Bill Text: IL SB3802 | 2011-2012 | 97th General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: Amends the Illinois Procurement Code. Provides that State agreements for performance contracting shall be included in the definition of "contract". Provides that a performance contract shall not be entered into for a period of time exceeding 20 years. Provides that installment payment performance contracts and performance-based lease purchase agreements that guarantee energy or operational cost savings shall be for a term not to exceed 20 years. Effective immediately.

Sponsorship: Partisan Bill (Democrat 2)

Status: (Passed) 2012-06-30 - Public Act . . . . . . . . . 97-0732 [SB3802 Detail]

Download: Illinois-2011-SB3802-Amended.html

---

Sen. Terry Link

Filed: 3/2/2012

09700SB3802sam001 LRB097 20447 PJG 67104 a
AMENDMENT TO SENATE BILL 3802
AMENDMENT NO. ______. Amend Senate Bill 3802 by replacing
everything after the enacting clause with the following:
"Section 5. The Illinois Procurement Code is amended by
changing Sections 1-15.30, 20-60, and 40-25 and by adding the
heading of Article 34 and Sections 34-5, 34-10, 34-15, 34-20,
34-25, 34-30, 34-35, 34-40, 34-45, 34-50, 34-55, and 34-60 as
follows:
(30 ILCS 500/1-15.30)
Sec. 1-15.30. Contract. "Contract" means all types of State
agreements, including change orders and renewals, regardless
of what they may be called, for the procurement, use, or
disposal of supplies, services, professional or artistic
services, or construction or for leases of real property,
whether the State is lessor or lessee, or capital improvements,
or performance contracting, or guaranteed energy savings

09700SB3802sam001 - 2 - LRB097 20447 PJG 67104 a
contracts, and including master contracts, contracts for
financing through use of installment or lease-purchase
arrangements, renegotiated contracts, amendments to contracts,
and change orders.
(Source: P.A. 96-795, eff. 7-1-10 (see Section 5 of P.A. 96-793
for the effective date of changes made by P.A. 96-795).)
(30 ILCS 500/20-60)
Sec. 20-60. Duration of contracts.
(a) Maximum duration. A contract, other than a contract
entered into pursuant to the State University Certificates of
Participation Act, or guaranteed energy savings contract or a
performance contract that guarantees energy or operational
cost savings, may be entered into for any period of time deemed
to be in the best interests of the State but not exceeding 10
years inclusive, beginning January 1, 2010, of proposed
contract renewals. A guaranteed energy savings contract or
performance contract shall not be entered into for a period of
time exceeding 20 years, beginning July 1, 2012. The length of
a lease for real property or capital improvements shall be in
accordance with the provisions of Section 40-25. A contract for
bond or mortgage insurance awarded by the Illinois Housing
Development Authority, however, may be entered into for any
period of time less than or equal to the maximum period of time
that the subject bond or mortgage may remain outstanding.
(b) Subject to appropriation. All contracts made or entered

09700SB3802sam001 - 3 - LRB097 20447 PJG 67104 a
into shall recite that they are subject to termination and
cancellation in any year for which the General Assembly fails
to make an appropriation to make payments under the terms of
the contract.
(c) The chief procurement officer shall file a proposed
extension or renewal of a contract with the Procurement Policy
Board prior to entering into any extension or renewal if the
cost associated with the extension or renewal exceeds $249,999.
The Procurement Policy Board may object to the proposed
extension or renewal within 30 calendar days and require a
hearing before the Board prior to entering into the extension
or renewal. If the Procurement Policy Board does not object
within 30 calendar days or takes affirmative action to
recommend the extension or renewal, the chief procurement
officer may enter into the extension or renewal of a contract.
This subsection does not apply to any emergency procurement,
any procurement under Article 40, or any procurement exempted
by Section 1-10(b) of this Code. If any State agency contract
is paid for in whole or in part with federal-aid funds, grants,
or loans and the provisions of this subsection would result in
the loss of those federal-aid funds, grants, or loans, then the
contract is exempt from the provisions of this subsection in
order to remain eligible for those federal-aid funds, grants,
or loans, and the State agency shall file notice of this
exemption with the Procurement Policy Board prior to entering
into the proposed extension or renewal. Nothing in this

09700SB3802sam001 - 4 - LRB097 20447 PJG 67104 a
subsection permits a chief procurement officer to enter into an
extension or renewal in violation of subsection (a). By August
1 each year, the Procurement Policy Board shall file a report
with the General Assembly identifying for the previous fiscal
year (i) the proposed extensions or renewals that were filed
with the Board and whether the Board objected and (ii) the
contracts exempt from this subsection.
(Source: P.A. 95-344, eff. 8-21-07; 96-15, eff. 6-22-09;
96-795, eff. 7-1-10 (see Section 5 of P.A. 96-793 for the
effective date of changes made by P.A. 96-795); 96-920, eff.
7-1-10; 96-1478, eff. 8-23-10.)
(30 ILCS 500/40-25)
Sec. 40-25. Length of leases.
(a) Maximum term. Except for installment payment
performance contracts and guaranteed energy savings contracts
and performance-based lease purchase agreements, leases Leases
shall be for a term not to exceed 10 years inclusive, beginning
January, 1, 2010, of proposed contract renewals and shall
include a termination option in favor of the State after 5
years. Installment payment performance contracts and
guaranteed energy savings contracts and performance-based
lease purchase agreements that guarantee energy or operational
cost savings shall be for a term not to exceed 20 years.
(b) Renewal. Leases may include a renewal option. An option
to renew may be exercised only when a State purchasing officer

09700SB3802sam001 - 5 - LRB097 20447 PJG 67104 a
determines in writing that renewal is in the best interest of
the State and notice of the exercise of the option is published
in the appropriate volume of the Procurement Bulletin at least
60 days prior to the exercise of the option.
(c) Subject to appropriation. All leases shall recite that
they are subject to termination and cancellation in any year
for which the General Assembly fails to make an appropriation
to make payments under the terms of the lease.
(d) Holdover. Beginning January 1, 2010, no lease may
continue on a month-to-month or other holdover basis for a
total of more than 6 months. Beginning July 1, 2010, the
Comptroller shall withhold payment of leases beyond this
holdover period.
(Source: P.A. 96-15, eff. 6-22-09; 96-795, eff. 7-1-10 (see
Section 5 of P.A. 96-793 for the effective date of changes made
by P.A. 96-795).)
(30 ILCS 500/Art. 34 heading new)
ARTICLE 34. PERFORMANCE AND GUARANTEED ENERGY SAVINGS
CONTRACTS
(30 ILCS 500/34-5 new)
Sec. 34-5. Definitions. In this Article, the words and
phrases have the meanings set forth in this Code.
"State agency" shall have the definition set forth in this
Code. The Capital Development Board, created pursuant to 20

09700SB3802sam001 - 6 - LRB097 20447 PJG 67104 a
ILCS 3105, shall have the authority to act on behalf of any
State agency in this Article.
(30 ILCS 500/34-10 new)
Sec. 34-10. Energy conservation measure.
"Energy conservation measure" means any improvement,
repair, alteration, or betterment of any building or facility
owned or operated by a State agency or any equipment, fixture,
or furnishing to be added to or used in any such building or
facility, that is designed to reduce energy consumption or
operating costs, and may include, without limitation, one or
more of the following:
(1) Insulation of the building structure or systems
within the building.
(2) Storm windows or doors, caulking or
weather-stripping, multiglazed windows or doors, heat
absorbing or heat reflective glazed and coated window or
door systems, additional glazing, reductions in glass
area, or other window and door system modifications that
reduce energy consumption.
(3) Automated or computerized energy control systems.
(4) Heating, ventilating, or air conditioning system
modifications or replacements.
(5) Replacement or modification of lighting fixtures
to increase the energy efficiency of the lighting system
without increasing the overall illumination of a facility,

09700SB3802sam001 - 7 - LRB097 20447 PJG 67104 a
unless an increase in illumination is necessary to conform
to the applicable State or local building code for the
lighting system after the proposed modifications are made.
(6) Energy recovery systems.
(7) Energy conservation measures that provide
long-term operating cost reductions.
(30 ILCS 500/34-15 new)
Sec. 34-15. Performance and guaranteed energy savings
contract. "Guaranteed energy savings contract" or "Performance
Contract" means a contract for: (i) the implementation of an
energy audit, data collection, and other related analyses
preliminary to the undertaking of energy conservation
measures; (ii) the evaluation and recommendation of energy
conservation measures; (iii) the implementation of one or more
energy conservation measures; and (iv) the implementation of
project monitoring and data collection to verify
post-installation energy consumption and energy-related
operating costs. The contract shall provide that all payments,
except obligations on termination of the contract before its
expiration, are to be made over time and that the savings are
guaranteed to the extent necessary to pay the costs of the
energy conservation measures. Energy saving may include energy
reduction and offsetting sources of renewable energy funds
including renewable energy credits and carbon credits.

09700SB3802sam001 - 8 - LRB097 20447 PJG 67104 a
(30 ILCS 500/34-20 new)
Sec. 34-20. Prequalification/qualified providers.
(a) Prequalification. The Capital Development Board shall
establish procedures to prequalify firms or entities seeking to
provide services for performance and guaranteed energy savings
contracts, and insure such firms are qualified providers of
such services.
(b) Qualified provider. "Qualified provider" means a
person or business whose employees are experienced and trained
in the design, implementation, or installation of energy
conservation measures. The minimum training required for any
person or employee under this Section shall be the satisfactory
completion of at least 40 hours of course instruction dealing
with energy conservation measures. A qualified provider to whom
the contract is awarded shall give a sufficient bond to the
State agency or area vocational center for its faithful
performance.
(30 ILCS 500/34-25 new)
Sec. 34-25. Request for proposals.
"Request for proposals" means a competitive selection
achieved by negotiated procurement. The request for proposals
shall be administered by the Capital Development Board and
notification of the procurement will be accordance with this
Code, but in no case shall the Board provide less than a 30 day
notice of the request for proposals. Proposals submitted shall

09700SB3802sam001 - 9 - LRB097 20447 PJG 67104 a
be sealed. The request for proposals shall include all of the
following:
(1) The name and address of the proposed project.
(2) The name, address, title, and phone number of a
contact person.
(3) Notice indicating that the State agency is
requesting qualified providers to propose energy
conservation measures through a performance or guaranteed
energy savings contract.
(4) The date, time, and place where proposals must be
received.
(5) The evaluation criteria for assessing the
proposals.
(6) Any other stipulations and clarifications the
State agency may require.
(30 ILCS 500/34-30 new)
Sec. 34-30. Evaluation of proposal. Before entering into a
performance or guaranteed energy savings contract, a State
agency shall submit a request for proposals. The Capital
Development Board shall evaluate any sealed proposal from a
qualified provider on behalf of the State agency. The
evaluation shall analyze the estimates of all costs of
installations, modifications or remodeling, including, without
limitation, costs of a pre-installation energy audit or
analysis, design, engineering, installation, maintenance,

09700SB3802sam001 - 10 - LRB097 20447 PJG 67104 a
repairs, debt service, conversions to a different energy or
fuel source, or post-installation project monitoring, data
collection, and reporting. The evaluation shall include a
detailed analysis of whether either the energy consumed or the
operating costs, or both, will be reduced. The evaluation of
the proposal shall be done by a registered professional
engineer or architect, who is retained by the Capital
Development Board or State agency, and selected in accordance
with the Architectural, Engineering and Land Surveying
Qualifications Based Selection Act. A licensed architect or
registered professional engineer evaluating a proposal under
this Section must not have any financial or contractual
relationship with a qualified provider or other source that
would constitute a conflict of interest.
(30 ILCS 500/34-35 new)
Sec. 34-35. Award of performance or guaranteed energy
savings contract.
(a) Sealed proposals must be opened by the Capital
Development Board, at a public opening at which the contents of
the proposals must be announced. Each person or entity
submitting a sealed proposal must receive at least 14 days
notice of the time and place of the opening. The Capital
Development Board shall select the qualified provider that best
meets the needs of the State agency. After evaluating the
proposals under Section 34-30, the Capital Development Board or

09700SB3802sam001 - 11 - LRB097 20447 PJG 67104 a
the Capital Development Board acting on behalf of the State
agency may enter into a performance or guaranteed energy
savings contract with a qualified provider if it finds that the
amount it would spend on the energy conservation measures
recommended in the proposal would not exceed the amount to be
saved in either energy or operational costs, or both, within a
20-year period from the date of installation, if the
recommendations in the proposal are followed. Contracts let or
awarded must be published in the Procurement Bulletin.
(b) The request for proposals, and any contracts awarded to
a qualified provider shall require that any subsequent need for
architectural, engineering, and land surveying services which
arise after the submittal of the request for qualifications,
the request for proposals, or contract award, shall be procured
by the provider using a qualifications based selection process
consisting of publication of notice of availability of such
services, a statement of desired qualifications, an evaluation
based on such desired qualifications, and the development of a
shortlist ranking the firms in order of qualifications, and
then negotiations with such ranked firms for a fair and
reasonable fee. Compliance with the Architectural,
Engineering, and Land Surveying Qualifications Based Selection
Act, 30 ILCS 535, shall be deemed prima facie compliance with
these provisions. Every performance or guaranteed energy
savings contract shall include the requirements of this
paragraph.

09700SB3802sam001 - 12 - LRB097 20447 PJG 67104 a
(c) The request for proposals shall require that each and
every contractor, subcontractor, architectural, engineering
and land surveying firm or entity shall be listed and the
quotation or price for such services shall also be listed. In
the event that prior to or after award, any of the listed firms
shall have a reduction in their listed price, the performance
or guaranteed energy savings contract shall be modified and
such savings shall be for the benefit of the State agency with
a corresponding reduction in the contract amount. The
information in the request for proposals shall be considered
confidential and only for the use of the State agency.
(30 ILCS 500/34-40 new)
Sec. 34-40. Guarantee. The performance or guaranteed
energy savings contract shall include a written guarantee of
the qualified provider that either the energy or operational
cost savings, or both, will meet or exceed within 20 years the
costs of the energy conservation measures. The qualified
provider shall reimburse the State agency for any shortfall of
guaranteed energy savings projected in the contract. A
qualified provider shall provide a sufficient bond to the State
agency for the installation and the faithful performance of all
the measures included in the contract. The performance or
guaranteed energy savings contract may provide for payments
over a period of time, not to exceed 20 years from the date of
final installation of the measures.

09700SB3802sam001 - 13 - LRB097 20447 PJG 67104 a
(30 ILCS 500/34-45 new)
Sec. 34-45. Installment payment contract; lease purchase
agreement. A State agency may enter into an installment payment
contract or lease purchase agreement with a qualified provider
or with a third party, as authorized by law, for the funding or
financing of the purchase and installation of energy
conservation measures by a qualified provider. Any such
contract or agreement shall be valid whether or not an
appropriation with respect thereto is first included in any
annual or supplemental budget adopted by the Illinois General
Assembly, but only for a term of two years after such funding
ceases. Each contract or agreement entered into by a State
agency shall be authorized by official action of the State
agency or Capital Development Board.
If an energy audit is performed by an energy services
contractor for the State agency within the 3 years immediately
preceding the solicitation, then the State agency must publish
as a reference document in the solicitation for energy
conservation measures the following:
(1) an executive summary of the energy audit provided
that the State agency may exclude any proprietary or
trademarked information or practices; or
(2) the energy audit provided that the State agency may
redact any proprietary or trademarked information or
practices.

09700SB3802sam001 - 14 - LRB097 20447 PJG 67104 a
A State agency may not withhold the disclosure of
information related to (I) the State agency's consumption of
energy, (ii) the physical condition of the State agency's
facilities, and (iii) any limitations prescribed by the State
agency.
In accordance with 30 ILCS 500/50-10.5, no energy services
contractor that participated in the preparation of the
specifications issued by the State agency shall be permitted to
respond to the solicitation or be awarded a contract for the
performance or guaranteed energy savings contract. The
solicitation must include a written disclosure that no energy
services contractor participated in the preparation of the
specifications. The written disclosure shall be published in
the Capital Development Board Procurement Bulletin with the
Request for Proposal.
(30 ILCS 500/34-50 new)
Sec. 34-50. Operational and energy cost savings. The State
agency or the Capital Development Board shall document the
operational and energy cost savings specified in the
performance or guaranteed energy savings contract and
designate and appropriate that amount for an annual payment of
the contract. If the annual energy savings are less than
projected under the guaranteed energy savings contract the
qualified provider shall pay the difference as provided in
Section 34-40.

09700SB3802sam001 - 15 - LRB097 20447 PJG 67104 a
(30 ILCS 500/34-55 new)
Sec. 34-55. Bonding. A qualified provider shall provide a
sufficient bond to the State agency for the installation and
the faithful performance of all the measures included in the
contract, in accordance with the Public Construction Bond Act,
30 ILCS 550. Such bond shall be in effect for the entire term
of the contract, installment payment contract or lease purchase
agreement.
(30 ILCS 500/34-60 new)
Sec. 34-60. Applicable laws. Other State laws and related
administrative requirements apply to this Article, including,
but not limited to, the following laws and related
administrative requirements: the Illinois Human Rights Act,
Business Enterprise for Minorities, Females, and Persons with
Disabilities Act, the Prevailing Wage Act, the Public
Construction Bond Act, the Public Works Preference Act
(repealed on June 16, 2010 by Public Act 96-929), the
Employment of Illinois Workers on Public Works Act, the Freedom
of Information Act, the Open Meetings Act, the Illinois
Architecture Practice Act of 1989, the Professional
Engineering Practice Act of 1989, the Structural Engineering
Practice Act of 1989, the Architectural, Engineering and Land
Surveying Qualifications Based Selection Act, and the
Contractor Unified License and Permit Bond Act , Procurement of

09700SB3802sam001 - 16 - LRB097 20447 PJG 67104 a
Domestic Products Act, Public Purchases in Other States Act,
Governmental Joint Purchasing Act, Design-Build Procurement
Act, State Prompt Payment Act, Public Contract Fraud Act,
Public Construction Contract Act, Airport and Correctional
Facility Land Disclosure Act, State Real Property Leasing Act,
Real Estate Leasing Act, Project Labor Agreements Act, and the
provisions of Article 50 of this Code.
Section 99. Effective date. This Act takes effect upon
becoming law.".