SB3620 103RD GENERAL ASSEMBLY

LRB103 36329 MXP 66427 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3620

Introduced 2/9/2024, by Sen. Ram Villivalam

SYNOPSIS AS INTRODUCED:

630 ILCS 5/10
630 ILCS 5/15
630 ILCS 5/19

Amends the Public-Private Partnerships for Transportation Act. Deletes the definition of "transportation agency". Modifies the definition of "proposer". Provides that a responsible public entity may not receive unsolicited proposals for a project. Deletes provisions that allowed unsolicited proposals for projects if specified guidelines were met. Effective immediately.

A BILL FOR

AN ACT concerning transportation.

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

Section 5. The Public-Private Partnerships for Transportation Act is amended by changing Sections 10, 15, and 19 as follows:

(630 ILCS 5/10)

Sec. 10. Definitions. As used in this Act:

"Approved proposal" means the proposal that is approved by the responsible public entity pursuant to subsection (j) of Section 20 of this Act.

"Approved proposer" means the private entity whose proposal is the approved proposal.

"Authority" means the Illinois State Toll Highway Authority.

"Contractor" means a private entity that has entered into a public-private agreement with the responsible public entity to provide services to or on behalf of the responsible public entity.

"Department" means the Illinois Department of Transportation.

"Design-build agreement" means the agreement between the selected private entity and the responsible public entity under which the selected private entity agrees to furnish design, construction, and related services for a transportation facility under this Act.

"Develop" or "development" means to do one or more of the following: plan, design, develop, lease, acquire, install, construct, reconstruct, rehabilitate, extend, or expand.

"Maintain" or "maintenance" includes ordinary maintenance, repair, rehabilitation, capital maintenance, maintenance replacement, and any other categories of maintenance that may be designated by the responsible public entity.

"Operate" or "operation" means to do one or more of the following: maintain, improve, equip, modify, or otherwise operate.

"Private entity" means any combination of one or more individuals, corporations, general partnerships, limited liability companies, limited partnerships, joint ventures, business trusts, nonprofit entities, or other business entities that are parties to a proposal for a transportation project or an agreement related to a transportation project. A public agency may provide services to a contractor as a subcontractor or subconsultant without affecting the private status of the private entity and the ability to enter into a public-private agreement. A transportation agency is not a private entity.

"Proposal" means all materials and documents prepared by or on behalf of a private entity relating to the proposed development, financing, or operation of a transportation facility as a transportation project.

"Proposer" means a private entity that has submitted an unsolicited proposal for a public-private agreement to a responsible public entity under this Act or a proposal or statement of qualifications for a public-private agreement in response to a request for proposals or a request for qualifications issued by a responsible public entity under this Act.

"Public-private agreement" means the public-private agreement between the contractor and the responsible public entity relating to one or more of the development, financing, or operation of a transportation project that is entered into under this Act.

"Request for information" means all materials and documents prepared by or on behalf of the responsible public entity to solicit information from private entities with respect to transportation projects.

"Request for proposals" means all materials and documents prepared by or on behalf of the responsible public entity to solicit proposals from private entities to enter into a public-private agreement.

"Request for qualifications" means all materials and documents prepared by or on behalf of the responsible public entity to solicit statements of qualification from private entities to enter into a public-private agreement.

"Responsible public entity" means the Department of Transportation or , the Illinois State Toll Highway Authority.

"Revenues" means all revenues, including any combination of: income; earnings and interest; user fees; lease payments; allocations; federal, State, and local appropriations, grants, loans, lines of credit, and credit guarantees; bond proceeds; equity investments; service payments; or other receipts; arising out of or in connection with a transportation project, including the development, financing, and operation of a transportation project. The term includes money received as grants, loans, lines of credit, credit guarantees, or otherwise in aid of a transportation project from the federal government, the State, a unit of local government, or any agency or instrumentality of the federal government, the State, or a unit of local government.

"Shortlist" means the process by which a responsible public entity will review, evaluate, and rank statements of qualifications submitted in response to a request for qualifications and then identify the proposers who are eligible to submit a detailed proposal in response to a request for proposals. The identified proposers constitute the shortlist for the transportation project to which the request for proposals relates.

"Transportation agency" means (i) the Department or (ii) the Authority.

"Transportation facility" means any new or existing road, highway, toll highway, bridge, tunnel, intermodal facility, intercity or high-speed passenger rail, or other transportation facility or infrastructure, excluding airports, under the jurisdiction of a responsible public entity, except those facilities for the Illiana Expressway. The term "transportation facility" may refer to one or more transportation facilities that are proposed to be developed or operated as part of a single transportation project.

"Transportation project" or "project" means any or the combination of the design, development, construction, financing, or operation with respect to all or a portion of any transportation facility under the jurisdiction of the responsible public entity, except those facilities for the Illiana Expressway, undertaken pursuant to this Act.

"Unit of local government" has the meaning ascribed to that term in Article VII, Section 1 of the Constitution of the State of Illinois and also means any unit designated as a municipal corporation.

"Unsolicited proposal" means a written proposal that is submitted to a responsible public entity on the initiative of the private sector entity or entities for the purpose of developing a partnership, and that is not in response to a formal or informal request issued by a responsible public entity.

"User fees" or "tolls" means the rates, tolls, fees, or other charges imposed by the contractor for use of all or a portion of a transportation project under a public-private agreement.

(Source: P.A. 103-570, eff. 1-1-24.)

(630 ILCS 5/15)

Sec. 15. Formation of public-private agreements; project planning.

(a) Each responsible public entity may exercise the powers granted by this Act to do some or all to design, develop, construct, finance, and operate any part of one or more transportation projects through public-private agreements with one or more private entities, except for transportation projects for the Illiana Expressway as defined in the Public Private Agreements for the Illiana Expressway Act. The net proceeds, if any, arising out of a transportation project or public-private agreement undertaken by the Department pursuant to this Act shall be deposited into the Public-Private Partnerships for Transportation Fund. The net proceeds arising out of a transportation project or public-private agreement undertaken by the Authority pursuant to this Act shall be deposited into the Illinois State Toll Highway Authority Fund and shall be used only as authorized by Section 23 of the Toll Highway Act.

(b) The Authority may enter into a public-private partnership to design, develop, construct, finance, and operate new toll highways authorized by the Governor and the General Assembly pursuant to Section 14.1 of the Toll Highway Act, non-highway transportation projects on the toll highway system such as commuter rail or high-speed rail lines, and intelligent transportation infrastructure that will enhance the safety, efficiency, and environmental quality of the toll highway system. The Authority may operate or provide operational services such as toll collection on highways which are developed or financed, or both, through a public-private agreement entered into by another public entity, under an agreement with the public entity or contractor responsible for the transportation project.

(c) A contractor has:

(1) all powers allowed by law generally to a private entity having the same form of organization as the contractor; and

(2) the power to develop, finance, and operate the transportation facility and to impose user fees in connection with the use of the transportation facility, subject to the terms of the public-private agreement.

No tolls or user fees may be imposed by the contractor except as set forth in a public-private agreement.

(d) Prior to commencing the procurement process under an unsolicited proposal or the issuance of any request for qualifications or request for proposals with respect to any potential project undertaken by a responsible public entity pursuant to Section 19 or 20 of this Act, the commencement of a procurement process for that particular potential project shall be authorized by joint resolution of the General Assembly.

(e) (Blank).

(f) Any project undertaken under this Act shall be subject to all applicable planning requirements otherwise required by law, including land use planning, regional planning, transportation planning, and environmental compliance requirements.

(g) (Blank).

(h) The responsible public entity shall hold one or more public hearings following its submittals to the General Assembly under subsection (d) of this Section. These public hearings shall address any potential project that the responsible public entity submitted to the General Assembly for review under subsection (d). The responsible public entity shall publish a notice of the hearing or hearings at least 7 days before a hearing takes place, and shall include the following in the notice: (i) the date, time, and place of the hearing and the address of the responsible public entity; (ii) a brief description of the potential projects that the responsible public entity is considering undertaking; and (iii) a statement that the public may comment on the potential projects.

(Source: P.A. 103-570, eff. 1-1-24.)

(630 ILCS 5/19)

Sec. 19. Unsolicited proposals.

(a) A responsible public entity may not receive unsolicited proposals for a project . and may thereafter enter into a public-private agreement with a private entity, or a consortium of private entities, for the design, construction, upgrading, operating, ownership, or financing of facilities.

(b) A responsible public entity may consider, evaluate, and accept an unsolicited proposal for a public-private partnership project from a private entity if the proposal:

(1) is independently developed and drafted by the proposer without responsible public entity supervision;

(2) shows that the proposed project could benefit the transportation system;

(3) includes a financing plan to allow the project to move forward pursuant to the applicable responsible public entity's budget and finance requirements; and

(4) includes sufficient detail and information for the responsible public entity to evaluate the proposal in an objective and timely manner and permit a determination that the project would be worthwhile.

(c) The unsolicited proposal shall include the following:

(1) an executive summary covering the major elements of the proposal;

(2) qualifications concerning the experience, expertise, technical competence, and qualifications of the private entity and of each member of its management team and of other key employees, consultants, and subcontractors, including the name, address, and professional designation;

(3) a project description, including, when applicable:

(A) the limits, scope, and location of the proposed project;

(B) right-of-way requirements;

(C) connections with other facilities and improvements to those facilities necessary if the project is developed;

(D) a conceptual project design; and

(E) a statement of the project's relationship to and impact upon relevant existing plans of the responsible public entity;

(4) a facilities project schedule, including when applicable, estimates of:

(A) dates of contract award;

(B) start of construction;

(C) completion of construction;

(D) start of operations; and

(E) major maintenance or reconstruction activities during the life of the proposed project agreement;

(5) an operating plan describing the operation of the completed facility if operation of a facility is part of the proposal, describing the management structure and approach, the proposed period of operations, enforcement, emergency response, and other relevant information;

(6) a finance plan describing the proposed financing of the project, identifying the source of funds to, where applicable, design, construct, maintain, and manage the project during the term of the proposed contract; and

(7) the legal basis for the project and licenses and certifications; the private entity must demonstrate that it has all licenses and certificates necessary to complete the project.

(d) Within 120 days after receiving an unsolicited proposal, the responsible public entity shall complete a preliminary evaluation of the unsolicited proposal and shall either:

(1) if the preliminary evaluation is unfavorable, return the proposal without further action;

(2) if the preliminary evaluation is favorable, notify the proposer that the responsible public entity will further evaluate the proposal; or

(3) request amendments, clarification, or modification of the unsolicited proposal.

(e) The procurement process for unsolicited proposals shall be as follows:

(1) If the responsible public entity chooses to further evaluate an unsolicited proposal with the intent to enter into a public-private agreement for the proposed project, then the responsible public entity shall publish notice in the Illinois Procurement Bulletin or in a newspaper of general circulation covering the location of the project at least once a week for 2 weeks stating that the responsible public entity has received a proposal and will accept other proposals for the same project. The time frame within which the responsible public entity may accept other proposals shall be determined by the responsible public entity on a project-by-project basis based upon the complexity of the transportation project and the public benefit to be gained by allowing a longer or shorter period of time within which other proposals may be received; however, the time frame for allowing other proposals must be at least 21 days, but no more than 120 days, after the initial date of publication.

(2) A copy of the notice must be mailed to each local government directly affected by the transportation project.

(3) The responsible public entity shall provide reasonably sufficient information, including the identity of its contact person, to enable other private entities to make proposals.

(4) If, after no less than 120 days, no counterproposal is received, or if the counterproposals are evaluated and found to be equal to or inferior to the original unsolicited proposal, the responsible public entity may proceed to negotiate a contract with the original proposer.

(5) If, after no less than 120 days, one or more counterproposals meeting unsolicited proposal standards are received, and if, in the opinion of the responsible public entity, the counterproposals are evaluated and found to be superior to the original unsolicited proposal, the responsible public entity shall proceed to determine the successful participant through a final procurement phase known as "Best and Final Offer" (BAFO). The BAFO is a process whereby a responsible public entity shall invite the original private sector party and the proponent submitting the superior counterproposal to engage in a BAFO phase. The invitation to participate in the BAFO phase will provide to each participating proposer:

(A) the general concepts that were considered superior to the original proposal, while keeping proprietary information contained in the proposals confidential to the extent possible; and

(B) the preestablished evaluation criteria or the "basis of award" to be used to determine the successful proponent.

(6) Offers received in response to the BAFO invitation will be reviewed by the responsible public entity and scored in accordance with a preestablished criteria, or alternatively, in accordance with the basis of award provision identified through the BAFO process. The successful proponent will be the proponent offering "best value" to the responsible public entity.

(7) In all cases, the basis of award will be the best value to the responsible public entity, as determined by the responsible public entity.

(f) After a comprehensive evaluation and acceptance of an unsolicited proposal and any alternatives, the responsible public entity may commence negotiations with a proposer, considering:

(1) the proposal has received a favorable comprehensive evaluation;

(2) the proposal is not duplicative of existing infrastructure project;

(3) the alternative proposal does not closely resemble a pending competitive proposal for a public-private private partnership or other procurement;

(4) the proposal demonstrates a unique method, approach, or concept;

(5) facts and circumstances that preclude or warrant additional competition;

(6) the availability of any funds, debts, or assets that the State will contribute to the project;

(7) facts and circumstances demonstrating that the project will likely have a significant adverse impact on on State bond ratings; and

(8) indemnifications included in the proposal.

(Source: P.A. 103-570, eff. 1-1-24; revised 1-3-24.)

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