AUTHORITY: Implementing and authorized by Section 1-30(a) of the Illinois Procurement Code [30 ILCS 500].

SOURCE: Adopted by emergency rule at 22 Ill. Reg. 12013, effective July 1, 1998, for a maximum of 150 days; adopted at 22 Ill. Reg. 15192, effective August 15, 1998; amended at 23 Ill. Reg. 8971, effective July 28, 1999; amended at 36 Ill. Reg. 11974, effective July 13, 2012; amended at 37 Ill. Reg. 19316, effective November 12, 2013; recodified Title heading at 39 Ill. Reg. 5903; amended at 40 Ill. Reg. 3401, effective February 11, 2016; amended at 42 Ill. Reg. 13585, effective June 29, 2018; amended at 44 Ill. Reg. 16754, effective September 30, 2020; amended at 46 Ill. Reg. 7705, effective April 28, 2022; amended at 48 Ill. Reg. 2790, effective February 7, 2024.

SUBPART A: GENERAL

 

Section 1300.01  Title

 

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

 

Section 1300.05  Policy

 

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

 

Section 1300.08  Illinois Procurement Code

 

Articles 1, 15, 20, 25, 30, 33, 35, 40, 45, 50 and 53 of the Illinois Procurement Code [30 ILCS 500/Arts. 1, 15, 20, 25, 30, 33, 35, 40, 45, 50 and 53] (the Code) will be referenced herein as though applicable to the OAG, and needs shall be procured in a manner substantially in accordance with those provisions of the Code, except to the extent otherwise provided in this Part.  For purposes of this Part, any reference in the Code or this Part to the Chief Procurement Officer (CPO) means the employee designated by the Attorney General to serve in that capacity.  The Attorney General may appoint one or more Purchasing Officers.

 

(Source:  Amended at 48 Ill. Reg. 2790, effective February 7, 2024)

 

Section 1300.10  Application

 

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

 

b)         Procurements for which bidders, offerors, potential contractors or contractors 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 these procurements shall not be impaired.

 

(Source:  Amended at 40 Ill. Reg. 3401, effective February 11, 2016)

 

Section 1300.15  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, increases or decreases in quantities of goods not included within the scope of the original contract, and increases or decreases in the cost of the contract or the time for completion of the contract.

 

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

 

"Bid" − The response submitted by a bidder in a competitive sealed bidding process, in response to an Invitation for Bids, or to a multi-step sealed bidding process [30 ILCS 500/1-15.01].

 

"Bidder" − Any person, other than an individual acting as a sole proprietor, who submits a bid.  The terms "bidder" and "offeror" are used interchangeably for purposes of this Part.

 

"Bidder or Offeror Authorized to Transact Business or Conduct Affairs in Illinois" or "Qualified Bidder" – A person, other than an individual acting as a sole proprietor, that is a legal entity authorized to transact business or conduct affairs in Illinois as evidenced by its registration with 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" or "BidBuy" – The Illinois Procurement Bulletin, which can be found at https://bidbuy.illinois.gov/bso.

 

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

 

"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 the OAG in solving specific management or programmatic problems involving the organization, planning, direction, control or operations of the OAG.  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: goods 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 has no financial obligation to the other parties.

 

"Contractor" or "Vendor" – A person or entity having a contract with the OAG.  The terms "contractor" and "vendor" are used interchangeably for purposes of the Code and this Part.

 

"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" or "CMS" − The Department of Central Management Services.

 

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

 

"Invitation for Bids" or "IFB" – the process by which a purchasing agent 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 multi-year contract is a contract with a performance term of more than 12 months.

 

"OAG" − The Office of the Attorney General.

 

"Offer" – a response submitted by an offeror in a competitive sealed proposal process or in response to a Request for Proposal [30 ILCS 500/1-15.51].  The terms "offer" and "proposal" are used interchangeably for purposes of this Part.

 

"Offeror" – A person who responds to an Invitation for Bids, Request for Proposals or other form of solicitation.  The terms "offeror" and "bidder" are used interchangeably for purposes of this Part.

 

"Procurement Officer" – The Chief Procurement Officer (CPO) or appropriate Purchasing Officer who conducts a particular procurement, or a designee of either.

 

"Proposal" − The response to a Request for Proposals.  The terms "proposal" and "offer" are used interchangeably for purposes of this Part.

 

"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.

 

"Purchase of Care" − Purchase of care means a contract with a person for the furnishing of medical, educational, psychiatric, vocational, rehabilitative, social, or human services directly to a recipient of a State aid program. [30 ILCS 500/1-15.68] Services provided to a recipient include those that are a necessary adjunct to the provision of the State aid program services (e.g., obtaining intake information prior to commencement of medical treatment).  Services provided to an applicant for a State aid program necessary to determine eligibility for the program are included within this definition.

 

"Qualified Products List" − An approved list of supplies, services, or construction items 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 with materially identical terms to the original contract.

 

"Request for Information" or "RFI" – The process by which the OAG requests information from offerors for OAG contracts for leases of real property or capital improvements.

 

"Request for Proposals" or "RFP" – The process by which the OAG requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals.

 

"Responsible Bidder", "Potential Contractor" 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, potential contractor 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 was submitted in response to an OAG solicitation.  The terms "responsible bidder", "potential contractor" and "offeror" are used interchangeably for purposes of this Part.

 

"Services" – 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 thereof.

 

"Solicitation" – An Invitation for Bids, a Request for Proposals or other request to one or more vendors to respond to a procurement need expressed by the OAG.

 

"Specification" − Any description of the physical, functional, or performance characteristics, or of the nature of supply, service, or construction items. 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 this Part, pursuant to which the subcontractor provides to the contractor some or all of the goods, services, property, remuneration or other forms of consideration that are the subject of the primary contract and includes, among other things, subleases from a lessee of a State agency.  A "subcontract" does not include purchases of goods or supplies that are incidental to the performance of a contract by a person who has a contract subject to this Part [30 ILCS 500/1-15.107].

 

"Subcontractor" – A person or entity that enters into a contractual agreement, for an amount greater than the small purchases limits set by Section 20-20 of the Code (or an amount set by rule pursuant to Section 20-20(c) of the Code) or Section 35-35 of the Code or Section 45 of the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535/45], with a contractor who has or is seeking a contract subject to the Code and this Part, to provide the contractor with some or all of the goods, services, property, remuneration or other forms of consideration that are the contractor's contractual obligations.  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 this Part [30 ILCS 500/1-15.108].

 

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

 

(Source:  Amended at 48 Ill. Reg. 2790, effective February 7, 2024)

 

Section 1300.25  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.

 

Section 1300.30  Contracts Necessary to Prepare for Anticipated Litigation

 

a)         Contracts necessary to prepare for anticipated litigation, enforcement actions or investigations, including but not limited to the appointment of special assistant attorneys general, contracts for court reporter services, and contracts with expert witnesses, are excepted from the application of the Code and this Part, provided that they are approved by Counsel to the Attorney General, or his or her designee, as provided in Section 1-10(b)(7) of the Code. On or after October 1, 2017, the following information concerning all contracts necessary to prepare for anticipated litigation, enforcement actions or investigations shall be reported to the CPO and posted in the appropriate volume of the Bulletin.

 

1)         name of contractor;

 

2)         description of supplies or services provided;

 

3)         total amount of contract;

 

4)         term of contract;

 

5)         statement that the contract is excepted from the Code and this Part if that exception is approved by Counsel to the Attorney General, or his or her designee, pursuant to Section 1-10(b)(7) of the Code.

 

b)         The CPO shall submit a report to the General Assembly no later than November 1 of each year that shall include, at a minimum, an annual summary of the information reported to the CPO pursuant to this Section.

 

(Source:  Amended at 42 Ill. Reg. 13585, effective June 29, 2018)

SUBPART B: PROCUREMENT RULES

 

Section 1300.525  Procurement by DCMS Rules

 

To the extent practicable and available, the OAG may avail itself of master, schedule or open-ended contracts established by DCMS; items available from the Paper and Printing Warehouse; and DCMS contracts for telecommunications equipment, software and services, paper and envelopes, and vehicles and vehicle services.

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

SUBPART C: PROCUREMENT AUTHORITY

 

Section 1300.1002  Conduct and Oversight of Procurements

 

a)         Chief Procurement Officer.  The Attorney General shall designate a Chief Procurement Officer (CPO) for purposes of the Code and this Part.  The CPO may conduct any or all procurements on behalf of the OAG.  The CPO shall be a resident of the State of Illinois.  The CPO shall:

 

1)         have at least 5 years of experience in State, local government, or corporate budgeting or procurement activities;

 

2)         be a certified professional public buyer or certified public purchasing agent; or 

 

3)         have professional experience deemed comparable by the Attorney General.

 

b)         Purchasing Officer.  The CPO may, subject to the approval of the Attorney General, appoint one or more Purchasing Officers.  Before making the appointment, the CPO shall, among other factors, consider each potential appointee's character and fitness, and understanding of the procurement process.  The Purchasing Officer shall exercise procurement authority at the direction of the CPO, and the decisions of a Purchasing Officer are subject to review by the CPO.  The Purchasing Officer may enter into contracts for the OAG.  The Purchasing Officer shall perform other duties as required by law and may only be removed by the Attorney General for cause.  The Purchasing Officer shall be a resident of the State of Illinois.

 

c)         Procurement Policy and Compliance Monitoring Board.  The Attorney General shall appoint an OAG Procurement Policy and Compliance Monitoring Board (OAG PPCMB).  The OAG PPCMB shall consist of 5 members.  In making appointments to the OAG PPCMB, the Attorney General shall consider an individual's knowledge and experience in State government procurements and operations, including but not limited to certification as a professional public buyer or public purchasing officer by the Universal Public Purchasing Council.  The members shall receive no additional compensation for serving on the OAG PPCMB.  Except as provided in subsection (d), the OAG PPCMB shall:

 

1)         be authorized to review, oversee, 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 the OAG;

 

2)         attend any procurement meetings and access relevant files and reports;

 

3)         be notified by the CPO if a conflict of interest is identified, discovered or reasonably suspected to exist.  In such an event, the OAG PPCMB is to recommend action and give its recommendations to the CPO and Attorney General;

 

4)         report to the Inspector General and Attorney General whenever the OAG PPCMB has cause to believe there has been a violation of the Code or this Part;

 

5)         communicate directly with the Attorney General on all matters related to procurement;

 

6)         report to the CPO regarding outstanding procurement problems;

 

7)         ensure transparency and compliance with procurement laws;

 

8)         report findings of waste to OAG divisions.  If a division does not correct circumstances causing the waste, the OAG PPCMB shall report to the CPO and the Inspector General; and

 

9)         perform other duties as required by law.

 

d)         Chief Internal Auditor.  The Attorney General shall appoint a Chief Internal Auditor.  The auditor must have a Bachelor's degree, and must be a certified internal auditor, certified public accountant with at least 4 years of auditing experience, or an auditor with 5 years of experience.  Any Chief Internal Auditor appointed on or after July 1, 2010 shall be appointed for a period of 5 years and may only be removed for cause.  The Chief Internal Auditor shall report directly to the Attorney General.  Subject to the approval of the Attorney General, and consistent with the Fiscal Control and Internal Auditing Act [20 ILCS 10], the Chief Internal Auditor shall:

 

1)         direct the internal audit functions and activities of the OAG;

 

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 Attorney General; and

 

4)         perform other duties as required by law.

 

e)         The CPO and Purchasing Officer owe a fiduciary duty to the State [30 ILCS 500/10-30].

 

(Source:  Amended at 48 Ill. Reg. 2790, effective February 7, 2024)

 

Section 1300.1010  Construction

 

Any construction or construction related professional and artistic services in excess of the small purchase threshold for construction established by the OAG PPCMB ($30,000, or as adjusted for inflation based on the consumer price index as determined by the OAG PPCMB) will be procured by the CPO . The small purchase threshold established by the OAG PPCMB shall not exceed the small purchase threshold established by the Procurement Policy Board (see the Procurement Policy Board's website at ppb.illinois.gov).  The CPO may consult with any other CPO created in Section 1-15.15 of the Code for assistance in obtaining any procurement, but shall be responsible for its own procurements under the Code. 

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

SUBPART D: PUBLICIZING PROCUREMENT ACTIONS

 

Section 1300.1510  Publicizing Procurement Actions

 

Notice of any procurement action required by the Code to be publicized in the Illinois Procurement Bulletin will be forwarded to DCMS for inclusion in the appropriate volume of the Bulletin.

 

Section 1300.1540  Method of Notices and Reports

 

Notices and reports required under the Code or this Part may be made by either paper or electronic means.

 

(Source:  Added at 40 Ill. Reg. 3401, effective February 11, 2016)

 

Section 1300.1560  Supplemental Notice

 

The OAG may place ads in the Official State Newspaper selected by DCMS or other publications to supplement notice in the Bulletin.

 

Section 1300.1570  Error in Notice

 

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

 

Section 1300.1580  Direct Solicitation

 

In addition to giving notice in the Bulletin, the OAG may directly contact prospective vendors.  Direct solicitation may be oral or in writing, but care will be taken to ensure that all vendors solicited in this manner receive the same information.  When making direct solicitations, at least three vendors will be contacted.

SUBPART E: SOURCE SELECTION AND CONTRACT FORMATION - GENERAL

 

Section 1300.2005  General Provisions

 

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

 

1)         Definition.  Any bid or proposal received after the time, date and place set for receipt 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 OAG will not be responsible for ensuring the subsequent delivery.  Any withdrawal or modification of a bid or proposal received after the time and date set for opening of bids or proposals at the place designated for opening is late.

 

2)         Treatment.  No late bid or proposal, late modification, or late withdrawal will be considered unless the Procurement Officer, and not a designee, determines it would have been timely but for the action or inaction of OAG 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 a bid or proposal, extend that date or time for the convenience of the OAG.  Reasons for extension include but are not limited to allowing additional time for submissions to account for inclement weather, labor strikes, accidents and similar reasons.

 

2)         After opening bids or proposals, the Procurement Officer may request bidders or offerors who submitted timely bids or proposals to extend the time during which the OAG may accept bids or proposals, provided that, with regard to bids, no other change is permitted. The reasons for requesting such extension shall be documented.  An extension does not provide an opportunity for others to submit bids or proposals.

 

c)         Electronic and Facsimile Submissions

 

1)         The Invitation for Bids or Request for Proposals 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 OAG 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 shall be rejected.

 

e)         Only One Bid or Proposal Received

If only one responsive bid is received, or if only one proposal is received, an award may be made to the single bidder or offeror if the Procurement Officer 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 1300.2025) or emergency (Section 1300.2030) procedures; or

 

2)         the procurement may be cancelled.

 

f)         Alternate or Multiple Bids or Proposals

 

1)         Alternate bids or proposals may be accepted if:

 

A)        permitted by the solicitation and in accordance with instructions in the solicitation;

 

B)        only one vendor responded, in which case the alternate submission(s) may be evaluated and treated in accordance with Section 1300.2025 (Sole Source Procurement) of this Part; or

 

C)        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.

 

2)         Multiple bids or proposals may be accepted if:

 

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

 

B)        only one vendor responded, then one or more of the submissions may be evaluated, provided that in the case of bids, only the lowest cost bid meeting specifications may be considered.

 

3)         If a vendor clearly indicates a primary submission among alternate or multiple bids or proposals, then that primary submission shall be considered for award as though it were the only bid or proposal submitted by the vendor.

 

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 the lowest cost or best value of those submitted. Factors to be used to determine the State's best interest include but are not limited to whether the bid is the lowest of those submitted, reasonableness of the price and the cost and time necessary to solicit other bids.

 

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 IFB or RFP provided the agency need not delay procurement actions to accommodate the vendor's "all or none" condition.

 

j)          Unsolicited Offers

 

1)         Processing of Unsolicited Offers.  The Procurement Officer may consider unsolicited offers and shall have final authority with respect to evaluation, acceptance and rejection of such unsolicited offers.

 

2)         Conditions for Consideration.  An unsolicited offer must be in writing and must be sufficiently detailed to allow a judgment to be made concerning the potential utility of the offer to the OAG.

 

3)         Award.  An award may not be made based on an unsolicited offer in place of the notice and competition requirements of the Code and this Part unless the unsolicited offer meets the requirements for small (Section 1300.2020), sole source (Section 1300.2025), or emergency (Section 1300.2030) procurement.

 

4)         Confidentiality.  Any request for confidentiality of data contained in an unsolicited offer must be made in writing, and vendors must clearly identify any information that is exempt from the disclosure requirements of the Illinois Freedom of Information Act [5 ILCS 140].  If an award is made, confidentiality of data shall be agreed upon by the parties and governed by the provisions of the contract.  If agreement cannot be reached on confidentiality, the OAG shall reject the unsolicited offer.

 

k)         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 change its bid or proposal in response to a request for clarification.

 

l)          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 such extension.

 

m)        Increase in Quantity on Definite Quantity Contracts

 

1)         The quantity that may be ordered from a definite quantity contract 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 applicable small purchase (Section 1300.2020) threshold.

 

n)         Assignment, Novation or Change of Name

 

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

 

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 shall agree that:

 

A)        the transferee assumes all of the transferor's obligations;

 

B)        the transferee meets all requirements for contracting with the OAG;

 

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

 

D)        unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the OAG, 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 OAG.  The name change shall not alter any of the terms and conditions of the contract or the obligations of the vendor.

 

4)         Reports.  All change of name or novation agreements effected under this subsection (n) other than by the CPO shall be reported to the CPO within 30 days after the date that the agreement becomes effective.

 

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 Not Required

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

 

r)          Stringing

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

 

s)         Documentation of Procurement Actions

Each Purchasing 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:

 

1)         The formal request for approval to procure, signed by the Procurement Officer, that establishes the reason for the contract decision or other form of decision memo showing the Procurement Officer approvals to proceed with the contract award;

 

2)         Procurement Bulletin postings;

 

3)         Solicitation document (e.g., IFB) and all amendments, clarifications and Best & Final requests;

 

4)         Vendors' responses, including clarifications and responses to Best & Final requests;

 

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

 

6)         Protest and resolution;

 

7)         Contract and any order, change, amendment, renewal or extension;

 

8)         Contractor Performance Reviews;

 

9)         All information from subsections (s)(1) through (8), less information exempt from disclosure under the Freedom of Information Act [5 ILCS 140], shall be prepared and available for inspection and copying, with information from subsections (s)(1) through (5) available on the date any award is posted to the Procurement Bulletin.

 

(Source:  Amended at 48 Ill. Reg. 2790, effective February 7, 2024)

 

Section 1300.2010  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)         The Invitation for Bids

 

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 such as the time and place of any pre-bid conference;

 

B)        the purchase description, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are 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 such 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 allowed in this Part.

 

d)         Bidder Submissions

 

1)         Bid Form.  The IFB shall 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 it is necessary to evaluate required characteristics of the items bid.

 

B)        Unsolicited bid samples or descriptive literature are 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 goods and services in excess of $25,000 that must be procured using an IFB shall be publicized in the Bulletin (see Section 1300.1510).

 

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

 

3)         Distribution.  IFB or Notices of the Availability of IFB may be mailed or otherwise furnished to a sufficient number of bidders for the purpose of securing competition.  Notices of Availability shall indicate where IFB may be obtained; generally describe the supply or service desired; and indicate the due date for bids; and may contain other appropriate information such as pre-bid conference data. Where appropriate, the Procurement Officer may require payment of a fee or a deposit for the supplying of the IFB.

 

f)         Pre-Bid Conferences

Pre-bid conferences may be conducted to enhance understanding of the procurement requirements.  They shall be announced to all prospective bidders known to have received an IFB.  The conference may be designated as attendance mandatory or attendance optional.  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 preparation of bids. Nothing stated in the pre-bid conference shall change the IFB unless a change is made by written amendment to the IFB.  Minutes of the conference shall be supplied to all those prospective bidders known to have received an IFB.  If the conference is mandatory, the minutes shall be supplied to attendees only.

 

g)         Amendments to Invitations for Bids

 

1)         Form.  Amendments to IFB shall be identified as such and shall require that the bidder acknowledge receipt of all amendments issued. The amendment shall reference the portions of the IFB it amends.

 

2)         Distribution.  Amendments shall be sent to all prospective bidders known to have received an IFB.

 

3)         Timeliness.  Amendments shall be distributed 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 preparation, the amendment shall extend the response time.  If necessary, the response time may be extended by fax or telephone and confirmed in the amendment.

 

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)         Disposition of Bid Security.  If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.

 

3)         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 or through an electronic procurement system, in the presence of one or more witnesses, 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 required 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 the other bids.

 

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 this Section.  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 contractors is covered by Section 1300.2046.

 

3)         Responsiveness.  Section 15-85 of the Code defines responsive bidder as a person who has submitted a bid that conforms in all material respects to the Invitation for Bids.

 

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; or

 

iii)        other examinations to determine whether it 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 which 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 OAG 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 such criteria include, but are not limited to, transportation cost and ownership or life-cycle cost formulas.  While evaluation factors need not be precise predictors of actual future costs, they should be, to the extent possible, reasonable estimates based upon information the OAG has available concerning future use and shall provide for equitable treatment of all bids.  Pricing for optional goods or services or for renewal terms may be considered particularly when the pricing for such 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 Procurement Officer 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 Bulletin.

 

2)         This action may be appropriate when the difference in quality of goods or services or speed of delivery is so great as compared to the difference in price, and considering the needs of the OAG, that a best value award is justified.  However, if the difference in price is significant, the Procurement Officer may not utilize this provision.

 

3)         The explanation must include:

 

A)        a description of the OAG's needs;

 

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, pricing and the reasons for selecting that bidder.

 

4)         The explanation shall be filed with the Legislative Audit Commission and the OAG PPCMB.

 

m)        Publicizing Award

The successful bidder shall be notified of award and such notification may be in the form of a letter, purchase order or other clear communication.  In procurements over the small purchase limit set in Section 1300.2020 of this Part, notice of award shall be published in the Bulletin.

 

(Source:  Amended at 42 Ill. Reg. 13585, effective June 29, 2018)

 

Section 1300.2012  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 OAG, 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 which 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, where 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 1300.2010 (Competitive Sealed Bidding) and Section 1300.2012 (Multi-Step Sealed Bidding) may be conducted by the Procurement Officer.

 

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 1300.2010 (Competitive Sealed Bidding), except as hereinafter provided.  In addition to the requirements set forth in Section 1300.2010, 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 and, if they are, that 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 OAG, to the extent the Procurement Officer finds necessary, may conduct oral or written discussions of the unpriced technical offers; and

 

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 Procurement Officer, a contemplated amendment will significantly change the nature of the procurement, the IFB shall be cancelled in accordance with Section 1300.2040 (Cancellation of Solicitation; Rejection of Bids or Proposals) of this Part 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.  Such 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.  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:

 

A)        acceptable;

 

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

 

C)        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.

 

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

 

6)         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 such 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.  Such submission may be made at the request of the Procurement Officer or upon the bidder's own initiative.

 

7)         Unacceptable Unpriced Technical Offer.  When the Procurement Officer determines a bidder's unpriced technical offer to be unacceptable, such 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 Procurement Officer 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 such 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 such bidder to determine the validity of any such requests.  If the parties do not agree as to the disclosure of data, the Procurement Officer shall reject the offer.  Such 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 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.2015  Competitive Sealed Proposals

 

a)         Competitive Sealed Proposals may be used whenever permitted by the Code and as described in this Part.

 

b)         The Competitive Sealed Proposal method of source selection may be used to procure the following categories:

 

1)         electronic data processing equipment, software, and services;

 

2)         telecommunications equipment, software, and services;

 

3)         consulting services; and

 

4)         employee benefits and insurance.

 

c)         Competitive Sealed Proposals may be used on a case-by-case basis when it is determined by the Procurement Officer that competitive sealed bidding is either not practicable or advantageous.

 

1)         "Practicable" Distinguished from "Advantageous."  As used in Section 20-15 (Competitive Sealed Proposals) of the Illinois Procurement Code and this Section, the term "practicable" denotes what may be accomplished or put into practical application, and "advantageous" connotes a judgmental assessment of what is in the State's best interest.  Competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the State's best interest.  Before a contract may be entered into by competitive sealed proposals, the Procurement Officer shall determine in writing that competitive sealed bidding is either not practicable or not advantageous to the OAG.

 

2)         General Discussion

 

A)        If competitive sealed bidding is not practicable or is not advantageous, competitive sealed proposals should be used.

 

B)        The key element in determining relative advantage is the need for flexibility. The competitive sealed proposal method differs from competitive sealed bidding in two important ways:

 

i)          it permits discussions with competing offerors and changes in their proposals, including price; and

 

ii)         it allows comparative judgmental evaluations to be made when selecting among acceptable proposals for award of the contract.

 

C)        Where evaluation factors involve the relative abilities of offerors to perform, including degrees of experience or expertise, where the types of supplies or services may require the use of comparative, judgmental evaluations to evaluate them adequately, or where the type of need to be satisfied involves weighing aesthetic values to the extent that price is a secondary consideration, use of competitive sealed proposals is the appropriate procurement method.

 

3)         When Competitive Sealed Bidding Is Not Practicable.  Competitive sealed bidding is not practicable unless the nature of the procurement permits award to a low bidder who agrees by its bid to perform without condition or reservation in accordance with the purchase description, delivery or performance schedule, and all other terms and conditions of the IFB. Factors to be considered in determining whether competitive sealed bidding is not practicable include:

 

A)        whether the contract needs to be other than a fixed-price type;

 

B)        whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;

 

C)        whether offerors may need to be afforded the opportunity to revise their proposals, including price;

 

D)        whether award may need to be based upon a comparative evaluation as stated in the RFP of differing price, quality (which includes technical and performance capability and the content of the technical proposal), and contractual factors in order to determine the most advantageous offering to the OAG; and

 

E)        whether the primary consideration in determining award may not be price.

 

4)         When Competitive Sealed Bidding Is Not Advantageous.  A determination may be made to use competitive sealed proposals if it is determined that it is not advantageous to the OAG, even though practicable, to use competitive sealed bidding.  Factors to be considered in determining whether competitive sealed bidding is not advantageous include:

 

A)        whether prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the OAG; and

 

B)        whether the factors listed in subsection (c)(3) of this Section are desirable in conducting a procurement rather than necessary.

 

d)         Content of the Request for Proposals

The RFP shall be prepared in accordance with Section 1300.2010 (Competitive Sealed Bidding) provided that it shall also include:

 

1)         a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award, but that proposals may be accepted without such discussions; and

 

2)         a statement of when and how price should be submitted.

 

e)         Receipt and Registrations of Proposals

Proposals shall be opened publicly or via an electronic procurement system, in the presence of at least one witness, but proposals shall be opened in a manner to avoid disclosure of contents to competing offerors during the process of negotiation.  Proposals and modifications shall be time-stamped upon receipt and held in a secure place until the established due date.  After the date established for receipt of proposals, a Register of Proposals shall be prepared which shall include for all proposals the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the supply or service item offered.  The Register of Proposals shall be open to public inspection after award of the contract.

 

f)         Evaluation of Proposals

 

1)         Evaluation Factors in the RFP.  The RFP shall state all of the evaluation factors, including price, and their relative importance.

 

2)         Evaluation.  The evaluation shall be based on the evaluation factors set forth in the RFP. Factors not specified in the RFP shall not be considered. Numerical rating systems may be used but are not required.

 

3)         Classifying Proposals.  For the purpose of conducting discussions, proposals shall be initially classified as:

 

A)        acceptable;

 

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

 

C)        unacceptable.

 

4)         Offerors whose proposals are unacceptable shall be so notified promptly.

 

g)         Proposal Discussions with Individual Offerors

 

1)         "Offerors" Defined.  For the purposes of Section 20-15(f) (Competitive Sealed Proposals, Discussion with Responsible Offerors and Revisions of Proposals) of the Illinois Procurement Code and this Section, the term "offerors" includes only those businesses submitting proposals that are acceptable or potentially acceptable.  The term shall not include businesses who submitted unacceptable proposals.

 

2)         Purposes of Discussions.  Discussions are held to:

 

A)        promote understanding of the OAG's requirements and the offerors' proposals; and

 

B)        facilitate arriving at a contract that will be most advantageous to the OAG, taking into consideration price and the other evaluation factors set forth in the RFP.

 

3)         Conduct of Discussions.  Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals. If during discussions there is a need for any substantial clarification of, or change in, the RFP, the Request shall be amended to incorporate such clarification or change.  Auction techniques (revealing one offeror's price to another) and disclosure of any information derived from competing proposals are prohibited.  Any substantial oral clarification of a proposal shall be reduced to writing by the offeror.

 

4)         Best and Final Offers.  The Procurement Officer may request best and final offers with a common date and time for submission of best and final offers.  The Procurement Officer may conduct additional discussions or change the OAG's requirements and require another submission of best and final offers.  If an offeror does not submit either a notice of withdrawal or another best and final offer, that offeror's immediate previous offer will be construed as its best and final offer.

 

h)         Award

An award shall be made by the Procurement Officer pursuant to a written determination showing the basis on which the award was found to be most advantageous to the OAG, based on the factors set forth in the RFP. The contract file shall contain the basis on which the award was made.

 

i)          Publicizing Awards

After a contract is entered into, notice of award shall be posted in the Procurement Officer's office.  When the award exceeds the small purchase limit set in Section 1300.2020 of this Part, notice of award shall be published in the Bulletin.

 

(Source:  Amended at 42 Ill. Reg. 13585, effective June 29, 2018)

 

Section 1300.2020  Small Purchases

 

a)         Application

Procurements of less than $100,000 for supplies or services, and less than $100,000 for professional and artistic services contracts that are for a nonrenewable term of less than one year, may be made without notice, competition or use of any prescribed method of source selection.

 

b)         In determining whether a contract is under the limit, the value of the contract for the full term and any optional renewals shall be utilized.  The stated value of the goods or services, plus any optional goods and services, shall be utilized.  When the term is calculated month-to-month or in a similar fashion, the amount shall be calculated for a twelve month period.

 

c)         Procurement requirements shall not be artificially divided to avoid using the other source selection methods set forth in Section 20-5 (Methods of Source Selection) of the Illinois Procurement Code or this Part.

 

d)         If, after signing the contract, the actual need is determined to be greater than the small purchase amount identified in subsection (a), and the agency determines that reprocurement is not appropriate, the procedures for sole source or emergency procurement, whichever is applicable, must be complied with to obtain the additional supplies or services.

 

(Source:  Amended at 42 Ill. Reg. 13585, effective June 29, 2018)

 

Section 1300.2025  Sole Source Procurement

 

a)         Application

The provisions of this Section apply to procurement from a sole source unless the estimated amount of the procurement is within the limit set in Section 1300.2020 (Small Purchases) or unless emergency conditions exist as defined in Section 1300.2030 (Emergency Procurements).

 

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 is not available except from the holder of the copyright or patent;

 

6)         the procurement of the media for advertising;

 

7)         the procurement of art or entertainment services; and

 

8)         changes to existing contracts (subsection (c)).

 

c)         Changes

 

1)         Changes to existing contracts germane to the original contract, which are necessary or desirable to complete the project, and which can be best accomplished by the contract holder, may be procured under this provision if the Procurement Officer determines that the cost of delay or disruption to the contract or program, and the cost of a 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 1300.2020, or that is an emergency as defined in Section 1300.2030, 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)        Publication

Before entering into a sole source contract, the CPO shall publish a written description of intent to enter into a sole source contract along with the sole source procurement justification, a description of the goods or services to be procured, the intended sole source contractor, and notice that any public hearing requested under this Section will be held on the 15^th day after publication of the notice (stating the date, time and place of the potential public hearing) or on the next business day, if the 15^th day after publication is a weekend or a State holiday.  The notice shall be posted in the Bulletin at least 14 days before a sole source contract is awarded.

 

e)         Hearing

An interested party may submit a written request for a public hearing.  Any hearing shall be conducted in accordance with the procedures set forth in Section 1300.5555.

 

f)         Negotiation in Sole Source Procurement

The Procurement Officer shall conduct negotiations, as appropriate, as to price, delivery, and terms, and shall maintain a record of sole source procurements showing:

 

1)         the vendor's name;

 

2)         the amount and type of the contract;

 

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

 

4)         the identification number of the contract file.

 

g)        Prohibition Against Amending Contracts for Professional or Artistic Services Based on Sole Source

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 be extended by a period not to exceed the time reasonably needed for a competitive procurement or 2 months, whichever is less.

 

(Source:  Amended at 37 Ill. Reg. 19316, effective November 12, 2013)

 

Section 1300.2030  Emergency Procurements

 

a)         Applications

The provisions of this Section apply to every procurement over the small purchase limit set in Section 1300.2020 of this Part and that is not a sole source procurement under Section 1300.2025, made under emergency (including quick purchase) conditions.

 

b)         Definition of Emergency Conditions

 

1)         A procurement may be made under this Section in situations in which:

 

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

 

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

 

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

 

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

 

E)        a supplier of needed 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)         commodity items are available on the spot market at prices such that good business judgment mandates a purchase if the spot price must be taken immediately;

 

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

 

H)        equipment or services are necessary in the furtherance of covert activities lawfully conducted by the OAG.  Any required disclosures shall be made so as not to jeopardize those covert activities;

 

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

 

J)         the need for items to protect or further the State's 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; or

 

K)        immediate action is necessary to protect the collection of substantial 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 the period of time needed to conduct a competitive method of source selection if 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 so that making a purchase immediately is more advantageous to the State than instituting a competitive procurement under the provisions of the Code and this Part 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)        Availability of rare items such as books of historical value.

 

c)         Scope of Emergency Conditions

 

1)         Emergency procurement shall be limited to those supplies, services, or construction items necessary to meet the emergency need.

 

2)         Emergency procurements shall be limited to the time reasonably needed for a competitive procurement, but in no event shall that time period 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 after notice and a public hearing as set out in Section 1300.5555.  The extension shall be limited in items, quantity and days.

 

d)         Authority to Make Emergency Procurements

Emergency procurements may be made when an emergency condition arises and the need cannot be met through normal procurement methods, provided that, whenever practical, existing OAG contracts shall be utilized and, whenever practical, approval by the CPO shall be obtained prior to the procurement.  The Procurement Officer 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.  The procedure used shall be selected to assure that the required supplies, services, or construction items are procured in time to meet the emergency. Such competition as is practicable shall be obtained.

 

f)         Determination and Record of Emergency Procurement

 

1)         Determination.  The Procurement Officer responsible for the procurement shall make a written determination stating the basis for an emergency procurement and for the selection of the particular contractor.  The determination shall be kept in the contract file with a copy sent promptly to the CPO and the OAG PPCMB.

 

2)         Record.  A record of each emergency procurement shall be filed by the CPO with the OAG PPCMB 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, provided that, 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, such as a listing of the supplies and services to be procured; and

 

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)         Extension of Emergency

In the event an emergency procurement exceeds 90 days, the emergency procurement may be extended after notice and a public hearing pursuant to Section 1300.5555.  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;

 

5)         notice of the intent to extend shall be provided to the OAG PPCMB and published in the Bulletin in accordance with Subpart D of this Part.

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.2035  Competitive Selection Procedures for Professional and Artistic Services

 

a)         Application

The provisions of this Section apply to every procurement of professional and artistic services except those professional and other services necessary to prepare for anticipated litigation, enforcement actions or investigations, which are exempt from the requirements of the Code and this Part. "Professional and artistic services" means those services provided under contract to a State agency by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability [30 ILCS 525/1-15.60].

 

b)         Professional and artistic services are further defined as follows:

 

1)         "Qualified by education" means the individual who would perform the services must have obtained the level of education specified in the RFP.

 

2)         "Qualified by experience" means the individual who would perform the services must have the level of general experience specified in the RFP.

 

3)         "Qualified by technical ability" means the individual who would perform the services must demonstrate a high degree of skill or ability in performing services that are the same, similar or closely related in nature to those specified in the RFP.

 

4)         An essential element distinguishing professional and artistic services from other services is confidence, trust, and belief in not only the ability, but the talent, of the individual performing the service.  These services are primarily for intellectual or creative skills.  Contracts for services primarily involving manual skills or labor are not professional and artistic services contracts.  (See Illinois Attorney General Opinion S-256, January 20, 1971.)

 

5)         If the professional or artistic contract is with a firm or other business entity, the individuals whose education, experience and technical ability provided the basis on which the firm or other business entity was selected must meet the qualifications.

 

6)         When a State agency requires services that meet the requirements of this subsection (b), the competitive selection procedures described in this Section must be followed.  Services that do not meet the requirements of this Section must be procured in accordance with other methods of source selection authorized by the Code and this Part.

 

c)         The categories of services enumerated below shall be considered and procured as professional and artistic services.  With regard to other services, the Purchasing Officer may determine whether the factors identified in subsection (b), when applied to particular services to be procured, require such services to be procured as professional and artistic under these competitive selection procedures, or as services that are subject to one of the other methods of source selection authorized by the Code and this Part.  The following categories are examples of disciplines that would always be professional and artistic services:

 

1)         law;

 

2)         accounting;

 

3)         medicine;

 

4)         dentistry; and

 

5)         clinical psychology.

 

d)         Conditions for Use of Competitive Selection Procedures

Except as authorized under Section 20-25 (Sole Source Procurement) or Section 20-30 (Emergency Procurements) of the Code, these competitive selection procedures shall be used for all procurements of professional and artistic services of $20,000 or more.  Any procurement of such services in an amount of less than $20,000 and for a nonrenewable term of less than one year may be procured in accordance with Section 1300.2020 (Small Purchases) of this Part.

 

e)         Determinations Required Prior to Use of Competitive Selection Procedures

The CPO shall determine in writing, prior to announcing the need for any such services:

 

1)         that the services to be acquired are professional or artistic;

 

2)         the nature of the relationship to be established between the OAG and the vendor by the proposed contract; and

 

3)         that the OAG has developed, and fully intends to implement, a written plan for utilizing such services which will be included in the contractual statement of work.

 

f)         Prequalification

The CPO shall maintain a list of prequalified professional and artistic vendors in accordance with Sections 1300.2044 and 1300.2045 of this Part. Persons may amend statements of qualifications at any time by filing a new statement.

 

g)         Public Notice in Competitive Selection Procedures

Notice of the need for professional and artistic services shall be made by the Procurement Officer in the form of an RFP.  Adequate public notice shall be given as provided in Section 1300.2010 (Competitive Sealed Bidding, Public Notice), and additionally may consist of distributing Requests for Proposals to prequalified persons interested in performing the services required by the proposed contract.

 

h)         Request for Proposals

 

1)         Contents.  The RFP shall be in the form specified by the CPO and contain at least the following information:

 

A)        the type of services required;

 

B)        a description of the work involved;

 

C)        an estimate of when and for how long the services will be required;

 

D)        the type of contract to be used;

 

E)        a date by which proposals for the performance of the services shall be submitted;

 

F)         a statement of the minimum information that the proposal shall contain, which shall include:

 

i)          the name of the offer or, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract;

 

ii)         if deemed relevant by the Procurement Officer, the age of the offeror's business and average number of employees over a previous period of time, as specified in the RFP;

 

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

 

iv)        a listing of other contracts under which services similar in scope, size, or discipline to the required services were performed or undertaken within a previous period of time, as specified in the RFP;

 

v)         a plan giving as much detail as is practical explaining how the services will be performed;

 

G)        price (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package); and

 

H)        the factors to be used in the evaluation and selection process and their relative importance.

 

2)         Evaluation.  Proposals shall be evaluated only on the basis of evaluation factors stated in the RFP.  Price will not be evaluated until after selection of the most qualified vendor. The relative importance of the evaluation factors will vary according to the type of services being procured. The minimum factors are:

 

A)        the plan for performing the required services;

 

B)        ability to perform the services as reflected by technical training and education, general experience, specific experience in providing the required services, and the qualifications and abilities of personnel proposed to be assigned to perform the services;

 

C)        the personnel, equipment, and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and

 

D)        a record of past performance of similar work.

 

i)          Pre-Proposal Conferences

Pre-proposal conferences, as appropriate, may be conducted in accordance with Section 1300.2010 (Competitive Sealed Bidding).

 

j)          Receipt and Handling of Proposals

Registration.  Proposals and modifications shall be sent to the Procurement Officer as directed in the solicitation and shall be time-stamped upon receipt and held in a secure place until the established due date and time, at which time they will be opened by the Procurement Officer.  Proposals shall not be opened publicly nor disclosed to unauthorized persons, but shall be opened in the presence of at least one witness.  A register of proposals shall be established which shall include, for all proposals, the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the services offered.  The register of proposals shall be open to public inspection only after award of the contract.

 

k)         Request for Nondisclosure of Data

If the offeror selected for award has requested in writing the nondisclosure of trade secrets and other proprietary data so identified, the head of the agency conducting the procurement or a designee of such officer shall examine the request in the proposal to determine its validity prior to entering negotiations.  If the parties do not agree as to the disclosure of data in the contract, the Procurement Officer shall reject the proposal.

 

l)          Discussions

 

1)         Discussions Permissible.  The Procurement Officer shall evaluate all proposals submitted and may conduct discussions with any offeror.  The purposes of such discussions shall be to:

 

A)        determine in greater detail such offeror's qualifications; and

 

B)        explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach.

 

2)         No Disclosure of Information.  Discussions shall not disclose any information derived from proposals submitted by other offerors, and the agency conducting the procurement shall not disclose any information contained in any proposals until after award of the proposed contract has been made.  The proposal of the offeror awarded the contract shall be open to public inspection.

 

m)        Selection of the Best Qualified Offerors

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

 

n)         Evaluation of Pricing Data

Pricing submitted for all acceptable proposals shall be opened and ranked. If the low price is submitted by the most qualified vendor, negotiation of price shall commence.  If the price of the most qualified is not low and if it is under $25,000, the Procurement Officer, but not a designee, may award to that vendor.  If the price is over $25,000, the Procurement Officer, but not a designee, must state why the qualifications were deemed more important than price and such determination shall be published in the Bulletin.

 

o)         Negotiation and Award of Contract

 

1)         General.  The Procurement Officer shall negotiate a contract with the best qualified offeror for the required services at compensation determined in writing to be fair and reasonable.

 

2)         Elements of Negotiation. Contract negotiations shall be directed toward:

 

A)        making certain that the offeror has a clear understanding of the scope of the work, specifically, the essential requirements involved in providing the required services;

 

B)        determining that the offeror will make available the necessary personnel and facilities to perform the services within the required time; and

 

C)        agreeing upon compensation that is fair and reasonable, taking into account the estimated value of the required services, and the scope, complexity, and nature of such services.

 

3)         Successful Negotiation of Contract with Best Qualified Offeror.  If compensation, contract requirements, and contract documents can be agreed upon with the best qualified offeror, the contract shall be awarded to that offeror, unless the procurement is cancelled.

 

4)         Failure to Negotiate Contract with Best Qualified Offeror.

 

A)        If compensation, contract requirements, or contract documents cannot be agreed upon with the best qualified offeror, a written record stating the reasons for the lack of agreement shall be placed in the file and the Procurement Officer shall advise the offeror of the termination of negotiations.

 

B)        Upon failure to negotiate a contract with the best qualified offeror, the Procurement Officer may enter into negotiations with the next most qualified offeror, and so on in that manner until an award is made or the procurement is cancelled.

 

p)         Notice of Award

Written notice of award shall be public information and made a part of the contract file.  The CPO shall publish the names of the responsible decision makers of the OAG, the successful vendor, a contract reference number or other identifier, and the value of the contract.  Publication shall be in the next available issue of the Bulletin.

 

q)         A CPO may allow the Purchasing Officer responsible for conducting a small, sole source or emergency procurement of professional and artistic services to publish notices of those procurements.

 

r)          Post Performance Review

The Purchasing Officer shall require the using division to provide a synopsis of the contract and shall rate the vendor's performance using the form developed by the Purchasing Officer.  A copy of the completed form shall be provided to the Purchasing Officer.

 

(Source:  Amended at 48 Ill. Reg. 2790, effective February 7, 2024)

 

Section 1300.2036  Other Methods of Source Selection

 

a)         Split Award

 

1)         An award of a definite quantity requirement may be split between or among two or more contractors.  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 Procurement Officer 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 OAG 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 1300.2010 (Competitive Sealed  Bidding), Section 1300.2015  (Competitive Sealed Proposals), Section 1300.2020 (Small Purchases), and Section 1300.2030 (Emergency Procurements), as applicable.  Awards shall not be made for the purpose of simply dividing the business or to select products or suppliers in accordance with 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 the OAG.

 

3)         The OAG 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.

 

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

The Procurement Officer may enter into an agreement with a person not eligible for the Governmental Joint Purchasing Act for the joint procurement of anything covered by the Code.  Any method of source selection may be used and may be modified or adapted 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 OAG receives a donation that provides the majority of the funding, the OAG may follow any procurement or contracting requirements established as a condition of the donation, but shall follow the Code and this Part to the extent practicable.

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.2037  Tie Bids and Proposals

 

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

 

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

 

1)         If the tied vendors include only one Illinois resident vendor, the Illinois resident vendor shall be given the award.  "Illinois resident vendor" has the meaning given in Section 1300.4510 of this Part.  In all other situations, the decision shall be made in accordance with subsections (b)(2) through (5) of this Section.  If two or more Illinois resident vendors are tied, award will be made pursuant to subsections (b)(2) through (5).

 

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 OAG shall be given additional consideration in determining responsibility if the Procurement Officer 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 OAG 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 Procurement Officer 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 goods 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 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.2038  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 Procurement Officer knows or has reason to conclude that a mistake has been made, such officer shall 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 OAG (i.e., the effect on price, quality, quantity, delivery, or contractual conditions is negligible).  The Procurement Officer shall waive such informalities or allow the bidder to correct them depending on which is in the best interest of the State. 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 Where 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 Where 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 Discovered After Receipt of Proposals 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 and Final Offers.  Once discussions are commenced with any offeror or after best and 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 and 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)         Corrections of Mistakes.  If discussions are not held or if the best and 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 and 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 Procurement Officer finds it would be unconscionable not to allow the mistake to be corrected, such as obvious typographical or calculation errors.

 

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 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.2040  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 OAG 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 cancelled when the Procurement Officer believes cancellation to be in the State's best interest. (See subsection (c)(2) below.)  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 cancelled in whole or in part when the Procurement Officer determines in writing that such action is in the State's best interest for reasons including, but not limited to:

 

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

 

B)        the OAG 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 OAG;

 

F)         prices exceed available funds and it would not be appropriate to adjust quantities to accommodate funding constraints;

 

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 arrived at independently in open competition, may have been the result of collusion or may have been submitted in bad faith.

 

3)         When a solicitation is cancelled prior to opening, notice of cancellation shall be sent to all businesses solicited.

 

4)         The notice of cancellation shall:

 

A)        identify the solicitation;

 

B)        briefly explain the reason for cancellation; and

 

C)        where 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 Procurement Officer determines in writing that the action is in the State's best interest, for reasons including, but not limited to:

 

A)        the supplies, services, or construction being procured is 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 OAG;

 

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 cancelled 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 OAG 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 subsection (f).

 

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 1300.2046 of this Part;

 

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 (that is, after any opportunity has passed for altering or clarifying the proposal) fails to meet the announced requirements of the OAG 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, or a solicitation cancelled after bids or proposals are received, the bids or proposals that have been opened shall be retained in the procurement file, or if unopened, returned to the bidders or offerors upon request, or otherwise disposed of.

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

SUBPART F: SUPPLIERS, PREQUALIFICATION AND RESPONSIBILITY

 

Section 1300.2043  Suppliers

 

a)         The OAG may contract with any qualified source of supply, but must give preference to Directed Sources, and should consider the following Special Sources.

 

b)         Directed Sources − State-Produced Supplies or Service

 

1)         Correctional Industries.  The CPO, in conjunction with the Department of Corrections, shall determine which supplies produced or services performed, if any, by Correctional Industries must be purchased by the OAG.  The CPO shall determine whether such supplies or services meet the OAG's requirements and whether the price represents a fair market value for such supplies or services.

 

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

 

c)         Special Sources

 

1)         Prior to any equipment procurement, the OAG will consider property available from the State and Federal Surplus Warehouses that are under the jurisdiction of the Department of Central Management Services.

 

2)         Various goods and services are available from qualified not-for-profit agencies for persons with significant disabilities, and procurement from the not-for-profit agency's certified work centers is encouraged.  Notice and competition is not required pursuant to Section 45-35 of the Code.  Information regarding qualified work centers 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 42 Ill. Reg. 13585, effective June 29, 2018)

 

Section 1300.2044  Vendor List/Required Use

 

a)         The CPO may maintain a list of vendors interested in doing business with the OAG.  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)         Invitations for Bids 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)         When 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 OAG may, if it determines that the best interest of the State would be served, rotate the selection from the list on any equitable basis; or

 

3)         The IFB may be confined to bidders in a limited geographical service area, when the OAG determines that the best interests of the State will be served by so doing (example:  purchases of ready-mix concrete, perishables, and equipment requiring periodic service).

 

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

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.2045  Prequalification

 

a)         General

 

1)         The CPO may require that vendors be prequalified as a condition of being placed on the bid list.  If so, vendors shall be given an opportunity to prequalify at least one time per year.  The opportunity to prequalify, and whether prequalification will be a condition of bidding or being awarded a contract, shall be announced in the Bulletin.

 

2)         The fact that a prospective vendor has been prequalified does not necessarily represent a finding of responsibility for a particular procurement.

 

3)         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.

 

b)         Professional and Artistic Services

When the services are needed on a recurring basis, the CPO shall actively solicit persons engaged in providing such services to submit annual statements of qualifications in a prescribed format that shall include the following information:

 

1)         technical education and training;

 

2)         general or special experience, certifications, licenses, and memberships in professional associations, societies, or boards;

 

3)         an expression of interest in providing a particular professional or artistic service; and

 

4)         any other pertinent information requested by the Procurement Officer.

 

c)         Qualified Products Lists

Qualified products lists are treated in Section 1300.2050 (Specifications and Samples) of this Part.

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.2046  Responsibility

 

a)         Application

Contracts are to be made only with responsible vendors unless no responsible vendor is available to meet the OAG'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 include whether a prospective vendor:

 

A)        has available the appropriate financial, material, equipment, facility, and personnel resources and expertise (or the ability to obtain same) 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 pursuant to 44 Ill. Adm. Code 250.210, if required.  Proof of application prior to opening of bids or proposals will be sufficient for an initial determination; and

 

H)        pays prevailing wages, if required by law.

 

2)         Information Pertaining to Responsibility.  The prospective vendor shall supply information requested by the Procurement Officer concerning the responsibility of such vendor.  The State may supplement this information from other sources and may require additional documentation at any time.  If such vendor fails to supply the requested information, the Procurement Officer 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 such vendor possesses such necessary items;

 

2)         acceptable plans to subcontract for such 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 Procurement Officer must be satisfied that the prospective vendor is responsible.  Responsibility can be proven until time of award or execution of contract, whichever is later.

 

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 Procurement Officer.  A copy of the determination shall be sent promptly to the nonresponsible vendor.  The final determination shall be made part of the procurement file.

 

f)         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 for such bidders.

 

g)         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.

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

SUBPART G: BID, PROPOSAL AND PERFORMANCE SECURITY

 

Section 1300.2047  Security Requirements

 

a)         The Procurement Officer may require that a vendor furnish bid, proposal,  or performance security on OAG contracts.  Whenever security is required, except as provided herein, 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 Procurement Officer 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, 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 contracts of the OAG.  When such 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 36 Ill. Reg. 11974, effective July 13, 2012)

SUBPART H: SPECIFICATIONS AND SAMPLES

 

Section 1300.2050  Specifications and Samples

 

a)         Responsibilities Regarding Specifications

 

1)         The Procurement Officer is authorized to write specifications for procurements for the OAG.

 

2)         When a written determination is made by the Procurement Officer authorized to prepare the specifications that there will be no substantial conflict of interest involved and it is otherwise in the best interest of the State, a contract to prepare specifications for OAG use in procurement of supplies or services may be entered into provided the Procurement Officer retains the authority to finally approve the specifications.

 

3)         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 Procurement Officer is hereby granted the authority to prepare specifications for use in such purchases.  In an emergency under Section 20-30 of the Code (Emergency Procurements), any necessary specification may be utilized by the Procurement Officer 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 OAG'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 OAG 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 business, industry, not-for-profit organization or governmental unit may be adopted by reference.

 

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

 

c)         Brand Name or Equal Specification

 

1)         Brand name or equal specifications may be used when the Procurement Officer 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 OAG'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 Procurement Officer 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.  Where 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 the product is equal is on the bidder.

 

d)         Brand Name Only Specification

 

1)         Use.  A brand name only specification may be used only when the Procurement Officer makes a written determination that only the identified brand name item or items will satisfy the OAG's needs.  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 Procurement Officer.

 

2)         Competition.  The Procurement Officer shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit such sources to achieve whatever degree of competition is practicable.  If only one source can supply the requirement, the procurement shall be made under Section 1300.2025 (Sole Source Procurement).

 

e)         Qualified Products List

 

1)         Use.  A qualified products list may be developed with the approval of the Procurement Officer authorized to develop qualified products lists, when testing or examination of the supplies prior to issuance of the solicitation is desirable or necessary in order to best satisfy OAG 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)         OAG 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 OAG's right to require adherence to specifications.

 

3)         No payment will be made for OAG Required Samples.  Samples not destroyed or consumed by examination or testing will be returned upon request at vendor's expense.  The request must be made at time of submission with return collect or prepayment provisions and instructions for return of the samples.

 

h)         Product Demonstration

Any vendor may request time and space to demonstrate a product or service. Agreement to allow such demonstration will be solely at the OAG'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 OAG Personnel

 

1)         Specifications may be prepared by other than OAG personnel, including, but not limited to, other State personnel, consultants, architects, engineers, designers, and other drafters of specifications for public contracts. Contracts for the preparation of specifications by other than OAG personnel shall require the specification writer to adhere to the Code and OAG requirements.

 

2)         The person who prepared the specifications shall not submit a bid or proposal to meet the procurement need unless the Procurement Officer determines in writing that it would be in the best interest to accept such a bid or proposal from that person and a notice to that effect is provided to the CPO and is published in the Bulletin.  The CPO may disapprove that determination.

 

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

 

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

 

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

 

3)         The RFP shall contain at least the following:

 

A)        A statement that the OAG is issuing an RFP;

 

B)         A brief description of the office's need; and

 

C)         A statement that the RFP is not a solicitation.

 

(Source:  Amended at 48 Ill. Reg. 2790, effective February 7, 2024)

SUBPART I: CONTRACT TYPE

 

Section 1300.2055  Types of Contracts

 

a)         Scope of Rule

This Section contains descriptions of types of contracts and limitations as to when they should be utilized by the OAG in its procurements.

 

b)         Prohibition of Cost-Plus-a-Percentage-of-Cost Contracting

The cost-plus-a-percentage-of-cost contract is prohibited by Section 20-55 (Types of Contracts) of the Illinois Procurement Code and by this Part.  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 industry or areawide (such as are frequently found in State contracts for the purchase of coal);

 

ii)         changes due to rapid and substantial price fluctuations, which can be related to an accepted index (such as contracts for gasoline, heating oils, and dental gold alloy); and

 

iii)        in requirement contracts (subsection (g)(3) of this Section) 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 OAG shall have 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 Procurement Officer determines in writing that such a contract is likely to be less costly to the OAG than any other type or that it is impracticable to obtain otherwise the supplies, services, or construction.

 

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 will suffer the 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 OAG 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 OAG 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.  Such contracts shall, to the extent possible, contain a stated ceiling or an estimate that shall not be exceeded without prior OAG 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 OAG is obligated to order and may also provide for a maximum quantity provision that limits the OAG's obligation to order.

 

3)         Requirements Contracts.  A requirements contract is an indefinite quantity contract for supplies or services that specifically obligates the OAG to order all the actual requirements of the OAG 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 State 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 such 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 OAG'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, the leased supply or facility is the only supply or facility that can meet the OAG's requirements, or if the purchase option price is less than the small purchase limit or if emergency conditions exist.

 

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 OAG reserves the right to take bids separately if a particular quantity requirement arises that exceeds the OAG'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 OAG 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 36 Ill. Reg. 11974, effective July 13, 2012)

SUBPART J: DURATION OF CONTRACTS

 

Section 1300.2060  Duration of Contracts − General

 

a)         General

 

1)         A multi-year contract for a term up to 10 years is authorized when determined by the CPO to be in the best interest of the OAG and 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)         A lease for real property or capital improvements shall be in accordance with Sections 1300.4005 through 1300.4045.

 

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 cancelled without penalty to, or further payment being required by, the OAG.  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 OAG needs; or

 

2)         a multi-year contract will serve the best interests of the OAG and the State by encouraging effective competition or otherwise promoting economies in OAG 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)         whether bidders or offerors may submit prices for:

 

A)        the first fiscal period only;

 

B)        the entire time of performance only; or

 

C)        both the first fiscal period and the entire time of performance; and

 

4)         that a multi-year contract may be awarded and how 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 is reserved solely to the OAG.

 

2)         When the original procurement was silent as to renewals, the renewal must be within the guidelines for small, sole source or emergency procurements as set forth in the Code and this Part.

 

3)         When proposals for renewal or extension involve costs of $250,000 or more, the proposals must be reviewed by the OAG PPCMB.  If the OAG PPCMB raises no objection, the CPO may enter into the renewal or extension.  By August 1 each year, the OAG PPCMB shall file a report with the General Assembly identifying for the previous fiscal year:

 

A)       the proposed extensions or renewals that were filed with the OAG PPCMB and whether the OAG PPCMB objected; and

 

B)        the contracts exempt from this subsection (e)(3).

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

SUBPART K: CONTRACT MATTERS

 

Section 1300.2560  Prevailing Wage

 

a)         For the following classifications and if competition exists, no bidder, offeror, potential contractor or contractor will be awarded a contract unless its employees are paid wages and benefits and are working under conditions prevalent in the location where the work is to be performed.

 

1)         Public works

 

2)         Printing

 

3)         Janitorial cleaning, window washing, food and security guard services having a monthly contract price of $200 or more or a yearly price of $2,000 or more.

 

b)         Prevailing wage and conditions prevalent means the hourly wage rate, overtime, holiday pay, pension, welfare, premium differential, vacation pay and other benefits received by employees and the environmental conditions under which they work.

 

c)         Prevailing wage rates, benefits and conditions will be those in effect on the first date of the contract, provided that if the rate changes during the contract term and the amount of change is known before execution of the contract, then the contract rate will vary in like amount.  If the increase cannot be determined in advance, the contract will be increased by the amount of the rate change or the agency may cancel the contract.  The amount that may vary includes all components of price that are dependent on the usage rate, provided that profit shall not increase due to prevailing wage increases.  If the initial prevailing wage, etc., cannot be determined prior to execution, contracts may be entered into and will remain valid for the stated term.

 

d)         If a collective bargaining agreement is in effect governing the type of printing, janitorial cleaning, window washing, food or security guard service sought, that agreement will define minimum wages, benefits and conditions that must be paid in order for a bidder, offeror, potential contractor or contractor to be considered responsible.

 

e)         For Public Works, location means the county where the physical work upon public works is performed, except that if there is not available in the county a sufficient number of competent skilled laborers, workers and mechanics to construct the public works efficiently and properly, "locality" includes any other county nearest the one in which the work or construction is to be performed and from which such persons may be obtained in sufficient numbers to perform the work.

 

f)         For Printing Contracts, location means one of the following areas:

 

1)         Cook County

 

2)         Boone, Bureau, Carroll, Champaign, DeKalb, DeWitt, DuPage, Ford, Fulton, Grundy, Hancock, Henderson, Henry, Iroquois, Jo Daviess, Kane, Kankakee, Kendall, Knox, Lake, LaSalle, Lee, Livingston, Logan, Marshall, Mason, McDonough, McHenry, McLean, Mercer, Ogle, Peoria, Piatt, Putnam, Rock Island, Schuyler, Stark, Stephenson, Tazewell, Vermilion, Warren, Whiteside, Will, Winnebago, Woodford.

 

3)         Adams, Alexander, Bond, Brown, Calhoun, Cass, Christian, Clark, Clay, Clinton, Coles, Crawford, Cumberland, Douglas, Edgar, Edwards, Effingham, Fayette, Franklin, Gallatin, Greene, Hamilton, Hardin, Jackson, Jasper, Jefferson, Jersey, Johnson, Lawrence, Macon, Macoupin, Madison, Marion, Massac, Menard, Monroe, Montgomery, Morgan, Moultrie, Perry, Pike, Pope, Pulaski, Randolph, Richland, Saline, Sangamon, Scott, Shelby, St. Clair, Union, Wabash, Washington, Wayne, White, Williamson.

 

4)         Where the printing is performed in a plant outside the jurisdiction of this State, it shall be deemed produced in the Illinois locality in which delivery of the printing ordered is required to be made.  When the printing is required to be delivered to more than one Illinois locality, that printing shall be deemed produced in the Illinois locality to which the largest dollar volume of printing under the contract is to be delivered.

 

g)         For janitorial cleaning, window washing, food and security guard services, location means the county in which the work is to be  performed.

 

h)         Prevailing wages, benefits and conditions will be determined by the Director of the Illinois Department of Labor.

 

(Source:  Amended at 40 Ill. Reg. 3401, effective February 11, 2016)

 

Section 1300.2580  Subcontractors

 

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

 

(Source:  Amended at 37 Ill. Reg. 19316, effective November 12, 2013)

SUBPART L: CONTRACT PRICING

 

Section 1300.2800  All Costs Included

 

Unless otherwise allowed by the solicitation, prices quoted shall be all inclusive covering transportation, transit insurance, delivery, installation, taxes, and any other costs.

SUBPART N: REAL PROPERTY LEASES AND CAPITAL IMPROVEMENT LEASES

Section 1300.4005  Real Property Leases and Capital Improvement Leases

 

Except as otherwise authorized or required by law, real property leases and capital improvement leases shall be procured in accordance with Article 40 of the Code and this Part.

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.4010  Renewal

 

The renewal or extension of leases in effect before July 1, 1998 shall be in accordance with Section 40-15 of the Code except that Section 40-15(b)(5)(ii) and (iii) shall not apply.

 

Section 1300.4015  Method of Source Selection

 

a)         Leases shall be procured by using a Request for Information process, except as provided in subsection (b).

 

b)         The RFI process is not required in the following circumstances.

 

1)         Property of less than 10,000 square feet with rent of less than $100,000 per year.

 

2)         Duration of less than one year that cannot be renewed.

 

3)         Specialized space available at only one location.

 

4)         Renewal or extension of leases provided that:

 

A)        The CPO determines in writing that the renewal or extension is in the best interest of the OAG and the State;

 

B)        The CPO submits the written determination and the renewal or extension to the OAG PPCMB;

 

C)        The OAG PPCMB does not object in writing to the renewal or extension within 30 calendar days after its submission;

 

D)        The CPO publishes notice of the renewal or extension in the Bulletin; and

 

E)        The length of the lease, including renewals, does not exceed 10 years.

 

5)         Leases with other governmental units may be negotiated without using the RFI process when deemed by the CPO to be in the best interest of the OAG and the State. [30 ILCS 500/40-15]

 

c)         Leases acquired under these exceptions shall be selected and entered into by negotiation. Written summaries of all negotiations shall be maintained in lease files.

 

(Source:  Amended at 40 Ill. Reg. 3401, effective February 11, 2016)

 

Section 1300.4020  Request for Information and Review of Proposed Leases

 

a)         An RFI will contain at a minimum the following information:

 

1)         A description of the general type of property to be leased;

 

2)         The proposed use of the property;

 

3)         The proposed term of the lease;

 

4)         The preferred location of the property [30 ILCS 500/40-20(b)];

 

5)         General information such as size of space, configuration desired and any other appropriate requirements;

 

6)         The address to which responses to the RFI may be sent; and

 

7)         The date on which responses are due.

 

b)         Notice of the RFI shall be:

 

1)         Published at least 14 days prior to the deadline for responding in both the Illinois Procurement Bulletin and a newspaper having general circulation in the area in which the space is being sought; and

 

2)         Of an appropriate size to draw attention and shall be placed in the legal advertisement section.

 

c)         The RFI response shall consist of written confirmation sufficient to show that the respondent can meet the minimum criteria set forth in the RFI.  [30 ILCS 500/40-20(d)]

 

d)         All responses to the RFI will be publicly opened on the announced opening date.  Names of all parties submitting proposals will be made available to the public.

 

e)         The Purchasing Officer may conduct discussions with respondents of the RFI for the purpose of clarifying the needs of the OAG and the information supplied by the respondents.  [30 ILCS 500/40-20(d)]

 

f)         On the basis of the responses to the RFI, the Purchasing Officer shall make a written determination of which RFI responses meet the minimum criteria set forth in the RFI.  [30 ILCS 500/40-20(d)]

 

g)         The Purchasing Officer will enter into negotiations with all qualified respondents for the purpose of securing a lease that is in the best interest of the State.  [30 ILCS 500/40-20(d)] A written record of all negotiations will be maintained by the Attorney General.

 

h)         The Purchasing Officer shall review all relevant information and shall recommend to the CPO which proposal should be accepted.  The lease shall be reduced to writing.  [30 ILCS 500/40-20(d)]

 

i)          The OAG PPCMB shall review any proposed lease of real property of more than 10,000 square feet or any proposed lease of real property with annual rent payments of $100,000 or more.  The OAG PPCMB shall have 30 calendar days to review a proposed lease.  No contract may be entered into until the 30-day period has expired, unless the CPO requests in writing that the OAG PPCMB waive the period and the OAG PPCMB grants the waiver in writing.  If the OAG PPCMB does not object in writing within 30 calendar days, then the proposed lease shall become effective according to its terms as submitted.  [30 ILCS 500/40-20(e)]

 

j)          The CPO will make the final award, which will be announced in the Illinois Procurement Bulletin.  The lease shall be executed by all parties.  One copy of the lease will be filed with the Comptroller.  [30 ILCS 500/40-20(d)]

 

k)         Should the lowest response by price not be selected, a written report of the negotiation shall be retained in the lease files and shall include the reasons for the final selection.  The CPO shall publish notice, along with the reasons for such selection, in the next available volume of the Illinois Procurement Bulletin.  [30 ILCS 500/40-20(d)]

 

l)          The CPO reserves the right to reject any and all proposals and to request and evaluate "best and final" proposals.  All decisions on compliance, evaluations, terms and conditions shall be made solely at the CPO's discretion and made to favor the State.

 

(Source:  Amended at 48 Ill. Reg. 2790, effective February 7, 2024)

 

Section 1300.4025  Lease Requirements

 

a)         Length of Leases

 

1)         Maximum Term.  Except when a longer term is authorized by law, leases shall be for a term not to exceed 10 years inclusive of proposed contract renewals and shall include a termination option in favor of the OAG after 5 years.  [30 ILCS 500/40-25(a)]

 

2)         Renewal Option.  Leases may include a renewal option.  An option to renew may be exercised only when the CPO determines in writing that renewal is in the best interest of the State and notice of the exercise of the option is published in the next available issue of the Illinois Procurement Bulletin.  [30 ILCS 500/40-25(b)]

 

3)         Holdover.  No lease may continue on a month-to-month or other holdover basis for a total of more than 6 months. [30 ILCS 500/40-25(d)]

 

b)         Subject to Appropriation

All leases shall recite that they are subject to termination and cancellation in any year for which the General Assembly fails to make an appropriation to make payments under the terms of the lease.  [30 ILCS 500/40-25(c)]

 

c)         Lessor's Failure to Make Improvements

Each lease must provide for actual or liquidated damages upon the lessor's failure to make improvements agreed upon in the lease.  The actual or liquidated damages shall consist of a reduction in lease payments equal to the corresponding percentage of the improvement value to the lease value.  The actual or liquidated damages shall continue until the lessor complies with the lease and the improvements are accepted by the OAG.  [30 ILCS 500/40-55]

 

(Source:  Amended at 40 Ill. Reg. 3401, effective February 11, 2016)

 

Section 1300.4045  Emergency Lease Procurements

 

Emergency lease procurements may be made pursuant to 44 Ill. Adm. Code 1300.2030 of this Part.

 

(Source: Added at 36 Ill. Reg. 11974, effective July 13, 2012)

SUBPART O: PREFERENCES

 

Section 1300.4500  Contracting with Businesses Owned and Controlled by Minorities, Women, and Persons with Disabilities

 

a)         As required by Section 9 of the Attorney General Act [15 ILCS 205] and in accordance with the Business Enterprise for Minorities, Women, and Persons with Disabilities Act [30 ILCS 575] (Act), the Attorney General establishes the following aspirational goals for contract awards for all contracts for goods and services, excluding contracts for services relating to investigations or litigation: 

 

1)         At least 30% of the dollar value of OAG contracts shall be awarded to businesses owned by minorities, women, and persons with disabilities; and

 

2)         Of this 30%, 10% shall be for women-owned businesses, 4% for businesses owned by persons with disabilities and not-for-profit agencies for the disabled, and the remaining 16% for other minority-owned businesses.

 

b)         The goals established in subsection (a) may be satisfied, in whole or in part, by counting expenditures made by OAG vendors to subcontractors.

 

c)         Upon direction of the Chief Procurement Officer after consultation with the Business Enterprise Council for Minorities, Women, and Persons with Disabilities (the Business Enterprise Council) (see Section 5 of the Act), the OAG may establish set-asides, including, but not limited to, set-asides for businesses owned by minorities, women, and persons with disabilities, and other preferred vendors certified under the Act.

 

d)         In procuring goods and services to meet its aspirational goals, the OAG may rely on:

 

1)         The list of businesses that have been certified under the Act by the Business Enterprise Council.  A list of those businesses appears on the State of Illinois Commission on Equity and Inclusion's website (https://ceibep.diversitysoftware.com); or

 

2)         Certifications by other certifying entities that have been accepted by the Business Enterprise Council under the Act.  Businesses certified in this manner are included with the list of businesses that have been certified under the Act by the Business Enterprise Council and may be found on the State of Illinois Commission on Equity and Inclusion's website (see subsection (d)(1)).

 

e)         The Procurement Officer may undertake the following actions to reach the goals established in subsection (a):

 

1)         Focus solicitations on those vendors included on the Council's list of certified businesses or by other means;

 

2)         Advertise in appropriate media;

 

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

 

4)         Eliminate extended experience or capitalization requirements when programmatically feasible; and

 

5)         Identify specific, proposed projects, purchases, or contracts as particularly appropriate for participation by businesses that are owned by minorities, women, or persons with disabilities, and establish set-asides in accordance with applicable law.

 

f)         Those categories of contracts and expenditures exempted by the Business Enterprise Council (see 44 Ill. Adm. Code 10.22), are exempt from the contracting goals established in this Section.  Additionally, the CPO may exempt specific contracts or expenditures from the goals established by this Section, prior to advertising for bids or solicitations of proposals, if the CPO has determined, based upon the best information available at the time of the determination, that there are an insufficient number of businesses owned by minorities, women, or persons with disabilities to ensure adequate competition and an expectation of reasonable prices on bids or proposals solicited for the specific contract or expenditure.

 

g)         The CPO shall direct that information regarding the OAG's utilization of businesses owned by minorities, women, and persons with disabilities during the preceding fiscal year be posted annually on the OAG's website.

 

(Source:  Amended at 48 Ill. Reg. 2790, effective February 7, 2024)

 

Section 1300.4505  Procurement Preferences

 

The procurement preferences identified in Article 45 of the Code must be considered in developing procurement documents, conducting evaluations and drafting contracts.

 

Section 1300.4510  Resident Bidder Preference

 

a)         "Illinois resident vendor" as used in this Section means a person, including a foreign corporation, duly 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.

 

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 Procurement Officer 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 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.4530  Correctional Industries

 

a)         To the extent economically practicable, the Procurement Officer shall refer to, and make purchases from, the listing maintained by DCMS of  goods or services available from Illinois Correctional Industries (ICI).

 

b)         When the Procurement Officer determines that it is not economically practicable to make a purchase of goods or services from ICI, the Procurement Officer shall provide a written explanation for the determination to the OAG PPCMB no less than 7 days prior to executing a contract to obtain goods or services from a source other than ICI.

 

           

c)         The Procurement Officer is authorized to procure from ICI without seeking competition or giving public notice.

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.4535  Certified Work Centers for Persons with Significant Disabilities

 

a)         The Procurement Officer shall refer to information prepared by DCMS regarding qualified not-for-profit agencies' certified work centers for persons with significant disabilities and categories of goods and services set-aside to those work centers by DCMS.  To the extent practicable, the OAG will follow such set-asides.

 

b)         Pricing Approval

While notice and competition is not required prior to contracting with a certified work center for persons with significant disabilities, 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 certified work centers, and other such relevant factors.

 

(Source:  Amended at 42 Ill. Reg. 13585, effective June 29, 2018)

 

Section 1300.4540  Gas Mileage

 

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

 

b)         Requests for exceptions must be approved by the CPO.  Requests must fully describe the circumstances necessitating a non-compliant vehicle.

 

c)         No exception will be granted unless it is clear from the request that a non-compliant vehicle is necessary in order to carry out the functions of the OAG.

 

Section 1300.4545  Small Business

 

a)         Set-Aside

The CPO for DCMS may determine categories of goods or service procurements that will be set-aside for small business.  The Procurement Officer may contact DCMS to determine whether a particular procurement has been set-aside for small business, and if so, the OAG may honor the set-aside to the extent practicable.

 

b)         Small Business List

The OAG may avail itself of the list of responsible vendors that meet the criteria of small business maintained by DCMS.  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 Procurement Officer 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 Procurement Officer determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the Procurement Officer 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 CPO 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)        $13,000,000 for wholesale business;

 

B)        $14,000,000 for construction business; or

 

C)        $8,000,000 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, then the annual sales for each component may not exceed the amounts shown in subsection (e)(3).  For example, a business that is both a retailer and a wholesaler may not have total sales exceeding $16,000,000, 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 40 Ill. Reg. 3401, effective February 11, 2016)

SUBPART P: ETHICS

 

Section 1300.5013  Conflicts of Interest

 

a)         An individual has a direct pecuniary interest in a contract when the individual is owed a payment in conjunction with performance of a contract, including, but not limited to, finder's fees and commission payments.

 

b)         Distributable income means the amount of income actually distributed to those entitled to receive a share of such income after a company has paid all expenses, including employee salary and bonuses, and retained earnings.

 

c)         This Section does not apply to contracts with licensed professionals provided such contracts are competitively bid. (For purposes of this Section, "bid" means procured pursuant to the competitive procedures identified in Subpart E of this Part.)

 

Section 1300.5015  Negotiations for Future Employment

 

a)         It is unlawful for any person employed in or on a continual contractual relationship with any of the offices or agencies of State government to participate in contract negotiations on behalf of that office or agency with any firm, partnership, association, or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment. [30 ILCS 525/50-15(a)]

 

b)         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.

 

c)         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 "continual contracted relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individual's option, is renewable unless the OAG must act to terminate, or has a definite term of at least three months.

 

Section 1300.5020  Exemptions

 

If the Purchasing Officer finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, the Purchasing Officer shall forward to the CPO the name of the vendor and a description of the proposed contract and of the potential conflict, and shall state why an exemption should be granted.  The CPO shall decide whether to refuse to allow a contract or to grant an exemption.

 

(Source:  Amended at 48 Ill. Reg. 2790, effective February 7, 2024)

 

Section 1300.5030  Revolving Door

 

a)         Procurement Officers, Procurement Officer designees and OAG PPCMB members are subject to the revolving door provisions of the Code [30 ILCS 500/50-30].

 

b)         Each Procurement Officer shall identify designees in writing and shall maintain the designation for a period of at least two years following the end or revocation of the designation.

 

c)         Procurement Officer designees whose job or position descriptions are at least 51% directly related to State procurement are subject to this Section.  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.

 

d)         OAG employees and former employees are also subject to Section 5-45 of the State Officials and Employees Ethics Act [5 ILCS 430/5-45].

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.5035  Disclosure of Financial Interests and Potential Conflicts of Interest

 

a)         Distributable income means the amount of income actually distributed to those entitled to receive a share of such income after a company has paid all expenses, including employee salary and bonuses, and retained earnings.

 

b)         Personal Services shall be any contract for services subject to the Code including, by way of example, professional and artistic services, repair services, cleaning and guard services.

 

c)         "Competitively bid" means a contract let pursuant to Section 20-10 of the Code.

 

d)         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.

 

Section 1300.5037  Vendor Registration, Certification and Prohibition on Political Contributions

 

a)         Introduction

Illinois law [10 ILCS 5/9-35 and 30 ILCS 500/20-160 and 50-37] (the statutes) restricts political contributions by vendors and affiliated entities; requires registration with the State Board of Elections (SBEL); and requires solicitation and contract certifications relative to the requirements of the law.  This Section supplements requirements found in the statutes and does not excuse compliance with any of those requirements.

 

b)        General Registration Requirements

 

1)         These requirements apply to contracts, bids and proposals that are subject to the Code and this Part;

 

A)        Bids/proposals referenced in this Section are those submitted in response to a competitive solicitation that is posted to the Bulletin on or after January 1, 2009, regardless of the value assigned to the procurement.

 

B)        Bids and proposals include pending bids and proposals.

 

C)        These requirements generally apply to a vendor whose existing State contracts have an aggregate value in excess of $50,000, whose aggregate value of bids/proposals for State contracts exceeds $50,000, or whose aggregate value of State contracts and bids/proposals exceeds $50,000.

 

D)       This value is calculated on a calendar-year basis.

 

2)         On a calendar-year basis, each vendor or potential vendor must keep track of the value of contracts and bids/proposals.  Vendors must register with SBEL when the vendor determines that the value of the contracts and bids/proposals meets the threshold for registration.

 

3)         An "executive employee" means:

 

A)       the President, Chairman of the Board, or Chief Executive Officer of a business entity and any other individual that fulfills equivalent duties as the President, Chairman of the Board, or Chief Executive Officer of a business entity.

 

B)        any employee of a business entity whose compensation is determined directly, in whole or in part, by the award or payment of contracts by a State agency to the entity employing the employee, irrespective of the employee's title or status in the business entity.  For the purposes of this subsection (b)(3)(B), compensation determined directly by award or payment of contracts means a payment over and above regular salary that would not be made if it were not for the award of the contract.

 

c)         Bids and Proposals

 

1)         The CPO, or his or her designee, shall determine whether a business entity is required to register with SBEL and, if so, whether the business entity is in compliance with the registration requirements on the date the bid or proposal is due.

 

2)         If the CPO determines that a business entity is required to register with SBEL and the business entity is not in compliance with the registration requirements, then the CPO shall not accept the business entity's bid or proposal.

 

3)         Upon discovery of noncompliance with SBEL registration requirements, if the bidder or offeror made a good faith effort to comply with registration efforts prior to the date the bid or offer is due, the CPO may provide the bidder or offeror five business days to achieve compliance.  The CPO may extend the time to prove compliance as long as necessary, in the event that there is a failure within the SBEL's registration system.

 

d)        Contracts

A copy of the Registration Certificate must be in the procurement file as set forth in this subsection (d), unless the vendor certifies it is not required to register.

 

1)        For contract renewals and extensions, if the value of the renewal or extension by itself, or in combination with the contract being renewed/extended and other contracts and bids/proposals exceeds $50,000, the vendor must provide the Registration Certificate and make the appropriate contract certification, if it has not already done so.

 

2)        For indefinite quantity/estimated value contracts, a vendor who is otherwise not required to register shall register with SBEL when the value of orders placed pursuant to an indefinite/estimated value contract plus all other contracts and bids/proposals exceeds $50,000.

 

3)        For contract amendments, if the value of the amendment, by itself or in combination with the contract being renewed plus other contracts and bids/proposals, exceeds $50,000, the vendor must provide the Registration Certificate and make the appropriate contract certification, if it has not already done so.

 

4)        Any contracts mistakenly executed in violation of this Section must be amended to include the contract certifications.  If any violation by the vendor is not cured within 7 days after receipt of notification of the violation, the contract is voidable by the State without penalty.

 

5)        Contract certification required by the statutes shall be included in or added to each contract that must be filed with the State Comptroller pursuant to Section 20-80 of the Code and those written, two-party contracts that need not be filed with the Comptroller.  The OAG may require written confirmation of the rule-imposed certification at any time.

 

(Source:  Amended at 42 Ill. Reg. 13585, effective June 29, 2018)

 

Section 1300.5039  Communications Related to Procurement

 

a)         Any OAG 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, a contract or a project, shall [30 ILCS 500/50-39] report the communication to the OAG PPCMB.  The OAG PPCMB shall make each report submitted pursuant to this Section available for review within 7 days after its receipt of the report.

 

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

 

1)         Materiality

 

A)        "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.

 

B)        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 response to a communication initiated by an OAG employee for the purpose of providing information to evaluate new products, trends, services or technologies.

 

C)        In determining whether a communication is material, the OAG employee must consider:

 

i)          whether the information conveyed is new or already known to the OAG (or repeated or restated privately) and other participants in the communication; and

 

ii)         the likelihood that the information would influence a pending procurement matter.

 

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

 

3)         "Procurement matters", unless otherwise excluded, are the processes of procuring specific goods, supplies, services, professional or artistic services, construction, leases of real property in which the OAG is the lessor or lessee, or capital improvements, and include master contracts, contracts for financing through use of installment or lease-purchase arrangements, renegotiated contracts, amendments to contracts, and change orders.  Procurement matters are activities that occur during the time period beginning with the time the OAG has identified a need for procurement as determined and documented by the CPO or Purchasing Officer, and continuing through the publication of an award notice or other completion of a final procurement action, the resolution of any protests, and the expiration of any protest or OAG PPCMB review period, if applicable. Procurement matters include:

 

A)        drafting, reviewing or preparing specifications, plans or requirements, including determining the method of source selection;

 

B)        drafting, reviewing or preparing any IFB, RFI, RFP, sole source procurement justifications, emergency procurement justifications or selection information;

 

C)        evaluating bids, responses and offers, other communications among members of an evaluation team and any technical advisors to the team relating to the evaluation of a procurement not yet awarded;

 

D)        letting or awarding a contract;

 

E)        resolving protests;

 

F)         determining inclusion on prequalification lists or prequalification in general;

 

G)        identifying potential conflicts of interest or voiding or allowing a contract, bid, offer or subcontract for a conflict of interest;

 

H)        allowing a contract or subcontract voidable under Section 50-60 of the Code; and

 

I)         approving change orders or the renewal or extension of an existing contract.

 

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

 

1)         Communication made publicly in a public forum;

 

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

 

3)         Communications regarding the administration and implementation of an existing contract;

 

4)         Communication between an OAG employee and:

 

A)        the Attorney General;

 

B)        other employees of the OAG;

 

C)        the OAG PPCMB;

 

D)        the Office of the Executive Inspector General for the Attorney General;

 

E)        employees of the Executive Ethics Commission [30 ILCS 500/50-39(a)]; or

 

F)         an employee of a State agency who, through the communication, is either:

 

i)          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 Officer; or

 

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

 

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

 

6)         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, 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;

 

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

 

8)         Communications that are part of the formal procurement process as set out by statute, rule or the solicitation, guidance or procedures, such as the posting of procurement opportunities, the process for approving a Procurement Business Case 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 process;

 

9)         Communications that ask for clarification regarding a contract solicitation, so long as there is no competitive advantage to the person or business, and the question and answer, if material, are posted to the Bulletin as an addendum to the contract solicitation.

 

d)         Notwithstanding any exemption provided in subsection (c), an OAG 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 that communication attempts to influence through duress, coercion, or the direct or indirect offer or promise of anything of value to any person or entity in consideration for any benefit or preference in the procurement process.

 

e)         Notwithstanding any exemption provided in subsection (c), an OAG 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.

 

f)         As soon as practicable, but in no event more than 30 days after receipt of the communication or the first of a series of related communications described in subsection (b), the OAG employee shall report the communication to the OAG PPCMB.

 

g)         For purposes of this Section, "OAG employee" means:

 

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

 

2)         any appointed board member of a board of the OAG; or

 

3)         any other person appointed to a position in or with the OAG, regardless of whether the position is compensated.

 

h)         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 48 Ill. Reg. 2790, effective February 7, 2024)

 

Section 1300.5060  Voidable Contracts

 

If the CPO identifies, discovers, or reasonably suspects that a false certification or inaccurate, incomplete, or misleading disclosure has been made by a contractor or a subcontractor for any of the certifications or disclosures required under Article 50 of the Code, the CPO shall notify the OAG PPCMB and provide it with a copy of the contract or other procurement document in question.  If the OAG PPCMB finds evidence of a false certification or inaccurate, incomplete, or misleading disclosure, the OAG PPCMB shall provide written notice to the bidder, offeror, potential contractor, contractor or subcontractor that is identified, discovered, or reasonably suspected of making the false certification or inaccurate, incomplete, or misleading disclosure.  The bidder, offeror, potential contractor, contractor or subcontractor shall have 15 days to respond in writing to the OAG PPCMB.  Upon consideration, the OAG PPCMB shall recommend, in writing, whether to allow or void the contract, bid, offer, or subcontract weighing the best interest of the State of Illinois.  All recommendations shall be submitted to the Attorney General, or his or her designee, for final review and to the Inspector General and the CPO.

 

(Source:  Amended at 40 Ill. Reg. 3401, effective February 11, 2016)

SUBPART Q: CONCESSIONS

 

Section 1300.5310  Concessions

 

Proposed concessions or leases of State property under this provision of the Code must be coordinated with the Department of Central Management Services to ensure compliance with the State Property Control Act [30 ILCS 605] and rules implementing that Act (44 Ill. Adm. Code 5000).

SUBPART R: COMPLAINTS, PROTESTS AND REMEDIES

 

Section 1300.5510  Complaints Against Vendors or Subcontractors

 

a)         Whenever a vendor or subcontractor fails to deliver on time or meet specifications, or for other similar causes, the OAG shall initiate a complaint to the vendor or subcontractor.

 

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

 

c)         If the initial complaint is not satisfactorily answered, or for serious infractions, the OAG will send a written complaint to the vendor or subcontractor detailing the problem.

 

d)         A copy of all written complaints shall be filed with the CPO.  Information regarding the resolution of the complaint shall also be filed.

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.5520  Suspension

 

a)         Application

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

 

b)         The CPO may suspend a vendor or subcontractor from doing business with the OAG, 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 such 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 they are received they 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 OAG.  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 will not be solicited from the debarred vendor or subcontractor, and if they are received they will not be considered.

 

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

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.5530  Settlement and Resolution of Contract and Breach of Contract Controversies

 

a)         Authority to Settle or Resolve Controversies

The Procurement Officer who established the contract shall have authority to settle and resolve controversies but the Attorney General may set limits on such authority given to the Purchasing Officer.

 

b)         Authority of Using Agency

The OAG 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:

 

1)         substituting an alternative specification, or

 

2)         reducing the contract price by a certain amount to compensate for some failure to provide full performance under the contract,

such proposal must be referred to and approved by the Procurement Officer.

 

d)         Cancellation for Breach of Contract

In any of the following cases the Procurement Officer 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 OAG;

 

3)         Any goods or services provided under the contract are rejected (for example not meeting specifications, 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 services, 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 OAG such that he cannot reasonably be depended upon to fulfill his obligations as a responsible vendor under any of his contracts with the OAG;

 

5)         The vendor:

 

A)        is adjudged bankrupt or enters into a general assignment for the benefit of his creditors or receivership due to insolvency; or

 

B)        disregards laws and ordinances, rules or instructions of a contracting officer; or

 

C)        acts in violation of any provision of the contract or this Part;

 

6)         The contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States; or

 

7)         Any other breach of contract or other unlawful act by the vendor.

 

e)         Cancellation for Fraud, Collusion, Illegality, Etc.

The OAG 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 OAG 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 his part on which the cancellation is based.

 

g)         Damages

The damages for which the OAG 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 48 Ill. Reg. 2790, effective February 7, 2024)

 

Section 1300.5540  Violation of Law or Rule

 

a)         Determination that Solicitation or Award Violates Law

If the CPO finds that the solicitation or proposed award is in violation of statute or this Part, 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 Violated Law or Rule

Contracts based on awards or solicitations that were in violation of statute or this Part shall be terminated at no cost to the OAG.

 

c)         Effect of Declaring a Contract Null and Void

In all cases where a contract is voided, the OAG 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.

 

Section 1300.5550  Protests

 

a)         Protest Resolution by Procurement Officer

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)         Complaints

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

 

c)         Filing of Protest

 

1)         Protests shall be made in writing to the Procurement Officer, if applicable, and shall be filed within 7 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 7 day period shall not be considered.  In regard to a protest regarding specifications, the protest must be received within 7 days after the date the solicitation was issued, and in any event must be received by the OAG 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 the OAG 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 CPO or the Purchasing 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 Procurement Officer shall make no award of the contract until the protest has been resolved, unless the CPO makes a written determination, after consulting with the Purchasing Officer, that the award of the contract without delay is necessary to protect the interests of the State.

 

f)         Decision by the Procurement Officer

Time for Decisions.  A decision on a protest shall be made by the Procurement Officer 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 Procurement Officer shall not act on the protest but shall refer the protest to the Chief of the General Law Bureau in the Office of the Attorney General.

 

(Source:  Amended at 48 Ill. Reg. 2790, effective February 7, 2024)

 

Section 1300.5555  Hearings and Decisions

 

a)         The CPO shall conduct public hearings prior to awarding contracts for sole source procurements pursuant to Section 1300.2025 and before extending emergency procurements pursuant to Section 1300.2030.

 

b)        Notices 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 Bulletin.

 

d)        The OAG PPCMB and members of the public may present testimony at the hearings.

 

e)         The hearings shall be held in the offices of the Attorney General 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, the 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:  Added at 36 Ill. Reg. 11974, effective July 13, 2012)

SUBPART S: SUPPLY MANAGEMENT AND DISPOSITIONS

 

Section 1300.6010  Supply Management and Dispositions

 

a)         Inventory Management

Supplies shall be ordered so as to maintain the minimum inventory commensurate with ability to meet agency needs.  In no event shall more than a 12-month supply be maintained in inventory.  This 12-month inventory does not apply to mechanical spare parts or when a greater quantity is needed to meet minimum order quantities.

 

b)         Annual Inventory

All warehouses and similar storage areas shall be inventoried at least annually.

 

c)         Report of Supplies

The CPO shall be notified, at such times as that officer may prescribe, of all supplies in excess of 12-month supply.

SUBPART T: GOVERNMENTAL JOINT PURCHASING

 

Section 1300.6500  General

 

In an effort to make the procurement process more efficient, the State and other governmental units may agree to utilize each other's 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 1300.6510  OAG Use of Other Contracts

 

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

 

a)         if the contract:

 

1)         was established by sealed bid or sealed proposal; or

 

2)         is not required by the Illinois Procurement Code to be bid;

 

b)         if the price is reasonable;

 

c)         if an existing contract of the OAG 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 followed.

 

Section 1300.6520  No Agency Relationship

 

In any joint procurement situation, the agency establishing the contract does not become the procurement agency for the other.  The ordering unit must issue its own purchase order, accept its own deliveries and make its own payments.

SUBPART U: MISCELLANEOUS PROVISIONS OF GENERAL APPLICABILITY

 

Section 1300.7000  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 1300.7010  Government Furnished Property

 

If the OAG 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 1300.7015  Inspections

 

a)         Inspection of Plant or Site

The OAG 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 record and audit provisions of this Part;

 

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

 

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

 

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

 

b)         Inspection and Testing of Supplies and Services

 

1)         Solicitation and Contractual Provisions.  A contract may provide that the OAG or its agent may inspect supplies and services at the contractor's or subcontractor's facility and perform tests to determine whether the supplies or services conform to solicitation requirements, or, after award, to contract requirements, and are therefore acceptable.  Such 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 other than the Procurement Officer may change any provision of the specifications or the contract without written authorization of the Procurement Officer.  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.

 

d)         Inspection of Construction Projects

On-site inspection of construction shall be performed in accordance with the terms of the contract.

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.7020  Records and Audits

 

a)         Retention of Books and Records

Books and records that relate to performance of an OAG contract, including subcontracts, and that support amounts charged to the OAG 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 three years from the date of final payment under the subcontract; and

 

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

 

b)         Contract Audit

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

 

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

 

2)         any prior audit experience;

 

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

 

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

 

5)         the use of federal assistance funds;

 

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

 

7)         any other situation in which the Procurement Officer finds that such an audit is necessary for the protection of the State's best interest.

 

(Source:  Amended at 36 Ill. Reg. 11974, effective July 13, 2012)

 

Section 1300.7025  Written Determinations

 

a)         Preparation and Execution

Where the Illinois Procurement Code or this Part requires a written determination, the officer required to prepare the determination 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 an officer is responsible for the execution of the written determination, other State personnel, particularly technical personnel, are responsible for furnishing to the cognizant official, in an accurate and adequate fashion, the information pertinent to the determination.  When requested, such information shall be furnished in writing to the cognizant official 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 such file for so long as the file is required to be maintained, and, except as otherwise provided by law or rule, shall be open to public inspection.

 

Section 1300.7030  No Waiver of Sovereign Immunity

 

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