Ill. Admin. Code tit. 44 § 4.2035

Current through Register Vol. 48, No. 45, November 8, 2024

Section 4.2035 - Competitive Selection Procedures for Professional and Artistic Services

a) Application

1) The provisions of this Section apply to every procurement of professional and artistic services except those subject to the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [ 30 ILCS 535 ] and except as provided in subsection (e).

2) "Professional and artistic services" means those services provided under contract to a university by a person or business, acting as an independent contractor, qualified by education, experience and technical ability [ 30 ILCS 500/1-15.60] .

b) Professional and artistic services are further defined as follows:

1) "Qualified by education" means the individual who would perform the services must have the level of experience appropriate to the task, as specified in the Request for Proposals.

2) "Qualified by experience" means the individual who would perform the services must have the level of general experience specified in the Request for Proposals.

3) "Qualified by technical ability" means the individual who would perform the services demonstrates a high degree of skill or ability in performing services that are the same, similar or closely related in nature to those specified in the Request for Proposals.

4) An essential element distinguishing professional services from other services is confidence, trust and belief in not only the ability, but the talent, of the individual performing the service.

5) Professional and artistic services are primarily for intellectual or creative skills. Contracts for services primarily involving manual skills or labor are not professional and artistic services contracts.

6) If the professional or artistic contract is with a firm or other business entity, the individuals whose education, experience and technical ability provided the basis on which the firm or other business entity was selected must meet the qualifications.

7) When a university requires services that meet the requirements of this subsection (b), the competitive selection procedures described in this Section must be followed. Services that do not meet the requirements of this Section must be procured in accordance with the other methods of source selection authorized by the Code and this Part.

c) The categories of services enumerated in this subsection (c) shall be considered and procured as professional and artistic services. With regard to other services, the SPO may determine whether the factors identified in subsection (b), when applied to particular services to be procured, require the services to be procured as professional and artistic under these competitive selection procedures, or as services that are subject to one of the other methods of source selection authorized by the Code and this Part. The following categories are examples of disciplines that would always be professional and artistic services:

1) law;

2) accounting;

3) medicine;

4) dentistry;

5) clinical psychology; and

6) custom-produced art.

d) Architect, engineering and land surveying services shall be procured in accordance with the source selection procedures of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [ 30 ILCS 535 ] and are subject to the procedures for all other professional services established in the Code or this Part. For professional services with an estimated basic professional service fee of $25,000 or more, the SPO shall publish notice of award or notice of intent to award to the Bulletin for a minimum of 14 days prior to execution of the contract.

e) Conditions for Use of Competitive Selection Procedures.

Except as authorized under Section 20-25 (Sole Economically Feasible Source Procurement) or Section 20-30 (Emergency Procurements) of the Code, these competitive selection procedures shall be used for all procurements of professional and artistic services of more than $100,000.

1) Services of $100,000 or less and for a nonrenewable term of one year or less may be procured in accordance with Section 4.2020 (Small Purchases) of this Part, except notice of the contract must be published as provided in accordance with Section 35-35(b) of the Code and include the name of the CPO-HE or SPO and a brief explanation of the reason for the exception.

2) Dividing or planning procurements to avoid use of competitive procedures (stringing) is prohibited. If there is a repetitive need for small professional and artistic procurements of the same type that may be evidenced by a pattern of small purchases, as determined by the university or the SPO, the university shall consult with the SPO to consider whether issuing a competitive sealed proposal for those needs is in the best interests of the State.

f) Request for Proposals

Professional and artistic services shall be procured using an RFP.

1) Contents. The RFP shall be in the form specified by the CPO-HE and shall contain at least the following information:

A) the type of services required;

B) a description of the work involved;

C) an estimate of when and for how long the services will be required;

D) the type of contract to be used;

E) a date by which proposals for the performance of the services shall be submitted;

F) a statement of the minimum information that the proposal shall contain, which may, by way of example, include:

i) the name of the offeror, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract;

ii) if deemed relevant, the age of the offeror's business and average number of employees over a previous period of time, as specified in the RFP;

iii) the abilities, qualifications and experience of all persons who would be assigned to provide the required services;

iv) a listing of other contracts under which services similar in scope, size or discipline to the required services were performed or undertaken within a previous period of time, as specified in the RFP;

v) a plan giving as much detail as is practical explaining how the services will be performed;

G) price (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package);

H) the factors to be used in the evaluation and selection process and their relative importance; and

I) a plan for post-performance review to be conducted by the university after completion of services and before final payment and made part of the procurement file.

2) Evaluation. Proposals shall be evaluated on the basis of evaluation factors stated in the RFP. The relative importance of the evaluation factors will vary according to the type of services being procured. The minimum evaluation factors are:

A) the plan for performing the required services;

B) ability to perform the services as reflected by technical training and education, general experience, specific experience in providing the required services and the qualifications and abilities of personnel proposed to be assigned to perform the services;

C) the personnel, equipment and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and

D) a record of past performance of similar work.

g) Receipt and Handling of Proposals

Proposals shall be submitted to and opened by the university unless otherwise directed by the CPO-HE or SPO.

1) Proposals and modifications shall be opened publicly at the time, date and place designated in the RFP in the presence of a State witness, or through a secure electronic procurement system approved by the CPO-HE.

2) The person opening the proposals shall not serve as a State witness. The name of the person opening the proposals, the name of the person serving as the State witness, the name of each offeror, the number of modifications received (if any), a description sufficient to identify the supply or service offered, a notation that the package contains a price proposal, and any such information determined by the CPO-HE or SPO shall be recorded on a form prescribed by the CPO-HE, read aloud, and otherwise made available through an electronic procurement system approved by the CPO-HE.

3) Proposals and modifications shall be opened in a manner to avoid disclosing contents to competitors. Until an award recommendation is made, no university personnel or contractual agents other than the evaluation committee and those assigned to the procurement may review the proposals, except with justification from the purchasing director and approved by the SPO. The university conducting the procurement shall not disclose any information contained in any proposal with any other offeror other than information that was recorded, read and made publicly available at the opening of the bids. After completion of the evaluation and award recommendation, the university may conduct discussions with management and board of trustees if necessary to obtain approval for award prior to publishing the award in the Bulletin. If discussions within the university are necessary to evaluate the proposals, the SPO shall require that confidentiality and conflict of interest statements be executed.

h) Discussions

1) Discussions Permissible. The CPO-HE or SPO may conduct discussions with any offeror to:

A) determine in greater detail the offeror's qualifications; and

B) explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance and the relative utility of alternative methods of approach. The CPO-HE or SPO may request revisions after discussions for the purpose of obtaining best and final offers.

2) Discussions shall not disclose any information derived from proposals submitted by other offerors, and the university conducting the procurement shall not disclose any information contained in any proposals with any other offeror.

i) Selection of the Best Qualified Offerors

After conclusion of validation of qualifications, evaluation and discussion, the SPO shall rank the acceptable offerors in the order of their respective qualifications.

j) Evaluation of Pricing Data

Ranking by price is required for all professional and artistic proposals with an annualized value that is more than $100,000. When annualized value cannot be determined, ranking by price is required.

1) If the low price is submitted by the most qualified vendor, the SPO may award to that vendor.

2) If the price of the most qualified vendor is not low and if it is not more than $100,000 annually, the SPO but not a designee may award to that vendor.

3) If the price of the best qualified vendor is not low and if it is more than $100,000 annually, the SPO, but not a designee, may award to that vendor but must state why a vendor other than the low-priced vendor was selected and that determination shall be published in the Bulletin.

k) Negotiation and Award of Contract

1) General. The university, in consultation with the SPO, shall attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation. The university, in consultation with the SPO, may, in the interest of efficiency, negotiate with the next highest ranked vendor, while negotiating with the best qualified vendor.

2) Elements of Negotiation. At a minimum, contract negotiations shall be directed toward:

A) making certain that the offeror has a clear understanding of the scope of the work, specifically, the essential requirements involved in providing the required services;

B) determining that the offeror will make available the necessary personnel and facilities to perform the services within the required time; and

C) agreeing upon compensation that is fair and reasonable, taking into account the estimated value of the required services and the scope, complexity and nature of those services.

3) Successful Negotiation of Contract with Best Qualified Offeror

A) If compensation, contract requirements and contract documents can be agreed upon with the best qualified offeror, the contract shall be awarded to that offeror, unless the procurement is canceled.

B) Compensation must be determined in writing to be fair and reasonable. Fair and reasonable compensation shall be determined by the university, in consultation with the SPO, based on the circumstances of the particular procurement, including, but not limited to, the nature of the services needed, qualifications of the offerors, consideration of range of prices received in the course of the procurement, other available pricing information and the university's identified budget.

C) Contracts entered into under this Section shall provide:

i) the duration of the contract, with a schedule for delivery when applicable;

ii) the method for charging and measuring cost (hourly, daily, etc.);

iii) the rate of remuneration;

iv) the maximum price; and

v) whether the services of subcontractors will be used.

4) Failure to Successfully Negotiate Contract with Best Qualified Offeror

A) If compensation, contract requirements or contract documents cannot be agreed upon with the best qualified offeror, a written record stating the reasons shall be placed in the file. The university, in consultation with the SPO, shall advise the offeror of the termination of negotiations.

B) Upon failure to successfully negotiate a contract with the best qualified offeror, the university, in consultation with the SPO, may enter into negotiations with the next most qualified offeror.

l) Multiple Awards

The SPO may authorize a solicitation for professional and artistic services that includes an intent to make multiple awards based upon a need demonstrated by the university to have multiple vendors under contract. Any multiple awards shall be conducted in accordance with Section 4.2036(b).

m) Notice of Award

1) Notice of award shall be in accordance with Section 4.1525(d) and (e).

2) Notice of award of professional and artistic service contracts that are nonrenewable, are one year or less in duration, and have a value of $100,000 or less must be published in the Bulletin in accordance with Section 35-35(b) of the Code. The notice shall include the name of the SPO and a brief explanation of the procurement.

n) Prequalification

Prequalification of professional and artistic vendors shall not be used to bar or prevent an otherwise qualified person from responding to a request for proposal for professional and artistic services.

Ill. Admin. Code tit. 44, § 4.2035

Amended at 36 Ill. Reg. 10951, effective August 6, 2012

Amended at 40 Ill. Reg. 456, effective 1/15/2016

Amended at 43 Ill. Reg. 1781, effective 2/15/2019