SB0263sam001 100TH GENERAL ASSEMBLY

Sen. James F. Clayborne, Jr.

Filed: 3/21/2017

10000SB0263sam001 LRB100 05184 AXK 23856 a

AMENDMENT TO SENATE BILL 263

AMENDMENT NO. ______. Amend Senate Bill 263 by replacing everything after the enacting clause with the following:

"Section 5. The Department of Transportation Law of the Civil Administrative Code of Illinois is amended by changing Section 2705-595 and by adding Section 2705-607 as follows:

(20 ILCS 2705/2705-595)

Sec. 2705-595. Prequalification of minority-owned and women-owned contractors.

(a) The Department shall, within 30 days after the effective date of this amendatory Act of the 96th General Assembly, establish a committee to review the rules for prequalification of contractors adopted by the Department at 44 Illinois Administrative Code 650. The purpose of the review is to determine whether the rules for prequalification operate as a barrier to minority-owned and women-owned contractors becoming prequalified to bid on or make proposals for Department contracts. The committee shall, in addition to Department staff, be constituted with membership representing the construction industry and minority-owned and women-owned contractors. The committee shall complete its work and make recommendations for any changes to the rules for prequalification to the Secretary of Transportation within 180 days after the effective date of this amendatory Act of the 96th General Assembly.

(b) The Department, in conjunction with the Capital Development Board, shall hold 2 public hearings to determine whether a more effective, efficient, and less burdensome method exists to prequalify an architect, engineer, or contractor. The hearings shall also specifically determine how the Department can obtain greater participation in the bidding process of small contractors and minority, female, disabled, and veteran architects, engineers, and contractors. The Department and the Capital Development Board shall collect data to review at the hearings, which shall include, but is not limited to, percentages and the number of minority, female, disabled, and veteran employees who are hired for each trade necessary for each project. The Department and the Capital Development Board shall issue their joint findings and recommendations to the Governor and the General Assembly no later than January 1, 2018.

(Source: P.A. 96-795, eff. 7-1-10 (see Section 5 of P.A. 96-793 for the effective date of P.A. 96-795).)

(20 ILCS 2705/2705-607 new)

Sec. 2705-607. Performance evaluation; contractor.

(a) For purposes of this Section, "Performance Factor" means a numerical value determined by the contractor's performance evaluation in a work category during the previous year.

(b) At the close of each construction season, the Department, other State agencies or authorities using contractors based on the prequalification standards of the Department, and officials of a unit of local government administering a contract approved for award by the Department, shall evaluate each contractor who performed work for them during the previous year as either a prime contractor or a subcontractor. The information shall be submitted on the Contractor's Annual Performance Report and shall be subject to disclosure under the Freedom of Information Act. The performance evaluation shall be based upon:

(1) the quality of work performed for each work category under 44 Ill. Admin. Code 650; and

(2) the overall execution of work measured by:

(A) organization and prosecution of work;

(B) cooperation with public agency personnel responsible for contract administration and inspection;

(C) traffic control and site protection under contract requirements;

(D) compliance with the Equal Employment Opportunity program and labor requirements;

(E) erosion control; and

(F) the contractor's ability to meet the Quality Control plan and Quality Assurance plan under contract requirements for materials production and construction quality control.

(c) The performance evaluation scale is a rating from 2 to 8 in accordance with the following definitions:

(1) "8" means excellent;

(2) "7" means good;

(3) "6" means satisfactory;

(4) "3" means marginal; and

(5) "0" means poor.

(d) The quality and evaluating categories under execution of work are rated as follows:

(1) to determine the contractor's quality of performance, the Department shall consider the project's durability and appearance, knowledge of supervisory personnel, and compliance with contract requirements and shall evaluate the performance based on the following scale:

(A) if the contractor exceeded project requirements in all areas considered, he or she shall receive an 8;

(B) if the contractor exceeded project requirements in a majority of areas considered, he or she shall receive a 7;

(C) if the contractor met project requirements in all areas considered, he or she shall receive a 6;

(D) if the contractor did not meet project requirements in one area considered, he or she shall receive a 3; and

(E) if the contractor did not meet project requirements in 2 or more areas considered, he or she shall receive a 0;

(2) to determine the contractor's organization and prosecution, the Department shall consider the contractor's ability to diligently prosecute work by planning and scheduling labor, materials, and the work of subcontractors on the project site and shall evaluate the organization and prosecution based on the following scale:

(A) if the contractor exceeded project requirements in all areas considered and completed the project well ahead of schedule, he or she shall receive an 8;

(B) if the contractor exceeded project requirements in a majority of areas considered and the project was completed slightly ahead of schedule, he or she shall receive a 7;

(C) if the contractor met project requirements in all areas considered and the scheduled completion date was met, he or she shall receive a 6;

(D) if the contractor did not meet project requirements in one area considered and occasionally did not work when conditions permitted and the scheduled completion date was met, he or she shall receive a 3; and

(E) if the contractor did not meet project requirements in 2 or more areas considered and the scheduled completion date was not met, he or she shall receive a 0;

(3) to determine the contractor's cooperation, the Department shall consider the contractor's willingness to negotiate contract disputes, to respond to reasonable requests by the resident engineer, and to respond to various correspondence from the Department and shall evaluate the cooperation based on the following scale:

(A) if the contractor exceeded project requirements in all areas considered, he or she shall receive an 8;

(B) if the contractor exceeded project requirements in a majority of areas considered, he or she shall receive a 7;

(C) if the contractor met project requirements in all areas considered, he or she shall receive a 6;

(D) if the contractor did not meet project requirements in one area considered, he or she shall receive a 3; and

(E) if the contractor did not meet project requirements in 2 or more areas considered, he or she shall receive a 0;

(4) to determine the project's traffic control and site protection, the Department shall consider the appearance of traffic control devices, the response to repair deficient devices, and the contractor's willingness to comply with the Traffic Control Plan and shall evaluate based on the following scale:

(A) if the contractor exceeded project requirements in all areas considered, he or she shall receive an 8;

(B) if the contractor exceeded project requirements in a majority of areas considered, he or she shall receive a 7;

(C) if the contractor met project requirements in all areas considered, he or she shall receive a 6;

(D) if the contractor did not meet project requirements in one area considered, he or she shall receive a 3; and

(E) if the contractor did not meet project requirements in 2 or more areas considered or the contractor committed an act or omission which seriously compromised the safety of the public, he or she shall receive a 0;

(5) to determine the contractor's compliance with the Equal Employment Opportunity program and labor requirements, the Department shall evaluate the compliance based on the following scale:

(A) if the contractor exceeded project requirements, he or she shall receive an 8;

(B) if the contractor met project requirements through extraordinary effort and initiative, he or she shall receive a 7;

(C) if the contractor met project requirements with minimum effort and initiative, he or she shall receive a 6;

(D) if the contractor met project requirements, but had to be motivated by Department personnel, he or she shall receive a 3; and

(E) if the contractor did not meet project requirements, he or she shall receive a 0;

(6) to determine the project's erosion control, the Department shall consider the contractor's compliance with the project's erosion control plan and all pertinent federal and State laws, permits, rules, and regulations and shall evaluate based on the following scale:

(A) if the contractor exceeded project requirements, he or she shall receive an 8;

(B) if the contractor exceeded project requirements in a majority of the areas, he or she shall receive a 7;

(C) if the contractor met project requirements in all areas, he or she shall receive a 6;

(D) if the contractor did not meet the project requirements in one area considered, he or she shall receive a 3; and

(E) if the contractor did not meet the contract requirements in 2 or more areas, he or she shall receive a 0;

(7) to determine the contractor's ability to meet the Quality Control plan and Quality Assurance plan, the Department shall consider the contractor's ability to meet a Quality Control plan and Quality Assurance plan inspection, testing, and documentation requirements, to take control of the product, to take corrective action, and to communicate production and construction issued to Department personnel and shall evaluate based on the following scale:

(A) if the contractor exceeded Quality Control plan and Quality Assurance plan requirements in all areas considered, he or she shall receive an 8;

(B) if the contractor exceeded Quality Control plan and Quality Assurance plan requirements in a majority of areas considered, he or she shall receive a 7;

(C) if the contractor met Quality Control plan and Quality Assurance plan requirements in all areas considered, he or she shall receive a 6;

(D) if the contractor did not meet Quality Control plan and Quality Assurance plan requirements in one area considered, he or she shall receive a 3; and

(E) if the contractor did not meet Quality Control plan and Quality Assurance plan requirements in 2 or more areas considered, he or she shall receive a 0.

(e) The Department shall calculate the Performance Factor by first determining the Project Cost Ratio for the relevant work category. The Project Cost Ratio is the ratio of the value of all contracts being evaluated to the value of all contracts performed. The Department shall establish a weighted performance evaluation value for each performance evaluation completed by determining the product of the Project Cost Ratio, the rating for quality given on the relevant performance evaluation, and the averaged ratings for the execution given on the relevant performance evaluation divided by 6. Finally, the Department shall divide the summation of all weighted performance evaluation values by 6 to arrive at the Performance Factor.

(f) A work rating shall be subject to denial or revocation if the summation of all weighted performance evaluation values for a work rating category is less than 6 for 2 successive years. A work rating shall be subject to denial or revocation if the summation of all weighted performance evaluation values for a work rating category is less than 3 for one year.

(g) The Department shall evaluate performance on any individual contract or group of contracts for purposes of determining the current responsibility of a contractor when the Engineer of Construction has determined that performance on any contract or contracts may not be acceptable and that an immediate evaluation is necessary to assess the responsibility of a contractor in order to protect the interests of the State in sound procurement practices. If the evaluation ordered by the Engineer of Construction results in the quality of work or the average overall execution of work ratings being rated at less than 3, the work ratings shall be revoked.

(h) If a contractor receives a Quality of Work Rating of 0 for any work category being evaluated on any one contract, the work rating shall be revoked.

(i) The Department shall notify the contractor of the performance evaluation in writing within 14 days of completion of the evaluation with a detailed explanation of any substandard items. If a performance evaluation results in a denied, reduced, or revoked work rating, the contractor may proceed with the review procedures under 44 Ill. Admin. Code 650.150.

(j) If an applicant did not have a contract with the Department in the previous year, the last evaluation issued within a 5-year period shall be used. If an applicant has not had an evaluation in the last 5 years or is applying for an initial rating in a category and lists no public agencies or private customers as references, a Performance Factor of "1" shall be used until an actual evaluation is made.

(k) On January 1, 2018, and annually on January 1 of each subsequent year, the Auditor General shall conduct a compliance audit of the performance evaluations and work ratings under this Section and manipulation of work ratings investigations by the Division of Internal Investigation. Within 30 days after receiving the results of the audit, the Department shall publish the results on its website.

Section 10. The Capital Development Board Act is amended by changing Section 16 and by adding Section 10.19 as follows:

(20 ILCS 3105/10.19 new)

Sec. 10.19. Performance evaluation; contractor. At the close of each construction season, the Board shall evaluate each contractor who performed work for them during the previous year either as a prime contractor or as a subcontractor using the evaluation standards under Section 2705-607 of the Department of Transportation Law of the Civil Administrative Code of Illinois .

(20 ILCS 3105/16) (from Ch. 127, par. 783b)

Sec. 16. (a) In addition to any other power granted in this Act to adopt rules or regulations, the Board may adopt regulations or rules relating to the issuance or renewal of the prequalification of an architect, engineer or contractor or the suspension or modification of the prequalification of any such person or entity including, without limitation, an interim or emergency suspension or modification without a hearing founded on any one or more of the bases set forth in this Section.

(a-5) The Board, in conjunction with the Department of Transportation, shall hold 2 public hearings to determine whether a more effective, efficient, and less burdensome method exists to prequalify an architect, engineer, or contractor. The hearings shall also specifically determine how the Department can obtain greater participation in the bidding process of small contractors and minority, female, disabled, and veteran architects, engineers, and contractors. The Department and the Capital Development Board shall collect data to review at the hearings, which shall include, but is not limited to, percentages and the number of minority, female, disabled, and veteran employees who are hired for each trade necessary for each project. The Department and the Capital Development Board shall issue their joint findings and recommendations to the Governor and the General Assembly no later than January 1, 2018.

(b) Among the bases for an interim or emergency suspension or modification of prequalification are:

(1) A finding by the Board that the public interest, safety or welfare requires a summary suspension or modification of a prequalification without hearings.

(2) The occurrence of an event or series of events which, in the Board's opinion, warrants a summary suspension or modification of a prequalification without a hearing including, without limitation, (i) the indictment of the holder of the prequalification by a State or federal agency or other branch of government for a crime; (ii) the suspension or modification of a license or prequalification by another State agency or federal agency or other branch of government after hearings; (iii) a material breach of a contract made between the Board and an architect, engineer or contractor; and (iv) the failure to comply with State law including, without limitation, the Business Enterprise for Minorities, Females, and Persons with Disabilities Act, the prevailing wage requirements, and the Steel Products Procurement Act.

(c) If a prequalification is suspended or modified by the Board without hearings for any reason set forth in this Section or in Section 10-65 of the Illinois Administrative Procedure Act, as amended, the Board shall within 30 days of the issuance of an order of suspension or modification of a prequalification initiate proceedings for the suspension or modification of or other action upon the prequalification.

(Source: P.A. 92-16, eff. 6-28-01.)

Section 15. The Criminal Code of 2012 is amended by adding Section 33E-15.5 as follows:

(720 ILCS 5/33E-15.5 new)

Sec. 33E-15.5. Manipulation of work ratings.

(a) Any person who knowingly manipulates a work rating factor for a contractor or subcontractor under Section 2705-907 of the Department of Transportation Law of the Civil Administrative Code of Illinois that results in a rating disqualifying or qualifying a contractor or subcontractor who would have been otherwise qualified or disqualified commits manipulation of work ratings. A charge of manipulation of work ratings under this Section shall be investigated by the Department of Transportation Division of Internal Investigation.

(b) Sentence. Manipulation of work ratings is a Class 4 felony.

Section 99. Effective date. This Act takes effect upon becoming law.".