Current through Register Vol. 48, No. 38, September 20, 2024
a) Any OAG employee who receives a written or
oral communication that imparts or requests material information or makes a
material argument regarding potential action concerning a procurement matter,
including but not limited to an application, a contract or a project, shall
[30 ILCS
500/50-39] report the communication to the OAG PPCMB.
The OAG PPCMB shall make each report submitted pursuant to this Section
available for review within 7 days after its receipt of the report.
b) A communication must be reported if it is
material, regarding potential action, relating to a 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 response to a communication initiated by an OAG employee for the
purpose of providing information to evaluate new products, trends, services or
technologies.
C) In determining
whether a communication is material, the OAG employee must consider:
i) whether the information conveyed is new or
already known to the OAG (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)
"Procurement matters", unless otherwise excluded, are the processes of
procuring specific goods, supplies, services, professional or artistic
services, construction, leases of real property in which the OAG is the lessor
or lessee, or capital improvements, and include master contracts, contracts for
financing through use of installment or lease-purchase arrangements,
renegotiated contracts, amendments to contracts, and change orders. Procurement
matters are activities that occur during the time period beginning with the
time the OAG has identified a need for procurement as determined and documented
by the CPO or Purchasing Officer, 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 OAG PPCMB review period,
if applicable. 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 IFB,
RFI, RFP, sole source procurement justifications, emergency procurement
justifications or selection information;
C) evaluating bids, responses and offers,
other communications among members of 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
contract or subcontract voidable under Section 50-60 of the Code; and
I) approving change orders or the renewal or
extension of an existing contract.
c) This Section does not apply to the
following communications:
1) Communication
made publicly in a public forum;
2)
Communications 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;
4) Communication between an OAG employee and:
A) the Attorney General;
B) other employees of the OAG;
C) the OAG PPCMB;
D) the Office of the Executive Inspector
General for the Attorney General;
E) employees of the Executive Ethics
Commission [30 ILCS
500/50-39(a)] ; or
F) an employee of a 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 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, prior
to those products or services becoming involved in a procurement
matter;
6) Communications received
in response to procurement solicitations pursuant to the Code, including, but
not limited to, vendor responses to an RFI, RFP, Request for Qualifications or
IFB or a small purchase, sole source or emergency solicitation, questions and
answers posted to the Bulletin to supplement the procurement action. This
exemption is not applicable unless 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 the formal
procurement process as set out by statute, rule or the solicitation, guidance
or procedures, such as the posting of procurement opportunities, the process
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 process;
9) Communications that ask for clarification
regarding a contract solicitation, so long as there is no competitive advantage
to the person or business, and the question and answer, if material, are posted
to the Bulletin as an addendum to the contract solicitation.
d) Notwithstanding any exemption
provided in subsection (c), an OAG employee must report any communication that
imparts or requests material information or makes a material argument regarding
a potential action concerning a 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 OAG employee must report any communication that imparts or
requests material information or makes a material argument regarding a
potential action concerning a 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 non-monetary, to any
person or entity.
f) As soon as
practicable, but in no event more than 30 days after receipt of the
communication or the first of a series of related communications described in
subsection (b), the OAG employee shall report the communication to the OAG
PPCMB.
g) For purposes of this
Section, "OAG employee" means:
1) any person
employed full-time, part-time, or pursuant to a personal services contract with
the OAG and whose employment duties are subject to the direction and control of
the OAG with regard to the material details of how the work is to be
performed;
2) any appointed board
member of a board of the OAG; or
3)
any other person appointed to a position in or with the OAG, 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
120/2.02] , but also 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. Examples include educational seminars and
conferences.
