SB1875 97TH GENERAL ASSEMBLY

LRB097 06160 PJG 46234 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1875

Introduced 2/10/2011, by Sen. A. J. Wilhelmi

SYNOPSIS AS INTRODUCED:

New Act

Creates the Responsible Bidder in Service Contracts Act. Provides certain criteria for "lowest responsible bidder". Provides that a bidder who, within a 3-year period, has twice violated the prevailing wage provisions of the Illinois Procurement Code shall be deemed not to be a responsible bidder for 4 years. Provides that a bidder shall remain neutral in any union organizing campaign. Provides that when an award is not recommended to be given to the lowest bidder, the purchasing agent shall prepare a statement of the reasons for the recommendation. Provides that when 2 or more responsible bidders submit the same low bid, the contract award shall be determined by drawing lots. Provides for a private right of action. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning finance.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Responsible Bidder in Service Contracts Act.

Section 5. Purpose. The State expends substantial municipal funds for public services. A large portion of that money derives from taxes paid by Illinois residents. It is therefore in the public interest, health, welfare, and safety to let all public service contracts of $2,000 or more or $200 or more per month to the lowest responsive and responsible bidder.

Section 10. Definition. For purposes of this Act the terms "work" and "labor" mean the same as "services" as defined in Section 25-60 of the Illinois Procurement Code.

Section 15. Criteria. "Lowest responsible bidder" is a bidder who meets all of the following applicable criteria and submits evidence of that compliance:

(a) Compliance with all applicable laws prerequisite to doing business in Illinois.

(b) Compliance with:

(1) Federal employer tax identification number or, for sole proprietors, social security number requirements.

(2) Provisions of the Equal Employment Opportunity Act of 1972 (42 U.S.C. 2000e through 2000e-17) and Federal Executive Order No. 11246 as amended by Federal Executive Order No. 11375.

(c) Certificates of insurance indicating the following coverage as necessary for the contract and in amounts specified in the bid specifications:

(1) General liability.

(2) Worker's compensation.

(3) Hazardous occupation.

(4) Product liability.

(5) Professional liability.

(d) Proof of performance bond, which in no event shall provide coverage for less than 20% of the total cost of the contract to be awarded.

(e) Compliance with Section 25-60 of the Illinois Procurement Code, including wages and fringe benefits for those classifications of services covered in the Code.

(f) All labor shall be covered by an approved health and hospital plan and an approved pension plan. A statement of employee benefits must be completed and made part of the bid in order for the bid to be accepted.

(g) Proof of any professional or trade license required by law for any trade or specialty area in which the bidder is seeking a contract award. Additionally, the bidder must disclose any suspension or revocation of such a license held by the company, or of any director, officer, or manager employed by the bidder.

Failure to produce these items within 5 business days after the date of written request by the State shall result in the bidder's disqualification.

Section 20. Employee misclassification. A contractor must swear under oath that employees on the project are properly classified pursuant to the federal tax code and as clarified in current IRS regulations.

Section 25. Prevailing wage requirements.

(a) A bidder who has been found to be in violation of the prevailing wage provisions of the Illinois Procurement Code twice within a 3-year period shall be deemed not to be a responsible bidder for 4 years after the date of the latest finding.

(b) A bidder must file with the State a signed statement that the bidder has reviewed the prevailing wage provisions of the Illinois Procurement Code, that the bidder has reviewed and agrees to pay the applicable prevailing wage rate as set forth in the wage rate schedule attached to the bid specifications, and that the bidder will strictly comply with Section 25-60 of the Illinois Procurement Code.

Section 30. Union neutrality. A bidder or contractor shall remain neutral in any union organizing campaign and shall not use public funds to influence the decision of its employees to join or not join the union of their choice.

Section 35. Additional criteria available. If the criteria set forth in Section 15 are otherwise satisfied, the State may also consider the following factors, in its discretion, in awarding the project if that information is requested:

(a) Statements as to past performance, which shall give an accurate and complete record of all work completed in the past 3 years by the contractor. The bidder shall give the names and addresses of the projects, original contract price, final contract price, and the names of all subcontractors used, if applicable, and a statement as to compliance with awarded contracts.

(b) Any determinations relating to violations of federal, state, or local laws including but not limited to violations of OSHA, the National Labor Relations Act, or the McNamara Service Contract Act.

Section 40. Debarment. For any second or subsequent violation of these provisions by an employer or entity, as determined by the Department of Central Management Services (CMS), which is within 3 years of an earlier violation by the employer or entity, CMS shall add the name of the employer or entity to a list to be posted on CMS's official website. Upon posting the name of the employer or entity, CMS shall notify the violating employer or entity. No state contract shall be awarded to an employer or entity appearing on the list until 4 years have elapsed from the date of its last violation.

Section 45. Lowest bidder not chosen. When the award is not recommended to be given to the lowest responsible bidder, a statement of the reasons for that award recommendation shall be prepared by the purchasing agent.

Section 50. Multiple low bids. When 2 or more responsible bidders submit the same low bid, the contract award shall be determined by drawing lots in the presence of the responsible bidders involved. However, if one bidder is a local bidder and one is a non-local bidder, then the local bidder shall be awarded the contract.

Section 55. Private right of action.

(a) An interested party or person aggrieved by a violation of this Act or any rule adopted under this Act by an employer or entity may file suit in circuit court in the county where the alleged offense occurred or where any person who is party to the action resides, without regard to exhaustion of any alternative administrative remedies provided in this Act. Actions may be brought by one or more persons for and on behalf of themselves and other persons similarly situated. A person whose rights have been violated under this Act by an employer or entity is entitled to collect:

(1) the amount of any wages, salary, or employment;

(2) compensatory damages and an amount up to $500 for each violation of this Act or any rule adopted under this Act;

(3) in the case of unlawful retaliation, all legal or equitable relief as may be appropriate; and

(4) attorney's fees and costs.

(b) The right of an interested party or aggrieved person to bring an action under this Section terminates 3 years after the final date the party performed services for the employer or entity. This limitations period is tolled if an employer or entity has deterred a person's exercise of rights under this Act.

Section 60. Materiality. The requirements of this Act are a material part of the contract, and the successful bidder shall incorporate those requirements into all subcontracts.

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 99. Effective date. This Act takes effect upon becoming law.