Ill. Admin. Code tit. 44, § 2000.5039 - Procurement Communication Reporting Requirement
a) Unless otherwise specified in this
Section, any written or oral communication received by a Secretary of State
employee who, by the nature of his or her duties, has the authority to
participate personally or substantially in the decision to award a State
contract and that imparts or requests material information or makes a material
argument regarding potential action concerning an active procurement matter,
including, but not limited to, an application, a contract or a project, shall
be reported to the SOS Procurement Policy Board. [
30 ILCS
500/50-39(a) ]
1) As soon as practicable, but in no event
more than 30 days after receipt of the communication or the first in a series
of related communications described in subsection (b), the Secretary of State
employee shall report the communication to the SOS Procurement Policy
Board.
2)
No trade secrets
or other proprietary or confidential information shall be included in any
communication reported to the SOS Procurement Policy
Board. [
30 ILCS
500/50-39(b) ]
b) A communication must be reported if it is
material, regarding a potential action, relating to an active procurement
matter, and not otherwise excluded from reporting.
1) Materiality
A) "Material information" is
information that a reasonable person would deem important in
determining his or her course of action. It is information pertaining
to significant issues, including, but not limited to, price, quantity,
and terms of payment or performance.
B)
A "material argument" is a
communication that a reasonable person would believe was made for the purpose
of influencing a decision relating to a procurement matter. It does not include
general information about products, services or industry best practices, or a
response to a communication initiated by an SOS employee for
the purpose of providing information to evaluate new products, trends,
services, or technologies. [
30 ILCS
500/50-39(g) ]
C) In determining whether a communication is
material, the SOS employee must consider:
i)
whether the information conveyed is new or already known to the SOS (or
repeated or restated privately) and other participants in the communication;
and
ii) the likelihood that the
information would influence a pending procurement matter.
2) A "potential action" is one
that a reasonable person would believe could affect the initiation, development
or outcome of a procurement matter.
3) "Active procurement
matter" means a procurement process beginning with the
requisition or determination of need by an agency and continuing through the
publication of an award notice or other completion of a final procurement
action, the resolution of any protests, and the expiration of any protest
or SOS Procurement Policy Board review period, if
applicable. The Chief Procurement Officer may designate a document for
an agency to use in documenting a determination of need. "Active
procurement matter" also includes communications relating to
change orders, renewals or extensions. [
30 ILCS
500/50-39(g) ] "Procurement
processes" includes the processes of procuring specific goods, supplies,
services, professional or artistic services, construction, leases of real
property (whether the State is the lessor or lessee), or capital improvements,
and includes master contracts, contracts for financing through use of
installment or lease-purchase arrangements, renegotiated contracts, amendments
to contracts, and change orders. Active procurement matters include:
A) drafting, reviewing or preparing
specifications, plans or requirements, including determining the method of
source selection;
B) drafting,
reviewing or preparing any Invitations for Bid, Requests for Information,
Requests for Proposals, sole source procurement justifications, emergency
procurement justifications or selection information;
C) evaluating bids, responses and offers, and
other communications among an evaluation team and any technical advisors to the
team relating to the evaluation of a procurement not yet awarded;
D) letting or awarding a contract;
E) resolving protests;
F) determining inclusion on prequalification
lists or prequalification in general;
G) identifying potential conflicts of
interest or voiding or allowing a contract, bid, offer or subcontract for a
conflict of interest;
H) allowing a
conflict or subcontract pursuant to Section 50-60 of the Code; and
I) determining, drafting, preparing,
executing, denying or approving change orders or the renewal or extension of an
existing contract.
c) This Section does not apply to the
following communications:
1)
Statements by a person publicly made in a public forum.
However, communications made in a public forum, if made again privately, must
be reported;
2)
Statements
regarding matters of procedure and practice, such as format, the number of
copies required, the manner of filing, and the status of a
matter;
3)
Communications regarding the administration and implementation of an
existing contract, except communications regarding change orders or the renewal
or extension of an existing contract;
4)
Statements made by an SOS
employee to:
A)
the employee's department head;
B) other SOS employees;
C)
employees of the Executive Ethics
Commission;
D) the Office
of the Executive Inspector General for the Secretary of State; or
E)
an employee of another State
agency who, through the communication, is either:
i)
exercising his or her experience
or expertise in the subject matter of the particular procurement in the normal
course of business, for official purposes, and at the initiation of the
purchasing agency or the appropriate State Purchasing Officer;
or
ii)
exercising
oversight, supervisory or management authority over the procurement in the
normal course of business and as part of official
responsibilities;
5)
Unsolicited communications
providing general information about products, services or industry best
practices, before those products or services become involved in a procurement
matter;
6)
Communications received in response to procurement solicitations
pursuant to the Illinois Procurement Code, including, but not limited to,
vendor responses to a Request for Information, Request for Proposal, Request
for Qualifications, Invitation for Bid or a small purchase, sole source or
emergency solicitation, or questions and answers posted to the Bulletin to
supplement the procurement action, provided that the communications are made in
accordance with the instructions contained in the procurement solicitation,
procedures or guidelines;
7)
Communications that are
privileged, protected or confidential under law;
8)
Communications that are part of a
formal procurement process as set out by statute, rule or the solicitation,
guidance or procedures, including, but not limited to, the posting of
procurement opportunities, the processes for approving a procurement business
case or its equivalent, fiscal approval, submission of bids, the finalizing of
contract terms and conditions with an awardee or apparent awardee, and similar
formal procurement processes. [
30 ILCS
500/50-39(a) ]
d) Notwithstanding any exemption provided in
subsection (c), an SOS employee must report any communication that imparts or
requests material information or makes a material argument regarding a
potential action concerning an active procurement matter if that communication
attempts to influence through duress, coercion or the direct or indirect offer
or promise of anything of value to any person or entity in consideration for
any benefit or preference in the procurement process.
e) Notwithstanding any exemption provided in
subsection (c), an SOS employee must report any communication that imparts or
requests material information or makes a material argument regarding a
potential action concerning an active procurement matter if the employee
reasonably believes the communication was made for any improper purpose,
including, but not limited to, providing an improper benefit, monetary or
nonmonetary, to any person or entity.
f) This Section does not apply to
communications concerning procurements that are exempt from the Illinois
Procurement Code.
g) For purposes
of this Section, "Secretary of State employee" or "SOS employee" means:
1) any person employed full-time, part-time
or pursuant to a personal services contract and whose employment duties are
subject to the direction and control of the SOS with regard to the material
details of how the work is to be performed;
2) any appointed or elected commissioner,
trustee, director or board member of a board of the SOS; or
3) any other person appointed to a position
in or with the SOS, regardless of whether the position is
compensated.
h) For
purposes of this Section, "public forum" includes any meeting that satisfies
the notice requirements contained in Section 2.02 of the Open Meetings Act [ 5
ILCS 120 ], but also includes other public events that are advertised and
generally open to the public. A meeting may be a public forum even if a
reasonable fee is required, such as educational seminars and
conferences.
Notes
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