SB0132 97TH GENERAL ASSEMBLY

LRB097 06275 PJG 46351 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB0132

Introduced 1/27/2011, by Sen. Martin A. Sandoval

SYNOPSIS AS INTRODUCED:

See Index

Amends the Illinois Procurement Code. Creates a new Article concerning Engineering Professional Services. Provides that contracts for engineering professional services shall be procured by competitive sealed bidding. Sets out certain factors for a State agency to consider in determining whether a firm is a responsible bidder. Provides that contracts for small purchases and emergency services may be procured without competitive sealed bidding. Provides that a State agency shall evaluate the performance of each firm upon completion of a contract. Provides that each contract shall contain a certificate of compliance with the new Article signed by both the State agency and the firm. Amends the Freedom of Information Act to exempt firm performance evaluations from inspection and copying. Amends the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act to exempt contracts for engineering professional services from the requirements of the Act.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning finance.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Freedom of Information Act is amended by changing Section 7.5 as follows:

(5 ILCS 140/7.5)

Sec. 7.5. Statutory Exemptions. To the extent provided for by the statutes referenced below, the following shall be exempt from inspection and copying:

(a) All information determined to be confidential under Section 4002 of the Technology Advancement and Development Act.

(b) Library circulation and order records identifying library users with specific materials under the Library Records Confidentiality Act.

(c) Applications, related documents, and medical records received by the Experimental Organ Transplantation Procedures Board and any and all documents or other records prepared by the Experimental Organ Transplantation Procedures Board or its staff relating to applications it has received.

(d) Information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease or any information the disclosure of which is restricted under the Illinois Sexually Transmissible Disease Control Act.

(e) Information the disclosure of which is exempted under Section 30 of the Radon Industry Licensing Act.

(f) Firm performance evaluations under Section 55 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act and Section 32-35 of the Illinois Procurement Code.

(g) Information the disclosure of which is restricted and exempted under Section 50 of the Illinois Prepaid Tuition Act.

(h) Information the disclosure of which is exempted under the State Officials and Employees Ethics Act, and records of any lawfully created State or local inspector general's office that would be exempt if created or obtained by an Executive Inspector General's office under that Act.

(i) Information contained in a local emergency energy plan submitted to a municipality in accordance with a local emergency energy plan ordinance that is adopted under Section 11-21.5-5 of the Illinois Municipal Code.

(j) Information and data concerning the distribution of surcharge moneys collected and remitted by wireless carriers under the Wireless Emergency Telephone Safety Act.

(k) Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code.

(l) Records and information provided to a residential health care facility resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act.

(m) Information provided to the predatory lending database created pursuant to Article 3 of the Residential Real Property Disclosure Act, except to the extent authorized under that Article.

(n) Defense budgets and petitions for certification of compensation and expenses for court appointed trial counsel as provided under Sections 10 and 15 of the Capital Crimes Litigation Act. This subsection (n) shall apply until the conclusion of the trial of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing.

(o) Information that is prohibited from being disclosed under Section 4 of the Illinois Health and Hazardous Substances Registry Act.

(p) Security portions of system safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Regional Transportation Authority under Section 2.11 of the Regional Transportation Authority Act or the St. Clair County Transit District under the Bi-State Transit Safety Act.

(q) Information prohibited from being disclosed by the Personnel Records Review Act.

(r) Information prohibited from being disclosed by the Illinois School Student Records Act.

(s) Information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act.

(t) All identified or deidentified health information in the form of health data or medical records contained in, stored in, submitted to, transferred by, or released from the Illinois Health Information Exchange, and identified or deidentified health information in the form of health data and medical records of the Illinois Health Information Exchange in the possession of the Illinois Health Information Exchange Authority due to its administration of the Illinois Health Information Exchange. The terms "identified" and "deidentified" shall be given the same meaning as in the Health Insurance Accountability and Portability Act of 1996, Public Law 104-191, or any subsequent amendments thereto, and any regulations promulgated thereunder.

(u) (t) Records and information provided to an independent team of experts under Brian's Law.

(Source: P.A. 96-542, eff. 1-1-10; 96-1235, eff. 1-1-11; 96-1331, eff. 7-27-10; revised 9-2-10.)

Section 10. The Illinois Procurement Code is amended by adding Article 32 as follows:

(30 ILCS 500/Art. 32 heading new)

ARTICLE 32. ENGINEERING PROFESSIONAL SERVICES

(30 ILCS 500/32-1 new)

Sec. 32-1. Applicability. Engineering professional services shall be procured only in accordance with this Article.

(30 ILCS 500/32-5 new)

Sec. 32-5. Definitions. As used in this Article:

"Engineering professional services" means any professional service as defined in Section 4 of the Professional Engineering Practice Act of 1989 or Section 5 of the Structural Engineering Practice Act of 1989.

"Firm" means any individual, sole proprietorship, firm, partnership, corporation, association, or other legal entity permitted by law to practice the profession of engineering and provide those services.

"Project" means any capital improvement project or any design, study, plan, survey, or new or existing program activity of a State agency, including development of new or existing programs that require engineering professional services.

(30 ILCS 500/32-10 new)

Sec. 32-10. Method of source selection. Except as otherwise provided in this Article, all contracts for engineering professional services shall be procured by competitive sealed bidding in accordance with Section 20-10.

(30 ILCS 500/32-15 new)

Sec. 32-15. Prequalification. A State agency shall either establish procedures to prequalify firms seeking to provide engineering services or use one or more prequalification lists from other State agencies to meet the requirements of this Article.

(30 ILCS 500/32-20 new)

Sec. 32-20. Engineering professional service contracts; responsible bidder considerations.

(a) In evaluating whether a bidder or other prequalified firm qualifies as a responsible bidder on an engineering professional services contract for purposes of this Code, a State agency may consider, but shall not be limited to considering, the following factors:

(1) Ability of professional personnel.

(2) Past record and experience.

(3) Performance data on file.

(4) Willingness to meet time requirements.

(5) Location.

(6) Workload of the firm.

(7) Any other qualification-based factors that the State agency may determine in writing to be applicable.

(b) The State agency may conduct discussions with and require public presentations by firms deemed to be the most qualified regarding their qualifications, approach to the project, and ability to furnish the required services.

(30 ILCS 500/32-25 new)

Sec. 32-25. Small purchases. Any individual procurement of engineering professional services with an estimated basic professional services fee of less than $25,000 may be made without competitive sealed bidding.

(30 ILCS 500/32-30 new)

Sec. 32-30. Emergency services. A procurement of engineering professional services may be made without competitive sealed bidding (i) when a State agency determines in writing that it is in the best interest of the State to proceed with the immediate selection of a firm or (ii) in emergencies when immediate services are necessary to protect the public health and safety, including, but not limited to, earthquake, tornado, storm, or natural or man-made disaster.

(30 ILCS 500/32-35 new)

Sec. 32-35. Firm performance evaluation. Each State agency shall evaluate the performance of each firm upon completion of a contract. That evaluation shall be made available to the firm, which may submit a written response. The evaluation and response shall be a confidential record of the State agency, shall not be made available to any other person or firm, and is exempt from disclosure in accordance with Section 7.5 of the Freedom of Information Act.

(30 ILCS 500/32-40 new)

Sec. 32-40. Certificate of compliance. Each contract for engineering professional services entered into by a State agency shall contain a certificate signed by a representative of the State agency and the firm stating that the provisions of this Article were complied with.

(30 ILCS 500/32-45 new)

Sec. 32-45. Scope. No person, corporation, or partnership licensed or registered under the Professional Engineering Practice Act of 1989 or the Structural Engineering Practice Act of 1989 shall engage in any act or conduct or be a party to any contract or agreement in violation of the provisions of this Article.

(30 ILCS 500/32-50 new)

Sec. 32-50. Enforcement. Any contract or agreement made in violation of this Article after the effective date of this amendatory Act of the 97th General Assembly, except a supplement or extension of an existing contract, is void and unenforceable, and the Comptroller and Treasurer of the State of Illinois shall not process any payment claims or warrants for any contract or agreement made in violation of this Article.

(30 ILCS 500/32-55 new)

Sec. 32-55. Design/build project. Nothing in this Article shall be deemed to prohibit a State agency from contracting for a design/build project.

(30 ILCS 500/32-60 new)

Sec. 32-60. Affirmative action. Nothing in this Article shall be deemed to prohibit or restrict State agencies from establishing or maintaining affirmative action contracting goals for minorities or women, or small business setaside programs, now or hereafter established by law, rule, or executive order.

Section 15. The Architectural, Engineering, and Land Surveying Qualifications Based Selection Act is amended by changing the title of the Act and Sections 1, 5, 10, 15, 20, 25, 30, 40, 45, 50, 60, and 65 as follows:

(30 ILCS 535/Act title)

An Act concerning procurement of architectural, engineering, and land surveying services by the State of Illinois.

(30 ILCS 535/1) (from Ch. 127, par. 4151-1)

Sec. 1. Short title. This Act may be cited as the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

(Source: P.A. 87-673.)

(30 ILCS 535/5) (from Ch. 127, par. 4151-5)

Sec. 5. State policy on procurement of architectural, engineering, and land surveying services. It is the policy of State agencies of this State to publicly announce all requirements for architectural, engineering, and land surveying services, to procure these services on the basis of demonstrated competence and qualifications, to negotiate contracts at fair and reasonable prices, and to authorize the Department of Professional Regulation to enforce the provisions of Section 65 of this Act.

(Source: P.A. 87-673.)

(30 ILCS 535/10) (from Ch. 127, par. 4151-10)

Sec. 10. Federal requirements. In the procurement of architectural, engineering, and land surveying services and in the awarding of contracts, a State agency may comply with federal law and regulations including, but not limited to, Public Law 92-582 (Federal Architect-Engineer Selection Law, Brooks Law, 40 U.S.C. 541) and take all necessary steps to adapt its rules, specifications, policies, and procedures accordingly to remain eligible for federal aid.

(Source: P.A. 87-673.)

(30 ILCS 535/15) (from Ch. 127, par. 4151-15)

Sec. 15. Definitions. As used in this Act:

"Architectural services" means any professional service as defined in Section 5 of the Illinois Architecture Practice Act of 1989.

"Engineering services" means any professional service as defined in Section 4 of the Professional Engineering Practice Act of 1989 or Section 5 of the Structural Engineering Practice Act of 1989.

"Firm" means any individual, sole proprietorship, firm, partnership, corporation, association, or other legal entity permitted by law to practice the profession of architecture, engineering, or land surveying and provide those services.

"Land surveying services" means any professional service as defined in Section 5 of the Illinois Professional Land Surveyor Act of 1989.

"Project" means any capital improvement project or any design, study, plan, survey, or new or existing program activity of a State agency, including development of new or existing programs that require architectural, engineering, or land surveying services.

"State agency" means any department, commission, council, board, bureau, committee, institution, agency, university, government corporation, authority, or other establishment or official of this State.

(Source: P.A. 91-91, eff. 1-1-00.)

(30 ILCS 535/20) (from Ch. 127, par. 4151-20)

Sec. 20. Prequalification. A State agency shall establish procedures to prequalify firms seeking to provide architectural, engineering, and land surveying services or may use prequalification lists from other State agencies to meet the requirements of this Section.

(Source: P.A. 87-673.)

(30 ILCS 535/25) (from Ch. 127, par. 4151-25)

Sec. 25. Public notice. Whenever a project requiring architectural, engineering, or land surveying services is proposed for a State agency, the State agency shall provide no less than a 14 day advance notice published in a professional services bulletin or advertised within the official State newspaper setting forth the projects and services to be procured. The professional services bulletin shall be available electronically and may be available in print. The professional services bulletin shall include a description of each project and shall state the time and place for interested firms to submit a letter of interest and, if required by the public notice, a statement of qualifications.

(Source: P.A. 92-345, eff. 8-10-01.)

(30 ILCS 535/30) (from Ch. 127, par. 4151-30)

Sec. 30. Evaluation procedure. A State agency shall evaluate the firms submitting letters of interest and other prequalified firms, taking into account qualifications; and the State agency may consider, but shall not be limited to considering, ability of professional personnel, past record and experience, performance data on file, willingness to meet time requirements, location, workload of the firm and any other qualifications based factors as the State agency may determine in writing are applicable. The State agency may conduct discussions with and require public presentations by firms deemed to be the most qualified regarding their qualifications, approach to the project and ability to furnish the required services.

A State agency shall establish a committee to select firms to provide architectural, engineering, and land surveying services. A selection committee may include at least one public member nominated by a statewide association of the profession affected. The public member may not be employed or associated with any firm holding a contract with the State agency nor may the public member's firm be considered for a contract with that State agency while he or she is serving as a public member of the committee.

In addition, the Department of Transportation may appoint public members to selection committees that represent the geographic, ethnic, and cultural diversity of the population of the State, including persons nominated by associations representing minority and female-owned business associations. Public members shall be licensed in or have received a degree from an accredited college or university in one of the professions affected and shall not be employed by, associated with, or have an ownership interest in any firm holding or seeking to hold a contract while serving as a public member of the committee.

In no case shall a State agency, prior to selecting a firm for negotiation under Section 40, seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost, or any other measure of compensation.

(Source: P.A. 96-37, eff. 7-13-09; 96-849, eff. 12-23-09.)

(30 ILCS 535/40) (from Ch. 127, par. 4151-40)

Sec. 40. Contract negotiation.

(a) The State agency shall prepare a written description of the scope of the proposed services to be used as a basis for negotiations and shall negotiate a contract with the highest qualified firm at compensation that the State agency determines in writing to be fair and reasonable. In making this decision, the State agency shall take into account the estimated value, scope, complexity, and professional nature of the services to be rendered. In no case may a State agency establish a maximum overhead rate or other payment formula designed to eliminate firms from contention or restrict competition or negotiation of fees.

(b) If the State agency is unable to negotiate a satisfactory contract with the firm that is most preferred, negotiations with that firm shall be terminated. The State agency shall then begin negotiations with the firm that is next preferred. If the State agency is unable to negotiate a satisfactory contract with that firm, negotiations with that firm shall be terminated. The State agency shall then begin negotiations with the firm that is next preferred.

(c) If the State agency is unable to negotiate a satisfactory contract with any of the selected firms, the State agency shall re-evaluate the architectural, engineering, or land surveying services requested, including the estimated value, scope, complexity, and fee requirements. The State agency shall then compile a second list of not less than 3 qualified firms and proceed in accordance with the provisions of this Act.

(d) A firm negotiating a contract with a State agency shall negotiate subcontracts for architectural, engineering, and land surveying services at compensation that the firm determines in writing to be fair and reasonable based upon a written description of the scope of the proposed services.

(Source: P.A. 87-673.)

(30 ILCS 535/45) (from Ch. 127, par. 4151-45)

Sec. 45. Small contracts. The provisions of Sections 25, 30, and 35 do not apply to architectural, engineering, and land surveying contracts with an estimated basic professional services fee of less than $25,000.

(Source: P.A. 92-861, eff. 1-3-03.)

(30 ILCS 535/50) (from Ch. 127, par. 4151-50)

Sec. 50. Emergency services. Sections 25, 30, and 35 do not apply in the procurement of architectural, engineering, and land surveying services by State agencies (i) when an agency determines in writing that it is in the best interest of the State to proceed with the immediate selection of a firm or (ii) in emergencies when immediate services are necessary to protect the public health and safety, including, but not limited to, earthquake, tornado, storm, or natural or man-made disaster.

(Source: P.A. 87-673.)

(30 ILCS 535/60) (from Ch. 127, par. 4151-60)

Sec. 60. Certificate of compliance. Each contract for architectural, engineering, and land surveying services by a State agency shall contain a certificate signed by a representative of the State agency and the firm that the provisions of this Act were complied with.

(Source: P.A. 87-673.)

(30 ILCS 535/65) (from Ch. 127, par. 4151-65)

Sec. 65. Scope. No person, corporation, or partnership licensed or registered under the Illinois Architecture Practice Act of 1989, the Professional Engineering Practice Act of 1989, the Structural Engineering Practice Act of 1989, or the Illinois Professional Land Surveyor Act of 1989 shall engage in any act or conduct, or be a party to any contract, or agreement, in violation of the provisions of this Act.

(Source: P.A. 91-91, eff. 1-1-00.)