ila library conference - oct 2016 cpf_kmt - construction projects (2).pptx

www.ktjlaw.com

ILLINOIS LIBRARY ASSOCIATION2013 ANNUAL CONFERENCE

OCTOBER 16, 2013

CARMEN P. FORTE JR .KATHLEEN M. TERESE

KLEIN, THORPE AND JENKINS, LTD.20 NORTH WACKER DRIVE, SUITE 1660

CHICAGO, IL 60606312-984-6400

The Do's and Don'ts of Construction and Remodeling Projects: From

Drafting Bid Documents to Awarding the Contract

Presentation Topics

Best practices for dealing with the issues that arise when engaging in construction projects, including:

1. The Process of Selecting an Architect or Engineer2. Public Bidding Requirements3. A General Bidding Timeline4. The Required Bidding Processes for Local Libraries and

Library Districts, Including Prohibited Activities and Criminal Consequences

5. What to Include In Bid Documents, Including the Advertisement for Bids, and How To Evaluate Bid Responses; and

6. Prevailing Wage Requirements

The Process of Selecting an Architect or Engineer

The Local Government ProfessionalServices Selection Act

(50 ILCS 510/0.01 et seq.)

Provides the Process for Hiring Architects, Engineers and Land

Surveyors

Local Government ProfessionalServices Selection Act

Applies to all units of local government, including Library Districts and Local Libraries

Does not apply to home rule municipalities, but applies to local libraries within home rule municipalities

There are several exceptions to the Act:

If the Board of Library Trustees, by resolution, determines that an emergency exists and a firm must be selected in an expeditious manner; and

If the cost of professional services (architect, engineer or land surveyor) for the project is expected to be less than $25,000, the Board of Library Trustees may, by resolution, waive the notice requirement, conducting interviews and selecting a firm


Also, if a Library has a good and satisfactory existing relationship with a professional service provider (architect, engineer or land surveyor), it is not required to follow the Act’s requirements

If a Library does not have a good and satisfactory relationship with a professional service provider, it must follow the Act’s requirements


Absent a good and satisfactory existing relationship with a professional service provider, a Library must:

(1) Mail or email notice seeking statements of interest in the specific project to all firms that have a current statement of qualifications and performance data on file with the Library; or

(2) Place an advertisement seeking a statement of interest in the specific project


The advertisement must:(1) seek statements of qualifications and performance data(2) be placed in a secular English language newspaper of general circulation in the Library boundaries or on the Library website; and(3) must include the day, hour and place that the statement of interest and statement of qualifications and performance data is due


Libraries are permitted to discuss the project with each firm and to require a public presentation

The Act prohibits seeking: Formal or informal submissions of verbal or written

estimates of costs; or Proposals in terms of dollars, hours required,

percentage of construction cost or any other measure of compensation

prior to selecting a firm with which the Library will seek to enter into a contract


The Library is then required to evaluate the submitted statements, selecting the top three based on:(1) qualifications(2) ability of professional personnel(3) past record and experience(4) performance data on file(5) willingness to meet time requests(6) location(7) workload of the firm, and(8) other qualifications based factors determined in writing


If submittals reviewed by Library Board, must be done at an open meeting

There is no closed session exception for selection of an architect or engineer


After ranking the top 3, in order of preference, the Act requires an attempt to negotiate a satisfactory contract with the top ranked professional service provider “at a fair and reasonable compensation, taking into account the estimate of value, scope, complexity and professional nature of the service to be rendered”

If negotiations with the top ranked professional service provider fail, negotiations may proceed with the second ranked provider, and so on

If no contract can be reached with the top 3, the process must begin again


Public Bidding Requirements

The Local Library Act (75 ILCS 5/5-5)

The Public Library District Act of 1991

(75 ILCS 16/40-45)


Generally, public bidding is required when costs will be in excess of $20,000, and

Contract is for one of the activities set forth in:

Section 5-5 of the Local Library Act or

Section 40-45 of the Public LibraryDistrict Act of 1991


Section 5-5 of the Local Library Act provides:

When the directors determine to commence the construction of the building or the remodeling, repairing or improving of an existing library building or the erection of an addition thereto, the purchase of the necessary equipment for such library, or the acquisition of library materials such as books, periodicals, recordings and electronic data storage and retrieval facilities in connection with either the purchase or construction of a new library building or the expansion of an existing library building, they may then revise the plan therefor or adopt a new plan and provide estimates of the costs thereof, and shall, when the cost is in excess of $20,000, advertise for bids for the construction of the building, or the remodeling, repairing or improving of an existing library building or the erection of an addition thereto, or the purchase of the necessary equipment for such library, or the acquisition of library materials such as books, periodicals, recordings and electronic data storage and retrieval facilities in connection with either the purchase or construction of a new library building or the expansion of an existing library building, and shall let the contract or contracts for the same, when the cost is in excess of $20,000, to the lowest responsible bidder or bidders and may require from such bidders, such security for the performance of the bids as the board shall determine. The directors may let the contract or contracts to one or more bidders, as they shall determine(75 ILCS 5/5-5)

Section 40-45 of the Public Library District Act of 1991 provides:

Bids for construction, improvements, or equipment purchases

(a) When the trustees determine to commence constructing the building, purchasing a site or a building, remodeling, repairing, or improving an existing library building, erecting an addition to an existing library building, or purchasing the necessary equipment for the library, they may then revise the plan or adopt a new plan and provide estimates of the costs of the revised or new plan

(b) The board shall, when the cost is in excess of $20,000, advertise for bids for constructing the building, remodeling, repairing, or improving of an existing library building, erecting an addition to an existing library building, or purchasing the necessary equipment for the library and shall let the contract or contracts for the project, when the cost is in excess of $20,000, to the lowest responsible bidder or bidders. The board shall require from the bidders security for the performance of the bids determined by the board pursuant to law. The trustees may let the contract or contracts to one or more bidders as they determine (75 ILCS 16/40-45)


If a contract is under $20,000, public bidding is not required and an RFP may be used

Note: do not “phase” or “string” a project to get a contract or contracts under $20,000 – as discussed below it is illegal


If a professional service contract is involved (accountant/architect/engineer/land surveyor/doctor/attorney), public bidding is not required and an RFP may be used


General Bidding Timeline

1. Create an Advertisement for Bids; send it to newspaper for publication by publication deadline, and consider posting on the Library’s website

2. Make bid documents available (for at least 2 weeks)

3. Hold a mandatory pre-bid meeting, if necessary (schedule at least 1 week after bid documents are made available, and at least 1 week before bid opening)

General Bidding Timeline (continued)

4. Publically open bids. Allow time to review bids and determine if the lowest bidder is the lowest responsible bidder prior to Library Board meeting when Board will be asked to vote on contract

5. Award the contract to the lowest responsible bidder6. Send out a notice of award of bid, and seek

certificates of insurance, payment bonds and performance bonds from the awarded contractor; and

7. Set a start date for work

The Required Bidding Processes forLocal Libraries and Library Districts,

Including Prohibited Activitiesand Criminal Consequences

Local Libraries (75 ILCS 5/5-1 et seq.)

Library Districts (75 ILCS 16/40-5 et seq.)

Criminal Acts (720 ILCS 5/33E-1 et seq.)

Criminal Penalties (730 ILCS 5/5-8-1)

Criminal Fines (730 ILCS 5/5-9-1)

Local Libraries: 75 ILCS 5/5-1

If a Local Library Board seeks to:

Erect a library building, purchase a site, purchase a building Repair/remodel/improve an existing library buildingBuild an additionFurnish necessary equipment, orAcquire library materials, such as books, periodicals, films,

recordings and electronic data storage and retrieval facilities in connection with any of the foregoing:

It must prepare a plan, estimate the cost, determine funds available, determine amounts to be raised from financing and term of repayment (not to exceed 20 years)

Once the Board prepares this plan and a record of its proceedings, it must transmit them to the host municipality for its consideration and approval

While there is no case law interpreting this section of the Local Library Act, it is clear that the host municipality must be afforded the opportunity to consider and approve or disapprove any record of proceedings and plans

Local Libraries: 75 ILCS 5/5-1 (continued)

Demonstrates that the host municipality must be afforded the opportunity to consider and approve or disapprove any plan

Provides that a host municipality may issue bonds if it approves the Library Board’s plans and must approve any issuance of bonds

If the host municipality does not issue bonds or approve their issuance, the Library Board must divide the costs into as many parts as it determines to spread the collection thereof, and certify the amount of one of these parts to the host municipality each year during the term over which they have determined to spread the collection


Requires the host municipality to levy any amounts certified by the Board of Library Trustees for capital projects to collect the amounts levied and to pay them to the Board of Library Trustees


Requires the Library Board to determine to proceed with a capital project at once or to wait and allow funds to accumulate

If the Library Board decides to wait, funds are to be invested in accordance with the Public Funds Investment Act and are to be available until needed for any or all enumerated purposes

The Library Board may contract to accomplish any of the enumerated purposes



Section 5-5 of the Local Library Act

When the directors determine to commence the construction of the building or the remodeling, repairing or improving of an existing library building or the erection of an addition thereto, the purchase of the necessary equipment for such library, or the acquisition of library materials such as books, periodicals, recordings and electronic data storage and retrieval facilities in connection with either the purchase or construction of a new library building or the expansion of an existing library building, they may then revise the plan therefor or adopt a new plan and provide estimates of the costs thereof, and shall, when the cost is in excess of $20,000, advertise for bids for the construction of the building, or the remodeling, repairing or improving of an existing library building or the erection of an addition thereto, or the purchase of the necessary equipment for such library, or the acquisition of library materials such as books, periodicals, recordings and electronic data storage and retrieval facilities in connection with either the purchase or construction of a new library building or the expansion of an existing library building, and shall let the contract or contracts for the same, when the cost is in excess of $20,000, to the lowest responsible bidder or bidders and may require from such bidders, such security for the performance of the bids as the board shall determine. The directors may let the contract or contracts to one or more bidders, as they shall determine

Requires the Board of Library Trustees to obtain municipal host approval before obtaining any mortgage


Any tax levy for a capital improvement project must be adopted by ordinance or resolution, certified to the proper election officials, submitted to the voters, and approved by a majority of those voting thereon before it can be taxed and collected


Permits the Library Board to establish a special reserve fund and to accumulate unexpended tax revenues in such a fund in order to purchase sites and buildings, construct and equip buildings, rent and repair buildings and repair or alter library buildings on an emergency or planned basis

Also requires the Library Board to specify in its annual appropriation determination to the host municipality that a special reserve fund has been established, is being accumulated and that a plan will be developed and adopted for the use of said fund within 2 years of establishment


If a Library District Board seeks to erect a library building, purchase a site, purchase a building, repair/remodel/improve an existing library building, build an addition, furnish necessary equipment therefor or acquire library materials, such as books, periodicals, films, recordings and electronic data storage and retrieval facilities in connection therewith, the Board of Library Trustees must prepare a plan, estimate the cost, determine funds available from accumulations and determine amounts to be raised from a bond issue, annual certification or mortgage (not to exceed 20 years)

Once the Board prepares this plan and record of their proceedings, the Board secretary shall post notice of the proceedings and when the financing meeting will be held as well as the place where the plan and the estimate can be inspected by the public

Library Districts: 75 ILCS 16/40-5

(a) Permits the Board to issue bonds for the capital improvement project by ordinance

(b) The ordinance shall state when the bonds and interest thereon shall become payable (not to exceed 20 years)

(c) The ordinance shall be irrepealable and shall provide for an annual levy and collection of a special tax to pay the bond principal and interest


Requires that a majority of the voters of the District must approve any bond issue and special tax levy for said purpose and provides the procedure for the District to place a bond referendum with the proper election authority


If the District does not issue bonds or approve their issuance, the Library Board may provide for funds by annual certification and apportionment and must divide the costs into as many parts as it determines to spread the collection thereof

The District must then, by annual ordinance, certify the amount of one of these parts during the term over which they have determined to spread the collection and must then levy a special annual tax to pay that amount


Permits the District to take out a mortgage to fund a capital project, not to exceed 75% of the value of the building or site as improved by the plan

The District must then, by annual ordinance, certify the amount of the mortgage principal and interest during the term over which they have determined to spread the mortgage and must then levy a special annual tax to pay that amount


Provides that the annual certification and apportionment of costs and special tax levy authorized in section 40-20, and the annual certification of mortgage principal and interest and special tax levy authorized in section 40-25, must be submitted to and approved by a majority of the districts voters voting on the question at an election

Provides the procedure for the District to place an appropriate referendum with the proper election authority


Provides the procedures if a bond issue or a special tax supporting an annual certification or a mortgage are approved by the voters

Provides the procedures for levying the special tax supporting a bond issue as well as the special tax supporting an annual certification or a mortgage


Requires the Library Board to determine to proceed with a capital project at once or to wait and allow funds to accumulate

If the Board decides to wait, funds are to be invested in accordance with the Public Funds Investment Act and are to be available until needed for any or all enumerated purposes

The Board may contract to accomplish any of the enumerated purposes


(a) When the trustees determine to commence constructing the building, purchasing a site or a building, remodeling, repairing, or improving an existing library building, erecting an addition to an existing library building, or purchasing the necessary equipment for the library, they may then revise the plan or adopt a new plan and provide estimates of the costs of the revised or new plan

(b) The board shall, when the cost is in excess of $20,000, advertise for bids for constructing the building, remodeling, repairing, or improving of an existing library building, erecting an addition to an existing library building, or purchasing the necessary equipment for the library and shall let the contract or contracts for the project, when the cost is in excess of $20,000, to the lowest responsible bidder or bidders. The board shall require from the bidders security for the performance of the bids determined by the board pursuant to law. The trustees may let the contract or contracts to one or more bidders as they determine


Permits the Library board to establish a special reserve fund and to accumulate unexpended tax revenues in such a fund in order to purchase sites and buildings, construct and equip buildings, rent and repair buildings and repair or alter library buildings on an emergency or planned basis

Also requires the Library board to develop and adopt a plan for the use of said fund within 2 years of establishment


Criminal Acts: 720 ILCS 5/33E-1 et seq.

The Criminal Code of 2012

Section 33E-1 provides: “It is the finding of the General Assembly that the cost to the public is increased and the quality of goods, services and construction paid for by public monies is decreased when contracts for such goods, services or construction are obtained by means other than through independent noncollusive submission of bids or offers by individual contractors or supplies, and the evaluation of those bids or offers by the governmental unit pursuant only to criteria publicly announced in advance” (720 ILCS 5/33E-1)

“Bid Rigging”

Section 33E-3 provides that “bid-rigging” is a Class 3 felony and is committed when a person “knowingly agrees with any person who is or but for such agreement would be, a competitor of such person concerning any bid submitted or not submitted by such person or another to a unit of State or local government when with the intent that the bid submitted or not submitted will result in the award of a contract to such person or another and he either (1) provides such person or receives from another information concerning the price or other material term or terms of the bid which would not be otherwise disclosed to a competitor in an independent noncollusive submission of bids or (2) submits a bid that is of such a price or other material term or terms that he does not intend the bid to be accepted”

Criminal Acts

“Bid Rigging”

A person convicted of bid rigging or any similar offense is barred for 5 years from the date of conviction from contracting with any unit of State or local government

If a corporate employee is convicted of bid rigging, the corporation will not be so barred if the employee is no longer employed AND (1) the corporation has been adjudicated not guilty or (2) the corporation demonstrates to the unit of local government and it finds that the commission of the offense was not authorized, requested, commanded nor performed by a corporate official

Criminal Acts

“Bid-Rotating”

Section 33E-4 provides that “bid-rotating” is a Class 2 felony and is committed when “pursuant to a collusive scheme or agreement with another a person engages in a pattern over time (which, for the purposes of this Section, shall include at least 3 contract bids within a period of 10 years, …) of submitting sealed bids to units of State or local government with the intent that the award of such bids rotates or is distributed among, persons or business entities which submit bids on a substantial number of the same contracts”

Criminal Acts

“Bid-Rotating”

A person convicted of bid rotating or any similar offense is permanently barred from contracting with any unit of State or local government

If a corporate employee is convicted of bid rigging, the corporation will not be so barred if the employee is no longer employed AND (1) the corporation has been adjudicated not guilty or (2) the corporation demonstrates to the unit of local government and it finds that the commission of the offense was not authorized, requested, commanded nor performed by a corporate official

Criminal Acts

“Public Official/Employee Misconduct”

Section 33E-5 provides that:(a) it is a Class 4 felony for any public official or employee to knowingly open a sealed bid at a time or place other than as specified in the invitation to bid, as otherwise designated by the public entity or outside the presence of witnesses required by applicable statute or ordinance(b) it is a Class 3 felony for any public official or employee to knowingly disclose to interested persons any information related to the terms of a sealed bid except as provided by law or necessary to the performance of their duties(c) it is not illegal for any public official or employee to make a disclosure to interested persons where the disclosure is also made generally available to the public

Criminal Acts


Section 33E-6 provides that:(a) it is a Class 4 felony for any public official or employee to knowingly convey, either directly or indirectly, outside of the public bidding process, information concerning specifications for such contract or the identity of any particular potential subcontractors where such information would influence the likelihood of acceptance of the bid

It is not illegal for a public official or employee to convey such information where such information is also made generally available to the public

Criminal Acts


Section 33E-6 provides that:(b) it is a Class 3 felony for any public official or employee to, directly or indirectly, knowingly inform a bidder that the bid will be accepted or executed only if specified individuals are included as subcontractors

Criminal Acts

Section 33E-6 provides that:(c) No violation of section 33E-6 occurs where a public official or employee complies with federal, State or local minority or female owned business enterprise programs(d) A bidder commits a Class A misdemeanor if he or she receives information and fails to advise the Attorney General or State’s Attorney of what is reasonably believed to be a violation of sections 33E-6(a) and (b)

Criminal Acts


Section 33E-6 provides that:(e) A public official or employee commits a Class 3 felony if he or she knowingly awards a contract based on criteria not publicly disseminated

(f) It is not illegal for a public official or employee to provide a transcript or summary of any pre-bid conference where such transcripts or summaries are also made generally available to the public

Criminal Acts

“Kickbacks”Anything of value offered or provided to improperly obtain or reward favorable treatment with regard to a prime contract or subcontract (720 ILCS 5/33E-2)

Section 33E-7 provides that:(a) it is a Class 3 felony for any person to (1) provide, attempt to provide or offer to provide a “kickback” or (2) to solicit, accept or attempt to accept a “kickback” or (3) includes any “kickback” amount in the contract price

(b) it is a Class 4 felony for any person to fail to report any of the foregoing to law enforcement officials

(d) A public entity can file a civil action to recover “kickback” amounts in twice the amount of each individual “kickback” – there is a 6 year statute of limitations from the date of the “kickback” or the reasonable discovery thereof

Criminal Acts

“Bribery”Section 33E-8 provides that:(a) Bribery of a contractor or subcontractor’s

employee to obtain wrongful certification or approval of the quality of completion of any goods or services on a public project is a Class 4 felony

(b) Any contractor or subcontractor’s employee who accepts a bribe as defined in subsection (a) above commits a Class 3 felony and failure to report a bribe as defined in subsection (a) above is a Class 4 felony

Criminal Acts

“Change Orders”Section 33E-9 provides that change orders must be authorized in writing. Before authorizing any change orders, the public employee or official so authorized must first obtain, from the public body, a written determination that:(1) The circumstances necessitating the change order were not reasonably foreseeable at the time the contract was signed, or(2) The change order is germane to the original contract as signed, or(3) The change order is in the best interest of the public body

Failure to obtain the foregoing is a Class 4 felony

Criminal Acts

“Change Orders”Section 33E-9 further provides that the written determination and the written change order must be preserved in the contract file and shall be open to the public for inspection

Section 33E-9 only applies to a “change order” or series of “change orders” which increase or decrease either the contract cost by a total of $10,000 or more, or completion of the contract by a total of 30 days or more

Criminal Acts

“Not Barred From Contracting Certificate”

Section 33E-11 provides:

that a bidder/prime contractor must certify that he or she is not barred from contracting with local governmental entity due to violating sections 33E-3 (bid rigging) or 33E-4 (bid rotating)

a bidder/prime contractor who knowingly makes a false statement material to said certification commits a Class 3 felony

Criminal Acts

Proper Public Official/Employee Conduct

Section 33E-12 provides that it is not illegal for any public official or employee to:(1) Disclose the name of any person who has submitted a bid or who has been awarded a public contract to any person(2) Convey information regarding acceptable alternatives or substitute plans or specifications if made generally available to the public and mailed to any person who has submitted a bid; or(3) Negotiate with the lowest responsible bidder a reduction in only the price term of the bid

Criminal Acts

Section 33E-13 provides that negotiations under the Local Government Professional Services Selection Act (Architects/Engineers/Land Surveyors) are not subject to the Criminal Code of 2012

Section 33E-14 provides that it is a Class 3 felony for a vendor to make false statements in a vendor application being considered by a public entity

Criminal Acts

“False Entries”

Section 33E-15 provides that any public official, employee or agent who makes a false entry in any book, report or statement with the intent to defraud commits a Class 3 felony

Criminal Acts

“Misapplication of Funds”

Section 33E-16 provides that any public official, employee or agent who knowingly misapplies public funds commits a Class 3 felony

Criminal Acts

Public Official/Employee Misconduct

Section 33E-17 provides that it is a Class 3 felony for any public official or employee to participate, share in, or receive directly or indirectly anything of value through a contract with the public entity, with the intent to defraud the public entity

“Bid Stringing”

Section 33E-18 provides that “bid stringing” is a Class 4 felony and is committed when a person with the intent to avoid public bidding requirements, structures a contract to avoid the contract being subject to competitive bidding requirements

Criminal Acts

The Unified Code of CorrectionsSection 5-8-1(a) provides that a sentence of imprisonment for a felony shall be a determinate sentence set by the court hereunderSection 5-8-1(d)(2) provides that for Class 2 felonies committed after 1/25/13, a 2 year sentence shall be imposedSection 5-8-1(d)(3) provides that for Class 3 and 4 felonies, a 1 year sentence shall be imposed

Criminal Penalties: 730 ILCS 5/5-8-1

The Unified Code of CorrectionsSection 5-9-1(a) authorizes imposition of a fine upon any sentenced offender

Section 5-9-1(c) automatically imposes an additional $10 in fines for each $40 in fines or fraction thereof to support various programs

Criminal Fines: 730 ILCS 5/5-9-1

The Advertisement for Bids

The Bid Documents

Evaluating the Bids

What to Include In Bid Documents, Including the Advertisement for Bids, and How To Evaluate Bid

Responses

The Advertisement for Bids, should include:(1) Description of the project(2) Deadline for submission of sealed bids, including date, time and place bids must be submitted(3) Date, time and place of bid opening(4) Statement that bids will be opened publicly and read aloud(5) Requirement to post bid bond(6) Requirement to provide performance as well as labor and material payment bonds if contract is awarded(7) Location to obtain copies of specifications and/or bid package, and the cost thereof


The Advertisement for Bids, should include (continued):(8) Statement that Library may waive bid irregularities

and may reject all bids(9) Statement that successful bidder must comply with

Illinois Prevailing Wage Act(10) Statement that successful bidder must comply

with all other applicable State and Federal laws, including, but not limited to, Human Rights Act

(11) Date, time and place of mandatory pre-bid meeting; if required


The Bid Documents

Generally, bid documents must contain all information necessary for the particular project, including, but not limited to: Clear, unambiguous and reasonably specific specifications for

the work to be completed Performance and labor and material bond requirements for

projects in excess of $50,000 (recent amendment to 30 ILCS 550/0.01 et seq.)

Prevailing wage requirements (820 ILCS 130/0.01 et seq.) Statement that Library may waive bid irregularities and may

reject all bids Requirement that bid bonds be posted

Local Libraries (75 ILCS 5/5-5) Library Districts (75 ILCS 16/40-45)

(continued): Insurance coverage requirements 720 ILCS 5/33E-11 form certifying that bidder/prime

contractor is not barred from contracting with local governmental entity due to violating sections 33E-3 (bid rigging) or 33E-4 (bid rotating)

65 ILCS 5/11-42.1 form certifying that contractor is not delinquent in payment of any taxes to the Illinois Department of Revenue (subject to exceptions)

820 ILCS 265/1 et seq. form certifying that contractor has a written program meeting or exceeding requirements of Substance Abuse Prevention on a Public Works Project in place

The Bid Documents

(continued): 775 ILCS 5/1-101 et seq. form certifying that

contractor shall perform contract in compliance with all requirements of Illinois Human Rights Act as well as all Federal and State laws which prohibit discrimination in employment on the basis of race, color, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap and all rules and regulations promulgated and adopted pursuant thereto, including having a 775 ILCS 5/2-105(A)(4) Illinois Human Rights Act sexual harassment policy in place

The Bid Documents

(continued): 30 ILCS 580/1 et seq. form certifying compliance with Illinois’

Drug Free Workplace Act Statement that Library, as a public body, is not subject to

Retailers Occupation Tax or any sales or use taxes and that contractors SHALL NOT include such taxes in their bid

Time of completion of the contract Statement that payments will be made in accordance with the

Illinois Local Government Prompt Payment Act Statement that contract will be awarded to lowest responsible

and qualified bidder Statement of qualifications (such as experience and

references) that will be considered in determining lowest responsible and qualified bidder (see below)

The Bid Documents

Evaluating the Bids

Determination of lowest responsible and qualified bidder should be determined by considering bidder’s:(1) References (past record of Library or

Library Trustees with bidder)(2) Experience(3) Ability to complete contract within time

limits

All of this information should be requested in the bid documents

The Illinois Prevailing Wage Act(820 ILCS 130/1 et seq.)

What is it?

What is required?

Prevailing Wage Requirements

The Act requires the payment of prevailing wages to all “laborers, mechanics and other workers employed in any public works … by any public body and to anyone under contracts for public works”

“Public works” means all fixed works constructed or demolished by any public body, or paid for wholly or in part out of public funds”

“Construction” means “all work on public works involving laborers, workers or mechanics” and “includes any maintenance, repair, assembly or disassembly work performed on equipment whether owned, leased or rented”



The Act applies to the construction of a new building, additions or remodeling to an existing building, demolition projects and maintenance of existing fixed works

Prior to 2007, prevailing wage requirements were regarded as applying only to construction projects

In 2007, the Illinois legislature amended the Act to apply to maintenance of public works thereby significantly broadening the Act’s scope

The Illinois Department of Labor (IDOL), which administers the Act, advises that any project that “REQUIRES A SCREWDRIVER” requires the payment of prevailing wages


The IDOL has stated that:

1. Repairs and painting, changing of locks and removal of trees require the payment of prevailing wages

2. Landscaping work requires the payment of prevailing wages if part of a construction project, but not as part of ongoing maintenance

3. The Act does not apply to snow plowing, janitorial services, street sweeping and tree trimming unrelated to a construction project

Contracts for annual maintenance of fixed items, such as HVAC, electrical and alarm systems should be reviewed to ensure that they require payment of prevailing wages


Public Employees Not Entitled ToPrevailing Wages

While not set forth in the Act, the Illinois Supreme Court has held that public employees, including Library employees, who perform functions covered by the Act do not have to be paid prevailing wages Bradley v. Casey, 415 Ill. 576 (1953); Monmouth v. Lorenz, 30 Ill.2d 60 (1964)


Contractual RequirementsPublic works contracts must state that prevailing wages must be paid by the contractor

If a public works contract fails to state that prevailing wages must be paid by the contractor, the local governmental entity may be required to pay interest penalties or fines that would have been owed by the contractor if proper notice had been provided in the contract (820 ILCS 130/4)

The IDOL may revise prevailing wages during performance of a public works contract and the contractor is then required to pay the revised prevailing wage – this should be noted in public works contracts and contractors should be advised that rates are available on the IDOL website

Certified Payroll RequirementsThe Act requires contractors and subcontractors to submit certified payroll

The IDOL provides a certified payroll form on its website. The form must include: workers’ names, addresses, telephone numbers, social security numbers, labor classifications, hourly wages paid, number of hours worked and starting and ending time of work each day

Certified payroll must be submitted no later than the 10th day of each calendar month for the preceding month

Accuracy of certified payroll, compliance with the Act and acknowledgment that falsifying certified payroll is a Class A misdemeanor must be verified by signature

A public body must keep certified payroll for 5 years minimum after final payment

Certified payroll records are subject to FOIA, although employee names, phone numbers and SSNs may be redacted as private information



Annual OrdinanceThe Act requires public bodies, including local libraries and Library Districts, to adopt annual prevailing wage ordinances or resolutions

Local libraries cannot “piggy back” on their “host” municipality

In June of each year, public bodies must:(1)investigate and ascertain prevailing wages(2)publish notice that a determination of rates has been made in

a newspaper(3)post the determination at the Library and file a certified copy

of the ordinance or resolution with the Illinois Secretary of State and IDOL by the following 15th of July

Questions or Comments?

Carmen P. Forte [email protected]

312.984.6435

Kathleen M. [email protected]

312.984.6413

www.ktjlaw.com

mailto:[email protected]


