Ill. Admin. Code tit. 44, § 8.5039 - Procurement Communication Reporting Requirement

a) Reporting Requirement

Any written or oral communication received by a State employee who, by nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract and that imparts or requests material information or makes a material argument regarding potential action concerning an active procurement matter, including, but not limited to, an application, a contract or a project, shall be reported to the Procurement Policy Board in accordance with rules of the Executive Ethics Commission (see 2 Ill. Adm. Code 1620). [30 ILCS 500/50-39(a) ]

b) Excepted Communications

1) These communications do not include the following:

A) statements made by a person publicly in a public forum (however, communications made in a public forum, if made privately, must be reported);

B) statements regarding matters of procedure and practice, such as format, the number of copies required, the manner of filing, and the status of a matter;

C) statements made by a State employee and:

i) the State employee's agency head;

ii) other State employees of that agency;

iii) employees of the Executive Ethics Commission; or

iv) an employee of another State agency who, through the communication, is either exercising his or her experience or expertise in the subject matter of the particular procurement in the normal course of business, for official purposes, and at the initiation of the purchasing agency or the appropriate State Purchasing Officer, or exercising oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities;

D) unsolicited communications providing general information about products, services or industry best practices before those products or services become involved in a procurement matter;

E) communications received in response to procurement solicitations, including, but not limited to, vendor responses to a:

i) RFI;

ii) RFP;

iii) request for qualifications;

iv) IFB;

v) small purchase, sole source or emergency solicitation; or

vi) questions and answers posted to the Illinois Procurement Bulletin to supplement the procurement action, provided that the communications are made in accordance with the instructions contained in the procurement solicitation, procedures or guidelines;

F) communications that are privileged, protected or confidential under law; and

G) communications that are part of a formal procurement process as set out by statute, rule or the solicitation, guidelines or procedures, including, but not limited to:

i) the posting of procurement opportunities;

ii) the process for approving a procurement business case or its equivalent;

iii) fiscal approval;

iv) submission of bids;

v) the finalization of contract terms and conditions with an awardee or apparent awardee; and

vi) any other similar formal procurement process. [30 ILCS 500/50-39(a) ]

2) The provisions of this Section shall not apply to communications regarding the administration and implementation of an existing contract, except communications regarding change orders or the renewal or extension of a contract. [30 ILCS 500/50-39(a) ]

3) No trade secret or other proprietary or confidential information shall be included in any communication reported to the Procurement Policy Board. [30 ILCS 500/50-39(b) ]

c) When an oral communication made by a person required to register under the Lobbyist Registration Act is received by a State employee that is covered under this Section, all individuals who initiate or participate in the oral communication shall submit a written report to that State employee that memorializes the communication and includes, but is not limited to, the items listed in Section 50-39 of the Code. [30 ILCS 500/50-39(c) ] For purposes of this Section:

1) "Active Procurement Matter" - a procurement process beginning with requisition or determination of need by an agency and continuing through the publication of an award notice or other completion of a final procurement action, the notice or other completion of a final procurement action, the resolution of any protests, and the expiration of any protest or PPB review period, if applicable. "Active procurement matter" also includes communications relating to change orders, renewals or extensions.

2) "Material Information" - information that a reasonable person would deem important in determining his or her course of action and pertains to significant issues, including, but not limited to, price, quantity and terms of payment or performance.

3) "Material Argument" - a communication that a reasonable person would believe was made for the purpose of influencing a decision relating to a procurement matter. "Material argument" does not include general information about products, services or industry best practices or a response to a communication initiated by an employee of the State for the purposes of providing information to evaluate new products, trends, services or technologies.

Notes

Ill. Admin. Code tit. 44, § 8.5039

Adopted at 38 Ill. Reg. 10903, effective 5/7/2014.