Sen. Terry Link

Filed: 3/2/2012

 

 


 

 


 
09700SB3802sam001LRB097 20447 PJG 67104 a

1
AMENDMENT TO SENATE BILL 3802

2    AMENDMENT NO. ______. Amend Senate Bill 3802 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Illinois Procurement Code is amended by
5changing Sections 1-15.30, 20-60, and 40-25 and by adding the
6heading of Article 34 and Sections 34-5, 34-10, 34-15, 34-20,
734-25, 34-30, 34-35, 34-40, 34-45, 34-50, 34-55, and 34-60 as
8follows:
 
9    (30 ILCS 500/1-15.30)
10    Sec. 1-15.30. Contract. "Contract" means all types of State
11agreements, including change orders and renewals, regardless
12of what they may be called, for the procurement, use, or
13disposal of supplies, services, professional or artistic
14services, or construction or for leases of real property,
15whether the State is lessor or lessee, or capital improvements,
16or performance contracting, or guaranteed energy savings

 

 

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1contracts, and including master contracts, contracts for
2financing through use of installment or lease-purchase
3arrangements, renegotiated contracts, amendments to contracts,
4and change orders.
5(Source: P.A. 96-795, eff. 7-1-10 (see Section 5 of P.A. 96-793
6for the effective date of changes made by P.A. 96-795).)
 
7    (30 ILCS 500/20-60)
8    Sec. 20-60. Duration of contracts.
9    (a) Maximum duration. A contract, other than a contract
10entered into pursuant to the State University Certificates of
11Participation Act, or guaranteed energy savings contract or a
12performance contract that guarantees energy or operational
13cost savings, may be entered into for any period of time deemed
14to be in the best interests of the State but not exceeding 10
15years inclusive, beginning January 1, 2010, of proposed
16contract renewals. A guaranteed energy savings contract or
17performance contract shall not be entered into for a period of
18time exceeding 20 years, beginning July 1, 2012. The length of
19a lease for real property or capital improvements shall be in
20accordance with the provisions of Section 40-25. A contract for
21bond or mortgage insurance awarded by the Illinois Housing
22Development Authority, however, may be entered into for any
23period of time less than or equal to the maximum period of time
24that the subject bond or mortgage may remain outstanding.
25    (b) Subject to appropriation. All contracts made or entered

 

 

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1into shall recite that they are subject to termination and
2cancellation in any year for which the General Assembly fails
3to make an appropriation to make payments under the terms of
4the contract.
5    (c) The chief procurement officer shall file a proposed
6extension or renewal of a contract with the Procurement Policy
7Board prior to entering into any extension or renewal if the
8cost associated with the extension or renewal exceeds $249,999.
9The Procurement Policy Board may object to the proposed
10extension or renewal within 30 calendar days and require a
11hearing before the Board prior to entering into the extension
12or renewal. If the Procurement Policy Board does not object
13within 30 calendar days or takes affirmative action to
14recommend the extension or renewal, the chief procurement
15officer may enter into the extension or renewal of a contract.
16This subsection does not apply to any emergency procurement,
17any procurement under Article 40, or any procurement exempted
18by Section 1-10(b) of this Code. If any State agency contract
19is paid for in whole or in part with federal-aid funds, grants,
20or loans and the provisions of this subsection would result in
21the loss of those federal-aid funds, grants, or loans, then the
22contract is exempt from the provisions of this subsection in
23order to remain eligible for those federal-aid funds, grants,
24or loans, and the State agency shall file notice of this
25exemption with the Procurement Policy Board prior to entering
26into the proposed extension or renewal. Nothing in this

 

 

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1subsection permits a chief procurement officer to enter into an
2extension or renewal in violation of subsection (a). By August
31 each year, the Procurement Policy Board shall file a report
4with the General Assembly identifying for the previous fiscal
5year (i) the proposed extensions or renewals that were filed
6with the Board and whether the Board objected and (ii) the
7contracts exempt from this subsection.
8(Source: P.A. 95-344, eff. 8-21-07; 96-15, eff. 6-22-09;
996-795, eff. 7-1-10 (see Section 5 of P.A. 96-793 for the
10effective date of changes made by P.A. 96-795); 96-920, eff.
117-1-10; 96-1478, eff. 8-23-10.)
 
12    (30 ILCS 500/40-25)
13    Sec. 40-25. Length of leases.
14    (a) Maximum term. Except for installment payment
15performance contracts and guaranteed energy savings contracts
16and performance-based lease purchase agreements, leases Leases
17shall be for a term not to exceed 10 years inclusive, beginning
18January, 1, 2010, of proposed contract renewals and shall
19include a termination option in favor of the State after 5
20years. Installment payment performance contracts and
21guaranteed energy savings contracts and performance-based
22lease purchase agreements that guarantee energy or operational
23cost savings shall be for a term not to exceed 20 years.
24    (b) Renewal. Leases may include a renewal option. An option
25to renew may be exercised only when a State purchasing officer

 

 

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1determines in writing that renewal is in the best interest of
2the State and notice of the exercise of the option is published
3in the appropriate volume of the Procurement Bulletin at least
460 days prior to the exercise of the option.
5    (c) Subject to appropriation. All leases shall recite that
6they are subject to termination and cancellation in any year
7for which the General Assembly fails to make an appropriation
8to make payments under the terms of the lease.
9    (d) Holdover. Beginning January 1, 2010, no lease may
10continue on a month-to-month or other holdover basis for a
11total of more than 6 months. Beginning July 1, 2010, the
12Comptroller shall withhold payment of leases beyond this
13holdover period.
14(Source: P.A. 96-15, eff. 6-22-09; 96-795, eff. 7-1-10 (see
15Section 5 of P.A. 96-793 for the effective date of changes made
16by P.A. 96-795).)
 
17    (30 ILCS 500/Art. 34 heading new)
18
ARTICLE 34. PERFORMANCE AND GUARANTEED ENERGY SAVINGS
19
CONTRACTS

 
20    (30 ILCS 500/34-5 new)
21    Sec. 34-5. Definitions. In this Article, the words and
22phrases have the meanings set forth in this Code.
23    "State agency" shall have the definition set forth in this
24Code. The Capital Development Board, created pursuant to 20

 

 

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1ILCS 3105, shall have the authority to act on behalf of any
2State agency in this Article.
 
3    (30 ILCS 500/34-10 new)
4    Sec. 34-10. Energy conservation measure.
5    "Energy conservation measure" means any improvement,
6repair, alteration, or betterment of any building or facility
7owned or operated by a State agency or any equipment, fixture,
8or furnishing to be added to or used in any such building or
9facility, that is designed to reduce energy consumption or
10operating costs, and may include, without limitation, one or
11more of the following:
12        (1) Insulation of the building structure or systems
13    within the building.
14        (2) Storm windows or doors, caulking or
15    weather-stripping, multiglazed windows or doors, heat
16    absorbing or heat reflective glazed and coated window or
17    door systems, additional glazing, reductions in glass
18    area, or other window and door system modifications that
19    reduce energy consumption.
20        (3) Automated or computerized energy control systems.
21        (4) Heating, ventilating, or air conditioning system
22    modifications or replacements.
23        (5) Replacement or modification of lighting fixtures
24    to increase the energy efficiency of the lighting system
25    without increasing the overall illumination of a facility,

 

 

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1    unless an increase in illumination is necessary to conform
2    to the applicable State or local building code for the
3    lighting system after the proposed modifications are made.
4        (6) Energy recovery systems.
5        (7) Energy conservation measures that provide
6    long-term operating cost reductions.
 
7    (30 ILCS 500/34-15 new)
8    Sec. 34-15. Performance and guaranteed energy savings
9contract. "Guaranteed energy savings contract" or "Performance
10Contract" means a contract for: (i) the implementation of an
11energy audit, data collection, and other related analyses
12preliminary to the undertaking of energy conservation
13measures; (ii) the evaluation and recommendation of energy
14conservation measures; (iii) the implementation of one or more
15energy conservation measures; and (iv) the implementation of
16project monitoring and data collection to verify
17post-installation energy consumption and energy-related
18operating costs. The contract shall provide that all payments,
19except obligations on termination of the contract before its
20expiration, are to be made over time and that the savings are
21guaranteed to the extent necessary to pay the costs of the
22energy conservation measures. Energy saving may include energy
23reduction and offsetting sources of renewable energy funds
24including renewable energy credits and carbon credits.
 

 

 

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1    (30 ILCS 500/34-20 new)
2    Sec. 34-20. Prequalification/qualified providers.
3    (a) Prequalification. The Capital Development Board shall
4establish procedures to prequalify firms or entities seeking to
5provide services for performance and guaranteed energy savings
6contracts, and insure such firms are qualified providers of
7such services.
8    (b) Qualified provider. "Qualified provider" means a
9person or business whose employees are experienced and trained
10in the design, implementation, or installation of energy
11conservation measures. The minimum training required for any
12person or employee under this Section shall be the satisfactory
13completion of at least 40 hours of course instruction dealing
14with energy conservation measures. A qualified provider to whom
15the contract is awarded shall give a sufficient bond to the
16State agency or area vocational center for its faithful
17performance.
 
18    (30 ILCS 500/34-25 new)
19    Sec. 34-25. Request for proposals.
20    "Request for proposals" means a competitive selection
21achieved by negotiated procurement. The request for proposals
22shall be administered by the Capital Development Board and
23notification of the procurement will be accordance with this
24Code, but in no case shall the Board provide less than a 30 day
25notice of the request for proposals. Proposals submitted shall

 

 

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1be sealed. The request for proposals shall include all of the
2following:
3        (1) The name and address of the proposed project.
4        (2) The name, address, title, and phone number of a
5    contact person.
6        (3) Notice indicating that the State agency is
7    requesting qualified providers to propose energy
8    conservation measures through a performance or guaranteed
9    energy savings contract.
10        (4) The date, time, and place where proposals must be
11    received.
12        (5) The evaluation criteria for assessing the
13    proposals.
14        (6) Any other stipulations and clarifications the
15    State agency may require.
 
16    (30 ILCS 500/34-30 new)
17    Sec. 34-30. Evaluation of proposal. Before entering into a
18performance or guaranteed energy savings contract, a State
19agency shall submit a request for proposals. The Capital
20Development Board shall evaluate any sealed proposal from a
21qualified provider on behalf of the State agency. The
22evaluation shall analyze the estimates of all costs of
23installations, modifications or remodeling, including, without
24limitation, costs of a pre-installation energy audit or
25analysis, design, engineering, installation, maintenance,

 

 

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1repairs, debt service, conversions to a different energy or
2fuel source, or post-installation project monitoring, data
3collection, and reporting. The evaluation shall include a
4detailed analysis of whether either the energy consumed or the
5operating costs, or both, will be reduced. The evaluation of
6the proposal shall be done by a registered professional
7engineer or architect, who is retained by the Capital
8Development Board or State agency, and selected in accordance
9with the Architectural, Engineering and Land Surveying
10Qualifications Based Selection Act. A licensed architect or
11registered professional engineer evaluating a proposal under
12this Section must not have any financial or contractual
13relationship with a qualified provider or other source that
14would constitute a conflict of interest.
 
15    (30 ILCS 500/34-35 new)
16    Sec. 34-35. Award of performance or guaranteed energy
17savings contract.
18    (a) Sealed proposals must be opened by the Capital
19Development Board, at a public opening at which the contents of
20the proposals must be announced. Each person or entity
21submitting a sealed proposal must receive at least 14 days
22notice of the time and place of the opening. The Capital
23Development Board shall select the qualified provider that best
24meets the needs of the State agency. After evaluating the
25proposals under Section 34-30, the Capital Development Board or

 

 

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1the Capital Development Board acting on behalf of the State
2agency may enter into a performance or guaranteed energy
3savings contract with a qualified provider if it finds that the
4amount it would spend on the energy conservation measures
5recommended in the proposal would not exceed the amount to be
6saved in either energy or operational costs, or both, within a
720-year period from the date of installation, if the
8recommendations in the proposal are followed. Contracts let or
9awarded must be published in the Procurement Bulletin.
10    (b) The request for proposals, and any contracts awarded to
11a qualified provider shall require that any subsequent need for
12architectural, engineering, and land surveying services which
13arise after the submittal of the request for qualifications,
14the request for proposals, or contract award, shall be procured
15by the provider using a qualifications based selection process
16consisting of publication of notice of availability of such
17services, a statement of desired qualifications, an evaluation
18based on such desired qualifications, and the development of a
19shortlist ranking the firms in order of qualifications, and
20then negotiations with such ranked firms for a fair and
21reasonable fee. Compliance with the Architectural,
22Engineering, and Land Surveying Qualifications Based Selection
23Act, 30 ILCS 535, shall be deemed prima facie compliance with
24these provisions. Every performance or guaranteed energy
25savings contract shall include the requirements of this
26paragraph.

 

 

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1    (c) The request for proposals shall require that each and
2every contractor, subcontractor, architectural, engineering
3and land surveying firm or entity shall be listed and the
4quotation or price for such services shall also be listed. In
5the event that prior to or after award, any of the listed firms
6shall have a reduction in their listed price, the performance
7or guaranteed energy savings contract shall be modified and
8such savings shall be for the benefit of the State agency with
9a corresponding reduction in the contract amount. The
10information in the request for proposals shall be considered
11confidential and only for the use of the State agency.
 
12    (30 ILCS 500/34-40 new)
13    Sec. 34-40. Guarantee. The performance or guaranteed
14energy savings contract shall include a written guarantee of
15the qualified provider that either the energy or operational
16cost savings, or both, will meet or exceed within 20 years the
17costs of the energy conservation measures. The qualified
18provider shall reimburse the State agency for any shortfall of
19guaranteed energy savings projected in the contract. A
20qualified provider shall provide a sufficient bond to the State
21agency for the installation and the faithful performance of all
22the measures included in the contract. The performance or
23guaranteed energy savings contract may provide for payments
24over a period of time, not to exceed 20 years from the date of
25final installation of the measures.
 

 

 

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1    (30 ILCS 500/34-45 new)
2    Sec. 34-45. Installment payment contract; lease purchase
3agreement. A State agency may enter into an installment payment
4contract or lease purchase agreement with a qualified provider
5or with a third party, as authorized by law, for the funding or
6financing of the purchase and installation of energy
7conservation measures by a qualified provider. Any such
8contract or agreement shall be valid whether or not an
9appropriation with respect thereto is first included in any
10annual or supplemental budget adopted by the Illinois General
11Assembly, but only for a term of two years after such funding
12ceases. Each contract or agreement entered into by a State
13agency shall be authorized by official action of the State
14agency or Capital Development Board.
15    If an energy audit is performed by an energy services
16contractor for the State agency within the 3 years immediately
17preceding the solicitation, then the State agency must publish
18as a reference document in the solicitation for energy
19conservation measures the following:
20        (1) an executive summary of the energy audit provided
21    that the State agency may exclude any proprietary or
22    trademarked information or practices; or
23        (2) the energy audit provided that the State agency may
24    redact any proprietary or trademarked information or
25    practices.

 

 

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1    A State agency may not withhold the disclosure of
2information related to (I) the State agency's consumption of
3energy, (ii) the physical condition of the State agency's
4facilities, and (iii) any limitations prescribed by the State
5agency.
6    In accordance with 30 ILCS 500/50-10.5, no energy services
7contractor that participated in the preparation of the
8specifications issued by the State agency shall be permitted to
9respond to the solicitation or be awarded a contract for the
10performance or guaranteed energy savings contract. The
11solicitation must include a written disclosure that no energy
12services contractor participated in the preparation of the
13specifications. The written disclosure shall be published in
14the Capital Development Board Procurement Bulletin with the
15Request for Proposal.
 
16    (30 ILCS 500/34-50 new)
17    Sec. 34-50. Operational and energy cost savings. The State
18agency or the Capital Development Board shall document the
19operational and energy cost savings specified in the
20performance or guaranteed energy savings contract and
21designate and appropriate that amount for an annual payment of
22the contract. If the annual energy savings are less than
23projected under the guaranteed energy savings contract the
24qualified provider shall pay the difference as provided in
25Section 34-40.
 

 

 

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1    (30 ILCS 500/34-55 new)
2    Sec. 34-55. Bonding. A qualified provider shall provide a
3sufficient bond to the State agency for the installation and
4the faithful performance of all the measures included in the
5contract, in accordance with the Public Construction Bond Act,
630 ILCS 550. Such bond shall be in effect for the entire term
7of the contract, installment payment contract or lease purchase
8agreement.
 
9    (30 ILCS 500/34-60 new)
10    Sec. 34-60. Applicable laws. Other State laws and related
11administrative requirements apply to this Article, including,
12but not limited to, the following laws and related
13administrative requirements: the Illinois Human Rights Act,
14Business Enterprise for Minorities, Females, and Persons with
15Disabilities Act, the Prevailing Wage Act, the Public
16Construction Bond Act, the Public Works Preference Act
17(repealed on June 16, 2010 by Public Act 96-929), the
18Employment of Illinois Workers on Public Works Act, the Freedom
19of Information Act, the Open Meetings Act, the Illinois
20Architecture Practice Act of 1989, the Professional
21Engineering Practice Act of 1989, the Structural Engineering
22Practice Act of 1989, the Architectural, Engineering and Land
23Surveying Qualifications Based Selection Act, and the
24Contractor Unified License and Permit Bond Act , Procurement of

 

 

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1Domestic Products Act, Public Purchases in Other States Act,
2Governmental Joint Purchasing Act, Design-Build Procurement
3Act, State Prompt Payment Act, Public Contract Fraud Act,
4Public Construction Contract Act, Airport and Correctional
5Facility Land Disclosure Act, State Real Property Leasing Act,
6Real Estate Leasing Act, Project Labor Agreements Act, and the
7provisions of Article 50 of this Code.
 
8    Section 99. Effective date. This Act takes effect upon
9becoming law.".