Section 2600.1  Title

 

This Part may be cited as the State Board of Elections Procurement Rules.

 

Section 2600.5  Policy

 

All procurements by the State Board of Elections (SBEL) shall be accomplished in the most economical, expeditious and commercially reasonable manner that is in accordance with statute, this Part and other applicable rules.

 

Section 2600.10  Application

 

a)         Several Articles of the Illinois Procurement Code [30 ILCS 500] (the Code) will be referenced in this Part as though applicable to SBEL and all procurements of goods or services conducted by SBEL.

 

b)         The Code and this Part do not apply to:

 

1)         grants;

 

2)         hiring of an individual as employee and not as an independent contractor, whether pursuant to an employment code or policy or by contract directly with that individual;

 

3)         collective bargaining contracts;

 

4)         contracts necessary to prepare for anticipated litigation or investigations, provided that the SBEL Chief Legal Counsel shall give his or her prior approval.  [30 ILCS 500/1-10]

 

Section 2600.15  Definitions

 

As used in this Part, terms defined in the Illinois Procurement Code shall have those meanings and other terms used are defined in this Section.

 

"Bid" means the response to an Invitation for Bids.

 

"Bidder" means any person who submits a bid.

 

"Brand Name or Equal Specification" means 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" means a specification limited to one or more items by manufacturers' names or catalogue numbers.

 

"Bulletin" means the Procurement Bulletin mandated by Article 15 of the Procurement Code.

 

"Chief Procurement Officer" or "CPO" means the Executive Director of the State Board of Elections or his or her designee.

 

"CMS" means the Department of Central Management Services.

 

"Code" means the Illinois Procurement Code [30 ILCS 500].

 

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

 

"Contract" means any agreement or lease that requires the payment of State funds by SBEL in exchange for goods or services.  A contract may be in written or oral form.

 

"Contractor" or "Vendor" may be used interchangeably for purposes of this Part.

 

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

 

"Invitation for Bids" or "IFB" means the process by which SBEL requests information from bidders, including all documents, whether attached or incorporated by reference, used for soliciting bids.  [30 ILCS 500/1-15.45]

 

"Multi-step Sealed Bidding" means 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 State 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.

 

"Offer from Responsive Bidders or Offerors" means only those offers that are received using an Invitation for Bids or Request for Proposals under Sections 20-10, 20-15 and 20-35 or Article 35 of the Code. Disclosures are not required in small, sole source or emergency procurements.

 

"Offerors" means only those businesses submitting proposals that are acceptable or potentially acceptable.  The term shall not include businesses that submitted unacceptable proposals.

 

"Practicable", as used in Section 20-15 (Competitive Sealed Proposals) of the Code and in this Part, denotes what may be accomplished or put into practical application.  "Advantageous" connotes a judgmental assessment of what is in the State's best interest.  Before a procurement may be conducted by competitive sealed proposals, the Procurement Officer shall determine in writing that competitive sealed bidding is either not practicable or not advantageous to the State.

 

"Procurement Officer" means an individual appointed by the CPO to conduct particular procurement, or his or her designee.

 

"Professional and Artistic Services" means those services provided under contract to SBEL by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability [30 ILCS 500/1-15.60].

 

"Proposal" means the response to a Request for Proposals.

 

"Qualified Products List" means an approved list of supplies described by model or catalogue numbers that, prior to competitive solicitation, the SBEL has determined will meet the applicable specification requirements.

 

"Request for Information" or "RFI" means the process by which SBEL requests information from offerors for applicable contracts.

 

"Request for Proposals" or "RFP" means the process by which SBEL requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals.  [30 ILCS 500/1-15.75]

 

"Responsive Bidder" means a person who has submitted a bid that conforms in all material respects to the Invitation for Bids.  [30 ILCS 500/1-85]

 

"Responsible Offeror" means a person who has submitted an offer that conforms in all material respects to the Request for Proposals.

 

"SBEL" means the State Board of Elections.

 

"Service" means 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 and the financing of the performance [30 ILCS 500/1-15.90].

 

"Specification" means any description, provision, or requirement pertaining to the physical, functional, or performance characteristics or the nature, of a supply or service.  A specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply or service item for delivery.  [30 ILCS 500/1-15.95]  Unless the context requires otherwise, the terms "specification" and "purchase description" are used interchangeably throughout this Part.

 

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

 

"Unsolicited Offer" means any offer other than one submitted in response to a solicitation.

 

Section 2600.20  Property Rights

 

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

 

Section 2600.100  Exercise of Procurement Authority

 

a)         The CPO shall ensure that all procurements of SBEL are in accordance with the Code and this Part and are in the best interests of the State. 

 

b)         The CPO may appoint one or more employees under his direction and supervision to serve as an SPO.

 

Section 2600.200  Illinois Procurement Bulletin

 

Notice of any procurement action required by the Code to be publicized in the Illinois Procurement Bulletin will be forwarded to CMS for inclusion in the appropriate volume of the Bulletin in accordance with rules promulgated by CMS (44 Ill. Adm. Code 1.1510).

 

Section 2600.205  Supplemental Notice

 

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

 

Section 2600.210  Direct Solicitation

 

In addition to giving notice in the Bulletin, SBEL may directly contact prospective vendors by providing copies of Invitations for Bids, Requests for Proposals, or other procurement information.  Direct solicitation may be oral or in writing and all vendors solicited in this manner must receive the same information as that provided by publication.  No direct solicitation shall be made prior to the date any required notice first appears in the Bulletin.

 

Section 2600.300  General Provisions  

 

a)         Any bid or proposal received or modified after the time and date for receipt, and at other than the specified location, is late.  The Procurement Officer may, prior to the date or time for submitting or modifying a bid or proposal, extend the date or time or request bidders or offerors who have submitted timely bids or proposals to extend the time of their bids provided that the extension does not permit other vendors or offerors an opportunity to submit bids or proposals.  Any unsigned bid will be considered only if the bidder's signature is transmitted before the time and date for receipt.

 

b)         Bidding Process

 

1)         The Invitation for Bids or the Request for Proposals may require that vendors submit, by a certain time and date, a notice of their intent to submit a bid or proposal in response to the IFB or RFP.  Bids and proposals submitted without complying with the notice of intent requirement may be rejected.  There shall be a minimum of 14 days between the Invitation for Bids or Request for Proposals and the close of the bidding process unless the Procurement Officer deems that an immediate procurement is necessary.

 

2)         If only one bid or 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.  If the Procurement Officer finds that either factor exists, he or she may solicit new bids or offers under sole source (Section 2600.320) or emergency (Section 2600.325) procedures or cancel the procurement.

 

3)         An Invitation for Bids or Request for Proposals 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.

 

4)         Any bid or proposal that is conditioned upon receiving award of the particular contract being solicited and one or more other State contracts may only be accepted if the vendor is also independently evaluated as the winner of the other IFBs or RFPs, provided the agency need not delay procurement actions to accommodate the vendor's all or none condition.

 

5)         The CPO or designee may consider unsolicited offers provided that 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 SBEL and it meets the requirements for a small (Section 2600.315), sole source (Section 2600.320), or emergency (Section 2600.325) procurement.

 

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

 

7)         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 CPO determines in writing that it is not practical to award another contract at the time of the extension.

 

8)         The quantity that may be ordered from a definite quantity contract without additional notice and competition may be increased by up to 20% provided the CPO determines that separate bidding for the additional quantity is not likely to achieve lower pricing.  A particular procurement may specify a different percentage provided that it does not exceed the applicable small purchase threshold.

 

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

 

10)         Vendors must clearly identify any information that is exempt from the disclosure requirement of the Illinois Freedom of Information Act [5 ILCS 140] and must request special handling of that material.

 

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

 

c)         Assignment, Novation or Change of Name

 

1)         Assignment.  Contracts entered into under this Part are not transferable or otherwise assignable without the written consent of the CPO.  However, a vendor may assign moneys receivable under a contract after due notice to SBEL.  Any assignee must meet all requirements for contracting with the State.

 

2)         Recognition of a Successor in Interest; Novation.  When in the best interest of SBEL, a successor in interest may be recognized in a novation agreement.  Any transferee must: assume all of the transferor's obligations, meet all requirements for contracting with the State, waive all rights under the contract as against the State and furnish a satisfactory performance bond unless the transferor guarantees performance of the contract.

 

3)         Change of Name.  A vendor may submit a written request to change the name in which it holds a contract with SBEL. 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 under this subsection (c) shall be reported to the CPO or designee within 30 days after the date the agreement becomes effective so that the bid list may be updated.

 

d)         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].

 

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

 

Section 2600.305  Competitive Sealed Bidding

 

a)         The Invitation for Bids must include the following elements: 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 SBEL, the purchase description, evaluation factors, delivery or performance schedule, any inspection and acceptance requirements not included in the purchase description, and the contract terms and conditions, including warranty and bonding or other security requirements.

 

b)         The Invitation for Bids may incorporate documents by reference provided that the Invitation for Bids specifies where the documents can be obtained. 

 

c)         Bidder Submissions

 

1)         Bid Form.  The Invitation for Bids may include a form or format for submitting bids.  If a form or format is specified, vendor shall submit bids as instructed.  The invitation for bids shall be available to the public.

 

2)         Bid Samples and Descriptive Literature.  SBEL may require bid samples or descriptive literature in order to evaluate required characteristics of the items bid.  Any unsolicited bid samples or descriptive literature is submitted at the bidder's risk, may not be examined or tested, will not be deemed to vary any of the provisions of the Invitation for Bids, and may not be utilized by the vendor to contest a decision or understanding with SBEL.

 

d)         Public Notice

 

1)         Publication.  Every procurement for supplies and services in excess of the small purchase amount that must be procured using an Invitation for Bids shall be publicized in the Illinois Procurement Bulletin (see Section 2600.200).

 

2)         Distribution.  Invitations for Bids or Notices of the Availability of Invitations for Bids may be mailed or otherwise furnished to a sufficient number of bidders for the purpose of securing competition.  Notices of Availability shall, at a minimum, indicate where Invitations for Bids may be obtained; generally describe what is needed; and indicate the due date for bids.  Where appropriate, the Procurement Officer may require payment of a fee or a deposit for supplying the Invitation for Bids.

 

e)         Pre-Bid Conference

A pre-bid conference may be conducted to enhance understanding of the procurement requirements.  The pre-bid conference shall be announced as a part of the Invitation for Bids notice.  The conference may be designated as "attendance mandatory" or "attendance optional".  The conference should be held long enough after the Invitation for Bids has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids.  Nothing stated at the pre-bid conference shall change the Invitation for Bids unless a change is made by written amendment to the Invitation for Bids. Amendments shall be supplied to all those prospective bidders known to have received an Invitation for Bids.  If the conference is mandatory, the amendment shall be supplied to attendees only.

 

f)         Amendments to Invitations for Bids

 

1)         Form.  Amendments to Invitations for Bids must be clearly identified and reference the portion of the IFB it amends and must be made available to all prospective bidders known to have received an Invitation for Bids.

 

2)         Timeliness.  Amendments shall be made available within a reasonable time to allow prospective bidders to consider them in preparing their bids.  If the time and date set for receipt of bids does not permit such preparation, the amendment shall extend the response time.  If SBEL deems necessary, the response time may be extended by fax or telephone and confirmed in the amendment.

 

g)         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 Invitation for Bids prior to the time and date set for bid opening.

 

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.

 

h)         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)         Bids and modifications shall be opened publicly at the time, date, and place designated in the Invitation for Bids. 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 name of the witness shall also be recorded at the opening. The winning bid shall be available for public inspection after award, along with the record of each unsuccessful bid.

 

i)          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 Invitation for Bids, except as permitted in the Code and this Part.  The Invitation for Bids 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 Invitation for Bids.

 

2)         Responsiveness.  A bid must conform in all material respects to the Invitation for Bids.

 

A)        Product or Service Acceptability.  The Invitation for Bids 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 such inspection or examination as SBEL deems necessary before the contract is awarded.

 

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 Invitation for Bids.  Any bidder's offering that does not meet the acceptability requirements shall be rejected.

 

3)         Determination of Lowest Bidder.  Following determination of product or service acceptability as set forth in this subsection (i), bids will be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in the Invitation for Bids. Only objectively measurable criteria that are set forth in the Invitation for Bids 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.  Evaluation factors need not be precise predictors of actual future costs, but to the extent possible the evaluation factors shall be reasonable estimates based upon information the State has available concerning future use and shall provide for the equitable treatment of all bids.  Pricing for optional supplies 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.

 

4)         Price Negotiation. Negotiations are permitted with the low bidder to obtain a lower price for the item bid.

 

j)          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 Procurement Officer may choose a bidder other than the lowest responsible and responsive bidder for reasons including but not limited to a difference in quality or speed or delivery.  The name of the bidder selected, pricing, and the reasons for selecting this bidder instead of the low bidder must be published in the Bulletin.

 

k)         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 2600.315 (Small Purchases), notice of award shall be published in the Bulletin.

 

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

 

m)        The contract resulting from this process shall reflect the awarded requirements and no material changes shall be made except in compliance with the requirements of the Code and this Part, including, but not limited to, source selection and Bulletin posting requirements.

 

Section 2600.310  Competitive Sealed Proposals

 

a)         Competitive Sealed Proposals, as opposed to Competitive Sealed Bidding, 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 (note that the following services, if they are professional and artistic, must be procured pursuant to Section 2600.330):

 

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

 

2)         telecommunications equipment, software, and services;

 

3)         consulting services; and

 

4)         employee benefits and management of those benefits.

 

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 not advantageous.

 

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

 

2)         "Practicable" Distinguished from  "Advantageous".  As used in Section 20-15 (Competitive Sealed Proposals) of the Illinois Procurement Code and in this Section, "practicable" denotes what may be accomplished or put into practicable 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 procurement may be conducted by competitive sealed proposals, the Procurement Officer shall determine in writing that competitive sealed bidding is either not practicable or not advantageous to the State.

 

3)         The key element in determining whether use of a proposal is advantageous is the need for flexibility.  The competitive sealed proposal method differs from competitive sealed bidding in two important ways:

 

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

 

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

 

4)         When 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.

 

5)         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 Invitation for Bids. 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 Request for Proposals, of differing price, quality, and contractual factors in order to determine the most advantageous offering to the State.  Quality factors include technical and performance capability and the content of the technical proposal; and

 

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

 

6)         Competitive sealed proposals may be used if it is determined that it is not advantageous to the State, even though practicable, to use competitive sealed bidding.  Factors to be considered in determining whether competitive sealed bidding is not advantageous include:

 

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

 

B)        whether the factors listed in subsection (c)(3) of this Section are desirable, in conducting a procurement, rather than necessary; if they are, then such factors may be used to support a determination that competitive sealed bidding is not advantageous.

 

d)         The Request for Proposals must be prepared in accordance with Section 2600.305 and must include 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 a statement of when and how price should be submitted.  Proposals must include the name and place of business of the offeror, a plan for carrying out the requested services together with a showing of qualifications to carry out the plan, and a list of any relevant experience the offeror has had with similar plans.

 

e)         Proposals and modifications shall be opened as designated in the Request for Proposals.  Opening shall be witnessed by at least two SBE employees.  A record shall be prepared that shall include 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 record of proposals shall be open to public inspection after award of the contract.  Proposals and modifications shall be opened in a manner to avoid disclosing contents to competitors.  Only State personnel and contractual agents may review the proposals prior to award.

 

f)         Criteria and evaluation of proposals in this Section shall be performed in accordance with Section 2600.305.

 

g)         Proposal Discussions with Individual Offerors

 

1)         Discussions may be held to promote understanding of the State's requirements and the offerors' proposals or facilitate arriving at a contract that will be most advantageous to the State, taking into consideration price and the other evaluation factors set forth in the Request for Proposals.

 

2)         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 to, the Request for Proposals, the Request shall be amended to incorporate the clarification or change.  Any disclosure of information to offerors from competing proposals is prohibited.  Any clarification of a proposal shall be reduced to writing by the offeror.

 

3)         Best and Final Offers.  The Procurement Officer may request Best and Final offers, when in the best interest of the State, for reasons including, but not limited to, reducing scope to accommodate budget, obtain lower cost at no or insignificant change from original proposal, accepting new technology at no or insignificant change in cost, or having vendors adjust proposals to focus on one or several alternatives originally requested or proposed.  Best and Final offers may be requested from all offerors or from only those in the zone of contention after preliminary evaluation as determined by the Procurement Officer.  The request for Best and Final offers may pertain to any aspect of the solicitation, including but not limited to qualifications, specifications, scope of work or price.  The Best and Final request shall clearly identify the matters that the offerors must address, and the matters may vary from vendor to vendor if necessary.  Best and Final offers shall be submitted by a specified date and time.  The Procurement Officer may conduct additional discussions or change the State's requirements and require another submission of Best and Final offers.  If an offeror does not submit a Best and Final offer, that offeror's immediately previous offer will be construed as its Best and Final offer.

 

h)         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 State, based on the factors set forth in the Request for Proposals.

 

i)          The successful offeror shall be notified of award.  Notification may be in the form of a letter, purchase order or other clear communication. When the award exceeds the small purchase limit set in Section 2600.315 of this Part, notice of award shall be published in the Bulletin.

 

Section 2600.315  Small Purchases

 

a)         This Section is applicable to procurements of $25,000 or less for professional and artistic services or supplies and $30,000 or less for construction.  If only a unit price or hourly rate is known, the contract shall be considered a small purchase and this Section shall apply.  Each July 1, the small purchase maximum shall be adjusted for inflation as determined by the Consumer Price Index for all Urban Consumers as determined by the United States Department of Labor and rounded to the nearest $100.

 

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

 

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

 

d)         Procurement requirements shall not be artificially divided to avoid using the other source selection methods set forth in Section 20-5 of the Illinois Procurement Code.

 

e)         If there is a repetitive need for small procurements of the same type, the Procurement Officer shall consider issuing a competitive sealed bid or proposal for procurement of those needs.

 

Section 2600.320  Sole Economically Feasible Source Procurement

 

a)         The provisions of this Section apply to procurement from a sole economically feasible source (referred to as sole source) unless the estimated amount of the procurement meets the definition of a small purchase or an emergency procurement as defined this Part.

 

b)         The determination as to whether a procurement shall be made as a sole source shall be made by the CPO or his designee.  The determination and the basis for the determination shall be in writing and shall include an explanation as to why no other vendor will be suitable or acceptable to meet the need. 

 

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

 

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

 

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

 

4)         where public utility regulated services are to be procured;

 

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

 

6)         the procurement of the media for advertising; and

 

7)         the procurement of art or entertainment services.

 

d)         A change (whether in cost or rate) that does not exceed the applicable small purchase limit as defined in Section 2600.315 or that is an emergency as defined in Section 2600.325 may be made in accordance with those Sections and need not comply with these sole source procedures.  A change in the length of the contact 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.

 

Section 2600.325  Emergency Procurements 

 

a)         The provisions of this Part apply to every procurement over the small purchase limit as defined in Section 2600.315 that is not a sole source procurement as defined in Section 2600.320 made under emergency, including quick purchase, conditions.

 

b)         This Section may be used to extend an existing contract for such period of time as is needed to conduct a competitive method of source selection when terminating or allowing the contract to terminate would not be advantageous to the State.

 

c)         Any method of source selection, whether or not identified in this Part, may be used to conduct the procurement in emergency situations.  The procedure used shall be selected to assure that the required items are procured in time to meet the emergency.  Such competition as is practicable shall be obtained.

 

d)         The Procurement Officer shall make a written determination stating the basis for an emergency procurement and for the selection of the particular vendor.  Record of the basis for the emergency must be retained.

 

e)         An affidavit of each emergency procurement shall be filed with the Auditor General within 10 days after the procurement and shall include the vendor's name, the amount and type of the contract, a description of the vendor's responsibilities, and the basis for using the emergency procurement procedure.

 

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

 

Section 2600.330  Competitive Selection Procedures for Professional and Artistic Services

 

a)         The provisions of this Section apply to every procurement of professional and artistic services, except as otherwise provided in this Part.

 

b)         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.

 

c)         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 $25,000 or more or as otherwise established in Section 20-20 of the Code.

 

d)         The CPO may use the list of prequalified professional and artistic vendors maintained by CMS pursuant to 44 Ill. Adm. Code 1.2045.

 

e)         Notice of the need for professional and artistic services shall be made by the Procurement Officer in the form of a Request for Proposals and must be given as provided in Section 2600.200 and published in the Procurement Bulletin.  Notice shall also be distributed to prequalified persons interested in performing the services required by the proposed contract.

 

f)         The Request for Proposals shall be in the form specified by the CPO or his or her designee and must be returned to and handled by the CPO or his or her designee.  It must comply with the Invitation for Bids requirements found in Section 2600.305.

 

g)         Proposals shall be evaluated only on the basis of evaluation factors stated in the Request for Proposals.  Price will not be evaluated until ranking of all proposals and identification of the most qualified vendor.  The relative importance of the evaluation factors will vary according to the type of services being procured.  The minimum factors are:

 

1)         the plan for performing the required services;

 

2)         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;

 

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

 

4)         a record of past performance of similar work.

 

h)         Proposals and modifications shall be opened publicly at the time, date and place designated in the Request for Proposals. Opening shall be witnessed by an SBEL employee, but the person opening proposals shall not serve as witness.  A record shall be prepared that includes 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 record of proposals shall be open to public inspection after award of the contract. Proposals of offerors who are not awarded the contract shall not be open to public inspection.

 

i)          The Procurement Officer may conduct discussions with any offeror in order to determine in greater detail the offeror's qualifications or learn more about the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach. The Procurement Officer may allow changes to the proposal based on those discussions.

 

j)          Discussions shall not disclose any information derived from proposals submitted by other offerors, and the agency conducting the procurement shall not disclose any information contained in any proposals until after award of the proposed contract has been made.  The proposal of the offeror awarded the contract shall be open to public inspection, except as otherwise provided in the contract.

 

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

 

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

 

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

 

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

 

3)         If the price of the best qualified vendor exceeds $25,000, the Procurement Officer must state why a vendor other than the low priced vendor was selected and that determination shall be published in the Bulletin.

 

m)        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.  Compensation must be determined in writing to be fair and reasonable, as determined by the Procurement Officer based on the circumstances of the particular procurement, including but not limited to the nature of the services needed, qualifications of the offerors, consideration of range of prices received in the course of the procurement, and SBEL's identified budget.

 

n)         The Procurement Officer may choose to negotiate with a source other than the best qualified offeror if compensation, contract requirements, or contract documents cannot be agreed upon with the best qualified offeror.  A written record stating the reasons for the disagreement shall be placed in the file.  The Procurement Officer shall advise the best qualified offeror of the termination of negotiations.

 

o)         Nothing in this Section shall prohibit the Procurement Officer from making a selection that represents the best value, qualifications, price and other relevant factors established in the Request for Proposals being considered. The Procurement Officer may, in considering best value, determine the proposal from a fully qualified vendor that submitted the lowest price to be the best value without further evaluation.

 

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

 

q)         Small, sole source and emergency procurements of professional and artistic services under the jurisdiction of a Procurement Officer do not require approval of the CPO to proceed.  Any notices shall be published by the Procurement Officer.

 

r)          Following completion of the contract, the Procurement Officer shall provide a synopsis of the contract and shall rate the vendor's performance.  A copy of the completed form shall be maintained in the files of the CPO.

 

Section 2600.335  Other Methods of Source Selection 

 

a)         An award of a definite quantity requirement may be split between bidders or offerors.  Each portion shall be for a definite quantity and the sum of the portions shall be the total definite quantity required.  A split award may be used only when award to more than one bidder or offeror for different amounts of the same item is necessary to obtain the total quantity or the required delivery.  The Procurement Officer shall make a written determination setting forth the reasons for the split award and retain it in the procurement file.

 

b)         The Procurement Officer may choose to use a term and condition contract when necessary to purchase assets that precede a procurement.  A term and condition contract contains agreed contractual terms and conditions established for the convenience of the parties to be used in conjunction with a subsequent procurement and processed in accordance with the requirements of the Code and this Part.  A term and condition contract is not a procurement.  It creates no obligation on the part of SBEL to procure from the vendor.  Orders may be placed against term and condition contracts without use of any prescribed method of source selection for convenience of processing sole source, emergency or small procurements.

 

c)         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)         The Procurement Officer must ensure that SBEL complies with federal requirements that are necessary to receive or maintain any federal aid funds, grants or loans, and may not contravene SBEL's reimbursement provisions in 26 Ill. Adm. Code 204.50(e).

 

Section 2600.340  Tie Bids and Proposals

 

a)         This Section is applicable when bids or proposals from responsive and responsible vendors are identical in price or evaluation and represent the low price.

 

b)         In case of a tie bid, the procurement will be awarded based on consideration of the following factors, in no particular order: Illinois resident vendor status, experience in contracting with the State, vendor quality and delivery time.

 

Section 2600.345  Mistakes

 

a)         When the Procurement Officer becomes aware that a mistake has been made, he or she 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.

 

b)         Mistakes in Bids Discovered After 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 Invitation for Bids, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on price, quality, quantity, delivery, or contractual conditions is negligible).  The Procurement Officer shall waive such informalities or allow the bidder to correct them depending on which is in the best interest of SBEL. 

 

2)         Mistakes in which Intended Correct Bid Is Evident.  If the mistake and the intended correct bid are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn.

 

3)         A bidder may be permitted to withdraw a low bid due to mistake if the mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident or the bidder submits proof of evidentiary value that clearly demonstrates that a mistake was made.

 

c)         Once discussions are commenced with any offeror or after Best and Final offers are requested, any offeror may propose to correct any mistake prior to the date set for conclusion of discussions or for receipt of Best and Final offers, provided the correction would not be contrary to the fair and equal treatment of other offerors.  Mistakes shall not be corrected after award of the contract, except when the Procurement Officer finds it would result in an unconscionable windfall to the State.

 

d)         In any circumstance in which a proposal is corrected or withdrawn, or correction or withdrawal is denied, the Procurement Officer shall prepare a written determination showing that relief was granted or denied in accordance with this Part.

 

Section 2600.350  Cancellation of Solicitations; Rejection of Bids or Proposals

 

a)         Any solicitation may be canceled when the Procurement Officer believes cancellation to be in SBEL's best interest.  Nothing shall compel the award of a contract.  This Section shall govern any such cancellations.

 

b)         When a solicitation is canceled prior to opening, notice of cancellation shall be sent to all businesses that responded to the solicitation.  The notice of cancellation shall identify the solicitation, explain the reason for cancellation and explain whether another solicitation on the subject matter will be necessary.  The notice of cancellation shall be placed in the procurement file.

 

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

 

1)         After opening but prior to award, a solicitation may be canceled 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, elimination of the need for the requested supplies or service, inability to fund the procurement, a change in circumstances that requires an alteration in the procurement plan, there is evidence the bids are collusive, or the bids are at clearly unreasonable prices. 

 

2)         When the solicitation is canceled or when all bids or proposals are rejected, all vendors who submitted bids or proposals shall be sent a notice, upon request, informing them of the reasons for the cancellation or rejection.

 

d)         Rejection of Individual Bids or Proposals in Whole or in Part

 

1)         Notice in Solicitation.  Each solicitation shall provide that any bid or proposal may be rejected in whole or in part when in the best interest of SBEL as described in subsection (d)(2).

 

2)         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 nonresponsive or nonresponsible;

 

B)        the proposal is untimely, non-responsive or deemed to be unacceptable to fit the agency's needs;

 

C)        SBEL can no longer expect to fund the project due to increased prices or all qualified bidders seeking unreasonable prices; or

 

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 Invitation for Bids.

 

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

 

Section 2600.400  Suppliers

 

a)         SBEL may contract with any qualified source of supply not limited to those found to be qualified by CMS pursuant to 44 Ill. Adm. Code 1.2045.

 

b)         Special Sources

 

1)         Prior to any equipment procurement, SBEL may consider property available from the State and Federal Surplus Warehouses, which are under the jurisdiction of CMS.  The State Property Control Act [30 ILCS 605/7a] requires that surplus furniture be considered before any purchase of new furniture valued at $500 or more per piece.  SBEL may use any prequalified bidder list maintained by CMS and avail itself of the standards for qualification found at 44 Ill. Adm. Code 1.2045 and 1.2046.

 

2)         Various supplies and services are available from qualified workshops for the disabled and procurement from these workshops is encouraged.  Notice and competition is not required pursuant to Section 45-35 of the Code.

 

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

 

            c)         Prequalification

 

1)         The CPO shall determine any categories of services for which he or she deems prequalification to be in the best interests of the agency and shall allow for a prequalification period once per year.  Notice of the prequalification period shall be announced in the Procurement Bulletin and shall alert vendors that they must take part in the prequalification period in order to be eligible for future procurements.

 

2)         The prequalification may be used for a specific procurement or type of procurement, and it may include any factors the CPO deems to aid in the determination of whether a vendor is likely to be "responsible" or otherwise qualified to undertake the 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.  If eligibility for the procurement will be limited to prequalified vendors, the Invitation for Bids, Request for Proposals or other procurement request shall state that fact.

 

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

 

Section 2600.405  Responsibility

 

a)         Contracts are to be made only with responsible vendors unless no responsible vendor is available to meet the State'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.  SBEL may use any prequalified bidder list maintained by CMS.

 

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

 

1)         has available the appropriate financial, material, equipment, facility, and personnel resources and expertise (or the ability to obtain them) necessary to meet all contractual requirements (the Procurement Officer may designate a level of financial resource below which the vendor will be deemed "not responsible");

 

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

 

3)         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;

 

4)         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 create a reasonable inference or appearance of a lack of integrity on the part of the vendor may be declared not responsible for the particular procurement;

 

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

 

6)         has a current Public Contracts number from the Illinois Department of Human Rights, pursuant to 44 Ill. Adm. Code 750.210, if required or is otherwise statutorily barred from contracting with the State.  Proof of application for a Public Contracts number prior to opening of bids or proposals will be sufficient for an initial determination;

 

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

 

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

 

d)         Upon request, the prospective vendor shall submit evidence that it possesses necessary financing, equipment, facilities or expertise or that it has an acceptable plan to subcontract for such necessary items.

 

e)         If a vendor who otherwise would have been awarded a contract is found nonresponsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the CPO or the SPO.   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 of such vendors.

 

g)         Vendors who are newly formed business concerns having substantially the same owners, officers, directors, or beneficiaries as a previously existing vendor that has been determined not responsible will also be determined not to be responsible unless the new organization can prove it was not set up for the purpose of avoiding an earlier determination of nonresponsibility.

 

Section 2600.500  Security Requirements

 

A Procurement Officer may require that a vendor furnish bid, proposal, or performance security on SBEL contracts.  Whenever security is required, the procurement document will clearly indicate the type and amount of security.  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.

 

Section 2600.600  Types of Contracts

 

a)         This Section contains descriptions of types of contracts and limitations as to when they will be utilized by SBEL in its procurements. Types of contracts not mentioned in this Section may also be utilized.

 

b)         The cost-plus-a-percentage-of-cost method of contracting is prohibited by Section 20-55 of the Code.  This type of contracting may not be used alone or in conjunction with an authorized type of contract.  A cost-plus-percentage-of-cost contract is one in which the vendor selects the supply or service on which the vendor's percentage is applied.  Contracts that involve a percentage mark-up are not necessarily a cost-plus-a-percentage-of-cost contract.

 

c)         Fixed-Price Contracts.  If the contract permits unilateral action by the vendor to bring about the condition under which a price increase may occur, SBEL shall have the right to reject the price increase and terminate without cost the future performance of the contract.

 

d)         A cost-reimbursement type contract will be used only when the Procurement Officer determines in writing that such a contract is likely to be less costly to the State than any other type or that it is impracticable to obtain the items.   This Section does not apply to reimbursement of travel expenses in accordance with applicable travel control board regulations.

 

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

 

f)         Cost-Plus-Fixed-Fee Contract.  This is a cost-reimbursement type contract that provides for payment to the vendor 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 the 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.

 

g)         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.  They shall, to the extent possible, contain a stated ceiling or an estimate that shall not be exceeded without prior SBEL approval.

 

h)         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 SBEL is obligated to order and may also provide for a maximum quantity provision that limits SBEL's obligation to order.

 

i)          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, except pursuant to an option to purchase.

 

j)          Contracts may provide for payment to the vendor of a percentage of the amount the vendor recovers or collects on behalf of SBEL.  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.

 

k)         When a contract is to contain an option for renewal, extension, or purchase, notice of that provision shall be included in the solicitation.  These options may be exercised without taking other procurement action when the option is established for exercise at SBEL's option, and there is no material change in the terms and conditions or any such change is dependent on a fixed formula or standard established in the original contract.  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 SBEL's requirements, the purchase option price is less than the small purchase limit or emergency conditions exist.

 

l)          Notwithstanding any provision in any contract, supplies or services available from State programs, such as Correctional Industries, may be ordered without violating any contract.

 

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

 

n)         The CPO may authorize an IFB, RFP or sole source negotiation for energy conservation measures under which SBEL 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.

 

Section 2600.700  Duration of Contracts − General

 

a)         General

 

1)         A multi-term contract for a total term of up to 5 years is authorized when determined by the Procurement Officer to be in the best interest of the State.

 

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)         Except in an emergency or when the Procurement Officer determines that immediate performance is necessary, the vendor shall not begin billable performance on the contract prior to final approval.  The Procurement Officer must approve any pre-contract work and shall document the reasons for such approval in the procurement file.  Each solicitation and contract shall contain a provision alerting vendors that they will not be eligible for reimbursement for work performed prior to execution of the contract, except as provided in this subsection (a)(3).

 

b)         The contractual obligation of both parties in each fiscal period succeeding the first is subject to appropriation and availability of funds. The contract shall provide that, in the event funds are not available for any succeeding fiscal period, the remainder of the contract shall be canceled without penalty to, or further payment being required by, the State.  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)         A multi-term contract may be used when special production of definite quantities or the furnishing of long-term services is required to meet SBEL needs; or a multi-term contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies via SBEL procurement.

 

d)         Any multi-term contract solicitation shall state: the proposed term, the amount of supplies or services required for the proposed contract period, the type of pricing requested (e.g., firm for term), and how and when 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 State or is by mutual agreement.  A renewal option that requires modification to a material term or condition of the contract shall be treated as a new contract and shall be subject to competitive procurement procedures established by the Code and this Part.

 

2)         When the original procurement was silent as to renewals, the renewal must be procured using one of the methods of source selection authorized by the Code and this Part.  This renewal shall start a new term not to exceed 10 years.

 

Section 2600.800  Prevailing Wage

 

a)         For employees working in the areas of public works, printing and janitorial services, no bidder 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.

 

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

 

1)         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.

 

2)         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 between the vendor and employee representatives governing the type of printing, janitorial, window washing or security guard service sought, that agreement will define minimum wages, benefits and conditions that must be paid in order for a bidder 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 skilled laborers, workers and mechanics may be obtained in sufficient numbers to perform the work.

 

f)         For printing contracts, location means the prevailing wages evidenced by union contracts in the county where the work is performed. 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 printing is required to be delivered to more than one Illinois locality, the 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 services, window washing 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 Illinois Department of Labor.

 

Section 2600.805  Equal Employment Opportunity; Affirmative Action

 

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

 

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

 

b)         Comply with the procedures and requirements of the Department of Human Rights (DHR) regulations concerning equal employment opportunities and affirmative action;

 

c)         Provide such information, with respect to its employees and applicants for employment, and assistance as DHR may reasonably request;

 

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

 

1)         the illegality of sexual harassment;

 

2)         the definition of sexual harassment under State law;

 

3)         a description of sexual harassment, utilizing examples;

 

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

 

5)         the legal recourse, investigative and complaint process available through DHR and the Human Rights Commission;

 

6)         directions on how to contact DHR and the Commission; and

 

7)         protection against retaliation as provided by Section 6-101 of the Illinois Human Rights Act [775 ILCS 5/6-101]. A copy of the policies shall be provided to DHR upon request.

 

Section 2600.900  Procurement Preferences

 

The procurement preferences identified in Article 45 of the Procurement Code shall be considered in developing procurement documents, conducting evaluations and drafting contracts.  Subsequent Sections of this Subpart M identify conditions for the use of certain of the statutory preferences.

 

Section 2600.905  Sheltered Workshops for the Disabled

 

a)         The Procurement Officer may determine to contract with a sheltered workshop on the list maintained by CMS, and may do so without notice or competition.

 

b)         Conditions for Use 

            The CPO shall, in consultation with the State Use Committee created by the Procurement Code (Section 45-35(c)), determine which articles, materials, services, food stuffs and supplies that are produced or manufactured by persons with disabilities in State use sheltered workshops shall be given preference by purchasing agencies procuring those items.  The CPO shall use procedures established by CMS for implementing this Section.

 

c)         The CPO shall use the list of all qualified sheltered workshops and the supplies and services each qualified sheltered workshop provides, which is maintained by CMS.

 

d)         Pricing Approval

 

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

 

2)         The State Use Committee, established under Section 45-35(c) of the Code, must approve contracts for reasonableness of price if:

 

A)        the supply or service would ordinarily be subject to competitive sealed bidding or competitive sealed proposals methods of source selection; or

 

B)        the supply or service is bid and the sheltered workshop is selected even though not the lowest responsible bidder.

 

3)         State Use Committee approval is not required if:

 

A)        the contract qualifies as a small purchase as defined in Section 2600.315 and no bidding was conducted; or

 

B)        the contract is awarded to the sheltered workshop under a competitive procedure.

 

Section 2600.910  Small Business Set Aside Program

 

a)         CMS has determined categories of supplies or service procurements that will be set aside for small business located in Illinois.  SBEL will use the list of categories for set-aside currently found at 44 Ill. Adm. Code 1.4545.

 

b)         The CPO or designee may use the list maintained by CMS of responsible vendors that meet the criteria of small business.  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)         If a 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)         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)         Unless the CPO provides a definition for a particular procurement that reflects industrial characteristics, a small business shall meet the definition found in Section 45-45 of the Procurement Code.

 

f)         Vendors desiring to submit bids or proposals or to otherwise contract for items set aside for small businesses shall submit information verifying that the vendor qualifies as a small business.  The CPO may establish procedures for verifying this information.

 

Section 2600.920  Contracting with Businesses Owned and Controlled by Minorities, Females and Persons with Disabilities

 

The Business Enterprise Act for Minorities, Females, and Persons with Disabilities [30 ILCS 575] (Act) sets a goal (minimum 12%) for contracting with businesses owned or controlled by minorities, females, or persons with disabilities.  Upon direction of the CPO, SBEL may establish set-asides and other such preferences for vendors certified under the Act and may refer to the list of businesses certified and maintained by CMS.

 

Section 2600.1000  Conflicts of Interest

 

a)         An individual has a conflict of interest when he or she has a direct pecuniary interest in a contract and is owed a payment or otherwise receives a direct financial benefit in conjunction with performance of a contract, including finder's fees and commission payments.  No individual with a conflict of interest in a particular procurement may take part in the procurement process.

 

b)         This Section does not apply to contracts with licensed professionals, provided the contracts are competitively bid as described in Subpart D.

 

Section 2600.1005  Negotiations for Future Employment

 

a)         It is unlawful for any person employed by SBEL, or on a continual contractual relationship with SBEL, to participate in contract negotiations on behalf of SBEL 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 500/50-15(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" from the effective date of the contract until 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 "continued contractual relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individual's option, is renewable unless SBEL must act to terminate, or has a definite term of at least three months.

 

Section 2600.1010  Exemptions 

 

If the Procurement Officer finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, the CPO may exempt named individuals from the prohibitions of Section 50-13 of the Code when, in its judgment, the public interest in having the individual in the service of the State outweighs the public policy evidenced in that Section [30 ILCS 500/50-20].

 

Section 2600.1015  Revolving Door

 

The CPO shall designate in writing the SBEL employees whose jobs or whose position descriptions are at least 51% directly related to State procurement. The following activities are directly related to State procurement: drafting specifications, preparing Invitations for Bids and Requests for Proposals, evaluating responses to Invitations for Bids and Requests for Proposals, negotiating contracts, and supervising any of the foregoing. The CPO shall maintain that information for a period of at least two years following the end or revocation of the designation.  Those employees shall be subject to the Revolving Door provision found in Section 50-30 of the Code.

 

Section 2600.1020  Disclosure of Financial Interests and Potential Conflicts of Interest 

 

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

 

b)         For purposes of Section 50-35(b)(1) of the Code, "contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, that is by and between the State and the named individual.

 

c)         Distributable or distributive income means the income of a company after payment of all expenses, including employee salaries and bonuses, and retained earnings, that is distributed to those entitled to receive a share of that income.

 

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

 

e)         Once a disclosure is made in relation to a particular contract, the disclosure need not be repeated if the contract is amended.

 

f)         10K Disclosures

 

1)         Any vendor subject to federal 10K reporting requirements may submit its 10K to SBEL in satisfaction of the disclosure requirement of Section 50-35(b) of the Code provided the vendor also identifies the specific sections or parts in the 10K disclosure where SBEL may find information, if any, pertaining to those who have an ownership interest or an interest in the distributable income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State.  If the financial interest or conflict of interest information requested by SBEL is not in the 10K, but is in a document referenced in the 10K, or in a document that may be submitted to the Securities Exchange Commission in conjunction with or in lieu of the 10K, then that additional documentation shall be provided as well.

 

2)         10K disclosures are available for public review.  Any potential conflict of interest identified by the public and brought to the attention of the CPO shall be investigated.

 

3)         In circumstances in which a vendor may submit a 10K disclosure in lieu of the specific disclosure requirements of the Code and for purposes of the Procurement Officer's duty to consider any conflict or potential conflict of interest that may exist, but that is not subject to specific disclosure requirements of the Code and this Part and that is not personally known by the Procurement Officer, the duty of the Procurement Officer "publicly known or reasonably available to the public" shall be satisfied by taking into consideration information identified by the vendor in the 10K disclosure and any information disclosed pursuant to public review of the 10K disclosure.

 

Section 2600.1100  Complaints Against Vendors

 

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

 

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

 

c)         For other infractions, SBEL shall send a written complaint to the vendor detailing the problem.  For complaints regarding contracts established by the CPO for CMS, a form available from the CPO for CMS shall be used to process those complaints and CMS shall be informed of the resolution or status of the complaint.

 

Section 2600.1105  Suspension

 

SBEL may recommend to CMS that a vendor be suspended from doing business with the State, with one or more agencies, or for specific types of supplies or services.

 

Section 2600.1110  Resolution of Contract Controversies

 

a)         The Procurement Officer shall have authority to resolve controversies and may accept delivery in accordance with contract requirements as resolution of a complaint.

 

b)         Subject to the approval of the Procurement Officer, the vendor may adjust a contract by substituting an alternative specification or reducing the contract amount to compensate for a failure to provide full performance.

 

c)         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 SBEL.

 

3)         Any supplies or services provided under the contract are rejected (for not meeting specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the vendor. If there are repeated rejections of the vendor's supplies or services, this shall be grounds for termination or rescission, even though the vendor offers to replace the supplies 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 supplies or services to SBEL such that the vendor cannot reasonably be depended upon to fulfill the vendor's obligations as a responsible vendor under any of the vendor's contracts with SBEL.

 

5)         The vendor should be adjudged bankrupt; enter into receivership or make a general assignment for the benefit of creditors due to insolvency; disregard laws, rules, or instructions of the Procurement Officer; or act in violation of any provision of the contract; or if the contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.

 

6)         The vendor obtained the contract by fraud, collusion, conspiracy or other unlawful means.

 

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

 

d)         Withholding Money to Compensate State for Damages

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

 

Section 2600.1115  Violation of Statute or Rule

 

If the CPO finds that the solicitation, award or contract is in violation of statute or this Part, the CPO may cancel the solicitation, award or contract, or make modifications to correct the violation, if the correction may be legally accomplished.  When a contract is voided under this Section, SBEL shall attempt to return any supplies delivered under the contract that have not been used or distributed.  Contracts based on awards or solicitations that were in violation of law shall be terminated at no cost to the State unless statute or rule allows the State to modify, ratify or take other corrective action.

 

Section 2600.1120  Protests

 

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

 

b)         Filing of Protest

 

1)         Protests shall be made in writing to the CPO and shall be filed within 7 calendar days after the protester knows or should have known of the facts giving rise to the protest.  A protest is considered filed when physically received by the CPO.  Protests filed after the 7 calendar day period shall not be considered.  In regard to a protest regarding specifications, the protest must be received within 7 calendar days after the date the solicitation was issued, and in any event must be received by SBEL at the designated address before the date for opening of bids or proposals.  For the purpose of protests to sole source contracts, the protest period shall be 14 days.

 

2)         To be considered a protest under this Section, the envelope must be labeled as a protest and include the name and address of the protester, an identification of the procurement or contract, a statement of the protest and any supporting documentation or evidence that is relevant to the protest.

 

c)         Any additional information requested by SBEL shall be submitted in a timely manner in order to expedite consideration of the protest.  Failure of the protesting party to comply with a deadline for a request for information by the CPO may result in resolution of the protest without consideration of that information.

 

d)         When a protest has been timely filed and before an award has been made, the CPO shall make no award of the contract until the protest has been resolved.  If timely received but after award, the award shall be revoked without penalty and no award made until the protest has been resolved.  In either case, the CPO may make the award or reinstate the award upon a determination that the needs of SBEL require an immediate award and performance under the contract.

 

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

 

f)         If an action concerning the protest has commenced in court, the CPO shall not act on the protest, but shall refer the protest to the Attorney General, unless otherwise directed by the Attorney General.

 

Section 2600.1200  General

 

In an effort to make the procurement process more efficient, SBEL and other governmental units (including not-for-profit entities authorized by law to participate in joint purchasing) may agree to utilize each others' procurement contracts.  This authority is governed by this Subpart and the Governmental Joint Purchasing Act [30 ILCS 525].  Only the CPO may enter into contracts under the Act.

 

Section 2600.1205  No Agency Relationship

 

In any joint procurement situation, the other governmental unit must issue its own purchase order, accept its own deliveries and make its own payments.  SBEL shall have no obligation to the vendor for payment of orders placed by other joint purchasers.

 

Section 2600.1210  Obligations of Participating Governmental Units

 

If governmental units choose to use contracts established by SBEL or by CMS on behalf of SBEL, they must:

 

a)         provide to the CPO a copy of the ordinance or resolution passed by the governing body of the governmental unit giving authority to make purchases from contracts issued by the State of Illinois;

 

b)         make all purchases under the State contracts for public use only and specifically prohibit personal use or consumption by any individual, public employee or official;

 

c)         make payment to the vendor within 30 days after receipt of supplies or services;

 

d)         place orders with the supplier directly using their own purchase order forms.  A copy of the purchase order must also be sent to the CPO.  This copy will be used for statistical purposes and will serve as notice that the governmental unit has complied with the bid action;

 

e)         inspect all items immediately for compliance with the contract specifications and report to the CPO any failure of suppliers to comply with contract requirements;

 

f)         attempt to resolve disputes with the vendor before involving SBEL.

 

Section 2600.1300  Severability

 

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

 

Section 2600.1305  Government Furnished Property

 

If SBEL provides any property to the vendor in furtherance of the contract, that 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 for return of unused property to the State.

 

Section 2600.1310  Inspections 

 

a)         Inspection of Plant or Site

            SBEL may enter, or authorize CMS to enter, a vendor's or subcontractor's plant or place of business to:

 

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

 

2)         audit the books and records of any vendor or subcontractor;

 

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

 

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

 

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

 

6)         accomplish any other purpose permitted by law.

 

b)         Inspection and Testing of Supplies and Services

 

1)         Solicitation and Contractual Provisions.  Contracts of SBEL may provide for the inspection of supplies and services at the vendor's or subcontractor's facility and performance tests to determine whether the supplies or services conform to solicitation requirements, or, after award, to contract requirements, and are therefore acceptable.  Inspections and tests shall be conducted in accordance with the terms of the solicitation and contract and may be conducted by CMS on behalf of SBEL.

 

2)         The CPO may establish operational procedures, or may rely on procedures established by CMS, governing the testing and trial use of equipment, material, and other supplies by SBEL, 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 vendor or subcontractor.  No inspector other than the CPO may change any provision of the specifications or the contract without written authorization of the CPO.  The presence or absence of an inspector shall not relieve the vendor or subcontractor from any requirements of the contract.

 

2)         Location.  When an inspection is made in the plant or place of business of a vendor or subcontractor, the vendor 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 vendor or subcontractor shall be performed at reasonable times.

 

Section 2600.1315  Records and Audits

 

a)         Retention of Books and Records

            Books and records that relate to performance of a contract, including subcontracts, and that support amounts charged to SBEL, shall be maintained:

 

1)         by the agency, for three years, in the procurement file.  The procurement file shall include substantive documents and records of communications that pertain to the procurement and resulting contract, Procurement Bulletin postings, vendor responses, evaluation material, modification or withdrawal of bids, and contractor reviews, any protest documents, and a record of the successful bidder.  The solicitation document and contract, as well as any amendments, renewals or extensions to those documents, must also be included.

 

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

 

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

 

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

 

b)         Contract Audit

 

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

 

2)         Situations in which an audit may be warranted include, but are not limited to, when the CPO determines that a question has arisen in connection with:

 

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

 

B)        any prior audit experience;

 

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

 

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

 

E)        the use of federal assistance funds;

 

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

 

G)        any other situation in which the CPO finds that an audit is necessary for the protection of the State's best interest.

 

Section 2600.1320  Written Determinations

 

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

 

c)         While an officer is responsible for the execution of the written determination, other SBEL 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, the 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)         The CPO is authorized to prescribe methods and operational procedures to be used in preparing written determinations.

 

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

 

Section 2600.1325  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 any subcontractor that will be used in the performance of the contract, as well as the amounts expected to be paid to each subcontractor.  For purposes of this Section, subcontractors are those specifically hired to perform all or part of the services or to provide the supplies requested by the State.

 

Section 2600.1330  Domestic Products

 

Nothing in this Part shall be construed to contravene the Purchase of Domestic Products Act [30 ILCS 517].