Bill Text: IL SB3620 | 2023-2024 | 103rd General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-06-26 - Pursuant to Senate Rule 3-9(b) / Referred to Assignments [SB3620 Detail]
Download: Illinois-2023-SB3620-Introduced.html
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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, | |||||||||||||||||||||||
3 | represented in the General Assembly:
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4 | Section 5. The Public-Private Partnerships for | |||||||||||||||||||||||
5 | Transportation Act is amended by changing Sections 10, 15, and | |||||||||||||||||||||||
6 | 19 as follows:
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7 | (630 ILCS 5/10) | |||||||||||||||||||||||
8 | Sec. 10. Definitions. As used in this Act: | |||||||||||||||||||||||
9 | "Approved proposal" means the proposal that is approved by | |||||||||||||||||||||||
10 | the responsible public entity pursuant to subsection (j) of | |||||||||||||||||||||||
11 | Section 20 of this Act. | |||||||||||||||||||||||
12 | "Approved proposer" means the private entity whose | |||||||||||||||||||||||
13 | proposal is the approved proposal. | |||||||||||||||||||||||
14 | "Authority" means the Illinois State Toll Highway | |||||||||||||||||||||||
15 | Authority. | |||||||||||||||||||||||
16 | "Contractor" means a private entity that has entered into | |||||||||||||||||||||||
17 | a public-private agreement with the responsible public entity | |||||||||||||||||||||||
18 | to provide services to or on behalf of the responsible public | |||||||||||||||||||||||
19 | entity. | |||||||||||||||||||||||
20 | "Department" means the Illinois Department of | |||||||||||||||||||||||
21 | Transportation. | |||||||||||||||||||||||
22 | "Design-build agreement" means the agreement between the | |||||||||||||||||||||||
23 | selected private entity and the responsible public entity |
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1 | under which the selected private entity agrees to furnish | ||||||
2 | design, construction, and related services for a | ||||||
3 | transportation facility under this Act. | ||||||
4 | "Develop" or "development" means to do one or more of the | ||||||
5 | following: plan, design, develop, lease, acquire, install, | ||||||
6 | construct, reconstruct, rehabilitate, extend, or expand. | ||||||
7 | "Maintain" or "maintenance" includes ordinary maintenance, | ||||||
8 | repair, rehabilitation, capital maintenance, maintenance | ||||||
9 | replacement, and any other categories of maintenance that may | ||||||
10 | be designated by the responsible public entity. | ||||||
11 | "Operate" or "operation" means to do one or more of the | ||||||
12 | following: maintain, improve, equip, modify, or otherwise | ||||||
13 | operate. | ||||||
14 | "Private entity" means any combination of one or more | ||||||
15 | individuals, corporations, general partnerships, limited | ||||||
16 | liability companies, limited partnerships, joint ventures, | ||||||
17 | business trusts, nonprofit entities, or other business | ||||||
18 | entities that are parties to a proposal for a transportation | ||||||
19 | project or an agreement related to a transportation project. A | ||||||
20 | public agency may provide services to a contractor as a | ||||||
21 | subcontractor or subconsultant without affecting the private | ||||||
22 | status of the private entity and the ability to enter into a | ||||||
23 | public-private agreement. A transportation agency is not a | ||||||
24 | private entity. | ||||||
25 | "Proposal" means all materials and documents prepared by | ||||||
26 | or on behalf of a private entity relating to the proposed |
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1 | development, financing, or operation of a transportation | ||||||
2 | facility as a transportation project. | ||||||
3 | "Proposer" means a private entity that has submitted an | ||||||
4 | unsolicited proposal for a public-private agreement to a | ||||||
5 | responsible public entity under this Act or a proposal or | ||||||
6 | statement of qualifications for a public-private agreement in | ||||||
7 | response to a request for proposals or a request for | ||||||
8 | qualifications issued by a responsible public entity under | ||||||
9 | this Act. | ||||||
10 | "Public-private agreement" means the public-private | ||||||
11 | agreement between the contractor and the responsible public | ||||||
12 | entity relating to one or more of the development, financing, | ||||||
13 | or operation of a transportation project that is entered into | ||||||
14 | under this Act. | ||||||
15 | "Request for information" means all materials and | ||||||
16 | documents prepared by or on behalf of the responsible public | ||||||
17 | entity to solicit information from private entities with | ||||||
18 | respect to transportation projects. | ||||||
19 | "Request for proposals" means all materials and documents | ||||||
20 | prepared by or on behalf of the responsible public entity to | ||||||
21 | solicit proposals from private entities to enter into a | ||||||
22 | public-private agreement. | ||||||
23 | "Request for qualifications" means all materials and | ||||||
24 | documents prepared by or on behalf of the responsible public | ||||||
25 | entity to solicit statements of qualification from private | ||||||
26 | entities to enter into a public-private agreement. |
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1 | "Responsible public entity" means the Department of | ||||||
2 | Transportation or , the Illinois State Toll Highway Authority. | ||||||
3 | "Revenues" means all revenues, including any combination | ||||||
4 | of: income; earnings and interest; user fees; lease payments; | ||||||
5 | allocations; federal, State, and local appropriations, grants, | ||||||
6 | loans, lines of credit, and credit guarantees; bond proceeds; | ||||||
7 | equity investments; service payments; or other receipts; | ||||||
8 | arising out of or in connection with a transportation project, | ||||||
9 | including the development, financing, and operation of a | ||||||
10 | transportation project. The term includes money received as | ||||||
11 | grants, loans, lines of credit, credit guarantees, or | ||||||
12 | otherwise in aid of a transportation project from the federal | ||||||
13 | government, the State, a unit of local government, or any | ||||||
14 | agency or instrumentality of the federal government, the | ||||||
15 | State, or a unit of local government. | ||||||
16 | "Shortlist" means the process by which a responsible | ||||||
17 | public entity will review, evaluate, and rank statements of | ||||||
18 | qualifications submitted in response to a request for | ||||||
19 | qualifications and then identify the proposers who are | ||||||
20 | eligible to submit a detailed proposal in response to a | ||||||
21 | request for proposals. The identified proposers constitute the | ||||||
22 | shortlist for the transportation project to which the request | ||||||
23 | for proposals relates. | ||||||
24 | "Transportation agency" means (i) the Department or (ii) | ||||||
25 | the Authority. | ||||||
26 | "Transportation facility" means any new or existing road, |
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1 | highway, toll highway, bridge, tunnel, intermodal facility, | ||||||
2 | intercity or high-speed passenger rail, or other | ||||||
3 | transportation facility or infrastructure, excluding airports, | ||||||
4 | under the jurisdiction of a responsible public entity, except | ||||||
5 | those facilities for the Illiana Expressway. The term | ||||||
6 | "transportation facility" may refer to one or more | ||||||
7 | transportation facilities that are proposed to be developed or | ||||||
8 | operated as part of a single transportation project. | ||||||
9 | "Transportation project" or "project" means any or the | ||||||
10 | combination of the design, development, construction, | ||||||
11 | financing, or operation with respect to all or a portion of any | ||||||
12 | transportation facility under the jurisdiction of the | ||||||
13 | responsible public entity, except those facilities for the | ||||||
14 | Illiana Expressway, undertaken pursuant to this Act. | ||||||
15 | "Unit of local government" has the meaning ascribed to | ||||||
16 | that term in Article VII, Section 1 of the Constitution of the | ||||||
17 | State of Illinois and also means any unit designated as a | ||||||
18 | municipal corporation. | ||||||
19 | "Unsolicited proposal" means a written proposal that is | ||||||
20 | submitted to a responsible public entity on the initiative of | ||||||
21 | the private sector entity or entities for the purpose of | ||||||
22 | developing a partnership, and that is not in response to a | ||||||
23 | formal or informal request issued by a responsible public | ||||||
24 | entity. | ||||||
25 | "User fees" or "tolls" means the rates, tolls, fees, or | ||||||
26 | other charges imposed by the contractor for use of all or a |
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1 | portion of a transportation project under a public-private | ||||||
2 | agreement. | ||||||
3 | (Source: P.A. 103-570, eff. 1-1-24.)
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4 | (630 ILCS 5/15) | ||||||
5 | Sec. 15. Formation of public-private agreements; project | ||||||
6 | planning. | ||||||
7 | (a) Each responsible public entity may exercise the powers | ||||||
8 | granted by this Act to do some or all to design, develop, | ||||||
9 | construct, finance, and operate any part of one or more | ||||||
10 | transportation projects through public-private agreements with | ||||||
11 | one or more private entities, except for transportation | ||||||
12 | projects for the Illiana Expressway as defined in the Public | ||||||
13 | Private Agreements for the Illiana Expressway Act. The net | ||||||
14 | proceeds, if any, arising out of a transportation project or | ||||||
15 | public-private agreement undertaken by the Department pursuant | ||||||
16 | to this Act shall be deposited into the Public-Private | ||||||
17 | Partnerships for Transportation Fund. The net proceeds arising | ||||||
18 | out of a transportation project or public-private agreement | ||||||
19 | undertaken by the Authority pursuant to this Act shall be | ||||||
20 | deposited into the Illinois State Toll Highway Authority Fund | ||||||
21 | and shall be used only as authorized by Section 23 of the Toll | ||||||
22 | Highway Act. | ||||||
23 | (b) The Authority may enter into a public-private | ||||||
24 | partnership to design, develop, construct, finance, and | ||||||
25 | operate new toll highways authorized by the Governor and the |
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1 | General Assembly pursuant to Section 14.1 of the Toll Highway | ||||||
2 | Act, non-highway transportation projects on the toll highway | ||||||
3 | system such as commuter rail or high-speed rail lines, and | ||||||
4 | intelligent transportation infrastructure that will enhance | ||||||
5 | the safety, efficiency, and environmental quality of the toll | ||||||
6 | highway system. The Authority may operate or provide | ||||||
7 | operational services such as toll collection on highways which | ||||||
8 | are developed or financed, or both, through a public-private | ||||||
9 | agreement entered into by another public entity, under an | ||||||
10 | agreement with the public entity or contractor responsible for | ||||||
11 | the transportation project. | ||||||
12 | (c) A contractor has: | ||||||
13 | (1) all powers allowed by law generally to a private | ||||||
14 | entity having the same form of organization as the | ||||||
15 | contractor; and | ||||||
16 | (2) the power to develop, finance, and operate the | ||||||
17 | transportation facility and to impose user fees in | ||||||
18 | connection with the use of the transportation facility, | ||||||
19 | subject to the terms of the public-private agreement. | ||||||
20 | No tolls or user fees may be imposed by the contractor | ||||||
21 | except as set forth in a public-private agreement. | ||||||
22 | (d) Prior to commencing the procurement process under an | ||||||
23 | unsolicited proposal or the issuance of any request for | ||||||
24 | qualifications or request for proposals with respect to any | ||||||
25 | potential project undertaken by a responsible public entity | ||||||
26 | pursuant to Section 19 or 20 of this Act, the commencement of a |
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1 | procurement process for that particular potential project | ||||||
2 | shall be authorized by joint resolution of the General | ||||||
3 | Assembly. | ||||||
4 | (e) (Blank). | ||||||
5 | (f) Any project undertaken under this Act shall be subject | ||||||
6 | to all applicable planning requirements otherwise required by | ||||||
7 | law, including land use planning, regional planning, | ||||||
8 | transportation planning, and environmental compliance | ||||||
9 | requirements. | ||||||
10 | (g) (Blank). | ||||||
11 | (h) The responsible public entity shall hold one or more | ||||||
12 | public hearings following its submittals to the General | ||||||
13 | Assembly under subsection (d) of this Section. These public | ||||||
14 | hearings shall address any potential project that the | ||||||
15 | responsible public entity submitted to the General Assembly | ||||||
16 | for review under subsection (d). The responsible public entity | ||||||
17 | shall publish a notice of the hearing or hearings at least 7 | ||||||
18 | days before a hearing takes place, and shall include the | ||||||
19 | following in the notice: (i) the date, time, and place of the | ||||||
20 | hearing and the address of the responsible public entity; (ii) | ||||||
21 | a brief description of the potential projects that the | ||||||
22 | responsible public entity is considering undertaking; and | ||||||
23 | (iii) a statement that the public may comment on the potential | ||||||
24 | projects. | ||||||
25 | (Source: P.A. 103-570, eff. 1-1-24.)
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1 | (630 ILCS 5/19) | ||||||
2 | Sec. 19. Unsolicited proposals. | ||||||
3 | (a) A responsible public entity may not receive | ||||||
4 | unsolicited proposals for a project . and may thereafter enter | ||||||
5 | into a public-private agreement with a private entity, or a | ||||||
6 | consortium of private entities, for the design, construction, | ||||||
7 | upgrading, operating, ownership, or financing of facilities. | ||||||
8 | (b) A responsible public entity may consider, evaluate, | ||||||
9 | and accept an unsolicited proposal for a public-private | ||||||
10 | partnership project from a private entity if the proposal: | ||||||
11 | (1) is independently developed and drafted by the | ||||||
12 | proposer without responsible public entity supervision; | ||||||
13 | (2) shows that the proposed project could benefit the | ||||||
14 | transportation system; | ||||||
15 | (3) includes a financing plan to allow the project to | ||||||
16 | move forward pursuant to the applicable responsible public | ||||||
17 | entity's budget and finance requirements; and | ||||||
18 | (4) includes sufficient detail and information for the | ||||||
19 | responsible public entity to evaluate the proposal in an | ||||||
20 | objective and timely manner and permit a determination | ||||||
21 | that the project would be worthwhile. | ||||||
22 | (c) The unsolicited proposal shall include the following: | ||||||
23 | (1) an executive summary covering the major elements | ||||||
24 | of the proposal; | ||||||
25 | (2) qualifications concerning the experience, | ||||||
26 | expertise, technical competence, and qualifications of the |
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1 | private entity and of each member of its management team | ||||||
2 | and of other key employees, consultants, and | ||||||
3 | subcontractors, including the name, address, and | ||||||
4 | professional designation; | ||||||
5 | (3) a project description, including, when applicable: | ||||||
6 | (A) the limits, scope, and location of the | ||||||
7 | proposed project; | ||||||
8 | (B) right-of-way requirements; | ||||||
9 | (C) connections with other facilities and | ||||||
10 | improvements to those facilities necessary if the | ||||||
11 | project is developed; | ||||||
12 | (D) a conceptual project design; and | ||||||
13 | (E) a statement of the project's relationship to | ||||||
14 | and impact upon relevant existing plans of the | ||||||
15 | responsible public entity; | ||||||
16 | (4) a facilities project schedule, including when | ||||||
17 | applicable, estimates of: | ||||||
18 | (A) dates of contract award; | ||||||
19 | (B) start of construction; | ||||||
20 | (C) completion of construction; | ||||||
21 | (D) start of operations; and | ||||||
22 | (E) major maintenance or reconstruction activities | ||||||
23 | during the life of the proposed project agreement; | ||||||
24 | (5) an operating plan describing the operation of the | ||||||
25 | completed facility if operation of a facility is part of | ||||||
26 | the proposal, describing the management structure and |
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1 | approach, the proposed period of operations, enforcement, | ||||||
2 | emergency response, and other relevant information; | ||||||
3 | (6) a finance plan describing the proposed financing | ||||||
4 | of the project, identifying the source of funds to, where | ||||||
5 | applicable, design, construct, maintain, and manage the | ||||||
6 | project during the term of the proposed contract; and | ||||||
7 | (7) the legal basis for the project and licenses and | ||||||
8 | certifications; the private entity must demonstrate that | ||||||
9 | it has all licenses and certificates necessary to complete | ||||||
10 | the project. | ||||||
11 | (d) Within 120 days after receiving an unsolicited | ||||||
12 | proposal, the responsible public entity shall complete a | ||||||
13 | preliminary evaluation of the unsolicited proposal and shall | ||||||
14 | either: | ||||||
15 | (1) if the preliminary evaluation is unfavorable, | ||||||
16 | return the proposal without further action; | ||||||
17 | (2) if the preliminary evaluation is favorable, notify | ||||||
18 | the proposer that the responsible public entity will | ||||||
19 | further evaluate the proposal; or | ||||||
20 | (3) request amendments, clarification, or modification | ||||||
21 | of the unsolicited proposal. | ||||||
22 | (e) The procurement process for unsolicited proposals | ||||||
23 | shall be as follows: | ||||||
24 | (1) If the responsible public entity chooses to | ||||||
25 | further evaluate an unsolicited proposal with the intent | ||||||
26 | to enter into a public-private agreement for the proposed |
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1 | project, then the responsible public entity shall publish | ||||||
2 | notice in the Illinois Procurement Bulletin or in a | ||||||
3 | newspaper of general circulation covering the location of | ||||||
4 | the project at least once a week for 2 weeks stating that | ||||||
5 | the responsible public entity has received a proposal and | ||||||
6 | will accept other proposals for the same project. The time | ||||||
7 | frame within which the responsible public entity may | ||||||
8 | accept other proposals shall be determined by the | ||||||
9 | responsible public entity on a project-by-project basis | ||||||
10 | based upon the complexity of the transportation project | ||||||
11 | and the public benefit to be gained by allowing a longer or | ||||||
12 | shorter period of time within which other proposals may be | ||||||
13 | received; however, the time frame for allowing other | ||||||
14 | proposals must be at least 21 days, but no more than 120 | ||||||
15 | days, after the initial date of publication. | ||||||
16 | (2) A copy of the notice must be mailed to each local | ||||||
17 | government directly affected by the transportation | ||||||
18 | project. | ||||||
19 | (3) The responsible public entity shall provide | ||||||
20 | reasonably sufficient information, including the identity | ||||||
21 | of its contact person, to enable other private entities to | ||||||
22 | make proposals. | ||||||
23 | (4) If, after no less than 120 days, no | ||||||
24 | counterproposal is received, or if the counterproposals | ||||||
25 | are evaluated and found to be equal to or inferior to the | ||||||
26 | original unsolicited proposal, the responsible public |
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1 | entity may proceed to negotiate a contract with the | ||||||
2 | original proposer. | ||||||
3 | (5) If, after no less than 120 days, one or more | ||||||
4 | counterproposals meeting unsolicited proposal standards | ||||||
5 | are received, and if, in the opinion of the responsible | ||||||
6 | public entity, the counterproposals are evaluated and | ||||||
7 | found to be superior to the original unsolicited proposal, | ||||||
8 | the responsible public entity shall proceed to determine | ||||||
9 | the successful participant through a final procurement | ||||||
10 | phase known as "Best and Final Offer" (BAFO). The BAFO is a | ||||||
11 | process whereby a responsible public entity shall invite | ||||||
12 | the original private sector party and the proponent | ||||||
13 | submitting the superior counterproposal to engage in a | ||||||
14 | BAFO phase. The invitation to participate in the BAFO | ||||||
15 | phase will provide to each participating proposer: | ||||||
16 | (A) the general concepts that were considered | ||||||
17 | superior to the original proposal, while keeping | ||||||
18 | proprietary information contained in the proposals | ||||||
19 | confidential to the extent possible; and | ||||||
20 | (B) the preestablished evaluation criteria or the | ||||||
21 | "basis of award" to be used to determine the | ||||||
22 | successful proponent. | ||||||
23 | (6) Offers received in response to the BAFO invitation | ||||||
24 | will be reviewed by the responsible public entity and | ||||||
25 | scored in accordance with a preestablished criteria, or | ||||||
26 | alternatively, in accordance with the basis of award |
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1 | provision identified through the BAFO process. The | ||||||
2 | successful proponent will be the proponent offering "best | ||||||
3 | value" to the responsible public entity. | ||||||
4 | (7) In all cases, the basis of award will be the best | ||||||
5 | value to the responsible public entity, as determined by | ||||||
6 | the responsible public entity. | ||||||
7 | (f) After a comprehensive evaluation and acceptance of an | ||||||
8 | unsolicited proposal and any alternatives, the responsible | ||||||
9 | public entity may commence negotiations with a proposer, | ||||||
10 | considering: | ||||||
11 | (1) the proposal has received a favorable | ||||||
12 | comprehensive evaluation; | ||||||
13 | (2) the proposal is not duplicative of existing | ||||||
14 | infrastructure project; | ||||||
15 | (3) the alternative proposal does not closely resemble | ||||||
16 | a pending competitive proposal for a public-private | ||||||
17 | private partnership or other procurement; | ||||||
18 | (4) the proposal demonstrates a unique method, | ||||||
19 | approach, or concept; | ||||||
20 | (5) facts and circumstances that preclude or warrant | ||||||
21 | additional competition; | ||||||
22 | (6) the availability of any funds, debts, or assets | ||||||
23 | that the State will contribute to the project; | ||||||
24 | (7) facts and circumstances demonstrating that the | ||||||
25 | project will likely have a significant adverse impact on | ||||||
26 | on State bond ratings; and |
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1 | (8) indemnifications included in the proposal. | ||||||
2 | (Source: P.A. 103-570, eff. 1-1-24; revised 1-3-24.)
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