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| | 99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
SB2140 Introduced 5/26/2015, by Sen. John M. Sullivan SYNOPSIS AS INTRODUCED:
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| New Act | | 20 ILCS 2705/2705-233 new | | 20 ILCS 3501/825-108 new | | 30 ILCS 500/1-10.5 new | | 30 ILCS 535/85 new | | 30 ILCS 570/2.8 new | | 30 ILCS 575/2.8 new | | 735 ILCS 30/15-5-48 new | | 820 ILCS 130/2 | from Ch. 48, par. 39s-2 |
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Creates the Innovations for Transportation Infrastructure Act. Provides that the Department of Transportation may evaluate and use alternative technical concepts proposed by bidders and proposers, and to use design-build and construction manager-general contractor project delivery methods. Contains provisions concerning the procurement process and terms of design-build and construction manager-general contractor contracts. Provides that the Department has eminent domain and quick take powers under the Act. Repeals the Act 5 years after the effective date of the Act, provided that any design-build contracts and construction manager-general contractor contracts entered into before that date, or any procurement of a transportation facility under the Act, commenced before that date and the contracts resulting from those procurements remain effective. Makes conforming changes. Effective immediately.
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| | SB2140 | | LRB099 12537 RJF 35993 b |
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| 1 | | AN ACT concerning transportation.
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| 2 | | Be it enacted by the People of the State of Illinois,
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| 3 | | represented in the General Assembly:
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| 4 | | Section 1. Short title. This Act may be cited as the |
| 5 | | Innovations for Transportation Infrastructure Act.
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| 6 | | Section 5. Legislative policy.
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| 7 | | (a) It is the public policy of the State of Illinois to |
| 8 | | promote the development of infrastructure projects that serve |
| 9 | | the needs of the public.
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| 10 | | (b) The design-build and construction manager-general |
| 11 | | contractor project delivery methods and use of alternative |
| 12 | | technical contracts have the potential to capture private |
| 13 | | sector innovation and safely deliver infrastructure projects |
| 14 | | on more predictable schedules and budgets. Earlier completion |
| 15 | | and lower cost for projects are possible with the ability to |
| 16 | | shift or share risks with the private sector that are generally |
| 17 | | retained by the public in the conventional design-bid-build |
| 18 | | project delivery method.
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| 19 | | (c) It is the intent of the General Assembly that the |
| 20 | | Department of Transportation may evaluate and use alternative |
| 21 | | technical concepts proposed by bidders and proposers and to use |
| 22 | | the DB and CMGC project delivery methods.
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| 23 | | (d) It is the intent of this Act to use design |
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| 1 | | professionals, construction companies, and workers from this |
| 2 | | State to the greatest extent possible.
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| 3 | | (e) The powers granted in this Act are in addition to any |
| 4 | | other powers authorized under applicable law.
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| 5 | | Section 10. Definitions. As used in this Act:
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| 6 | | "ATC" means alternative technical concepts.
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| 7 | | "Best value" means any selection process in which proposals |
| 8 | | contain both price and qualitative components and award is |
| 9 | | based upon a combination of price and other factors.
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| 10 | | "Chief procurement officer" means the chief procurement |
| 11 | | officer for construction or construction-related activities as |
| 12 | | defined under paragraph (2) of Section 1-15.15 of the Illinois |
| 13 | | Procurement Code.
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| 14 | | "CMGC contract" means the two-phase contract between the |
| 15 | | Department and a construction manager-general contractor, |
| 16 | | which includes a first phase addressing preconstruction |
| 17 | | services and a second phase addressing the construction of the |
| 18 | | transportation facility.
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| 19 | | "Construction manager-general contractor" or "CMGC" means |
| 20 | | a proposer that has entered into a construction manager-general |
| 21 | | contractor contract under this Act.
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| 22 | | "Construction manager-general contractor project delivery |
| 23 | | method" or "CMGC project delivery method" means a method of |
| 24 | | procurement and contracting that makes a CMGC who enters into a |
| 25 | | contract with the Department responsible for certain |
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| 1 | | preconstruction services and then, if the parties reach |
| 2 | | agreement on key terms, responsible for construction of the |
| 3 | | transportation facility.
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| 4 | | "DB" means design-build.
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| 5 | | "Department" means the Illinois Department of |
| 6 | | Transportation.
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| 7 | | "Design-bid-build project delivery method" means the |
| 8 | | traditional method of procuring and contracting for design and |
| 9 | | construction services used in this State, which incorporates |
| 10 | | the Architectural, Engineering, and Land Surveying |
| 11 | | Qualifications Based Selection Act and the principles of |
| 12 | | competitive bidding under the Illinois Procurement Code.
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| 13 | | "Design-build contract" or "DB contract" means a contract |
| 14 | | between the Department and a design-builder under which the |
| 15 | | design-builder agrees to furnish architectural, surveying, |
| 16 | | engineering, construction, and related services for a |
| 17 | | transportation facility.
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| 18 | | "Design-build project delivery method" or "DB project |
| 19 | | delivery method" means a method of procurement and contracting |
| 20 | | that provides responsibility within a single contract between |
| 21 | | the Department and a design-builder for the furnishing of |
| 22 | | architectural, surveying, engineering, construction, and |
| 23 | | related services for a transportation facility.
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| 24 | | "Design-builder" means a proposer that has entered into a |
| 25 | | design-build contract with the Department under this Act.
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| 26 | | "Evaluation Committee" means the committee assembled to |
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| 1 | | evaluate and score statements of qualifications and proposals.
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| 2 | | "Evaluation criteria" means the standards and requirements |
| 3 | | established by the Department against which the qualifications |
| 4 | | and proposals of a proposer will be assessed during the |
| 5 | | procurement of a design-build contract or construction |
| 6 | | manager-general contractor contract, as applicable.
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| 7 | | "Metropolitan planning organization" means a metropolitan |
| 8 | | planning organization as defined under 23 U.S.C. 134 whose |
| 9 | | metropolitan planning area boundaries are partially or |
| 10 | | completely within this State.
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| 11 | | "Preconstruction services" means all |
| 12 | | non-construction-related services that a construction |
| 13 | | manager-general contractor is allowed to perform during the |
| 14 | | first phase of a construction manager-general contractor |
| 15 | | contract, which includes giving advice to the Department |
| 16 | | regarding scheduling, work sequencing, cost engineering, |
| 17 | | constructability, cost estimating, and risk identification.
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| 18 | | "Proposal" means a proposer's response to a request for |
| 19 | | proposals.
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| 20 | | "Proposer" means any individual, sole proprietorship, |
| 21 | | firm, partnership, joint venture, corporation, professional |
| 22 | | corporation, or other entity legally established to conduct |
| 23 | | business in this State that proposes to be the design-build or |
| 24 | | construction manager-general contractor for any transportation |
| 25 | | facility under this Act. A proposer and its members shall |
| 26 | | conduct themselves in accordance with the laws of this State |
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| 1 | | and the related provisions of the Illinois Administrative Code, |
| 2 | | as referenced by the design professionals licensing Acts of |
| 3 | | this State.
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| 4 | | "Qualifications" means a statement of qualifications |
| 5 | | submitted by a proposer in response to a request for |
| 6 | | qualifications.
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| 7 | | "Request for proposals" means the document issued by the |
| 8 | | Department to solicit proposals and describe the procurement |
| 9 | | process for a design-build contract or construction |
| 10 | | manager-general contractor contract in accordance with the |
| 11 | | design-build project delivery method or the construction |
| 12 | | manager-general contractor project delivery method, as |
| 13 | | applicable.
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| 14 | | "Request for qualifications" means the document issued by |
| 15 | | the Department in the first phase of a two-phase procurement to |
| 16 | | solicit qualifications from proposers in accordance with the |
| 17 | | design-build project delivery method or the construction |
| 18 | | manager-general contractor project delivery method, as |
| 19 | | applicable.
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| 20 | | "Scope and performance requirements" means the constructed |
| 21 | | elements, activities, and standards of performance required by |
| 22 | | the Department to be complied with in the development of the |
| 23 | | transportation facility, which may include, but not be limited |
| 24 | | to, the intended usage, capacity, size, scope, quality and |
| 25 | | performance standards, life-cycle costs, preliminary |
| 26 | | engineering, design, and other requirements as developed and |
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| 1 | | determined by the Department.
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| 2 | | "Secretary" means the Secretary of Transportation of the |
| 3 | | Illinois Department of Transportation.
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| 4 | | "Transportation facility" means any new or existing |
| 5 | | facility or group of facilities that are the subject of a |
| 6 | | design-build contract or a construction manager-general |
| 7 | | contractor contract, and which may include highways, roads, |
| 8 | | bridges, tunnels, overpasses, ferries, airports or other |
| 9 | | aviation facilities, public transportation facilities, vehicle |
| 10 | | parking facilities, seaport facilities, rail facilities, |
| 11 | | intermodal facilities, transit facilities, or similar |
| 12 | | facilities used for the transportation of persons or goods.
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| 13 | | Section 15. Authorization of project delivery methods.
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| 14 | | (a) Notwithstanding any other law, and as authority |
| 15 | | supplemental to its existing powers, the Department, in |
| 16 | | accordance with this Act, may use the design-build project |
| 17 | | delivery method or the CMGC project delivery method for |
| 18 | | transportation facilities; provided that, prior to commencing |
| 19 | | a procurement under this Act for either a design-build contract |
| 20 | | or a CMGC contract, the Department has first undertaken an |
| 21 | | analysis and made a written determination that it is in the |
| 22 | | best interests of this State to utilize the selected delivery |
| 23 | | method for that transportation facility. The analysis and |
| 24 | | determination shall discuss the design-build or CMGC project |
| 25 | | delivery method's impact on the anticipated schedule, |
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| 1 | | completion date, and project costs. The best interests of the |
| 2 | | State analysis shall be made available to the public.
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| 3 | | (b) The Department shall report to the General Assembly |
| 4 | | annually for the first 5 years after the effective date of this |
| 5 | | Act on the progress of procurements and transportation |
| 6 | | facilities procured under this Act. The Department's |
| 7 | | obligation to submit a progress report for a particular |
| 8 | | transportation facility shall, as applicable, end 2 years |
| 9 | | after: |
| 10 | | (1) the Department's termination of the procurement; |
| 11 | | (2) early termination of the design-build contract or |
| 12 | | CMGC contract; or |
| 13 | | (3) completion of the transportation facility.
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| 14 | | Section 20. Preconditions to commencement of procurement.
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| 15 | | (a) If the Department determines to use the design-build |
| 16 | | project delivery method or the CMGC project delivery method for |
| 17 | | a particular transportation facility, the Department may not |
| 18 | | commence a procurement for the transportation facility until |
| 19 | | the following requirements are satisfied:
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| 20 | | (1) the transportation facility is included in the |
| 21 | | Department's Multi-Year Highway Improvement Program;
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| 22 | | (2) the Department has issued a notice of intent to |
| 23 | | receive qualifications at least 14 days prior to the |
| 24 | | issuance of the request for qualifications; or
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| 25 | | (3) for a single phase procurement under subsection (a) |
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| 1 | | of Section 25 of this Act, the Department has issued a |
| 2 | | notice of intent to receive proposals at least 14 days |
| 3 | | prior to the issuance of the request for proposals. If the |
| 4 | | Department issued one of the notices of intent described in |
| 5 | | this subsection (a), the Department shall publish the |
| 6 | | notice of intent in the State's procurement bulletin. The |
| 7 | | Department shall include a description of the proposed |
| 8 | | procurement and transportation facility in any notice of |
| 9 | | intent.
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| 10 | | (b) The Department must determine that the transportation |
| 11 | | facility is consistent with the regional plan, in existence at |
| 12 | | the time, of any metropolitan planning organization in whose |
| 13 | | boundaries the transportation facility is located.
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| 14 | | Section 25. Procurement process.
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| 15 | | (a) The Department may solicit a proposer with which to |
| 16 | | enter into a design-build contract or CMGC contract, as |
| 17 | | applicable, by using, without limitation, one or more requests |
| 18 | | for qualifications, short-listing of the most highly qualified |
| 19 | | proposers, or requests for proposals and negotiations. The |
| 20 | | Department shall use a two-phase procurement to select the |
| 21 | | successful proposer; provided that the Department may use a |
| 22 | | single phase procurement if the transportation facility is |
| 23 | | estimated to cost less than $10,000,000 or the Secretary of |
| 24 | | Transportation makes a written determination that the |
| 25 | | Department may use a single phase procurement for a particular |
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| 1 | | transportation facility. In a two-phase procurement, the |
| 2 | | Department shall use the first phase to evaluate and short-list |
| 3 | | the most highly qualified proposers based on qualifications, |
| 4 | | and then use the second phase to evaluate and select a proposer |
| 5 | | based on proposals submitted by the short-listed proposers. In |
| 6 | | a single phase procurement, the Department shall solicit |
| 7 | | proposers with a request for proposals, and shall evaluate and |
| 8 | | select a proposer based on those proposals.
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| 9 | | (b) The request for qualifications may contain any |
| 10 | | information deemed appropriate by the Department including, |
| 11 | | without limitation, the following information:
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| 12 | | (1) the anticipated scope of work for the |
| 13 | | transportation facility;
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| 14 | | (2) a requirement that the proposer identify certain |
| 15 | | key personnel, and for DB contracts certain key firms, the |
| 16 | | experience of the personnel and firms, and the conditions |
| 17 | | on which identified personnel and firms can be replaced;
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| 18 | | (3) the evaluation criteria for the qualifications and |
| 19 | | the relative importance of those criteria; these |
| 20 | | evaluation criteria may address, without limitation, the |
| 21 | | proposer's technical and financial qualifications, such as |
| 22 | | specialized experience, technical competence, capability |
| 23 | | to perform, financial capacity, past performance, |
| 24 | | including the proposer's safety record, and any other |
| 25 | | qualifications based factors;
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| 26 | | (4) the Department's established prequalification, |
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| 1 | | licensing, and registration requirements, including any |
| 2 | | requirements from the Professional Engineering Practice |
| 3 | | Act of 1989, the Illinois Architecture Practice Act of |
| 4 | | 1989, the Structural Engineering Practice Act of 1989, and |
| 5 | | the Illinois Professional Land Surveyor Act of 1989, |
| 6 | | provided that nothing contained herein precludes the |
| 7 | | Department's use of different or additional |
| 8 | | prequalification criteria or pass/fail evaluation factors |
| 9 | | addressing minimum levels of technical experience or |
| 10 | | financial capabilities;
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| 11 | | (5) the maximum number of proposers the Department will |
| 12 | | short-list to submit proposals; and
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| 13 | | (6) any other relevant information.
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| 14 | | (c) Upon completion of the qualifications evaluation, the |
| 15 | | Department shall, based on the evaluation criteria set forth in |
| 16 | | the request for qualifications, create a short-list of the most |
| 17 | | highly qualified proposers. The Department shall short-list no |
| 18 | | more than 5 and no fewer than 2 of the most highly qualified |
| 19 | | proposers. Notwithstanding other provisions of this subsection |
| 20 | | (c), the Department may short-list fewer than 2 proposers if |
| 21 | | the Secretary of Transportation makes a finding that an |
| 22 | | emergency situation justifies the limited short-listing and |
| 23 | | fewer than 2 proposers meet any applicable prequalification and |
| 24 | | pass/fail requirements set forth in the request for |
| 25 | | qualifications.
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| 26 | | (d) The request for proposals may contain any information |
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| 1 | | deemed appropriate by the Department including, without |
| 2 | | limitation, the following information:
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| 3 | | (1) the form and amount of required bid security;
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| 4 | | (2) the terms of the DB or CMGC contract including, but |
| 5 | | not limited to, scope and performance requirements, |
| 6 | | schedule or completion date requirements, subcontractor |
| 7 | | requirements, payment and performance security |
| 8 | | requirements, and insurance requirements;
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| 9 | | (3) a requirement for the proposer to submit plans |
| 10 | | regarding how it will: |
| 11 | | (A) comply the utilization requirements for |
| 12 | | business enterprises established in the Business |
| 13 | | Enterprise for Minorities, Females, and Persons with |
| 14 | | Disabilities Act, or federal law or regulations that |
| 15 | | establish standards and procedures for the utilization |
| 16 | | of minority, disadvantaged, and female-owned |
| 17 | | businesses; and |
| 18 | | (B) comply with Section 2-105 of the Illinois Human |
| 19 | | Rights Act;
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| 20 | | (4) the requirements for the technical component of the |
| 21 | | proposal, including a description of the level of design, |
| 22 | | scope and type of renderings, drawings, and specifications |
| 23 | | to be provided in the proposals;
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| 24 | | (5) the requirements for the price component of the |
| 25 | | proposal, which for CMGC contracts may include a |
| 26 | | requirement for the proposer to submit a lump sum price for |
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| 1 | | the direct costs to perform the required preconstruction |
| 2 | | services and percentage mark-up on those direct costs;
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| 3 | | (6) the evaluation criteria for the proposals and the |
| 4 | | relative importance of those criteria, including any |
| 5 | | formulas to be employed by the Department, as the |
| 6 | | Department deems appropriate, and the technical proposal |
| 7 | | evaluation criteria may, without limitation, include |
| 8 | | compliance with the Department's stated objectives for the |
| 9 | | project, the proposal's compliance with the request for |
| 10 | | proposal requirements, the level of quality of proposed |
| 11 | | products or materials, and the quality of the proposed |
| 12 | | design;
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| 13 | | (7) a process for the Department to review and accept |
| 14 | | alternate technical concepts;
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| 15 | | (8) in the case of a single phase procurement, |
| 16 | | requirements regarding the proposer's qualifications; and
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| 17 | | (9) any other relevant information.
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| 18 | | (e) Prior to the proposers' submittal of proposals, the |
| 19 | | Department may conduct confidential meetings and exchange |
| 20 | | confidential information with proposers to promote |
| 21 | | understanding of the request for proposals, review alternative |
| 22 | | technical concepts, or discuss other issues related to the |
| 23 | | procurement.
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| 24 | | (f) The date proposals are due must be at least 28 calendar |
| 25 | | days after the date the Department first issues the request for |
| 26 | | proposals.
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| 1 | | (g) The Department may offer to pay a stipend in an amount |
| 2 | | and on the terms and conditions determined by the Department |
| 3 | | and as set forth in the request for proposals to (1) all |
| 4 | | short-listed proposers if the Department cancels the |
| 5 | | procurement before the due date for proposals; or (2) each |
| 6 | | unsuccessful proposer that submits a responsive proposal. The |
| 7 | | Department may pay a stipend only to those proposers who grant |
| 8 | | to the Department the right to use any work product contained |
| 9 | | in the unsuccessful proposer's proposal and other |
| 10 | | proposal-related submissions or, if the Department cancels the |
| 11 | | procurement before the due date for proposals, any work product |
| 12 | | developed prior to cancellation, including technologies, |
| 13 | | techniques, methods, processes, and information contained in |
| 14 | | the recipient's design for the transportation facility.
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| 15 | | (h) The Department shall, as appropriate depending on |
| 16 | | whether the transportation facility includes building |
| 17 | | facilities, directly employ or retain a professional engineer |
| 18 | | or engineers licensed in the State or a licensed architect or |
| 19 | | architects, or both engineers licensed in this State and |
| 20 | | licensed architects, to prepare the scope and assist in the |
| 21 | | evaluation of the proposals' technical submissions under a |
| 22 | | design-build project delivery method. The professional |
| 23 | | engineers and licensed architects performing these services |
| 24 | | are generally precluded from participating in the procurement |
| 25 | | of the transportation facility at issue as a member of a |
| 26 | | proposer team.
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| 1 | | (i) The Department shall have the right to reject any and |
| 2 | | all qualifications or proposals, including, but not limited to, |
| 3 | | the right to reject any qualifications or proposals as |
| 4 | | non-responsive if, in the Department's sole discretion, the |
| 5 | | qualifications or proposals do not meet all material |
| 6 | | requirements of the request for qualifications or request for |
| 7 | | proposals, as appropriate. The Department shall not consider a |
| 8 | | proposal that does not include: |
| 9 | | (1) the proposer's plan to comply with requirements |
| 10 | | established by the Department regarding utilization of |
| 11 | | business enterprises, including disadvantaged business |
| 12 | | enterprises; or |
| 13 | | (2) bid security in the form and amount designated in |
| 14 | | the request for proposals. |
| 15 | | (j) The Department shall consult with the chief procurement |
| 16 | | officer on the DB and the CMGC procurement processes, and the |
| 17 | | Secretary, in consultation with the chief procurement officer, |
| 18 | | shall determine which procedures to adopt and apply to the |
| 19 | | design-build and CMGC procurement processes in order to ensure |
| 20 | | an open, transparent, and efficient process that accomplishes |
| 21 | | the purposes of this Act.
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| 22 | | Section 30. Evaluation committee. |
| 23 | | (a) The Department shall establish one or more evaluation |
| 24 | | committees to assist in selecting a DB and a CMGC. The |
| 25 | | Department shall, in its sole discretion, determine the |
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| 1 | | appropriate size and composition of the evaluation committee, |
| 2 | | including how many members of the committee must be licensed |
| 3 | | design professionals.
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| 4 | | (b) The Department may establish an evaluation committee |
| 5 | | for a set term or for the procurement of a particular |
| 6 | | transportation facility.
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| 7 | | (c) Each member of an evaluation committee must certify for |
| 8 | | each request for proposals that no conflict of interest exists |
| 9 | | between the member and the proposer. If the Department, after |
| 10 | | consultation with the chief procurement officer, determines |
| 11 | | that an actual conflict exists, the member shall not |
| 12 | | participate on the evaluation committee for that procurement |
| 13 | | and the Department shall appoint a replacement member on either |
| 14 | | a permanent or temporary basis.
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| 15 | | Section 35. Procedures for selection. The Department shall |
| 16 | | review, evaluate, and score proposals and determine which |
| 17 | | proposal offers the best value to the public based on the |
| 18 | | evaluation criteria set forth in the request for proposals. The |
| 19 | | Department shall submit its best value proposal recommendation |
| 20 | | to the evaluation committee. Based on the evaluation criteria |
| 21 | | set forth in the request for proposals, the evaluation |
| 22 | | committee shall decide whether to adopt the Department's |
| 23 | | recommendation. If the evaluation committee adopts the |
| 24 | | recommendation, the Department may award the DB contract or |
| 25 | | CMGC contract, as applicable, to the selected proposer. |
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| 1 | | Notwithstanding other provisions of this Section, if for any |
| 2 | | reason the selected proposer is unable or unwilling to execute |
| 3 | | the contract, including the failure of the proposer and the |
| 4 | | Department to successfully complete negotiations, if any, of |
| 5 | | the contract, the Department may award the contract to the |
| 6 | | proposer whose proposal the Department determines offers the |
| 7 | | public the next best value.
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| 8 | | Section 40. Project records; confidentiality; public |
| 9 | | disclosure.
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| 10 | | (a) The Department shall maintain all written decisions, |
| 11 | | qualification and proposal evaluations, scoring documents, |
| 12 | | selection evaluations, proposals, and procurement documents in |
| 13 | | a procurement file maintained by the Department.
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| 14 | | (b) A proposer may identify those portions of a proposal or |
| 15 | | other submission that the proposer considers to be trade |
| 16 | | secrets or confidential, commercial, financial, or proprietary |
| 17 | | information. To consider confidential and proprietary |
| 18 | | information, including trade secrets, to be exempt from |
| 19 | | disclosure, the proposer shall do all of the following:
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| 20 | | (1) request exclusion from disclosure upon submission |
| 21 | | of the information or other materials for which protection |
| 22 | | is sought;
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| 23 | | (2) identify the data or other materials for which |
| 24 | | protection is sought;
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| 25 | | (3) state the statutory or regulatory basis for the |
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| 1 | | protection;
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| 2 | | (4) fully comply with the federal Freedom of |
| 3 | | Information Act and any other applicable provisions of |
| 4 | | State law, including, but not limited to, the Freedom of |
| 5 | | Information Act, with respect to information the proposer |
| 6 | | contends should be exempt from disclosure; and
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| 7 | | (5) certify if the information is in accordance with |
| 8 | | the protection of the Illinois Trade Secrets Act.
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| 9 | | (c) Notwithstanding any other provision of law, in order to |
| 10 | | properly balance the need to maximize competition under this |
| 11 | | Act with the need to create a transparent procurement process, |
| 12 | | the qualifications, proposals, and other information and |
| 13 | | documents submitted by proposers and the Department's |
| 14 | | evaluation records shall not be subject to release or |
| 15 | | disclosure by the Department until execution of the DB contract |
| 16 | | or CMGC contract, as applicable. If the Department terminates |
| 17 | | the procurement for a transportation facility, the exemption |
| 18 | | from release or disclosure under this Section shall remain in |
| 19 | | place until the Department re-procures the transportation |
| 20 | | facility and has entered into a DB contract or CMGC contract, |
| 21 | | as applicable. However, this exemption shall lapse if the |
| 22 | | Department does not commence the re-procurement of the |
| 23 | | transportation facility within 2 years of the termination.
|
| 24 | | Section 45. Design-build contract.
A DB contract may |
| 25 | | include any provisions the Department determines are necessary |
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| 1 | | or appropriate, including, but not limited to, provisions |
| 2 | | regarding the following:
|
| 3 | | (1) compensation or payments to the DB;
|
| 4 | | (2) grounds for termination of the DB contract, |
| 5 | | including the Department's right to terminate for |
| 6 | | convenience;
|
| 7 | | (3) liability for damages and nonperformance;
|
| 8 | | (4) events of default and the rights and remedies |
| 9 | | available to the design-builder and the Department in the |
| 10 | | event of a default or delay;
|
| 11 | | (5) terms for the DB's compliance with requirements |
| 12 | | pertaining to business enterprises, including |
| 13 | | disadvantaged business enterprises, and with Section 2-105 |
| 14 | | of the Illinois Human Rights Act;
|
| 15 | | (6) the identification of any technical specifications |
| 16 | | that the DB must comply with when developing plans or |
| 17 | | performing construction work;
|
| 18 | | (7) the procedures for review and approval of the DB's |
| 19 | | plans;
|
| 20 | | (8) required performance and payment security;
|
| 21 | | (9) the terms and conditions of indemnification and |
| 22 | | minimum insurance requirements; and
|
| 23 | | (10) any other terms and conditions deemed necessary.
|
| 24 | | Section 50. Construction manager-general contractor |
| 25 | | contract.
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| 1 | | (a) The CMGC contract shall divide the CMGC services into 2 |
| 2 | | phases. The first phase shall address preconstruction services |
| 3 | | and the procedures the parties shall follow to finalize the |
| 4 | | contract terms for the second phase. The second phase shall |
| 5 | | address the CMGC's construction of the transportation facility |
| 6 | | for a lump sum or a guaranteed maximum price.
|
| 7 | | (b) A CMGC contract shall include provisions regarding the |
| 8 | | following:
|
| 9 | | (1) the CMGC's provision of preconstruction services |
| 10 | | during the first phase of the contract, including the |
| 11 | | CMGC's compensation for those services;
|
| 12 | | (2) a requirement that, during the first phase of the |
| 13 | | contract, the CMGC shall use a competitive bidding process |
| 14 | | to procure subcontracts for at least 70% of the |
| 15 | | construction work, provided that: |
| 16 | | (A) compliance with this requirement shall be |
| 17 | | based on an estimated cost for the construction work |
| 18 | | approved by the Department prior to the start of the |
| 19 | | competitive bidding process; and |
| 20 | | (B) the CMGC may not use subcontracts with its |
| 21 | | wholly or partially owned subsidiaries, parent |
| 22 | | companies, or affiliates to satisfy this obligation;
|
| 23 | | (3) the process the Department and the CMGC will use to |
| 24 | | determine a lump sum or guaranteed maximum price for the |
| 25 | | construction work, which shall include a requirement that |
| 26 | | the Department conduct an independent cost estimate for the |
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| 1 | | construction work; and
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| 2 | | (4) grounds for termination of the CMGC contract, |
| 3 | | including the Department' s right to terminate the contract |
| 4 | | and not proceed with the construction phase of the project |
| 5 | | if the Department and the CMGC are unable to negotiate a |
| 6 | | lump sum or guaranteed maximum price for the construction |
| 7 | | work.
|
| 8 | | (c) In addition to the provisions under subsection (b) of |
| 9 | | this Section, a CMGC contract may include any other provisions |
| 10 | | the Department determines are necessary or appropriate, |
| 11 | | including, but not limited to, provisions regarding the |
| 12 | | following:
|
| 13 | | (1) liability for damages and nonperformance;
|
| 14 | | (2) events of default and the rights and remedies |
| 15 | | available to the CMGC and the Department in the event of a |
| 16 | | default or delay;
|
| 17 | | (3) terms for the CMGC's compliance with requirements |
| 18 | | pertaining to business enterprises, including |
| 19 | | disadvantaged business enterprises, and with Section 2-105 |
| 20 | | of the Illinois Human Rights Act for any construction work |
| 21 | | performed under the CMGC contract;
|
| 22 | | (4) the identification of any technical specifications |
| 23 | | that the CMGC must comply with when aiding the Department |
| 24 | | with developing plans or performing construction work;
|
| 25 | | (5) required performance and payment security for the |
| 26 | | construction phase of the contract;
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| 1 | | (6) the terms and conditions of indemnification and |
| 2 | | minimum insurance requirements; and
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| 3 | | (7) any other terms and conditions deemed necessary.
|
| 4 | | (d) If the CMGC contract is terminated for any reason, the |
| 5 | | Department may, in its sole discretion, re-advertise the CMGC |
| 6 | | contract under this Act or use any other authorized procurement |
| 7 | | method to complete the transportation facility or any portion |
| 8 | | of the transportation facility. Once the contract is |
| 9 | | terminated, the Department may use any work product developed |
| 10 | | by the CMGC to complete the transportation facility.
|
| 11 | | Section 55. Funding; financing.
|
| 12 | | (a) The Department may utilize any lawful source of funding |
| 13 | | and financing to compensate a DB and CMGC for work and services |
| 14 | | performed under a DB contract or CMGC contract, as applicable, |
| 15 | | and the Department may combine federal, State, local, and |
| 16 | | private funds to finance a transportation facility.
|
| 17 | | (b) Subject to appropriation by the General Assembly of the |
| 18 | | required amounts, the Department may obligate and make |
| 19 | | expenditures of funds as and when needed to satisfy its payment |
| 20 | | obligations under a DB contract or CMGC contract.
|
| 21 | | Section 60. Acquisition of property; related agreements. |
| 22 | | The Department may exercise any and all powers of condemnation |
| 23 | | or eminent domain, including quick-take powers, to acquire |
| 24 | | lands or estates or interests in land for a transportation |
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| 1 | | facility under this Act or to the extent the Department finds |
| 2 | | that the action serves the public purpose of this Act and deems |
| 3 | | the action appropriate in the exercise of its powers under this |
| 4 | | Act. In addition, the Department and a DB or CMGC may enter |
| 5 | | into leases, licenses, easements, and other grants of property |
| 6 | | interests that the Department determines are necessary to |
| 7 | | deliver a transportation facility under this Act.
|
| 8 | | Section 65. Federal requirements. In the procurement of DB |
| 9 | | contracts and CMGC contracts, the Department shall, to the |
| 10 | | extent necessary, comply with federal law and regulations and |
| 11 | | take all necessary steps to adapt its rules, policies, and |
| 12 | | procedures to remain eligible for federal aid.
|
| 13 | | Section 70. Powers. The powers granted to the Department |
| 14 | | under this Act shall be liberally construed to accomplish its |
| 15 | | purpose, are in addition to any existing powers of the |
| 16 | | Department, and shall not affect or impair any other powers |
| 17 | | authorized under applicable law. This includes powers to |
| 18 | | procure and enter into DB contracts and CMGC contracts under |
| 19 | | this Act.
|
| 20 | | Section 75. Rulemaking. |
| 21 | | (a) The Illinois Administrative Procedure Act applies to |
| 22 | | all administrative rules and procedures of the Department under |
| 23 | | this Act, except that nothing in this Act shall be construed to |
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| 1 | | render any prequalification or other responsibility criteria |
| 2 | | as a "license" or "licensing" under that Act. |
| 3 | | (b) The Department may adopt rules to carry out the |
| 4 | | provisions of this Act.
|
| 5 | | Section 80. Repealer. This Act is repealed 5 years after |
| 6 | | the effective date of this Act, provided that any DB contracts |
| 7 | | and CMGC contracts entered into before that date, or any |
| 8 | | procurement of a transportation facility under this Act, |
| 9 | | commenced before that date and the contracts resulting from |
| 10 | | those procurements shall remain in effect.
|
| 11 | | Section 905. The Department of Transportation Law of the
|
| 12 | | Civil Administrative Code of Illinois is amended by adding |
| 13 | | Section 2705-233 as follows:
|
| 14 | | (20 ILCS 2705/2705-233 new) |
| 15 | | Sec. 2705-233. Design-build and construction |
| 16 | | manager-general contractor for the transportation |
| 17 | | infrastructure. The Department may exercise all powers granted |
| 18 | | to it under the Innovations for Transportation Infrastructure |
| 19 | | Act, including, but not limited to, the power to enter into all |
| 20 | | contracts or agreements necessary or incidental to the |
| 21 | | performance of its powers under that Act, and powers related to |
| 22 | | any transportation facility implemented under that Act.
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| 1 | | Section 910. The Illinois Finance Authority Act is amended |
| 2 | | by adding Section 825-108 as follows:
|
| 3 | | (20 ILCS 3501/825-108 new) |
| 4 | | Sec. 825-108. Transportation project financing. For the |
| 5 | | purpose of financing a transportation facility undertaken |
| 6 | | under the Innovations for Transportation Infrastructure Act, |
| 7 | | the Authority may apply for an allocation of tax-exempt bond |
| 8 | | financing authorization provided by subsection (m) of Section |
| 9 | | 142 of the United States Internal Revenue Code, as well as |
| 10 | | financing available under any other federal law or program.
|
| 11 | | Section 915. The Illinois Procurement Code is amended by |
| 12 | | adding Section 1-10.5 as follows:
|
| 13 | | (30 ILCS 500/1-10.5 new) |
| 14 | | Sec. 1-10.5. Alternative technical concepts. |
| 15 | | Notwithstanding subsection (b) of Section 1-10 of this Code, |
| 16 | | the Department of Transportation may allow bidders and |
| 17 | | proposers to submit alternative technical concepts in their |
| 18 | | bids and proposals, provided the Department determines that the |
| 19 | | alternative technical concepts provide an equal or better |
| 20 | | solution than the underlying technical requirements applicable |
| 21 | | to the work. If the Department of Transportation allows bidders |
| 22 | | or proposers for a particular contract to submit alternative |
| 23 | | technical concepts, the Department shall describe the process |
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| 1 | | for alternative technical concept submission and evaluation in |
| 2 | | the procurement documents for that contract, including the |
| 3 | | potential use of confidential meetings and the exchange of |
| 4 | | confidential information with bidders and proposers to review |
| 5 | | and discuss potential or proposed alternative technical |
| 6 | | concepts.
|
| 7 | | Section 920. The Architectural, Engineering, and Land |
| 8 | | Surveying
Qualifications Based Selection Act is amended by |
| 9 | | adding Section 85 as follows:
|
| 10 | | (30 ILCS 535/85 new) |
| 11 | | Sec. 85. Design-build and construction manager-general |
| 12 | | contractor contracts. This Act shall not apply to the |
| 13 | | procurement of or contracting for transportation facilities |
| 14 | | under design-build contracts and construction manager-general |
| 15 | | contractor contracts under the Innovations for Transportation |
| 16 | | Infrastructure Act.
|
| 17 | | Section 925. The Employment of Illinois Workers on Public |
| 18 | | Works Act is amended by adding Section 2.8 as follows:
|
| 19 | | (30 ILCS 570/2.8 new) |
| 20 | | Sec. 2.8. Design build and construction manager-general |
| 21 | | contractor contracts. This Act applies to any construction work |
| 22 | | undertaken under design build contracts and construction |
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| 1 | | manager-general contractor contracts entered into under the |
| 2 | | Innovations for Transportation Infrastructure Act.
|
| 3 | | Section 930. The Business Enterprise for Minorities, |
| 4 | | Females, and Persons with
Disabilities Act is amended by adding |
| 5 | | Section 2.8 as follows:
|
| 6 | | (30 ILCS 575/2.8 new) |
| 7 | | Sec. 2.8. Design build and construction manager-general |
| 8 | | contractor contracts. This Act applies to any construction work |
| 9 | | undertaken under design build contracts and construction |
| 10 | | manager-general contractor contracts entered into under the |
| 11 | | Innovations for Transportation Infrastructure Act.
|
| 12 | | Section 935. The Eminent Domain Act is amended by adding |
| 13 | | Section 15-5-48 as follows:
|
| 14 | | (735 ILCS 30/15-5-48 new) |
| 15 | | Sec. 15-5-48. Eminent domain powers in new Acts. The |
| 16 | | following provisions of law may include express grants of the |
| 17 | | power to acquire property by condemnation or eminent domain: |
| 18 | | The Innovations for Transportation Infrastructure Act; for |
| 19 | | the purposes of constructing a transportation facility under |
| 20 | | the Act.
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| 21 | | Section 940. The Prevailing Wage Act is amended by changing |
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| 1 | | Section 2 as follows:
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| 2 | | (820 ILCS 130/2) (from Ch. 48, par. 39s-2)
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| 3 | | Sec. 2. This Act applies to the wages of laborers, |
| 4 | | mechanics and
other workers employed in any public works, as |
| 5 | | hereinafter defined, by
any public body and to anyone under |
| 6 | | contracts for public works. This includes any maintenance, |
| 7 | | repair, assembly, or disassembly work performed on equipment |
| 8 | | whether owned, leased, or rented.
|
| 9 | | As used in this Act, unless the context indicates |
| 10 | | otherwise:
|
| 11 | | "Public works" means all fixed works constructed or |
| 12 | | demolished by
any public body,
or paid for wholly or in part |
| 13 | | out of public funds. "Public works" as
defined herein includes |
| 14 | | all projects financed in whole
or in part with bonds, grants, |
| 15 | | loans, or other funds made available by or through the State or |
| 16 | | any of its political subdivisions, including but not limited |
| 17 | | to: bonds issued under the Industrial Project Revenue Bond
Act |
| 18 | | (Article 11, Division 74 of the Illinois Municipal Code), the |
| 19 | | Industrial
Building Revenue Bond Act, the Illinois Finance |
| 20 | | Authority Act,
the Illinois Sports Facilities Authority Act, or |
| 21 | | the Build Illinois Bond Act; loans or other funds made
|
| 22 | | available pursuant to the Build Illinois Act; loans or other |
| 23 | | funds made available pursuant to the Riverfront Development |
| 24 | | Fund under Section 10-15 of the River Edge Redevelopment Zone |
| 25 | | Act; or funds from the Fund for
Illinois' Future under Section |
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| 1 | | 6z-47 of the State Finance Act, funds for school
construction |
| 2 | | under Section 5 of the General Obligation Bond Act, funds
|
| 3 | | authorized under Section 3 of the School Construction Bond Act, |
| 4 | | funds for
school infrastructure under Section 6z-45 of the |
| 5 | | State Finance Act, and funds
for transportation purposes under |
| 6 | | Section 4 of the General Obligation Bond
Act. "Public works" |
| 7 | | also includes (i) all projects financed in whole or in part
|
| 8 | | with funds from the Department of Commerce and Economic |
| 9 | | Opportunity under the Illinois Renewable Fuels Development |
| 10 | | Program
Act for which there is no project labor agreement; (ii) |
| 11 | | all work performed pursuant to a public private agreement under |
| 12 | | the Public Private Agreements for the Illiana Expressway Act or |
| 13 | | the Public-Private Agreements for the South Suburban Airport |
| 14 | | Act; and (iii) all projects undertaken under a public-private |
| 15 | | agreement under the Public-Private Partnerships for |
| 16 | | Transportation Act; and (iv) all transportation facilities |
| 17 | | undertaken under a design-build contract or a construction |
| 18 | | manager-general contractor contract under the Innovations for |
| 19 | | Transportation Infrastructure Act. "Public works" also |
| 20 | | includes all projects at leased facility property used for |
| 21 | | airport purposes under Section 35 of the Local Government |
| 22 | | Facility Lease Act. "Public works" also includes the |
| 23 | | construction of a new wind power facility by a business |
| 24 | | designated as a High Impact Business under Section 5.5(a)(3)(E) |
| 25 | | of the Illinois Enterprise Zone Act.
"Public works" does not |
| 26 | | include work done directly by any public utility company, |
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| 1 | | whether or not done under public supervision or direction, or |
| 2 | | paid for wholly or in part out of public funds. "Public works" |
| 3 | | also includes any corrective action performed pursuant to Title |
| 4 | | XVI of the Environmental Protection Act for which payment from |
| 5 | | the Underground Storage Tank Fund is requested. "Public works" |
| 6 | | does not include projects undertaken by the owner at an |
| 7 | | owner-occupied single-family residence or at an owner-occupied |
| 8 | | unit of a multi-family residence. "Public works" does not |
| 9 | | include work performed for soil and water conservation purposes |
| 10 | | on agricultural lands, whether or not done under public |
| 11 | | supervision or paid for wholly or in part out of public funds, |
| 12 | | done directly by an owner or person who has legal control of |
| 13 | | those lands.
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| 14 | | "Construction" means all work on public works involving |
| 15 | | laborers,
workers or mechanics. This includes any maintenance, |
| 16 | | repair, assembly, or disassembly work performed on equipment |
| 17 | | whether owned, leased, or rented.
|
| 18 | | "Locality" means the county where the physical work upon |
| 19 | | public works
is performed, except (1) that if there is not |
| 20 | | available in the county a
sufficient number of competent |
| 21 | | skilled laborers, workers and mechanics
to construct the public |
| 22 | | works efficiently and properly, "locality"
includes any other |
| 23 | | county nearest the one in which the work or
construction is to |
| 24 | | be performed and from which such persons may be
obtained in |
| 25 | | sufficient numbers to perform the work and (2) that, with
|
| 26 | | respect to contracts for highway work with the Department of
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| 1 | | Transportation of this State, "locality" may at the discretion |
| 2 | | of the
Secretary of the Department of Transportation be |
| 3 | | construed to include
two or more adjacent counties from which |
| 4 | | workers may be accessible for
work on such construction.
|
| 5 | | "Public body" means the State or any officer, board or |
| 6 | | commission of
the State or any political subdivision or |
| 7 | | department thereof, or any
institution supported in whole or in |
| 8 | | part by public funds,
and includes every county, city, town,
|
| 9 | | village, township, school district, irrigation, utility, |
| 10 | | reclamation
improvement or other district and every other |
| 11 | | political subdivision,
district or municipality of the state |
| 12 | | whether such political
subdivision, municipality or district |
| 13 | | operates under a special charter
or not.
|
| 14 | | The terms "general prevailing rate of hourly wages", |
| 15 | | "general
prevailing rate of wages" or "prevailing rate of |
| 16 | | wages" when used in
this Act mean the hourly cash wages plus |
| 17 | | annualized fringe benefits for training and
apprenticeship |
| 18 | | programs approved by the U.S. Department of Labor, Bureau of
|
| 19 | | Apprenticeship and Training, health and welfare, insurance, |
| 20 | | vacations and
pensions paid generally, in the
locality in which |
| 21 | | the work is being performed, to employees engaged in
work of a |
| 22 | | similar character on public works.
|
| 23 | | (Source: P.A. 97-502, eff. 8-23-11; 98-109, eff. 7-25-13; |
| 24 | | 98-482, eff. 1-1-14; 98-740, eff. 7-16-14; 98-756, eff. |
| 25 | | 7-16-14.)
|