§ 19 — Unsolicited proposals

Illinois § 19

• Jurisdiction: Illinois
• Topic: TRANSPORTATION
• Ch. 630: GENERAL TRANSPORTATION
• Act 630 ILCS 5/: Public-Private Partnerships for Transportation Act.

Text

(a) A transportation agency may receive unsolicited proposals for a project and may thereafter enter into a public-private agreement with a private entity, or a consortium of private entities, for the design, construction, upgrading, operating, ownership, or financing of facilities. (b) A transportation agency may consider, evaluate, and accept an unsolicited proposal for a public-private partnership project from a private entity if the proposal: (1) is independently developed and drafted by the proposer without transportation agency supervision; (2) shows that the proposed project could benefit the transportation system; (3) includes a financing plan to allow the project to move forward pursuant to the applicable transportation agency's budget and finance requirements; and (4) includes sufficient detail and information for the transportation agency to evaluate the proposal in an objective and timely manner and permit a determination that the project would be worthwhile. (c) The unsolicited proposal shall include the following: (1) an executive summary covering the major elements of the proposal; (2) qualifications concerning the experience, expertise, technical competence, and qualifications of the private entity and of each member of its management team and of other key employees, consultants, and subcontractors, including the name, address, and professional designation; (3) a project description, including, when applicable: (A) the limits, scope, and location of the proposed project; (B) right-of-way requirements; (C) connections with other facilities and improvements to those facilities necessary if the project is developed; (D) a conceptual project design; and (E) a statement of the project's relationship to and impact upon relevant existing plans of the transportation agency; (4) a facilities project schedule, including when applicable, estimates of: (A) dates of contract award; (B) start of construction; (C) completion of construction; (D) start of operations; and (E) major maintenance or reconstruction activities during the life of the proposed project agreement; (5) an operating plan describing the operation of the completed facility if operation of a facility is part of the proposal, describing the management structure and approach, the proposed period of operations, enforcement, emergency response, and other relevant information; (6) a finance plan describing the proposed financing of the project, identifying the source of funds to, where applicable, design, construct, maintain, and manage the project during the term of the proposed contract; and (7) the legal basis for the project and licenses and certifications; the private entity must demonstrate that it has all licenses and certificates necessary to complete the project. (c-5) A transportation agency shall develop rules for receiving, reviewing, and implementing unsolicited proposals as outlined in this Section. A transportation agency shall submit these rules for the First Notice period within one year after the effective date of this amendatory Act of the 103rd General Assembly. A transportation agency shall not receive unsolicited proposals until rules are adopted. (c-10) A transportation agency shall receive unsolicited proposals no more than every 2 years for a time frame of no more than 90 days. (c-15) A nonnegotiable proposal review fee of $25,000 shall be required for an unsolicited proposal submitted under this Act. A proposal review fee that is submitted with a proposal for a project that is not an eligible project, or that the Department is not otherwise legally authorized to accept, shall be returned to the proposer. All other proposal review fees are nonrefundable. (d) Within 120 days after receiving an unsolicited proposal, the transportation agency shall complete a preliminary evaluation of the unsolicited proposal and shall: (1) if the preliminary evaluation is unfavorable, return the proposal without further action; (2) if the preliminary evaluation is favorable, notify the proposer that the transportation agency will further evaluate the proposal; or (3) request amendments, clarification, or modification of the unsolicited proposal. (e) The procurement process for unsolicited proposals shall be as follows: (1) If the transportation agency chooses to further evaluate an unsolicited proposal with the intent to enter into a public-private agreement for the proposed project, then the transportation agency shall publish notice in its regular online publication for relevant procurements or in a newspaper of general circulation covering the location of the project at least once a week for 2 weeks stating that the transportation agency has received a proposal and will accept other proposals for the same project. The time frame within which the transportation agency may accept other proposals shall be determined by the transportation agency on a project-by-project basis based upon the complexity of the transportation project and the public benefit to be gained by allowing a longer or shorter period of time within which other proposals may be received; however, the time frame for allowing other proposals must be at least 21 days, but no more than 120 days, after the initial date of publication. (2) A copy of the notice must be mailed to each local government directly affected by the transportation project. (3) The transportation agency shall provide reasonably sufficient information, including the identity of its contact person, to enable other private entities to make proposals. (4) If, after no less than 120 days, no counterproposal is received, or if the counterproposals are evaluated and found to be equal to or inferior to the original unsolicited proposal, the transportation agency may proceed to negotiate a contract with the original proposer. (5) If, after no less than 120 days, one or more counterproposals meeting unsolicited proposal standards are received, and if, in the opinion of the transportation agency, the counterproposals are evaluated and found to be superior to the original unsolicited proposal, the transportation agency shall proceed to determine the successful participant through a final procurement phase known as "Best and Final Offer" (BAFO). The BAFO is a process whereby a transportation agency shall invite the original private sector party and the proponent submitting the superior counterproposal to engage in a BAFO phase. The invitation to participate in the BAFO phase will provide to each participating proposer: (A) the general concepts that were considered superior to the original proposal, while keeping proprietary information contained in the proposals confidential to the extent possible; and (B) the preestablished evaluation criteria or the "basis of award" to be used to determine the successful proponent. (6) Offers received in response to the BAFO invitation will be reviewed by the transportation agency and scored in accordance with preestablished criteria, or alternatively, in accordance with the basis of award provision identified through the BAFO process. The successful proponent will be the proponent offering "best value" to the transportation agency. (7) In all cases, the basis of award will be the best value to the transportation agency, as determined by the transportation agency. (f) After a comprehensive evaluation and acceptance of an unsolicited proposal and any alternatives, the transportation agency must provide public notice of the proposal to members of impacted communities meeting the following criteria: (1) Public notice shall be meaningful, timely, and effective public notice of a proposal to members of impacted communities, accounting for linguistic needs and other relevant characteristics, and provide meaningful opportunity for public comment on a proposal. (2) The public notice and project application shall be translated into non-English languages in impacted communities where a language other than English is widely spoken. (3) The notice must, at a minimum, include all of the following: (A) the name of the applicant; (B) the location of the use; (C) a brief description of the use and its impacts; and (D) a link to a website where the application and more detailed information on the use and its impacts can be found. (4) The notice shall be written at a third or fourth grade reading level to ensure ease of understanding for all members of the public. (f-5) The transportation agency shall provide an opportunity for public comment, which must, at a minimum, include one public meeting within an impacted community. The notice of a public meeting required under this subsection must include: (1) the date, time, and location of the public meeting required under this Section; (2) the date and time of all public meetings regarding the project; (3) where to access the project description required under paragraph (3) of subsection (c), if applicable; (4) the expected location of the project associated construction duration; and (5) a non-English version of the notice if 10% or more of the local population speaks a primary language other than English, which shall reflect the prevalent languages of the non-English speaking residents in that area. The public meeting is subject to the following rules: (1) The public meeting must begin after 5:00 p.m. and be located at a venue that is in a location within an impacted equity investment community and easily accessible to residents of other impacted equity investment eligible communities. (2) The public meeting must be at a venue that is accessible to persons with disabilities and the owner or operator of the venue must provide reasonable accommodations, as defined in the Americans with Disabilities Act, upon request. (3) The transportation agency must provide translation services during a public meeting if a proposed project is located in an area in which 10% or more of the local population speaks a primary language other than English, if requested by a non-English speaking member of the public. During a public meeting, a proposer must: (1) present the schedule and process for the project; (2) include a question-and-answer portion of the meeting to allow the public to ask questions; and (3) ensure that representatives that speak on behalf of the contractor are qualified and knowledgeable on the subject matter to answer questions posed by the public. The transportation agency shall have a representative present at the public meeting who is familiar with the proposed project. The transportation agency must create a meeting summary, including issues raised by the public, and respond to all questions in writing no later than 14 days after the meeting. The transportation agency shall post the summary and responses to the transportation agency's publicly accessible website and advise the telephone, email, and text lists along with the meeting summary document. The transportation agency shall ensure that the public meeting is made available to watch and participate in a meaningful way online and recorded. The recording shall be made available on a publicly accessible website. After the public notice requirements are completed, the transportation agency may commence negotiations with a proposer, considering: (1) the proposal has received a favorable comprehensive evaluation; (2) the proposal is not duplicative of existing infrastructure project; (3) the alternative proposal does not closely resemble a pending competitive proposal for a public-private private partnership or other procurement; (4) the proposal demonstrates a unique method, approach, or concept; (5) facts and circumstances that preclude or warrant additional competition; (6) the availability of any funds, debts, or assets that the State will contribute to the project; (7) facts and circumstances demonstrating that the project will likely have a significant adverse impact on State bond ratings; and (8) indemnifications included in the proposal.

Legislative History

(Source: P.A. 103-570, eff. 1-1-24; 103-605, eff. 7-1-24; 103-865, eff. 1-1-25 .)