award of Contract

 

1)         General.  The Procurement Officer shall attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation. The Procurement Officer may, in the interest of efficiency, negotiate with other vendors while negotiating with the best qualified vendor.

 

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 the services.

 

3)         Request for Nondisclosure of Data

 

A)        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.

 

B)        If the parties do not agree as to the disclosure of data in the contract, the CPO shall reject the proposal.

 

4)         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 CPO 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 the range of prices received in the course of the procurement, and the agency's identified budget.

 

5)         Failure to Negotiate Contract with Best Qualified Offeror

 

A)        If compensation, contract requirements, and contract documents cannot be agreed upon with the best qualified offeror, a written record stating the reasons therefore shall be placed in the file.  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 canceled.

 

j)          Multiple Awards 

The Procurement Officer may enter into negotiations with the next most qualified vendor or vendors when the purchasing agency has a need that requires multiple vendors under contract.

 

k)         Notice of Award 

Written notice of award shall be public information and made a part of the contract file.  The CPO shall publish 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.

 

l)          The CPO may publish notices of small, sole source and emergency procurements of professional and artistic services under the jurisdiction of the CPO.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.2036  Other Methods of Source Selection

 

a)         Split Award

 

1)         An award of a definite quantity requirement may be split between bidders or offerors.  Each portion shall be for a definite quantity and the sum of the portions shall be the total definite quantity required.  A split award may be used only when award to more than one bidder or offeror for different amounts of the same item are necessary to obtain the total quantity or the required delivery.

 

2)         The CPO shall make a written determination setting forth the reasons for the split award, which determination shall be made a part of the procurement file.

 

b)         Multiple Award

 

1)         A multiple award is an award of an indefinite quantity contract to more than one bidder or offeror when the IOC is obligated to order all of its actual requirements from those vendors.

 

2)         A multiple award may be made when award to two or more bidders or offerors for similar products is necessary for adequate delivery, service, or product compatibility.  Any multiple award shall be made in accordance with the provisions of  Section 1120.2010,Section 1120.2015, Section 1120.2020, and Section 1120.2030, as applicable.  Awards shall not be made for the purpose of simply dividing the business or making available product or supplier selection to allow for user preference unrelated to utility or economy.  Any such awards shall be limited to the least number of suppliers necessary to meet the valid requirements of State agencies.

 

3)         The IOC shall reserve the right to take bids separately if a particular quantity requirement arises that exceeds its normal requirement or an amount specified in the contract.

 

4)         If a multiple award is anticipated, the solicitation shall state this fact, as well as the criteria for award.

 

5)         In a multiple award situation, one vendor may be designated as the primary recipient of orders.  The other awardees may receive orders in the event the primary vendor is unable to deliver or for other reasons as determined by the CPO.

 

c)         Auction

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

 

d)         Non-governmental Joint Purchase

 

1)         The CPO may enter into an agreement with a person not eligible for the Governmental Joint Purchasing Act [30 ILCS 525] for the joint procurement of anything covered by the Code.

 

2)         Any method of source selection may be used and may be modified or adopted to meet the needs of the non-State entity.

 

e)         Federal Requirements

Requirements of the Code and this Part may be modified or adapted to meet federal requirements.

 

f)         Donations

With approval of the CPO, when the IOC receives a donation that provides the majority of the funding, IOC may follow any procurement or contracting requirements established as a condition of the donation, but shall follow the Code and this Part whenever practicable.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.2037  Tie Bids and Proposals

 

a)         Tie bids or proposals are those from responsive and responsible vendors that are identical in price or evaluation.

 

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

 

1)         If the tied vendors include an Illinois resident vendor, the Illinois resident vendor shall be given the award.  In all other situations,  including if two or more Illinois resident bidders are tied, the decision shall be made in accordance with subsections (b)(2) through (5).  "Illinois resident vendor" has the meaning given in Section 1120.4510.

 

2)         If there is a significant difference in responsibility (including ability to provide the service or deliver in the quantity and at the time required), the award will be made to the vendor who is deemed to be the most responsible. A vendor who has had experience in contracting with the State or IOC shall be given additional consideration in determining responsibility if the CPO determines that dealing with a vendor that has knowledge of State requirements, contracts, job sites, payment practices and such other factors and with which there has been favorable past experience increases the likelihood of successful performance.

 

3)         If there is no significant difference in responsibility, but there is a difference in the quality of the goods or services offered, the vendor offering the best quality will be accepted.

 

4)         If there is no significant difference in responsibility and no difference in quality of the goods or services offered, the vendor offering the earliest delivery time will be accepted in any case in which the solicitation specified that the needs of the IOC require as early delivery as possible.

 

5)         If the bids or proposals are equal in every respect, the award shall be made by lot unless the CPO determines that splitting the award among two or more of the tied bidders is in the best interest of the State.  Awards may be split if all affected bidders agree, if splitting is feasible given the type of good or service requested, if overall pricing would not increase, if delivery would be better ensured, or if necessary or desirable to promote future competition.

 

c)         Record.  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)         the supply, service or construction item; and

 

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

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.2038  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 bidders.

 

b)         Mistakes Discovered Before Opening.  A vendor may correct mistakes discovered before the time and date set for opening by withdrawing or correcting as provided in this Section.

 

c)         Confirmation of  Mistake.  When the CPO knows or has reason to conclude that a mistake has been made, the CPO should 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 in Bids Discovered After Opening but Before Award.  This subsection (d) sets forth procedures to be applied in situations in which mistakes in bids are discovered after the time and date set for bid 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 of a bid from the exact requirement of the IFB, 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 CPO shall waive the informalities or allow the bidder to correct them, depending on which is in the best interest of the State.  Minor informalities include insignificant mistakes when the effect on price, quantity, quality, delivery or contractual conditions is negligible. Examples of minor informalities as to form include the failure of a bidder to:

 

A)        return the number of signed bids required by the IFB;

 

B)        sign the bid, but only if the unsigned bid is accompanied by other material indicating the bidder's intent to be bound, including but not limited to signature on an auxiliary form, submission of a bid guarantee or submission of a signed transmittal letter; or

 

C)        acknowledge receipt of an amendment to the IFB, but only if:

 

i)          it is clear from the bid that the bidder 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 Intended Correct Bid Is Evident.  If the mistake and the intended correct bid are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.

 

3)         Mistakes in Which Intended Correct Bid Is Not Evident.  A bidder may be permitted to withdraw a low bid if:

 

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

 

B)        the bidder submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made.

 

e)         Mistakes in Proposals Discovered After Receipt, but Before Award.  This subsection (e) sets forth procedures to be applied in four situations in which mistakes in proposals are discovered after receipt of proposals but before award.

 

1)         During Discussions; Prior to Best & Final Offers.  Once discussions are commenced with any offeror or after Best & Final offers are requested, any offeror may freely correct any mistake prior to the date set for conclusion of discussions or for receipt of Best & Final offers.

 

2)         Minor Informalities.  Minor informalities, unless otherwise corrected by an offeror as provided in this Section, shall be treated as they are under competitive sealed bidding.  (See subsection (d).)

 

3)         Correction of Mistakes.  If discussions are not held or if the Best & Final offers upon which award will be made have been received, mistakes may be corrected and the intended correct offer considered only if:

 

A)        the mistake and the intended correct offer are clearly evident on the face of the proposal, in which event the proposal may not be withdrawn; or

 

B)        the mistake is not clearly evident on the face of the proposal, but the offeror submits adequate proof that clearly and convincingly demonstrates both the existence of a mistake and the intended correct offer, and such correction would not be contrary to the fair and equal treatment of other offerors.

 

4)         Withdrawal of Proposals.  If discussions are not held, or if the Best & Final offers upon which award will be made have been received, the offeror may be permitted to withdraw the proposal if:

 

A)        the mistake is clearly evident on the face of the proposal and the intended correct offer is not;

 

B)        the offeror submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made but does not demonstrate the intended correct offer; or

 

C)        the offeror submits adequate proof that clearly and convincingly demonstrates the intended correct offer, but to allow corrections would 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 CPO finds it would be unconscionable not to allow the mistake to be corrected.

 

g)         Determinations Required.  When a proposal is corrected or withdrawn, or correction or withdrawal is denied, a written determination shall be prepared showing that relief was granted or denied in accordance with this Part.  The Procurement Officer shall prepare the determination.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.2040  Cancellation of Solicitations; Rejection of Bids or Proposals

 

a)         Scope of this Section

The provisions of this Section shall govern the cancellation of any solicitations whether issued by the IOC under competitive sealed bidding, competitive sealed proposals, small purchases, or any other source selection method, and rejection of bids or proposals in whole or in part.

 

b)         Policy

Any solicitation may be canceled when the CPO believes cancellation to be in the State's best interest.  Nothing shall compel the award of a contract.

 

c)         Cancellation of Solicitation; Rejection of All Bids or Proposals Prior to Opening

 

1)         As used in this Section, "opening" means the date set for opening of bids, receipt of unpriced technical offers in multi-step sealed bidding, or receipt of proposals in competitive sealed proposals.

 

2)         Prior to opening, a solicitation may be canceled in whole or in part when the CPO determines in writing that the action is in the State's best interest for reasons including, but not limited to:

 

A)        the IOC no longer requires the supplies, services or construction;

 

B)        the IOC 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 State;

 

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 the result of collusion or may been submitted in bad faith.

 

3)         When a solicitation is canceled prior to opening, notice of cancellation shall be sent to all businesses that responded to the solicitation.

 

4)         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 resolicitation or any future procurements of similar supplies, services or construction.

 

d)         Cancellation of Solicitation; Rejection of All Bids or Proposals After Opening

 

1)         After opening but prior to award, all bids or proposals may be rejected in whole or in part when the CPO determines in writing that such action is in the State's best interest.  The reasons for the CPO's determination may include, but are not limited to:

 

A)        the supplies, services or construction being procured are no longer required;

 

B)        ambiguous or otherwise inadequate specifications were part of the solicitation;

 

C)        the solicitation did not provide for consideration of all factors of significance to the IOC;

 

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

 

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

 

F)         there is reason to believe that 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 the solicitation is canceled or when all bids or proposals are rejected, all vendors who submitted bids or proposals shall be sent a notice informing them of the cancellation or rejection.

 

e)         Documentation

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

 

f)         Rejection of Individual Bids or Proposals

 

1)         General.  This subsection (f) applies to rejections of individual bids or proposals in whole or in part.

 

2)         Notice in Solicitation.  Each solicitation issued by the IOC shall provide that any bid or proposal may be rejected in whole or in part when in the best interest of the State as provided in this Section.

 

3)         Reasons for Rejection.  Reasons for rejecting a bid or proposal may include, but are not limited to:

 

A)        the business that submitted the bid or proposal is nonresponsible as determined under Section 1120.2046;

 

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

 

C)        the proposal ultimately  fails to meet the announced requirements of the IOC in some material respect;

 

D)        the supply or  service item offered in the bid is unacceptable by reason of its failure to meet the requirements of the specifications or permissible alternates or other acceptability criteria set forth in the IFB; or

 

E)        the proposed price is clearly unreasonable.

 

4)         Notice of Rejection.  Upon request, unsuccessful bidders or offerors shall be advised of the reasons for rejection.

 

g)         Disposition of Bids or Proposals

When bids or proposals are rejected, they shall be retained until after award.  When a solicitation is canceled, the bids or proposals will be discarded or returned to the vendor at the discretion of the Procurement Officer.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

SUBPART F: SUPPLIERS, PREQUALIFICATION AND RESPONSIBILITY

 

Section 1120.2043  Suppliers

 

a)         An agency with procurement authority may contract with any qualified source of supply, but must give preference to directed sources and should consider the special sources outlined in this Section.

 

b)         Directed Sources − State-Produced Supplies or Services

 

1)         Correctional Industries.  The CPO, after consulting with the Department of Corrections, shall determine the type and extent of the preference given to supplies produced or services performed by Correctional Industries.

 

2)         Central Services.  Supplies and services available from the program operations of DCMS shall be utilized unless the CPO authorizes procurement from other sources.

 

c)         Special Sources

 

1)         Prior to any equipment procurement, the IOC will consider property available from the State and Federal Surplus Warehouses under the jurisdiction of DCMS.

 

2)         Various goods and services are available from qualified workshops for the disabled and procurement from these workshops is encouraged.  Notice and competition is not required pursuant to Section 45-35 of the Code.  Information regarding the workshops will be obtained from DCMS.

 

3)         Various goods and services are available from State agencies and other governmental units.  These may be procured without notice and competition.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.2044  Vendor Lists

 

a)         The Procurement Officer may maintain a list of vendors interested in doing business with the IOC.  Lists of names and addresses of bidders shall be available for public inspection.

 

b)         Inclusion or exclusion from the vendor list of the name of a business does not indicate whether the business is responsible in respect to a particular procurement or otherwise capable of successfully performing a State contract.

 

c)         IFBs and other solicitations will be sent to vendors on the vendor list for goods or services in question, except in the following cases:

 

1)         The vendor does not sell the particular commodity or equipment.

 

2)         The number of vendors for a procurement classification is of such magnitude that optimum prices may reasonably be expected without soliciting the entire vendor list.  The IOC may, if it determines that the best interest of the State would be served, rotate the selection from the list on any equitable basis.

 

3)         The IOC determines that the best interests of the State will be served by limiting vendors to those in defined geographic areas.

 

d)         The Procurement Officer may alternatively refer to vendor lists maintained by DCMS.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.2045  Prequalification

 

a)         General

 

1)         The CPO shall identify by publication in the Bulletin the categories of supplies and services (including professional and artistic services) for which the CPO may prequalify vendors of those supplies and services.  The CPO is not required to prequalify vendors but may do so when determination of a vendor's qualification prior to procurement would be advantageous to the State.

 

2)         The CPO may require that vendors be prequalified as a condition of being placed on the bid list.  An opportunity to prequalify shall be allowed at least one time each fiscal year.  The opportunity to prequalify shall be announced in the Bulletin.  The notice shall alert vendors that failure to participate in the prequalification process may result in the vendor being ineligible to receive contracts.

 

3)         When prequalifying a vendor, the CPO may limit prequalifications to determining whether a vendor has been and is likely to be "responsible" using the criteria set forth in Section 1120.2046.  The fact that a prospective vendor has been prequalified does not necessarily represent a finding of responsibility for a particular procurement.

 

4)         When prequalifying a vendor, the CPO may consider factors tailored to a specific procurement or type of procurement; the factor shall be announced in the Bulletin.

 

5)         Except in the case of professional and artistic services, distribution of and responses to the 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 IFB, RFP or other procurement request shall state that fact.

 

b)         Professional and Artistic Services

 

1)         Any prequalification of vendors of professional and artistic services shall include, at a minimum, a specified level of education, experience and technical ability and may require certification, licensure or membership in professional associations.

 

2)         Categories of services that may be professional, depending on the requirements for education, experience and technical ability, include, but are not limited to:

 

A)        medical;

 

B)        legal;

 

C)        accounting;

 

D)        general consulting.

 

c)         Qualified Products Lists 

Qualified products lists are treated in Section 1120.2050.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.2046  Responsibility

 

a)         Application

Contracts are to be made only with responsible vendors unless no responsible vendor is available to meet the IOC's needs.  If there is doubt about responsibility,  and if a bond or other security would adequately protect the State's interests, then that vendor may be awarded a contract upon receipt of the bond or other security.

 

b)         Standards of Responsibility

 

1)         Standards.  Factors to be considered in determining whether the standard of responsibility has been met may include, but are not limited to,  whether a prospective vendor:

 

A)        has available the appropriate financial, material, equipment, facility and personnel resources and expertise (or the ability to obtain them) necessary to indicate its capability to meet all contractual requirements;

 

B)        is able to comply with required or proposed delivery or performance schedules, taking into consideration all existing commercial and governmental commitments;

 

C)        has a satisfactory record of performance.  Vendors who are or have been deficient in current or recent contract performance in dealing with the State or other customers may be deemed "not responsible" unless the deficiency is shown to have been beyond the reasonable control of the vendor;

 

D)        has a satisfactory record of integrity and business ethics.  Vendors who are under investigation or indictment for criminal or civil actions that bear on the particular procurement or that would make contracting with that vendor undesirable may be declared not responsible for the particular procurement;

 

E)        is qualified legally to contract with the State;

 

F)         has supplied all necessary information in connection with the inquiry concerning responsibility;

 

G)        has a current Public Contracts number from the Illinois Department of Human Rights, if required.  Proof of application prior to opening of bids or proposals will be sufficient for an initial determination;

 

H)        pays prevailing wages, if required by law; and

 

I)         is current in payment of all State of Illinois taxes, including the unemployment insurance tax.

 

2)         Information Pertaining to Responsibility.  The prospective vendor shall supply information requested by the Procurement Officer concerning the responsibility of the vendor.  The IOC may supplement this information from other sources and may require additional documentation at any time.  If the vendor fails to supply the requested information, the CPO shall base the determination of responsibility upon any available information, or may find the prospective vendor nonresponsible.

 

c)         Ability to Meet Standards

The prospective vendor may demonstrate the availability of necessary financing, equipment, facilities, expertise and personnel by submitting upon request:

 

1)         evidence that the vendor possesses the necessary items;

 

2)         acceptable plans to subcontract for the necessary items; or

 

3)         a documented commitment from, or explicit arrangement with, a satisfactory source to provide the necessary items.

 

d)         Duty Concerning Responsibility

Before awarding a contract, the CPO must be satisfied that the prospective vendor is responsible. Responsibility can be proven until time of contract execution unless the solicitation or other law requires earlier proof.

 

e)         Written Determination of Nonresponsibility Required

If a vendor who otherwise would have been awarded a contract is found nonresponsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the CPO.   The final determination shall be made part of the procurement file.

 

f)         Bond for Responsibility

Vendors not having a history of performance may be considered responsible if no other disqualifying factors exist.  A bond or other security may be required of those vendors.

 

g)         Affiliated Companies

Vendors who are newly formed business concerns having substantially the same owners, officers, directors or beneficiaries as a previously existing nonresponsible vendor will be declared nonresponsible unless the new organization can prove it was not set up for the purpose of avoiding an earlier declaration of nonresponsibility.

 

h)         Vendor Under Investigation

A vendor under investigation by a governmental agency may be determined nonresponsible by the CPO.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

SUBPART G: BID, PROPOSAL AND PERFORMANCE SECURITY

 

Section 1120.2047  Security Requirements

 

a)         The CPO may require that a vendor furnish bid, proposal or performance security on IOC contracts. Whenever security is required, except as provided in this Section, the procurement document will clearly indicate the type and amount of security.

 

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.

 

c)         Unless the amount is set by law, the CPO will determine the amount, in dollars or percentage of contract price, that will adequately protect the State's interests.

 

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, or responsibility is questioned, and for similar reasons.

 

e)         Permissive/Mandatory Security

 

1)         Bid or proposal security is permissive on any contract but is not appropriate on emergency or sole source procurements.

 

2)         Performance security is permissive on any contract and is recommended on contracts calling for advance payment.

 

3)         Performance security is required on all public works contracts.

 

f)         A vendor may submit a single or continuous security each year that will be applicable on all IOC contracts.  When the security has been obligated in an amount equal to the sum of accumulated security requirements, additional security must be submitted.

 

g)         Bid or proposal security will be returned to unsuccessful vendors as soon after award as possible.  The bid or proposal security of the successful vendor will be returned after contracts have been signed and performance security, if any, submitted.  Performance security will be returned upon full performance.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

SUBPART H: SPECIFICATIONS AND SAMPLES

 

Section 1120.2050  Specifications and Samples

 

a)         CPO Responsibilities Regarding Specifications

 

1)         The CPO is authorized to write IOC procurement specifications.

           

2)         If a specification for general or common use or a qualified products list exists for an item to be procured under Section 20-20 of the Code (Small Purchases), it shall be used except as otherwise authorized by the CPO.  If no such specification exists, the CPO shall have the authority to prepare specifications for use in the purchases.  In an emergency under Section 20-30 of the Code, any necessary specification may be utilized without regard to the provisions of this Subpart.

 

b)         Procedures for the Development of Specifications

 

1)         If a specification for a common or general use item has been developed or a qualified products list has been developed in accordance with this Section for a particular supply or service, it shall be used unless the CPO authorizes use of another specification.

 

2)         All procurements shall be based on specifications that accurately reflect the IOC's needs.  Specifications shall clearly and precisely describe the salient technical or performance requirements.

 

3)         Specifications shall not include restrictions that do not significantly affect the technical requirements or performance requirements, or other legitimate IOC needs.  All specifications shall be written in such a manner as to describe the requirements to be met, without having the effect of exclusively requiring a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice.

 

4)         Any specifications or standards adopted by a business, industry, not-for-profit organization or governmental unit may be adopted by reference.

 

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

 

c)         Brand Name or Equal Specification

 

1)         Brand name or equal specifications may be used when the CPO determines in writing that:

 

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, not including a brand name specification;

 

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

 

D)        use of a brand name or equal specification is in the State's best interest.

 

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)         Required Characteristics.  Unless the CPO determines 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)         Nonrestrictive Use of Brand Name or Equal Specifications.  When 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 a product is equal is on the bidder.

 

d)         Brand Name Only Specification

 

1)         Determination.  A brand name only specification may be used only when the CPO makes a written determination that only the identified brand name item or items will satisfy the IOC's needs.

 

2)         Use.  Brand name alone may be specified in order to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the CPO.

 

3)         Competition.  The CPO 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 1120.2025.

 

4)         Small and Emergency Procurements.  Brand name only specifications may be used when procuring items under Section 1120.2020 and Section 1120.2025.

 

e)         Qualified Products List

 

1)         Use.  A qualified products list may be developed when testing or examining supplies prior to issuance of the solicitation is desirable or necessary in order to best satisfy IOC requirements.

 

2)         Solicitation.  When developing a qualified products list, a representative group of potential suppliers shall be solicited in writing to submit products for testing and examination to determine acceptability for inclusion in a qualified products list. Any potential supplier, even though not solicited, may offer its products for consideration during the time allowed for testing and examination.

 

3)         Testing and Confidential Data.  Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with established requirements. Except as otherwise provided by law, trade secrets, test data and similar information provided by the supplier will be kept confidential when requested in writing by the supplier.

 

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.  Specifications may require that the supply or services must have been used in business or industry for a specified period of time to be considered.

 

g)         State Required Samples

 

1)         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.  Submission of samples will not limit the IOC's right to require adherence to specifications.

 

3)         No payment will be made for IOC required 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.

 

h)         Product Demonstration

Any vendor may request time and space to demonstrate a product or service. Agreement to allow the demonstration will be solely at the IOC's discretion and will not entitle the bidder to a contract, nor shall payment for the demonstration be allowed unless a written contract had been executed prior to the demonstration.

 

i)          Specifications Prepared by Other Than IOC Personnel

 

1)         Specifications may be prepared by other than IOC personnel, including, but not limited to, consultants, architects, engineers, designers and other drafters of specifications for public contracts when the CPO determines that there will be no substantial conflict of interest involved and it is otherwise in the best interests of the State, and provided the CPO retains the authority for final approval of the specifications.  Contracts for the preparation of specifications by other than IOC personnel shall require the specification writer to adhere to the Code and the IOC requirements.

 

2)         The person who prepared the specifications shall not submit a bid or proposal to meet the procurement need unless the Comptroller determines in writing that it would be in the best interest to accept such a bid or proposal from that person.  A notice to that effect shall be published in the Bulletin.

 

j)          Pre-solicitation Assistance/Specifications Prepared by Other Than State Personnel

 

1)         Prior to issuing a solicitation, a CPO may issue an RFI to obtain services of any person or business to conduct research, analyze requirements or provide general design or other assistance to help IOC develop its procurement strategy, specifications and documents and to identify and address other related needs.  No services can be obtained to assist IOC in reviewing, drafting and preparing an RFP or RFI or to provide similar assistance.

 

2)         Notice.  An RFI shall be published in the Bulletin for at least 7 calendar days.  All information received in response to an RFI shall be published in the Bulletin for at least 7 calendar days.

 

3)         The RFI shall contain at least the following:

 

A)        the name of the requesting agency;

 

B)        a brief description of the agency's needs; and

 

C)        a statement that the RFI is not a solicitation.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

SUBPART I: CONTRACT TYPES

 

Section 1120.2055  Types of Contracts

 

a)         Scope of Rule

This Subpart contains descriptions of types of contracts and limitations as to when they should be utilized by the IOC in its procurements. Types of contracts not mentioned in this Section may also be utilized.

 

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.

 

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 contractor'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 contractor 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 contractor's labor agreement rates as applied to an industry or areawide (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 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 contractor to bring about the condition under which a price increase may occur, the IOC shall retain 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)        A cost-reimbursement type contract may be used only when the CPO determines in writing that such a contract is likely to be less costly to the IOC than any other type or that it is impracticable to obtain otherwise the supplies or services.

 

B)        Reimbursement of travel expenses in accordance with applicable travel control board regulations is authorized without further determinations.

 

2)         Cost Contract.  A cost contract provides that the contractor will be reimbursed for allowable costs incurred in performing the contract, but will not receive a fee.

 

3)         Cost-Plus-Fixed-Fee Contract.  This is a cost-reimbursement type contract that provides for payment to the contractor 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 such 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 is subject to adjustment only if the contract is modified to provide for an increase or decrease in the scope of work specified in the contract.  The cost-plus-fixed-fee contract can be either a completion form or term form.

 

4)         Cost Incentive Contracts

 

A)        General.  A cost-incentive type of contract provides for the reimbursement to the contractor of allowable costs incurred up to the ceiling amount and establishes a formula whereby the contractor 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 contractor 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 contractor is obligated to complete performance of the contract, and, if actual costs exceed the ceiling price, the contractor 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 IOC is obligated to reimburse the contractor.  The contractor 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 contractor.

 

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 contractor to a bonus, while late completion may entitle the IOC to a price decrease.

 

f)         Time and Materials Contracts; Labor Hour Contracts

Time and materials contracts provide an agreed basis for payment for materials supplied and labor performed.  Labor hour contracts provide only for the payment of labor performed.  These contracts shall, to the extent possible, contain a stated ceiling or an estimate that shall not be exceeded without prior IOC approval.

 

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 either at specified times or when ordered.

 

2)         Indefinite Quantity.  An indefinite quantity contract is a contract for an indefinite amount of supplies or services to be furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type.  Generally an approximate quantity or the best information available as to quantity is stated in the solicitation.  The contract may provide a minimum quantity the IOC is obligated to order and may also provide for a maximum quantity provision that limits the IOC's obligation to order.

 

3)         Requirements Contracts.  A requirements contract is an indefinite quantity contract for supplies or services that specifically obligates the IOC to order all the actual IOC requirements during a specified period of time.

 

h)         Leases

A lease is a contract for the use of supplies or real property under which title will not pass to the IOC at any time.

 

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 State.  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)          Option Provisions

 

1)         Contract Provision.  When a contract is to contain an option for renewal, extension or purchase, notice of that provision shall be included in the solicitation.  These options may be exercised without taking other procurement action when the option is established for exercise at the IOC's option.

 

2)         Lease with Purchase Option.  A purchase option in a lease may be exercised only if the lease containing the purchase option was awarded under competitive sealed bidding or competitive sealed proposals.

 

k)         State Produced Supplies and Services

Notwithstanding any provision in any contract, supplies or services available from the State's own programs, such as Correctional Industries, may be ordered without violating any contract.

 

l)          Extraordinary Quantities

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

 

m)        Energy Conservation

The CPO may authorize an IFB, RFP or sole source negotiation for energy conservation measures whereby the IOC would make payment based on utility cost savings.  The contract shall require a clearly defined baseline of energy usage and method of measuring cost savings taking into account at least differing weather conditions, changes in facility, usage and cost of energy.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

SUBPART J: DURATION OF CONTRACTS

 

Section 1120.2060  Duration of Contracts − General

 

a)         General

 

1)         A multi-term contract for a term of up to 10 years is authorized when determined by the CPO to be in the best interest of the State, inclusive of proposed contract renewals.

 

2)         A software license may have a term longer than 10 years, including for a perpetual term, provided the payment term is limited to no more than 10 years.

 

3)         The length of the payment terms of the bonds issued by or on behalf of the IOC shall be limited as provided in the statute authorizing the issuance of bonds.

 

b)         The contractual obligation of both parties in each fiscal period succeeding the first is subject to the appropriation and availability of funds.  The contract shall provide that, in the event that funds are not available for any succeeding fiscal period, the remainder of the contract shall be canceled without penalty to, or further payment being required by, the IOC.  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 are required to meet IOC 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 those costs during the period of contract performance;

 

B)        lower production costs because of 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 contractor'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-Year 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 or term); and

 

4)         how the award will be determined.

 

e)         Renewals

 

1)         When the original procurement specifically called for an initial term plus renewals, the renewals may be exercised without further procurement activity, provided the initial term and the exercised renewals may not exceed 10 years, the terms and conditions do not change except as provided in the contract (such as price escalations tied to an index) and the option to renew is reserved solely to the IOC or to mutual agreement of the parties.

 

2)         When a renewal will result in the total term, counting the initial term and any previous renewals, exceeding 10 years, the renewal must be procured using one of the methods of source selection authorized by the Code and this Part.  This renewal will start a new term that shall not exceed 10 years.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

SUBPART K: CONTRACT MATTERS

 

Section 1120.2560  Prevailing Wage (Repealed)

 

(Source:  Repealed at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.2570  Equal Employment Opportunity: Affirmative Action

 

a)         Every party to a public contract and every eligible bidder shall:

 

1)         Refrain from unlawful discrimination and discrimination based on citizenship status in employment and undertake affirmative action to assure equality of employment opportunity and eliminate the effects of past discrimination;

 

2)         Comply with the procedures and requirements of the Department of Human Right's regulations concerning equal employment opportunities and affirmative action;

 

3)         Provide such information with respect to its employees and applicants for employment and assistance as the Department of Human Rights may reasonably request;

 

4)         Have written sexual harassment policies that include, at a minimum, the following information:

 

A)        the illegality of sexual harassment;

 

B)        the definition of sexual harassment under State law;

 

C)        a description of sexual harassment, utilizing examples;

 

D)        the vendor's internal complaint process, including penalties;

 

E)        the legal recourse, investigation and complaint processes available through the Department of Human Rights and the Human Rights Commission;

 

F)         directions on how to contact the Department of Human Rights and the Human Rights Commission;

 

G)        protection against retaliation as provided by Section 6-102 of the Illinois Human Rights Act [775 ILCS 5/6-102].

 

            A copy of the policies shall be provided to the Department of Human Rights upon request.

 

b)         Section 7-105(A) of the Illinois Human Rights Act [775 ILCS 5/7-105(A)] authorizes the Department of Human Rights to promulgate policies, rules, and regulations to implement the provisions of the Illinois Human Rights Act applicable to eligible bidders and public contractors.  The Department of Human Rights has promulgated rules (44 Ill. Adm. Code 750) that establish public contractor and eligible bidder duties, obligations, and reporting requirements.  44 Ill. Adm. Code 750.210 requires certain employers to register with the Department of Human Rights in order to be eligible for the award of certain public contracts.

 

c)         Every contract entered into or awarded by the IOC shall include the following provision:

 

EQUAL EMPLOYMENT OPPORTUNITY

 

            In the event of the contractor's non-compliance with the provisions of this Equal Employment Opportunity Clause, the Illinois Human Rights Act, or the Rules and Regulations of the Illinois Department of Human Rights (Department), the contractor may be declared ineligible for future contracts or subcontracts with the State of Illinois or any of its political subdivisions or municipal corporations, and the contract may be cancelled or voided in whole or part, and such other sanctions or penalties may be imposed or remedies invoked as provided by statute or regulation.  During the performance of this contract, the contractor agrees as follows:

 

1)         That it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status, national origin or ancestry, age, physical or mental handicap unrelated to ability, or an unfavorable discharge from military service; and further that it will examine all job classifications to determine if minority persons or women are underutilized and will take appropriate affirmative action to rectify any such underutilization;

 

2)         That, if it hires additional employees in order to perform this contract or any portion thereof, it will determine the availability (in accordance with the Department's Rules) of minorities and women in the areas from which it may reasonably recruit and it will hire for each job classification for which employees are hired in such a way that minorities and women are not underutilized.

 

3)         That, in all solicitations or advertisements for employees placed by it or on its behalf, it will state that all applicants will be afforded equal opportunity without discrimination because of race, color, religion, sex, marital status, national origin or ancestry, age, physical or mental handicap unrelated to ability, or an unfavorable discharge from military service;

 

4)         That it will send to each labor organization or representative of workers with which it has or is bound by a collective bargaining or other agreement or understanding a notice advising such labor organization or representative of the contractor's obligations under the Illinois Human Rights Act and the Department's Rules.  If any such labor organization or representative fails or refuses to cooperate with the contractor in its efforts to comply with such Act and Rules, the contractor will promptly so notify the Department and the contracting agency and will recruit employees from other sources when necessary to fulfill its obligations thereunder;

 

5)         That it will submit reports as required by the Department's Rules, furnish all relevant information as may from time to time be requested by the Department or contracting agency, and in all respects comply with the Illinois Human Rights Act and the Department's Rules;

 

6)         That it will permit access to all  relevant books, records, accounts, and work sites by personnel of the contracting agency and the Department for purposes of investigation to ascertain compliance with the Illinois Human Rights Act and the Department's Rules; and

 

7)         That it will include verbatim or by reference the provisions of this clause in every subcontract it awards under which any portion of the contract obligations are undertaken or assumed, so that such provisions will be binding upon such subcontractor.  In the same manner as with other provisions of this contract, the contractor will be liable for compliance with applicable provisions of this clause by such subcontractors; and, further, it will promptly notify the Office of the Comptroller and the Department in the event any subcontractor fails or refuses to comply therewith.  In addition, the contractor will not utilize any subcontractor declared by the Illinois Human Rights Commission to be ineligible for contracts or subcontracts with the State of Illinois or any of its political subdivisions or municipal corporations.

 

(Source:  Added at 25 Ill. Reg. 14380, effective November 10, 2001)

 

Section 1120.2580  Subcontractors

 

All competitive sealed proposals, including proposals for professional and artistic services, shall include a provision to require each offeror to identify, in its proposal or prior to award, the identity of each subcontractor that will be used in the performance of the contract, as well as the amounts expected to be paid to each subcontractor.

 

(Source:  Added at 37 Ill. Reg. 3075, effective March 1, 2013)

SUBPART L: CONTRACT PRICING

 

Section 1120.2800  All Costs Included

 

The IFB or RFP and any resulting contract should define whether prices cover transportation, transit insurance, delivery, installation, taxes, and any other costs.

SUBPART M: CONSTRUCTION AND CONSTRUCTION-RELATED PROFESSIONAL SERVICES

 

Section 1120.3005  Construction and Construction-Related Professional Services

 

Construction and Construction-Related Professional Services shall be procured by the CPO in accordance with the State Comptroller Act [15 ILCS 405/2] under rules promulgated by the Capital Development Board (44 Ill. Adm. Code 910).

SUBPART N: REAL PROPERTY LEASES AND CAPITAL IMPROVEMENT LEASES

 

Section 1120.4005  Real Property Leases and Capital Improvement Leases

 

Real property leases and capital improvement leases shall be procured in accordance with Article 40 of the Code, this Part, and 44 Ill. Adm. Code 5000. In the event of a conflict, 44 Ill. Adm. Code 5000 shall prevail.

SUBPART O: PREFERENCES

 

Section 1120.4505  Procurement Preferences

 

The procurement preferences identified in Article 45 of the Code must be considered in developing procurement documents, conducting evaluations and drafting contracts.  When any such preference is utilized, the IFB, RFP or other procurement request shall identify the preference and the conditions associated with its use.  Subsequent Sections of this Subpart O identify conditions for the use of certain of the statutory preferences.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.4510  Resident Bidder 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, an Illinois resident vendor shall be given the award.

 

c)         An Illinois resident vendor who would perform the services or provide the supplies from another state shall be considered a resident of that other state as against an Illinois resident vendor who would perform the services or provide the supplies from Illinois, if that other state has an in-state preference.

 

d)         If an Illinois resident vendor produces or performs at least 51% of the goods or services in another state, that Illinois resident vendor shall be considered a resident of that other state for purposes of application of this reciprocal preference when evaluating the bid of an Illinois resident contractor that produces or performs at least 51% of the goods or services in Illinois.

 

e)         The CPO may refer to the list of states with in-state preference maintained by DCMS, which shall be considered in all procurements involving out-of-state vendors.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.4530  Correctional Industries

 

a)         The CPO shall refer to the listing maintained by DCMS of the goods or services available and mandatorily purchased from the Department of Corrections.

 

b)         Those items that must be purchased from Corrections may not be procured from any other source without the express written authorization of the CPO.

 

c)         The CPO may procure from Corrections without seeking competition or giving public notice.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.4535  Sheltered Workshops for the Disabled

 

a)         Use of Sheltered Workshop

The CPO shall refer to information prepared by DCMS concerning qualified sheltered workshops and categories of goods and services set aside to those sheltered workshops by DCMS.  To the extent practicable, the IOC will observe such set asides.

 

b)         Pricing Approval

While notice and competition is not required prior to contracting with a sheltered workshop, prices must be reasonable.  Whether a price is reasonable will be determined based upon current market prices, historical prices, prices received by other State agencies for similar goods or services, the policy of the Code to promote procurements from sheltered workshops, and other such relevant factors.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.4540  Gas Mileage

 

a)         Vehicle specifications shall require compliance with minimum gas mileage requirements established in Section 45-40 of the Code.

 

b)         Exceptions must be approved by the CPO and must fully describe the circumstances necessitating a noncompliant vehicle.

 

c)         No exceptions will be granted unless it is clear that a noncompliant vehicle is necessary.

 

Section 1120.4545  Small Business

 

a)         Set-Aside

The CPO-GS may determine categories of goods or services procurements that will be set aside for small business located in Illinois.  The SPO may contact the CPO-GS to determine whether a particular procurement has been set aside for small business, and, if so, the IOC may honor the set aside to the extent practicable.

 

b)         Small Business List

The IOC may refer to the list of responsible vendors that meet the criteria of small business maintained by the CPO-GS.  A business that fits the definition of small on the day of bid or proposal opening will be considered small for the duration of the contract.

 

c)         Required Use

If the SPO wishes to make a procurement covered by a set-aside designation, the solicitation must note responses are limited to those from responsible small businesses.  Bids or proposals received from large businesses will be rejected as nonresponsive.

 

d)         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 shall 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 Illinois Procurement Bulletin with an explanation.  After withdrawal of the small business set-aside, the procurement shall be conducted in accordance with the limitations of the Code and this Part.

 

e)         Criteria for Small Business

Unless the SPO provides a definition for a particular procurement that reflects industrial characteristics, a small business is one:

 

1)         Independently owned and operated.

 

2)         Not dominant in its field of operations.  This means the business does not exercise a controlling or major influence in a kind of business activity in which a number of business concerns are primarily 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.

 

3)         With annual sales for most recently ended fiscal year no greater than:

 

A)        $10,000,000 for wholesale business;

 

B)        $10,000,000 for construction business; or

 

C)        $6,000,000 for retail business.

 

4)         With no more than 250 employees if a manufacturing business.

 

A)        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.

 

B)        If a manufacturing business has been in existence for less than a full fiscal year, its average employment should be calculated for the period through one month prior to the bid or proposal due date.

 

5)         If the business is any combination of retailer, wholesaler or construction business, the annual sales for each component may not exceed the higher of $10,000,000 for a wholesaler, $6,000,000 for a retailer, $10,000,000 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 wholesaler may not have total sales exceeding $16,000,000 and the retail component may not exceed $6,000,000 and the wholesale component may not exceed $10,000,000.  If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed the number shown in subsection (e)(4).

 

6)         When computing the size status of a vendor, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates shall be included.  Concerns are affiliates when either one directly or indirectly controls or has the power to control the other, or when a third party or parties control or have the power to control both.  In determining whether concerns 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 and contractual arrangements.  However, 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.

 

            (Source:  Amended at 42 Ill. Reg. 6682, effective March 30, 2018)

 

Section 1120.4550  Contracting with Business Owned and Controlled by Minorities, Women, and Persons with Disabilities

 

a)         The Business Enterprise for Minorities, Women, and Persons with Disabilities Act [30 ILCS 575/0.01] (Act) sets a goal (minimum 20%) for contracting with businesses owned by minorities, women, or persons with disabilities.

 

b)         IOC hereby establishes a goal that at least 20% of the dollar amount of contracts be awarded to businesses owned by minorities, women, or persons with disabilities.  Of that 20%, 7% shall be for women-owned businesses, 2% for businesses owned by persons with disabilities and not-for-profit entities for the disabled, and the remaining 11% for minority-owned businesses, unless these amounts are modified by the Business Enterprise Council for Minorities, Women, and Persons with Disabilities created under Section 5 of the Act [30 ILCS 575/5].

 

c)         The goal established in subsection (b) may be satisfied, in whole or in part, by counting expenditures made by IOC vendors to subcontractors.

 

d)         The CPO may undertake the following actions to reach the goal established in subsection (b):

 

1)         focus solicitation upon vendors from the list of certified businesses ascertained by the Business Enterprise Council for Minorities, Women, and Persons with Disabilities;

 

2)         advertise in appropriate media;

 

3)         divide job or project requirements, when economically, technically, and programmatically feasible, into smaller tasks or quantities;

 

4)         eliminate extended experience or capitalization requirements when programmatically feasible;

 

5)         identify specific, proposed projects, purchases, or contracts as particularly appropriate for participation by businesses owned by minorities, women, or persons with disabilities; and

 

6)         establish set-asides in accordance with applicable law.

 

e)         The Act and the rules promulgated thereunder (44 Ill. Adm. Code 10) set forth the procedures for certification as a business owned by minorities, women, or persons with disabilities.

 

f)         The CPO shall acquire and maintain a list of businesses certified by the Business Enterprise Council for Minorities, Women, and Persons with Disabilities.  The names and addresses of certified vendors shall be made available to the public.

 

g)         Those categories of contracts and expenditures exempted by the Business Enterprise Council for Minorities, Women, and Persons with Disabilities as set forth in its rules (44 Ill. Adm. Code 10.22) are exempt from the contracting goal established in this Section.  In addition, the CPO may exempt specific contracts or expenditures from the goal prior to the advertisement for bids or solicitation of proposals, when the CPO has determined, based upon the best information available at the time of the determination, that there is an insufficient number of businesses owned by minorities, women, and persons with disabilities to ensure adequate competition and an expectation of reasonable prices on bids or proposals solicited for the specific contract or expenditure.  A determination of the CPO made under this subsection shall be reduced to writing and published in the Illinois Procurement Bulletin.

 

(Source:  Amended at 42 Ill. Reg. 6682, effective March 30, 2018)

SUBPART P: ETHICS

 

Section 1120.5013  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 conflict is found, no contract will be executed unless the CPO requests and is granted an exemption by the Comptroller under Section 1120.5020 of this Part.

 

b)         For the purpose of this Part, an individual has a direct pecuniary interest in a contract when the individual is owed a payment or otherwise received a direct financial benefit in conjunction with performance of a contract, including finders fees and commission payments.

 

c)         Distributable income means the income of a company after payment of all expenses, including employee salary and bonus, and retained earnings, and the remaining amount is actually distributed to those entitled to receive a share of that 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 districts, 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.  For purposes of this Section, "bid" means procured pursuant to the competitive procedures identified in Subpart E.

 

e)         Additional exemptions to the application of this Part are listed in Section 50-13(f) of the Code.

 

(Source:  Amended at 42 Ill. Reg. 6682, effective March 30, 2018)

 

Section 1120.5015  Negotiations for Future Employment

 

a)         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 "continued contractual relationship" for the effective date of the contract until such time as the contract is terminated.

 

b)         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 "continued contractual relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individuals option, is renewable unless the State must act to terminate, or has a definite term of at least three months.

 

Section 1120.5020  Exemptions

 

If the CPO finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, the Comptroller shall decide in writing whether to grant an exception and place the written determination in the contract file.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.5030  Revolving Door

 

The CPO shall identify in writing his or her designees whose job, or whose position description, is at least 51% directly related to State procurement. The following activities are directly related to State procurement: drafting specifications, preparing IFBs and RFPs, evaluating responses to IFBs and RFPs, negotiating contracts and supervising any of the foregoing.  The CPO shall maintain a record of the designees for at least two years following the end or revocation of the designation.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.5035  Disclosure of Financial Interests and Potential Conflicts of Interest

 

a)         For purposes of Section 50-35(a) of the Code, an "offer from responsive bidders or offerors" means only those offers that are received using an IFB or RFP under Section 20-10, 20-15 or 20-35 or Article 35 of the Code.  Disclosures are not required in small, sole source or emergency procurements.

 

b)         Definitions

 

1)         For purposes of Section 50-35(b) of the Code, "parent entity" means a person who owns 100% of the bidding entity.

 

2)         For purposes of 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, which is by and between the State and the named individual.

 

c)         Distributable income means the income of a company after payment of all expenses, including employee salary and bonus, and retained earnings, and the remaining amount is actually distributed to those entitled to receive a share of the income.

 

d)         Personal Services shall be any contract for services subject to the Code including, by way of example, professional and artistic services, repair services, and cleaning and guard services, but excludes contracts with employees who are exempt from the Code under Section 1-10(b)(4).

 

e)         "Competitively bid" means a contract let pursuant to Section 20-10, 20-15 or 20-35 of the Code.

 

f)         The CPO may prescribe forms for the disclosure of potential conflicts of interest and financial interests of bidders or offerors required under Section 50-35 of the Code.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.5040  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 or offeror 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, reimbursements, 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; and

 

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 CPO and with the Secretary of State. The CPO 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 is guilty of a business offense and shall be fined not more than $10,000. [30 ILCS 500/50-38(c)]

 

(Source:  Added at 37 Ill. Reg. 3075, effective March 1, 2013)

SUBPART Q: CONCESSIONS

 

Section 1120.5310  Concessions

 

Proposed concessions or leases of State property under this provision of the Code must be coordinated with DCMS to ensure compliance with the State Property Control Act [30 ILCS 605] and rules implementing that Act.

SUBPART R: COMPLAINTS, PROTESTS AND REMEDIES

 

Section 1120.5510  Complaints Against Vendors or Subcontractors

 

a)         The purpose of this Section is to document performance of vendors or subcontractors.

 

b)         Whenever a vendor or subcontractor fails to meet contract requirements, including but not limited to failure to deliver on time or meet specifications, the IOC shall take appropriate action to initiate a complaint to the vendor or subcontractor.

 

c)         For relatively minor infractions, the IOC may initiate contact by telephone or in person.  If not resolved by this action, a written complaint should be made.

 

d)         If the initial complaint is not satisfactorily answered, or for serious infractions, the IOC shall send a written complaint to the vendor or subcontractor detailing the problem. For complaints regarding contracts established by the CPO, a form available from the CPO shall be used for processing complaints.

 

e)         A copy of all written complaints and the resolution or status shall be filed with the CPO.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.5520  Suspension

 

a)         Application

This Section applies to all debarments or suspensions of vendors or subcontractors from consideration for award of contracts under the Code.

 

b)         The CPO may suspend a vendor or subcontractor from doing business with the IOC or for specific types of supplies or services.  A suspension may be issued upon a showing the vendor or subcontractor violated the Code or this Part or failed to conform to specifications or terms of delivery.

 

c)         When the CPO finds cause exists for suspension, a notice of suspension, including a copy of the CPO's determination, shall be sent to the suspended vendor or subcontractor.  Bids or proposals will not be solicited from the suspended vendor or subcontractor and, if received, will not be considered during the period of suspension.

 

d)         A vendor or subcontractor may be suspended for a period of time commensurate with the seriousness of the offense, but for no more than five years.  The suspension will be effective within seven calendar days after receipt of notice unless an objection is filed.  If an objection is filed, suspension would not become effective until the evaluation of the objection is completed.

 

e)         The CPO may debar a vendor or subcontractor. Debarment is the permanent suspension of a vendor or subcontractor from doing business with the IOC.  A debarment may only take place in those instances involving bribery or attempted bribery of a State of Illinois officer or employee, or as otherwise allowed or required by law.  Bids or proposals received from the debarred vendor will not be considered.

 

f)         The CPO shall maintain a master list of all IOC suspensions and debarments and refer to the DCMS master list of  all suspensions and debarments.  The master list will retain information concerning suspensions and debarments as public records.  These records will be maintained for a period of at least three years following the end of the suspension or debarment.  The public information may be considered in determining responsibility.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.5530  Settlement and Resolution of Contract and Breach

 

a)         Authority to Settle or Resolve Controversies

The CPO shall have authority to settle and resolve controversies, but the Comptroller may set limits on that authority.

 

b)         Authority of Using Agency

The IOC has the authority to accept delivery of goods or services in accordance with contract requirements as satisfactory adjustment of a complaint.

 

c)         Substitution of Terms/Price Reduction

If the vendor proposes to make an adjustment by substituting an alternative specification or reducing the contract price by a certain amount to compensate for some failure to provide full performance under the contract, the proposal must be referred to and approved by the CPO.

 

d)         Cancellation for Breach of Contract

In any of the following cases the CPO shall have the right to terminate or rescind any contract entered into under this Part:

 

1)         The successful bidder 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 IOC.

 

3)         Any goods 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 goods or service, this shall be grounds for termination or rescission, even though the vendor offers to replace the goods or services promptly.

 

4)         The vendor is guilty of misrepresentation (for example, misbranding of food or drugs) in connection with  another contract for the sale of goods or services to the IOC so that the vendor cannot reasonably be depended upon to fulfill his obligations as a responsible vendor under any contracts with the IOC.

 

5)         The vendor is adjudged bankrupt; enters into a general assignment for the benefit of his or her creditors or into receivership due to insolvency; disregards laws and ordinances, rules or instructions of the IOC; or acts in violation of any provision of the contract or this Part; 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, its agents and/or subcontractor.

 

e)         Cancellation for Fraud, Collusion and Illegality

The IOC may cancel any contract it established if there is sufficient evidence to show that:

 

1)         The contract was obtained by fraud, collusion, conspiracy or other unlawful means; or

 

2)         The contract conflicts with any statutory provision of the State of Illinois or of the United States.

 

f)         Withholding Money to Compensate State for Damages

If a contract is terminated or rescinded under this Section, the IOC may deduct from whatever is owed the vendor on that or any other contract an amount sufficient to compensate the State of Illinois for any damages suffered by it because of the vendor's breach of contract or other unlawful act on the vendor's part on which the cancellation is based.

 

g)         Damages

The damages for which the IOC 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 goods or services bought elsewhere;

 

2)         cost of repeating the procurement procedure;

 

3)         any expenses incurred because of delay in receipt of goods or services; and

 

4)         any other damages caused by the vendor's breach of contract or unlawful act.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.5540  Violation of Statute or Rule

 

a)         Determination that Solicitation or Award Violates Law

If the Procurement Officer finds that the solicitation or proposed award is in violation of statute or rule, the CPO may cancel the solicitation or proposed award, or make modifications to correct the violation, if such correction may be legally accomplished.

 

b)         Determination that Contract Violates Statute or Rule

Contracts based on awards or solicitations that were in violation of law shall be terminated at no cost to the IOC.

 

c)         Effect of Declaring a Contract Null and Void

In all cases in which a contract is voided, the IOC shall endeavor to return those supplies delivered under the contract that have not been used or distributed.  No further payments shall be made under the contract.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.5550  Protests

 

a)         Protest Resolution by the CPO

An actual or prospective bidder, offeror or contractor that may be aggrieved in connection with a procurement may file a protest on any phase of solicitation or award, including but not limited to specifications preparation, bid solicitation or award.

 

b)         Complaint

Complainants should seek resolution of their complaints initially with IOC.  Complaints may be made verbally or in writing.

 

c)         Filing of Protest

 

1)         Protests shall be made in writing to the CPO and shall be filed within 14 calendar days after the protester knows or should have known of the facts giving rise to the protest.  A protest is considered filed when physically received by the Procurement Officer.  Protests filed after the 14 calendar day period shall not be considered. With respect to a protest regarding specifications, the protest must be received within 14 calendar days after the date the solicitation was issued, and in any event must be received by IOC at the designated address before the date for opening of bids or proposals.

 

2)         To expedite handling of protests, the envelope should be labeled "Protest".  The written protest shall include as a minimum the following:

 

A)        the name and address of the protester;

 

B)        appropriate identification of the procurement and, if a contract has been awarded, its number;

 

C)        a statement of reasons for the protest; and

 

D)        supporting exhibits, evidence or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated.

 

d)         Requested Information; Time for Filing

Any additional information requested by IOC shall be submitted within the time periods established by the requesting source in order to expedite consideration of the protest.  Failure of the protesting party to comply expeditiously with a request for information by the Procurement Officer may result in resolution of the protest without consideration of that  information.

 

e)         Stay of Procurements During Protest

When a protest has been timely filed and before an award has been made, the CPO shall make no award of the contract and any award made shall be stayed until the protest has been resolved.  The Comptroller may authorize award or reinstate the contract if necessary to protect the interests of the State.

 

f)         Decision by the CPO

Time for Decisions.  A decision on a protest shall be made by the CPO as expeditiously as possible after receiving all relevant requested information. If a protest is sustained, the available remedies include, but are not limited to, reversal of award and cancellation or revision of the solicitation.

 

g)         Effect of Judicial or Administrative Proceedings

If an action concerning the protest has commenced in court, the CPO shall not act on the protest but shall refer the protest to IOC's Chief Legal Counsel.

 

(Source:  Amended at 42 Ill. Reg. 6682, effective March 30, 2018)

 

Section 1120.5560  Hearings and Decisions

 

a)         This Section shall govern public hearings held prior to awarding contracts for sole source procurements pursuant to Section 20-25 and before extending emergency procurements pursuant to Section 20-30.

 

b)         Notice of hearings shall be published in the Bulletin at least 14 days prior to the date of the public hearing.

 

1)         All notices shall include the date, time and location of the public hearing.

 

2)         Notices for sole source procurements shall include the sole source procurement justification form, a description of the item to be procured, and the intended sole source contractor.

 

3)         Notices for extending emergency procurements shall include the CPO's written justification for the emergency contract and the name of the contractor.

 

c)         A copy of the notice and all documents provided at the hearing shall be included in the subsequent issue of the Bulletin.

 

d)         Any person may present testimony at the hearings.

 

e)         The hearings shall be held in the offices of the Comptroller or at some other convenient location readily accessible to members of the public.

 

f)         The CPO or his or her designee shall preside over the hearings and shall issue a written determination within 14 calendar days after the conclusion of the hearing.

 

g)         Copies of all statements and exhibits introduced at the hearings, written determination of the CPO or designee, and a summary of the proceedings at the hearings shall be included in the appropriate procurement files.

 

(Source:  Amended at 42 Ill. Reg. 6682, effective March 30, 2018)

SUBPART S: SUPPLY MANAGEMENT AND DISPOSITIONS

 

Section 1120.6010  Supply Management and Dispositions

 

a)         Inventory Responsibility.

The IOC shall maintain accountability over tangible personal property and other supplies under its control subject to the requirements of the State Property Control Act and rules implementing that Act.

 

b)         Supply Management.

The IOC shall order supplies on a schedule and in quantities so as to maintain no more than a 12 month supply in inventory.  Supplies shall be ordered so as to maintain the minimum inventory commensurate with ability to meet IOC needs.  This 12-month inventory restriction does not apply when a greater quantity is needed to meet minimum order quantities.

 

c)         Annual Inventory.

All IOC inventory storage areas shall be inventoried at least annually.

 

d)         Report of Inventory.

The Comptroller's Director of Administrative Services shall be notified periodically of all supplies in excess of 12 months supply.

SUBPART T: GOVERNMENTAL JOINT PURCHASING

 

Section 1120.6500  General

 

In an effort to make the procurement process more efficient, State and other governmental units may agree to utilize each others procurement contracts. Agreements between State agencies with procurement authority and other governmental units with taxing authority are governed by this Part and the Governmental Joint Purchasing Act [30 ILCS 525].

 

Section 1120.6510  State Use of Other Contracts

 

The IOC may utilize procurement contracts established by other authorized State agencies or units of government:

 

a)         if:

 

1)         the contract was established by competitive sealed bid or competitive sealed proposal pursuant to the Code; or

 

2)         competitive sealed bid or competitive sealed proposals are not required by the Code;

 

b)         if the price is reasonable;

 

c)         if an existing contract of the IOC would not be violated;

 

d)         if allowed by the vendor;

 

e)         if necessary State contract terms can be added; and

 

f)         if State legal requirements are otherwise met.

 

Section 1120.6520  No Agency Relationship

 

In any joint procurement situation, the agency establishing the contract does not become the procurement agent for the other.

SUBPART U: MISCELLANEOUS PROVISIONS OF GENERAL APPLICABILITY

 

Section 1120.7000  Severability

 

If any provision of this Part or any application thereof is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without such invalid provision or application.

 

Section 1120.7010  Government Furnished Property

 

If the IOC provides any property to the vendor in furtherance of the contract, such property shall remain the property of the State but may be consumed by the vendor if necessary to complete the contract.  Vendor will issue a receipt for the property and will be responsible for its safekeeping and return of unused property to the State.

 

Section 1120.7015  Inspections

 

a)         Inspection of Plant or Site

The IOC may enter a contractor's or subcontractor's plant or place of business to:

 

1)         inspect supplies or services for acceptance by the State pursuant to the terms of a contract;

 

2)         audit the books and records of any contractor or subcontractor pursuant to Section 1120.7020;

 

3)         investigate an action to debar or suspend a person from consideration for award of contracts pursuant to the Code;

 

4)         determine whether the standards of responsibility have been met or are capable of being met;

 

5)         determine if the contract is being performed in accordance with its terms; and

 

6)         accomplish any other purpose permitted by law.

 

b)         Inspection and Testing of Supplies and Services

 

1)         Solicitation and Contractual Provisions.  State contracts may provide that the IOC may inspect supplies and services at the contractor's or subcontractor's facility and perform tests to determine whether they conform to solicitation requirements, or, after award, to contract requirements, and are therefore acceptable.  Inspections and tests shall be conducted in accordance with the terms of the solicitation and contract.

 

2)         Procedures for Trial Use and Testing.  The CPO may establish operational procedures governing the testing and trial use of equipment, material and other supplies, and the application of resulting information and data to specifications or procurements.

 

c)         Conduct of Inspections

 

1)         Inspectors.  Inspections or tests shall be performed so as not to unduly delay the work of the contractor or subcontractor.  No inspector may change any provision of the specifications or the contract without the written authorization of the CPO.  The presence or absence of an inspector shall not relieve the contractor or subcontractor from any requirements of the contract.

 

2)         Location.  When an inspection is made in the plant or place of business of a contractor or subcontractor, the contractor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.

 

3)         Time.  Inspection or testing of supplies and services performed at the plant or place of business of any contractor or subcontractor shall be performed at reasonable times.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.7020  Records and Audits

 

a)         Retention of Books and Records.

Books and records that relate to performance of an IOC contract, including subcontracts, and that support amounts charged to the IOC shall be maintained:

 

1)         by a contractor, for three years from the date of final payment under the prime contract;

 

2)         by a subcontractor, for at least three years from the date of final payment under the subcontract; and

 

3)         by a contractor and subcontractor for such longer period of time as is necessary to complete ongoing or announced audits.

 

b)         Contract Audit.

 

1)         Types of Contracts Audited.  The type of contract under which books and records should be audited is that in which price is based on costs or is subject to adjustment based on costs, or that in which auditing would be appropriate to assure satisfactory performance, such as a time and materials contract.

 

2)         Situations in which an audit may be warranted include but are not limited to when a question arises in connection with:

 

A)        the financial condition, integrity, and reliability of the contractor or subcontractor;

 

B)        any prior audit experience;

 

C)        the adequacy of the contractor's or subcontractor's accounting system;

 

D)        the number or nature of invoices or reimbursement vouchers submitted by the contractor or subcontractor for payment;

 

E)        the use of federal assistance funds;

 

F)         the fluctuation of market prices affecting the contract; or

 

G)        any other situation when the CPO or SPO finds that such an audit is necessary for the protection of the State's best interest.

 

Section 1120.7025  Written Determinations

 

a)         Preparation and Execution

When the Code or this Part requires a written determination, the Procurement Officer may delegate its preparation, but the responsibility for and the execution of the determination shall not be delegated.

 

b)         Content

Each written determination shall set out sufficient facts, circumstances and reasoning as will substantiate the specific determination that is made.

 

c)         Obtaining Supporting Information

While the Procurement Officer is responsible for the execution of the written determination, other State personnel, particularly technical personnel, are responsible for furnishing to the Procurement Officer, in an accurate and adequate fashion, the information pertinent to the determination.  When requested, the information shall be furnished in writing to the Procurement Officer who shall have the authority to decide the final form and content of the determination and to resolve any questions or conflicts arising with respect to the determination.

 

d)         Forms

The CPO shall prescribe methods and operational procedures to be used in preparing written determinations.

 

e)         Retention

Each written determination shall be filed in the solicitation or contract file to which it applies, shall be retained as part of that file for so long as the file is required to be maintained, and, except as otherwise provided by statute or rule, shall be open to public inspection.

 

(Source:  Amended at 37 Ill. Reg. 3075, effective March 1, 2013)

 

Section 1120.7030  No Waiver of Sovereign Immunity

 

Nothing in this Part shall be deemed to be a waiver of sovereign immunity.