Bill Text: IL SB3216 | 2011-2012 | 97th General Assembly | Chaptered

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Bill Title: Amends the Public-Private Partnerships for Transportation Act. Defines "design-build agreement" and "shortlist". Provides that the net proceeds, if any, arising out of a transportation project or public-private agreement undertaken by the Department of Transportation under the Act shall be deposited into the Road (instead of the State Construction Account) Fund. Removes language providing that the Toll Highway Authority shall not enter into a public-private agreement for the purpose of making roadway improvements. Provides hearing requirements to address potential projects submitted to the General Assembly under the Act. Makes other changes in the Section concerning formation of public-private agreements and project planning. Replaces provisions concerning the selection of design work contractors and procurement procedure provisions for public agencies. Replaces prequalification provisions with provisions concerning shortlisting. Re-letters the subsections of a Section concerning procurement process and makes other changes to that Section. Makes changes in a Section concerning design-build procurement. Replaces "construction" with "development" and adds design-build-finance agreements to the list of acceptable forms of agreement. Removes language making a transportation agency taking over a project subject to liens on revenues which had been previously granted by the contractor. Provides that public and private entities shall have an equal opportunity to contract with the Authority. Makes a change in the Section concerning financial arrangements. Provides that a public-private agreement may not exceed 65 (instead of 99) years. Effective immediately.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2012-07-27 - Public Act . . . . . . . . . 97-0858 [SB3216 Detail]

Download: Illinois-2011-SB3216-Chaptered.html

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Public Act 097-0858
SB3216 Enrolled LRB097 19289 HEP 64535 b
AN ACT concerning State government.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The State Finance Act is amended by adding
Section 5.811 as follows:
(30 ILCS 105/5.811 new)
Sec. 5.811. The Public-Private Partnerships for
Transportation Fund.
Section 10. The Public-Private Partnerships for
Transportation Act is amended by changing Sections 10, 15, 20,
25, 35, 40, and 45 and by adding Section 90 as follows:
(630 ILCS 5/10)
Sec. 10. Definitions. As used in this Act:
"Approved proposal" means the proposal that is approved by
the transportation agency pursuant to subsection (j) (e) of
Section 20 of this Act.
"Approved proposer" means the private entity whose
proposal is the approved proposal.
"Authority" means the Illinois State Toll Highway
Authority.
"Contractor" means a private entity that has entered into a

public-private agreement with the transportation agency to
provide services to or on behalf of the transportation agency.
"Department" means the Illinois Department of
Transportation.
"Design-build agreement" means the agreement between the
selected private entity and the transportation agency under
which the selected private entity agrees to furnish design,
construction, and related services for a transportation
facility under this Act.
"Develop" or "development" means to do one or more of the
following: plan, design, develop, lease, acquire, install,
construct, reconstruct, rehabilitate, extend, or expand.
"Maintain" or "maintenance" includes ordinary maintenance,
repair, rehabilitation, capital maintenance, maintenance
replacement, and any other categories of maintenance that may
be designated by the transportation agency.
"Metropolitan planning organization" means a metropolitan
planning organization designated under 23 U.S.C. Section 134
whose metropolitan planning area boundaries are partially or
completely within the State.
"Operate" or "operation" means to do one or more of the
following: maintain, improve, equip, modify, or otherwise
operate.
"Private entity" means any combination of one or more
individuals, corporations, general partnerships, limited
liability companies, limited partnerships, joint ventures,

business trusts, nonprofit entities, or other business
entities that are parties to a proposal for a transportation
project or an agreement related to a transportation project. A
public agency may provide services to a contractor as a
subcontractor or subconsultant without affecting the private
status of the private entity and the ability to enter into a
public-private agreement. A transportation agency is not a
private entity.
"Proposal" means all materials and documents prepared by or
on behalf of a private entity relating to the proposed
development, financing, or operation of a transportation
facility as a transportation project.
"Proposer" means a private entity that has submitted a
proposal or statement of qualifications for a public-private
agreement in response to a request for proposals or a request
for qualifications issued by a transportation agency under this
Act.
"Public-private agreement" means the public-private
agreement between the contractor and the transportation agency
relating to one or more of the development, financing, or
operation of a transportation project that is entered into
under this Act.
"Request for information" means all materials and
documents prepared by or on behalf of the transportation agency
to solicit information from private entities with respect to
transportation projects.

"Request for proposals" means all materials and documents
prepared by or on behalf of the transportation agency to
solicit proposals from private entities to enter into a
public-private agreement.
"Request for qualifications" means all materials and
documents prepared by or on behalf of the transportation agency
to solicit statements of qualification from private entities to
enter into a public-private agreement.
"Revenues" means all revenues, including any combination
of: income; earnings and interest; user fees; lease payments;
allocations; federal, State, and local appropriations, grants,
loans, lines of credit, and credit guarantees; bond proceeds;
equity investments; service payments; or other receipts;
arising out of or in connection with a transportation project,
including the development, financing, and operation of a
transportation project. The term includes money received as
grants, loans, lines of credit, credit guarantees, or otherwise
in aid of a transportation project from the federal government,
the State, a unit of local government, or any agency or
instrumentality of the federal government, the State, or a unit
of local government.
"Shortlist" means the process by which a transportation
agency will review, evaluate, and rank statements of
qualifications submitted in response to a request for
qualifications and then identify the proposers who are eligible
to submit a detailed proposal in response to a request for

proposals. The identified proposers constitute the shortlist
for the transportation project to which the request for
proposals relates.
"Transportation agency" means (i) the Department or (ii)
the Authority.
"Transportation facility" means any new or existing road,
highway, toll highway, bridge, tunnel, intermodal facility,
intercity or high-speed passenger rail, or other
transportation facility or infrastructure, excluding airports,
under the jurisdiction of the Department or the Authority,
except those facilities for the Illiana Expressway. The term
"transportation facility" may refer to one or more
transportation facilities that are proposed to be developed or
operated as part of a single transportation project.
"Transportation project" or "project" means any or the
combination of the development, financing, or operation with
respect to all or a portion of any transportation facility
under the jurisdiction of the transportation agency, except
those facilities for the Illiana Expressway, undertaken
pursuant to this Act.
"Unit of local government" has the meaning ascribed to that
term in Article VII, Section 1 of the Constitution of the State
of Illinois and also means any unit designated as a municipal
corporation.
"User fees" or "tolls" means the rates, tolls, fees, or
other charges imposed by the contractor for use of all or a

portion of a transportation project under a public-private
agreement.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/15)
Sec. 15. Formation of public-private agreements; project
planning.
(a) Each transportation agency may exercise the powers
granted by this Act to do some or all to develop, finance, and
operate any part of one or more transportation projects through
public-private agreements with one or more private entities,
except for transportation projects for the Illiana Expressway
as defined in the Public Private Agreements for the Illiana
Expressway Act. The net proceeds, if any, arising out of a
transportation project or public-private agreement undertaken
by the Department pursuant to this Act shall be deposited into
the Public-Private Partnerships for Transportation State
Construction Account Fund. The net proceeds arising out of a
transportation project or public-private agreement undertaken
by the Authority pursuant to this Act shall be deposited into
the Illinois State Toll Highway Authority Fund and shall be
used only as authorized by Section 23 of the Toll Highway Act.
(b) The Authority shall not enter into a public-private
agreement involving a lease or other transfer of any toll
highway, or portions thereof, under the Authority's
jurisdiction which were open to vehicular traffic on the

effective date of this Act. The Authority shall not enter into
a public-private agreement for the purpose of making roadway
improvements, including but not limited to reconstruction,
adding lanes, and adding ramps, to any toll highway, or
portions thereof, under the Authority's jurisdiction which
were open to vehicular traffic on the effective date of this
Act. The Authority shall not use any revenue generated by any
toll highway, or portions thereof, under the Authority's
jurisdiction which were open to vehicular traffic on the
effective date of this Act to enter into or provide funding for
a public-private agreement. The Authority shall not use any
asset, or the proceeds from the sale or lease of any such
asset, which was owned by the Authority on the effective date
of this Act to enter into or provide funding for a
public-private agreement. The Authority may enter into a
public-private partnership to develop, finance, and operate
new toll highways authorized by the Governor and the General
Assembly pursuant to Section 14.1 of the Toll Highway Act,
non-highway transportation projects on the toll highway system
such as commuter rail or high-speed rail lines, and intelligent
transportation infrastructure that will enhance the safety,
efficiency, and environmental quality of the toll highway
system. The Authority may operate or provide operational
services such as toll collection on highways which are
developed or financed, or both, through a public-private
agreement entered into by another public entity, under an

agreement with the public entity or contractor responsible for
the transportation project.
(c) A contractor has:
(1) all powers allowed by law generally to a private
entity having the same form of organization as the
contractor; and
(2) the power to develop, finance, and operate the
transportation facility and to impose user fees in
connection with the use of the transportation facility,
subject to the terms of the public-private agreement.
No tolls or user fees may be imposed by the contractor
except as set forth in a public-private agreement.
(d) Each year, at least 30 days prior to the beginning of
the transportation agency's fiscal year, and at other times the
transportation agency deems necessary, the Department and the
Authority shall submit for review to the General Assembly a
description of potential projects that the transportation
agency is considering undertaking under this Act. Any
submission from the Authority shall indicate which of its
potential projects, if any, will involve the proposer operating
the transportation facility for a period of one year or more.
Prior to the issuance of any request for qualifications or
request for proposals with respect to any potential project
undertaken by the Department or the Authority pursuant to
Section 20 of this Act, the commencement of a procurement
process for that particular potential project shall be

authorized by joint resolution of the General Assembly.
(e) Each year, at least 30 days prior to the beginning of
the transportation agency's fiscal year, the transportation
agency shall submit a description of potential projects that
the transportation agency is considering undertaking under
this Act to each county, municipality, and metropolitan
planning organization, with respect to each project located
within its boundaries.
(f) Any project undertaken under this Act shall be subject
to all applicable planning requirements otherwise required by
law, including land use planning, regional planning,
transportation planning, and environmental compliance
requirements.
(g) Any new transportation facility developed as a project
under this Act must be consistent with the regional plan then
in existence of any metropolitan planning organization in whose
boundaries the project is located.
(h) The transportation agency shall hold one or more public
hearings within 30 days of each of its submittals to the
General Assembly under subsection (d) of this Section. These
public hearings shall address potential projects that the
transportation agency submitted to the General Assembly for
review under subsection (d). The transportation agency shall
publish a notice of the hearing or hearings at least 7 days
before a hearing takes place, and shall include the following
in the notice: (i) the date, time, and place of the hearing and

the address of the transportation agency; (ii) a brief
description of the potential projects that the transportation
agency is considering undertaking; and (iii) a statement that
the public may comment on the potential projects.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/20)
Sec. 20. Procurement process.
(a) A transportation agency seeking to enter into a
public-private partnership with a private entity for the
development, finance, and operation of a transportation
facility as a transportation project shall determine and set
forth the criteria for the selection process. The
transportation agency shall use (i) a competitive sealed
bidding process, (ii) a competitive sealed proposal process, or
(iii) a design-build procurement process in accordance with
Section 25 of this Act. Before using one of these processes the
transportation agency may use a request for information to
obtain information relating to possible public-private
partnerships.
(b) If a transportation project will require the
performance of design work, the transportation agency shall use
the shortlist selection process set forth in subsection (g) of
this Section to evaluate and shortlist private entities based
on qualifications, including but not limited to design
qualifications.

A request for qualifications, request for proposals, or
public-private agreement awarded to a contractor for a
transportation project shall require that any subsequent need
for architectural, engineering, or land surveying services
which arises after the submittal of the request for
qualifications or request for proposals or the awarding of the
public-private agreement shall be procured by the contractor
using a qualifications-based selection process consisting of:
(1) the publication of notice of availability of
services;
(2) a statement of desired qualifications;
(3) an evaluation based on the desired qualifications;
(4) the development of a shortlist ranking the firms in
order of qualifications; and
(5) negotiations with the ranked firms for a fair and
reasonable fee.
Compliance with the Architectural, Engineering, and Land
Surveying Qualifications Based Selection Act shall be deemed
prima facie compliance with this subsection (b). Every
transportation project contract shall include provisions
setting forth the requirements of this subsection (b).
(c) Prior to commencing a procurement for a transportation
project under this Act, the transportation agency shall notify
any other applicable public agency, including the Authority, in
all cases involving toll facilities where the Department would
commence the procurement, of its interest in undertaking the

procurement and shall provide the other public agency or
agencies with an opportunity to offer to develop and implement
the transportation project. The transportation agency shall
supply the other public agency or agencies with no less than
the same level and type of information concerning the project
that the transportation agency would supply to private entities
in the procurement, unless that information is not then
available, in which case the transportation agency shall supply
the other public agency or agencies with the maximum amount of
relevant information about the project as is then reasonably
available. The transportation agency shall make available to
the other public agencies the same subsidies, benefits,
concessions, and other consideration that it intends to make
available to the private entities in the procurement.
The public agencies shall have a maximum period of 60 days
to review the information about the proposed transportation
project and to respond to the transportation agency in writing
to accept or reject the opportunity to develop and implement
the transportation project. If a public agency rejects the
opportunity during the 60-day period, then the public agency
may not participate in the procurement for the proposed
transportation project by submitting a proposal of its own. If
a public agency fails to accept or reject this opportunity in
writing within the 60-day period, it shall be deemed to have
rejected the opportunity.
If a public agency accepts the opportunity within the

60-day period, then the public agency shall have up to 120 days
(or a longer period, if extended by the transportation agency),
to (i) submit to the transportation agency a reasonable plan
for development of the transportation project; (ii) if
applicable, make an offer of reasonable consideration for the
opportunity to undertake the transportation project; and (iii)
negotiate a mutually acceptable intergovernmental agreement
with the transportation agency that facilitates the
development of the transportation project and requires that the
transportation agency follow its procurement procedures under
the Illinois Procurement Code and applicable rules rather than
this Act. In considering whether a public agency's plan for
developing and implementing the project is reasonable, the
transportation agency shall consider the public agency's
history of developing and implementing similar projects, the
public agency's current capacity to develop and implement the
proposed project, the user charges, if any, contemplated by the
public agency's plan and how these user charges compare with
user charges that would be imposed by a private entity
developing and implementing the same project, the project
delivery schedule proposed by the public agency, and other
reasonable factors that are necessary, including consideration
of risks and whether subsidy costs may be reduced, to determine
whether development and implementation of the project by the
public agency is in the best interest of the people of this
State.

(d) If the transportation agency rejects or fails to
negotiate mutually acceptable terms regarding a public
agency's plan for developing and implementing the
transportation project during the 120-day period described in
subsection (c), then the public agency may not participate in
the procurement for the proposed transportation project by
submitting a proposal of its own. Following a rejection or
failure to reach agreement regarding a public agency's plan, if
the transportation agency later proceeds with a procurement in
which it materially changes (i) the nature or scope of the
project; (ii) any subsidies, benefits, concessions, or other
significant project-related considerations made available to
the bidders; or (iii) any other terms of the project, as
compared to when the transportation agency supplied
information about the project to public agencies under
subsection (c), then the transportation agency shall give
public agencies another opportunity in accordance with
subsection (c) to provide proposals for developing and
implementing the project.
(e) Nothing in this Section 20 requires a transportation
agency to go through a procurement process prior to developing
and implementing a project through a public agency as described
in subsection (c).
The selection of professional design firms by a
transportation agency or private entity shall comply with the
Architectural, Engineering, and Land Surveying Qualifications

Based Selection Act or Section 25 of this Act.
Nothing in this Act shall preclude a public agency,
including the Department or the Authority, from submitting a
proposal to develop or operate, or to develop and operate, a
transportation facility as a transportation project. The
transportation agency shall give a proposal submitted by a
public agency equal consideration as it gives proposals
submitted by private entities, and, for that purpose, treat the
public agency as a private entity.
(f) All procurement processes shall incorporate
requirements and set forth goals for participation by
disadvantaged business enterprises as allowed under State and
federal law.
(g) (b) The transportation agency shall establish a process
to shortlist for prequalification of all potential private
entities. The transportation agency shall: (i) provide a public
notice of the shortlisting prequalification process for such
period as deemed appropriate by the agency; (ii) set forth
requirements and evaluation criteria in a request for
qualifications order to become prequalified; (iii) develop a
shortlist by determining determine which private entities that
have submitted statements of qualification prequalification
applications, if any, meet the minimum requirements and best
satisfy the evaluation criteria set forth in the request for
qualifications; and (iv) allow only those entities, or groups
of entities such as unincorporated joint ventures, that have

been shortlisted prequalified to submit proposals or bids.
Throughout the procurement period and as necessary following
the award of a contract, the The transportation agency shall
make publicly available on its website during the request for
qualifications period information regarding firms that are
prequalified by the transportation agency pursuant to Section
20 of the Architectural, Engineering, and Land Surveying
Qualifications Based Selection Act to provide architectural,
engineering, and land surveying services. The transportation
agencies and shall require private entities to use firms
prequalified under this Act to provide architectural,
engineering, and land surveying services. Firms identified to
provide architectural, engineering, and land surveying
services in a statement of qualifications shall be prequalified
under the Act to provide the identified services prior to the
transportation agency's award of the contract the use of such
firms for such services.
(h) (c) Competitive sealed bidding requirements:
(1) All contracts shall be awarded by competitive
sealed bidding except as otherwise provided in subsection
(i) (d) of this Section and Section 25 of this Act.
(2) An invitation for bids shall be issued and shall
include a description of the public-private partnership
with a private entity for the development, finance, and
operation of a transportation facility as a transportation
project, and the material contractual terms and conditions

applicable to the procurement.
(3) Public notice of the invitation for bids shall be
published in the State of Illinois Procurement Bulletin at
least 21 days before the date set in the invitation for the
opening of bids.
(4) Bids shall be opened publicly in the presence of
one or more witnesses at the time and place designated in
the invitation for bids. The name of each bidder, the
amount of each bid, and other relevant information as may
be specified by rule shall be recorded. After the award of
the contract, the winning bid and the record of each
unsuccessful bid shall be open to public inspection.
(5) Bids shall be unconditionally accepted without
alteration or correction, except as authorized in this Act.
Bids shall be evaluated based on the requirements set forth
in the invitation for bids, which may include criteria to
determine acceptability such as inspection, testing,
quality, workmanship, delivery, and suitability for a
particular purpose. Those criteria that will affect the bid
price and be considered in evaluation for award, such as
discounts, transportation costs, and total or life cycle
costs, shall be objectively measurable. The invitation for
bids shall set forth the evaluation criteria to be used.
(6) Correction or withdrawal of inadvertently
erroneous bids before or after award, or cancellation of
awards of contracts based on bid mistakes, shall be

permitted in accordance with rules. After bid opening, no
changes in bid prices or other provisions of bids
prejudicial to the interest of the State or fair
competition shall be permitted. All decisions to permit the
correction or withdrawal of bids based on bid mistakes
shall be supported by written determination made by the
transportation agency.
(7) The contract shall be awarded with reasonable
promptness by written notice to the lowest responsible and
responsive bidder whose bid meets the requirements and
criteria set forth in the invitation for bids, except when
the transportation agency determines it is not in the best
interest of the State and by written explanation determines
another bidder shall receive the award. The explanation
shall appear in the appropriate volume of the State of
Illinois Procurement Bulletin. The written explanation
must include:
(A) a description of the agency's needs;
(B) a determination that the anticipated cost will
be fair and reasonable;
(C) a listing of all responsible and responsive
bidders; and
(D) the name of the bidder selected, pricing, and
the reasons for selecting that bidder.
(8) When it is considered impracticable to initially
prepare a purchase description to support an award based on

price, an invitation for bids may be issued requesting the
submission of unpriced offers to be followed by an
invitation for bids limited to those bidders whose offers
have been qualified under the criteria set forth in the
first solicitation.
(i) (d) Competitive sealed proposal requirements:
(1) When the transportation agency determines in
writing that the use of competitive sealed bidding or
design-build procurement is either not practicable or not
advantageous to the State, a contract may be entered into
by competitive sealed proposals.
(2) Proposals shall be solicited through a request for
proposals.
(3) Public notice of the request for proposals shall be
published in the State of Illinois Procurement Bulletin at
least 21 days before the date set in the invitation for the
opening of proposals.
(4) Proposals shall be opened publicly in the presence
of one or more witnesses at the time and place designated
in the request for proposals, but proposals shall be opened
in a manner to avoid disclosure of contents to competing
offerors during the process of negotiation. A record of
proposals shall be prepared and shall be open for public
inspection after contract award.
(5) The requests for proposals shall state the relative
importance of price and other evaluation factors.

Proposals shall be submitted in 2 parts: (i) covering items
except price; and (ii) covering price. The first part of
all proposals shall be evaluated and ranked independently
of the second part of all proposals.
(6) As provided in the request for proposals and under
any applicable rules, discussions may be conducted with
responsible offerors who submit proposals determined to be
reasonably susceptible of being selected for award for the
purpose of clarifying and assuring full understanding of
and responsiveness to the solicitation requirements. Those
offerors shall be accorded fair and equal treatment with
respect to any opportunity for discussion and revision of
proposals. Revisions may be permitted after submission and
before award for the purpose of obtaining best and final
offers. In conducting discussions there shall be no
disclosure of any information derived from proposals
submitted by competing offerors. If information is
disclosed to any offeror, it shall be provided to all
competing offerors.
(7) Awards shall be made to the responsible offeror
whose proposal is determined in writing to be the most
advantageous to the State, taking into consideration price
and the evaluation factors set forth in the request for
proposals. The contract file shall contain the basis on
which the award is made.
(j) (e) In the case of a proposal or proposals to the

Department or the Authority, the transportation agency shall
determine, based on its review and evaluation of the proposal
or proposals received in response to the request for proposals,
which one or more proposals, if any, best serve the public
purpose of this Act and satisfy the criteria set forth in the
request for proposals and, with respect to such proposal or
proposals, shall:
(1) submit the proposal or proposals to the Commission
on Government Forecasting and Accountability, which,
within 20 days of submission by the transportation agency,
shall complete a review of the proposal or proposals and
report on the value of the proposal or proposals to the
State;
(2) hold one or more public hearings on the proposal or
proposals, publish notice of the hearing or hearings at
least 7 days before the hearing, and include the following
in the notice: (i) the date, time, and place of the hearing
and the address of the transportation agency, (ii) the
subject matter of the hearing, (iii) a description of the
agreement to be awarded, (iv) the determination made by the
transportation agency that such proposal or proposals best
serve the public purpose of this Act and satisfy the
criteria set forth in the request for proposals, and (v)
that the public may be heard on the proposal or proposals
during the public hearing; and
(3) determine whether or not to recommend to the

Governor that the Governor approve the proposal or
proposals.
The Governor may approve one or more proposals recommended
by the Department or the Authority based upon the review,
evaluation, and recommendation of the transportation agency,
the review and report of the Commission on Government
Forecasting and Accountability, the public hearing, and the
best interests of the State.
(k) (f) In addition to any other rights under this Act, in
connection with any procurement under this Act, the following
rights are reserved to each transportation agency:
(1) to withdraw a request for information, a request
for qualifications, or a request for proposals at any time,
and to publish a new request for information, request for
qualifications, or request for proposals;
(2) to not approve a proposal for any reason;
(3) to not award a public-private agreement for any
reason;
(4) to request clarifications to any statement of
information, qualifications, or proposal received, to seek
one or more revised proposals or one or more best and final
offers, or to conduct negotiations with one or more private
entities that have submitted proposals;
(5) to modify, during the pendency of a procurement,
the terms, provisions, and conditions of a request for
information, request for qualifications, or request for

proposals or the technical specifications or form of a
public-private agreement;
(6) to interview proposers; and
(7) any other rights available to the transportation
agency under applicable law and regulations.
(l) (g) If a proposal is approved, the transportation
agency shall execute the public-private agreement, publish
notice of the execution of the public-private agreement on its
website and in a newspaper or newspapers of general circulation
within the county or counties in which the transportation
project is to be located, and publish the entire agreement on
its website. Any action to contest the validity of a
public-private agreement entered into under this Act must be
brought no later than 60 days after the date of publication of
the notice of execution of the public-private agreement.
(m) (h) For any transportation project with an estimated
construction cost of over $50,000,000, the transportation
agency may also require the approved proposer to pay the costs
for an independent audit of any and all traffic and cost
estimates associated with the approved proposal, as well as a
review of all public costs and potential liabilities to which
taxpayers could be exposed (including improvements to other
transportation facilities that may be needed as a result of the
approved proposal, failure by the approved proposer to
reimburse the transportation agency for services provided, and
potential risk and liability in the event the approved proposer

defaults on the public-private agreement or on bonds issued for
the project). If required by the transportation agency, this
independent audit must be conducted by an independent
consultant selected by the transportation agency, and all
information from the review must be fully disclosed.
(n) (i) The transportation agency may also apply for,
execute, or endorse applications submitted by private entities
to obtain federal credit assistance for qualifying projects
developed or operated pursuant to this Act.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/25)
Sec. 25. Design-build procurement.
(a) This Section 25 shall apply only to transportation
projects for which the Department or the Authority intends to
execute a design-build agreement, in which case the Department
or the Authority shall abide by the requirements and procedures
of this Section 25 in addition to other applicable requirements
and procedures set forth in this Act.
(b)(1) The transportation agency must issue a notice of
intent to receive proposals for the project at least 14 days
before issuing the request for the qualifications. The
transportation agency must publish the advance notice in a
daily newspaper of general circulation in the county where the
transportation agency is located. The transportation agency is
encouraged to use publication of the notice in related

construction industry service publications. A brief
description of the proposed procurement must be included in the
notice. The transportation agency must provide a copy of the
request for qualifications to any party requesting a copy.
(2) The request for qualifications shall be prepared for
each project and must contain, without limitation, the
following information: (i) the name of the transportation
agency; (ii) a preliminary schedule for the completion of the
contract; (iii) the proposed budget for the project and , the
source of funds, to the extent not already reflected in the
Department's Multi-Year Highway Improvement Program and the
currently available funds at the time the request for proposal
is submitted; (iv) the shortlisting process prequalification
criteria for design-build entities or groups of entities such
as unincorporated joint ventures wishing to submit proposals
(the transportation agency shall include, at a minimum, its
normal prequalification, licensing, registration, and other
requirements, but nothing contained herein precludes the use of
additional prequalification criteria by the transportation
agency); (v) a summary of anticipated material requirements of
the contract, including but not limited to, the proposed terms
and conditions, required performance and payment bonds,
insurance, and the entity's plan to comply with the utilization
goals established by the corporate authorities of the
transportation agency for minority and women business
enterprises and compliance to comply with Section 2-105 of the

Illinois Human Rights Act; and (vi) the performance criteria;
(vii) the evaluation criteria for each phase of the
solicitation; and (viii) the anticipated number of entities
that will be shortlisted considered for the request for
proposals phase.
(3) The transportation agency may include any other
relevant information in the request for qualifications that it
chooses to supply. The private entity shall be entitled to rely
upon the accuracy of this documentation in the development of
its statement of qualifications and its proposal only to the
extent expressly warranted by the transportation agency.
(4) The date that statements of qualifications are due must
be at least 21 calendar days after the date of the issuance of
the request for qualifications. In the event the cost of the
project is estimated to exceed $12,000,000, then the statement
of qualifications due date must be at least 28 calendar days
after the date of the issuance of the request for
qualifications. The transportation agency shall include in the
request for proposals a minimum of 30 days to develop the
proposals after the selection of entities from the evaluation
of the statements of qualifications is completed.
(c)(1) The transportation agency shall develop, with the
assistance of a licensed design professional, the request for
qualifications and the request for proposals, which shall
include scope and performance criteria. The scope and
performance criteria must be in sufficient detail and contain

adequate information to reasonably apprise the private
entities of the transportation agency's overall programmatic
needs and goals, including criteria and preliminary design
plans, general budget parameters, schedule, and delivery
requirements.
(2) Each request for qualifications and request for
proposals shall also include a description of the level of
design to be provided in the proposals. This description must
include the scope and type of renderings, drawings, and
specifications that, at a minimum, will be required by the
transportation agency to be produced by the private entities.
(3) The scope and performance criteria shall be prepared by
a design professional who is an employee of the transportation
agency, or the transportation agency may contract with an
independent design professional selected under the
Architectural, Engineering, and Land Surveying Qualifications
Based Selection Act to provide these services.
(4) The design professional that prepares the scope and
performance criteria is prohibited from participating in any
private entity proposal for the project.
(d)(1) The transportation agency must use a two phase
procedure for the selection of the successful design-build
entity. The request for qualifications phase will evaluate and
shortlist the private entities based on qualifications, and the
request for proposals will evaluate the technical and cost
proposals.

(2) The transportation agency shall include in the request
for qualifications the evaluating factors to be used in the
request for qualifications phase. These factors are in addition
to any prequalification requirements of private entities that
the transportation agency has set forth. Each request for
qualifications shall establish the relative importance
assigned to each evaluation factor and subfactor, including any
weighting of criteria to be employed by the transportation
agency. The transportation agency must maintain a record of the
evaluation scoring to be disclosed in event of a protest
regarding the solicitation.
The transportation agency shall include the following
criteria in every request for qualifications phase evaluation
of private entities: (i) experience of personnel; (ii)
successful experience with similar project types; (iii)
financial capability; (iv) timeliness of past performance; (v)
experience with similarly sized projects; (vi) successful
reference checks of the firm; (vii) commitment to assign
personnel for the duration of the project and qualifications of
the entity's consultants; and (viii) ability or past
performance in meeting or exhausting good faith efforts to meet
the utilization goals for business enterprises established in
the Business Enterprise for Minorities, Females, and Persons
with Disabilities Act and in complying with Section 2-105 of
the Illinois Human Rights Act. No proposal shall be considered
that does not include an entity's plan to comply with the

requirements regarding established in the minority and women
business enterprises and economically disadvantaged firms
established by the corporate authorities of the transportation
agency and with Section 2-105 of the Illinois Human Rights Act.
The transportation agency may include any additional relevant
criteria in the request for qualifications phase that it deems
necessary for a proper qualification review.
Upon completion of the qualifications evaluation, the
transportation agency shall create a shortlist of the most
highly qualified private entities.
The transportation agency shall notify the entities
selected for the shortlist in writing. This notification shall
commence the period for the preparation of the request for
proposals phase technical and cost evaluations. The
transportation agency must allow sufficient time for the
shortlist entities to prepare their proposals considering the
scope and detail requested by the transportation agency.
(3) The transportation agency shall include in the request
for proposals the evaluating factors to be used in the
technical and cost submission components. Each request for
proposals shall establish, for both the technical and cost
submission components, the relative importance assigned to
each evaluation factor and subfactor, including any weighting
of criteria to be employed by the transportation agency. The
transportation agency must maintain a record of the evaluation
scoring to be disclosed in event of a protest regarding the

solicitation.
The transportation agency shall include the following
criteria in every request for proposals phase technical
evaluation of private entities: (i) compliance with objectives
of the project; (ii) compliance of proposed services to the
request for proposal requirements; (iii) compliance with the
request for proposal requirements quality of products or
materials proposed; (iv) quality of design parameters; and (v)
design concepts; (vi) innovation in meeting the scope and
performance criteria; and (vii) constructability of the
proposed project. The transportation agency may include any
additional relevant technical evaluation factors it deems
necessary for proper selection.
The transportation agency shall include the following
criteria in every request for proposals phase cost evaluation:
the total project cost and the time of completion. The
transportation agency may include any additional relevant
technical evaluation factors it deems necessary for proper
selection. The guaranteed maximum project cost criteria
weighing factor shall not exceed 30%.
The transportation agency shall directly employ or retain a
licensed design professional to evaluate the technical and cost
submissions to determine if the technical submissions are in
accordance with generally accepted industry standards.
(e) Statements of qualifications and proposals must be
properly identified and sealed. Statements of qualifications

and proposals may not be reviewed until after the deadline for
submission has passed as set forth in the request for
qualifications or the request for proposals. All private
entities submitting statements of qualifications or proposals
shall be disclosed after the deadline for submission, and all
private entities who are selected for request for proposals
phase evaluation shall also be disclosed at the time of that
determination.
Design-build Phase II design-build proposals shall include
a bid bond in the form and security as designated in the
request for proposals. Proposals shall also contain a separate
sealed envelope with the cost information within the overall
proposal submission. Proposals shall include a list of all
design professionals and other entities to which any work
identified in Section 30-30 of the Illinois Procurement Code as
a subdivision of construction work may be subcontracted during
the performance of the contract to the extent known at the time
of proposal. If the information is not known at the time of
proposal, then the design-build agreement shall require the
identification prior to a previously unlisted subcontractor
commencing work on the transportation project.
Statements of qualifications and proposals must meet all
material requirements of the request for qualifications or
request for proposals, or else they may be rejected as
non-responsive. The transportation agency shall have the right
to reject any and all statements of qualifications and

proposals.
The private entity's proprietary intellectual property
contained in the drawings and specifications of any
unsuccessful statement of qualifications or proposal shall
remain the property of the private entity.
The transportation agency shall review the statements of
qualifications and the proposals for compliance with the
performance criteria and evaluation factors.
Statements of qualifications and proposals may be
withdrawn prior to the due date and time for submissions for
any cause. After evaluation begins by the transportation
agency, clear and convincing evidence of error is required for
withdrawal.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/35)
Sec. 35. Public-private agreements.
(a) Unless undertaking actions otherwise permitted in an
interim agreement entered into under Section 30 of this Act,
before developing, financing, or operating the transportation
project, the approved proposer shall enter into a
public-private agreement with the transportation agency.
Subject to the requirements of this Act, a public-private
agreement may provide that the approved proposer, acting on
behalf of the transportation agency, is partially or entirely
responsible for any combination of developing, financing, or

operating the transportation project under terms set forth in
the public-private agreement.
(b) The public-private agreement may, as determined
appropriate by the transportation agency for the particular
transportation project, provide for some or all of the
following:
(1) Development Construction, financing, and operation
of the transportation project under terms set forth in the
public-private agreement, in any form as deemed
appropriate by the transportation agency, including, but
not limited to, a long-term concession and lease, a
design-bid-build agreement, a design-build agreement, a
design-build-maintain agreement, a design-build-finance
agreement, a design-build-operate-maintain agreement and a
design-build-finance-operate-maintain agreement.
(2) Delivery of performance and payment bonds or other
performance security determined suitable by the
transportation agency, including letters of credit, United
States bonds and notes, parent guaranties, and cash
collateral, in connection with the development, financing,
or operation of the transportation project, in the forms
and amounts set forth in the public-private agreement or
otherwise determined as satisfactory by the transportation
agency to protect the transportation agency and payment
bond beneficiaries who have a direct contractual
relationship with the contractor or a subcontractor of the

contractor to supply labor or material. The payment or
performance bond or alternative form of performance
security is not required for the portion of a
public-private agreement that includes only design,
planning, or financing services, the performance of
preliminary studies, or the acquisition of real property.
(3) Review of plans for any development or operation,
or both, of the transportation project by the
transportation agency.
(4) Inspection of any construction of or improvements
to the transportation project by the transportation agency
or another entity designated by the transportation agency
or under the public-private agreement to ensure that the
construction or improvements conform to the standards set
forth in the public-private agreement or are otherwise
acceptable to the transportation agency.
(5) Maintenance of:
(A) one or more policies of public liability
insurance (copies of which shall be filed with the
transportation agency accompanied by proofs of
coverage); or
(B) self-insurance;
each in form and amount as set forth in the public-private
agreement or otherwise satisfactory to the transportation
agency as reasonably sufficient to insure coverage of tort
liability to the public and employees and to enable the

continued operation of the transportation project.
(6) Where operations are included within the
contractor's obligations under the public-private
agreement, monitoring of the maintenance practices of the
contractor by the transportation agency or another entity
designated by the transportation agency or under the
public-private agreement and the taking of the actions the
transportation agency finds appropriate to ensure that the
transportation project is properly maintained.
(7) Reimbursement to be paid to the transportation
agency as set forth in the public-private agreement for
services provided by the transportation agency.
(8) Filing of appropriate financial statements and
reports as set forth in the public-private agreement or as
otherwise in a form acceptable to the transportation agency
on a periodic basis.
(9) Compensation or payments to the contractor.
Compensation or payments may include any or a combination
of the following:
(A) a base fee and additional fee for project
savings as the design-builder of a construction
project;
(B) a development fee, payable on a lump-sum basis,
progress payment basis, time and materials basis, or
another basis deemed appropriate by the transportation
agency;

(C) an operations fee, payable on a lump-sum basis,
time and material basis, periodic basis, or another
basis deemed appropriate by the transportation agency;
(D) some or all of the revenues, if any, arising
out of operation of the transportation project;
(E) a maximum rate of return on investment or
return on equity or a combination of the two;
(F) in-kind services, materials, property,
equipment, or other items;
(G) compensation in the event of any termination;
(H) availability payments or similar arrangements
whereby payments are made to the contractor pursuant to
the terms set forth in the public-private agreement or
related agreements; or
(I) other compensation set forth in the
public-private agreement or otherwise deemed
appropriate by the transportation agency.
(10) Compensation or payments to the transportation
agency, if any. Compensation or payments may include any or
a combination of the following:
(A) a concession or lease payment or other fee,
which may be payable upfront or on a periodic basis or
on another basis deemed appropriate by the
transportation agency;
(B) sharing of revenues, if any, from the operation
of the transportation project;

(C) sharing of project savings from the
construction of the transportation project;
(D) payment for any services, materials,
equipment, personnel, or other items provided by the
transportation agency to the contractor under the
public-private agreement or in connection with the
transportation project; or
(E) other compensation set forth in the
public-private agreement or otherwise deemed
appropriate by the transportation agency.
(11) The date and terms of termination of the
contractor's authority and duties under the public-private
agreement and the circumstances under which the
contractor's authority and duties may be terminated prior
to that date.
(12) Reversion of the transportation project to the
transportation agency at the termination or expiration of
the public-private agreement.
(13) Rights and remedies of the transportation agency
in the event that the contractor defaults or otherwise
fails to comply with the terms of the public-private
agreement.
(14) Procedures for the selection of professional
design firms and subcontractors, which shall include
procedures consistent with the Architectural, Engineering,
and Land Surveying Qualifications Based Selection Act for

the selection of professional design firms and may include,
in the discretion of the transportation agency, procedures
consistent with the low bid procurement procedures
outlined in the Illinois Procurement Code for the selection
of construction companies.
(15) Other terms, conditions, and provisions that the
transportation agency believes are in the public interest.
(c) The transportation agency may fix and revise the
amounts of user fees that a contractor may charge and collect
for the use of any part of a transportation project in
accordance with the public-private agreement. In fixing the
amounts, the transportation agency may establish maximum
amounts for the user fees and may provide that the maximums and
any increases or decreases of those maximums shall be based
upon the indices, methodologies, or other factors the
transportation agency considers appropriate.
(d) A public-private agreement may:
(1) authorize the imposition of tolls in any manner
determined appropriate by the transportation agency for
the transportation project;
(2) authorize the contractor to adjust the user fees
for the use of the transportation project, so long as the
amounts charged and collected by the contractor do not
exceed the maximum amounts established by the
transportation agency under the public-private agreement
this Act;

(3) provide that any adjustment by the contractor
permitted under paragraph (2) of this subsection (d) may be
based on the indices, methodologies, or other factors
described in the public-private agreement or approved by
the transportation agency;
(4) authorize the contractor to charge and collect user
fees through methods, including, but not limited to,
automatic vehicle identification systems, electronic toll
collection systems, and, to the extent permitted by law,
global positioning system-based, photo-based, or
video-based toll collection enforcement, provided that to
the maximum extent feasible the contractor will (i) utilize
open road tolling methods that allow payment of tolls at
highway speeds and (ii) comply with United States
Department of Transportation requirements and best
practices with respect to tolling methods; and
(5) authorize the collection of user fees by a third
party.
(e) In the public-private agreement, the transportation
agency may agree to make grants or loans for the development or
operation, or both, of the transportation project from time to
time from amounts received from the federal government or any
agency or instrumentality of the federal government or from any
State or local agency.
(f) Upon the termination or expiration of the
public-private agreement, including a termination for default,

the transportation agency shall have the right to take over the
transportation project and to succeed to all of the right,
title, and interest in the transportation project, subject to
any liens on revenues previously granted by the contractor to
any person providing financing for the transportation project.
Upon termination or expiration of the public-private agreement
relating to a transportation project undertaken by the
Department, all real property acquired as a part of the
transportation project shall be held in the name of the State
of Illinois. Upon termination or expiration of the
public-private agreement relating to a transportation project
undertaken by the Authority, all real property acquired as a
part of the transportation project shall be held in the name of
the Authority.
(g) If a transportation agency elects to take over a
transportation project as provided in subsection (f) of this
Section, the transportation agency may do the following:
(1) develop, finance, or operate the project,
including through a public-private agreement entered into
in accordance with this Act; or
(2) impose, collect, retain, and use user fees, if any,
for the project.
(h) If a transportation agency elects to take over a
transportation project as provided in subsection (f) of this
Section, the transportation agency may use the revenues, if
any, for any lawful purpose, including to:

(1) make payments to individuals or entities in
connection with any financing of the transportation
project, including through a public-private agreement
entered into in accordance with this Act;
(2) permit a contractor to receive some or all of the
revenues under a public-private agreement entered into
under this Act;
(3) pay development costs of the project;
(4) pay current operation costs of the project or
facilities;
(5) pay the contractor for any compensation or payment
owing upon termination; and
(6) pay for the development, financing, or operation of
any other project or projects the transportation agency
deems appropriate.
(i) The full faith and credit of the State or any political
subdivision of the State or the transportation agency is not
pledged to secure any financing of the contractor by the
election to take over the transportation project. Assumption of
development or operation, or both, of the transportation
project does not obligate the State or any political
subdivision of the State or the transportation agency to pay
any obligation of the contractor.
(j) The transportation agency may enter into a
public-private agreement with multiple approved proposers if
the transportation agency determines in writing that it is in

the public interest to do so.
(k) A public-private agreement shall not include any
provision under which the transportation agency agrees to
restrict or to provide compensation to the private entity for
the construction or operation of a competing transportation
facility during the term of the public-private agreement.
(l) With respect to a public-private agreement entered into
by the Department, the Department shall certify in its State
budget request to the Governor each year the amount required by
the Department during the next State fiscal year to enable the
Department to make any payment obligated to be made by the
Department pursuant to that public-private agreement, and the
Governor shall include that amount in the State budget
submitted to the General Assembly.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/40)
Sec. 40. Development and operations standards for
transportation projects.
(a) The plans and specifications, if any, for each project
developed under this Act must comply with:
(1) the transportation agency's standards for other
projects of a similar nature or as otherwise provided in
the public-private agreement;
(2) the Professional Engineering Practice Act of 1989,
the Structural Engineering Practice Act of 1989, the

Illinois Architecture Practice Act of 1989, the
requirements of Section 30-22 of the Illinois Procurement
Code as they apply to responsible bidders, and the Illinois
Professional Land Surveyor Act of 1989; and
(3) any other applicable State or federal standards.
(b) Each highway project constructed or operated under this
Act is considered to be part of:
(1) the State highway system for purposes of
identification, maintenance standards, and enforcement of
traffic laws if the highway project is under the
jurisdiction of the Department; or
(2) the toll highway system for purposes of
identification, maintenance standards, and enforcement of
traffic laws if the highway project is under the
jurisdiction of the Authority.
(c) Any unit of local government or State agency may enter
into agreements with the contractor for maintenance or other
services under this Act.
(d) Any electronic toll collection system used on a toll
highway, bridge, or tunnel as part of a transportation project
must be compatible with the electronic toll collection system
used by the Authority. The Authority is authorized to
construct, operate, and maintain any electronic toll
collection system used on a toll highway, bridge, or tunnel as
part of a transportation project pursuant to an agreement with
the transportation agency or the contractor responsible for the

transportation project. All private entities and public
agencies shall have an equal opportunity to contract with the
Authority to provide construction, operation, and maintenance
services. In addition, during the procurement of a
public-private agreement, these construction, operation, and
maintenance services shall be available under identical terms
to each private entity participating in the procurement. To the
extent that a public-private agreement or an agreement with a
public agency under subsection (c) of Section 20 of this Act
authorizes tolling, the transportation agencies and any
contractor under a public-private partnership or a public
agency under an agreement pursuant to subsection (c) of Section
20 of this Act shall comply with subsection (a-5) of Section 10
of the Toll Highway Act as it relates to toll enforcement.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/45)
Sec. 45. Financial arrangements.
(a) The transportation agency may do any combination of
applying for, executing, or endorsing applications submitted
by private entities to obtain federal, State, or local credit
assistance for transportation projects developed, financed, or
operated under this Act, including loans, lines of credit, and
guarantees.
(b) The transportation agency may take any action to obtain
federal, State, or local assistance for a transportation

project that serves the public purpose of this Act and may
enter into any contracts required to receive the federal
assistance. The transportation agency may determine that it
serves the public purpose of this Act for all or any portion of
the costs of a transportation project to be paid, directly or
indirectly, from the proceeds of a grant or loan, line of
credit, or loan guarantee made by a local, State, or federal
government or any agency or instrumentality of a local, State,
or federal government. Such assistance may include, but not be
limited to, federal credit assistance pursuant to the
Transportation Infrastructure Finance and Innovation Act
(TIFIA).
(c) The transportation agency may agree to make grants or
loans for the development, financing, or operation of a
transportation project from time to time, from amounts received
from the federal, State, or local government or any agency or
instrumentality of the federal, State, or local government.
(d) Any financing of a transportation project may be in the
amounts and upon the terms and conditions that are determined
by the parties to the public-private agreement.
(e) For the purpose of financing a transportation project,
the contractor and the transportation agency may do the
following:
(1) propose to use any and all revenues that may be
available to them;
(2) enter into grant agreements;

(3) access any other funds available to the
transportation agency; and
(4) accept grants from the transportation agency or
other public or private agency or entity.
(f) For the purpose of financing a transportation project,
public funds may be used and mixed and aggregated with funds
provided by or on behalf of the contractor or other private
entities.
(g) For the purpose of financing a transportation project,
each transportation agency is authorized to do any combination
of applying for, executing, or endorsing applications for an
allocation of tax-exempt bond financing authorization provided
by Section 142(m) of the United States Internal Revenue Code,
as well as financing available under any other federal law or
program.
(h) Any bonds, debt, or other securities or other financing
issued by or on behalf of a contractor for the purposes of a
project undertaken under this Act shall not be deemed to
constitute a debt of the State or any political subdivision of
the State or a pledge of the faith and credit of the State or
any political subdivision of the State.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/90 new)
Sec. 90. Public-Private Partnerships for Transportation
Fund. The Public-Private Partnerships for Transportation Fund

is created as a special fund in the State treasury. Moneys in
the Public-Private Partnerships for Transportation Fund shall
be appropriated to the Department of Transportation to promote
the development, financing, and operation of transportation
facilities under this Act. Investment income which is
attributable to the investment of moneys in the Public-Private
Partnerships for Transportation Fund shall be retained in the
Public-Private Partnerships for Transportation Fund.
Section 99. Effective date. This Act takes effect upon
becoming law.