2013 SPRING LEGISLATIVE SESSION REPORT
David Kennedy, ACEC-IL Legislative Consultant
Who needs QBS when you can legislate selection?
SB 272 had a strong sponsor, Senator Dan Kotowski, was scheduled to be heard by the Senate Executive Committee where the leaders are known to pass whatever they want, and on its surface appeared to help Illinois design firms over out of state firms. Its proponent professed that the bill was necessary to retaliate against the discrimination Illinois firms received by the state of Indiana and that out of state firms don’t pay Illinois taxes.
In reality, the bill was written to give advantage to firms who are based primarily in Illinois, discriminating against other Illinois employers who have offices and employees in other states. The legislation gave preference to firms incorporated in Illinois and more than 50% of their employees were Illinois citizens. Thus, multi-state firms, including those headquartered in Illinois would be discriminated against in selections because more than half their employees were located in other states. Senator Matt Murphy pointed out in Committee as an example that an Illinois firm with 200 Illinois employees would be disadvantaged because they may employ several hundred people in other states.
Is this bill trying to solve a problem? Is IDOT or CDB hiring out of state firms using out of state employees? Is design work being done overseas and stamped by Illinois design professionals? Or, is this bill simply designed to give a competitive advantage to some Illinois firms over other Illinois employers? Who knows because this matter was never discussed within ACEC- IL. Professional Engineers need to drive this train, discuss the issues, identify the problem, and design a solution; that is what Engineers do! It is not in our members’ interest to have others take unilateral action using the political process to dictate a solution before anybody has ever discussed the problem.
IDOT Design/Build fails again, but…
For the ninth year, IDOT has failed to pass a bill authorizing the use of Design/Build. Again, the design professional organizations have had to oppose IDOT’s version of Design/Build legislation even though ACEC-IL worked with the Department for months to try to reach an agreed upon bill. The reasons the bills have failed over the years are many, including concerns over the procurement process, balancing qualifications and price for best value, practical concerns over who can compete for this work, and a different version being submitted at least every other year as the Department worked with an out of state consultant to develop their legislation.
This year the problems were many:
- The original draft legislation had two project delivery methods by including Construction Management/General Contracting in addition to Design/Build.
- The introduced version went too far by including Finance along with Design/Build, which would allow the state to have contractors front the money for projects paying them back over several years. Can you imagine how a Governor could abuse this during an election year so they could start several projects at the expense of future program money?
- The Department did not have to use QBS to short list competing teams by going directly to Phase II selection, skipping the Phase I QBS shortlist process.
- The Department did not have to use Best Value as defined in other Design/Build laws and intended to award projects based primarily on cost. Best Value could include Qualifications of the team, Schedule, Cost and Affirmative Action contracting, among other factors.
- The legislation went beyond highway and bridge projects by including airports and public transportation projects.
- The legislation allowed too many demonstration Design/Build projects, ten in total, split between IDOT and the IL Tollway.
- The Department and the IL Tollway should be required to show Design/Build saves time and money over the traditional Design/Bid/Build project delivery method.
- The legislation needed more transparency by involving review by the Procurement Policy Board and Auditor General.
ACEC-IL, other design professional organizations and the IL Construction Industry Committee are the only groups that have publicly supported, developed and passed Design/Build laws. In fact, we have been involved in passing 7 laws, all of which include QBS, Best Value, two phase selection and designer or contractor led design/build teams. The laws include bills passed for Metra over twenty years ago, followed by CDB, Chicago Park District, Public Building Commissions, then all park districts, and authorizing Design/Build in both the Illiana and Public-Private Partnership laws. We stand ready to help the Department and IL Tollway to pass Design/Build laws that recognize the proper role of design professionals, QBS, Best Value and open and fair selection processes.
Our version of Design/Build
HB 3132, sponsored by Representative Jack Franks, amended the Design/Build Procurement Act that applies to CDB and adds IDOT as being authorized to use this Act and project delivery method. The bill was introduced to put ACEC-IL on record as to the Design/Build law we support and to encourage further negotiations with IDOT.
More on Design/Build
The lobbyist for the City of Chicago and the House Majority Leader reached out to the design professional groups to help amend the Design/Build law for the Chicago Public Building Commission so they can implement their plan for Chicago public school construction. SB 2233 extended the sunset for the current law by 5 years and authorized the Commission to spend up to half their capitol program using design/build wherein they were previously held to 25%. As a side note, the Commission staff person and Architect in charge of the program, who has design/build experiences in other states, complimented the design professional groups for the law stating it was very well written and balanced. The bill passed both chambers.
CDB Design/Build changes
SB 1723, sponsored by Senator Linda Holmes and Representative Barbara Currie, amends the CDB Design/Build law to make changes to the selection committee. The bill allows for 5 – 7 members instead of requiring 7 members, allows CDB to appoint public members if the associations are unable to provide names within a month, and allows the committee to continue to work if a member recuses themselves because of a potential conflict of interest. ACEC-IL supported these changes and the bill passed both chambers.
The design professional groups worked with the City of Chicago to amend the design professional laws to allow for electronic signatures on plans. SB 1826 is permissive in that it allows design professionals to use electronic signatures but does not require them to do so thus allowing for submittal of actual signed documents. The bill was requested by Chicago so they could receive plans electronically for review and approval, instead of having to review printed documents. The bill passed both chambers.
Affirmative action contracting
ACEC-IL supported SB 2320 sponsored by Senator Mattie Hunter and Representative Robyn Gabel that would allow minority women owned businesses to be certified as such. Current law required such firms to be certified as either minority or women owned, but not both. The bill passed both chambers.
ACEC-IL supported SB 3267 sponsored by Representative Will Davis and Senator Mattie Hunter to authorize IDOT to create a loan program to provide loans for minority and women owned businesses to help them get established for IDOT projects. The program was capped at $15 million over 5 years, includes a selection committee for loan approval and includes other provisions to safeguard funds. The program is expected to particularly help start up companies in the construction field where minority and women participation is well behind the engineering profession. The bill passed both chambers.
ACEC-IL supported changes to the law that allows IDOT to annually grant up to twenty $ 7,500 scholarships to under represented minority civil engineering students. SB 2332, sponsored by Senator Toi Hutchison and Representative Elizabeth Hernandez, passed both chambers.
ACEC-IL opposed SB 2363, sponsored by Senator Iris Martinez, for the following reasons:
- Removed community colleges from the local QBS law without applying any other procurement laws. It is important that QBS apply to community colleges.
- Amended the local QBS law to abolish the lawful authority for local governments to select and proceed with negotiations with design firms that they have an ongoing and satisfactory relationship. This sole source provision is very important to small communities who have long been served by their local firms. For example, many small town firms serve as “City Engineer” for their communities and have done so for decades, even maintaining the community records.
However, ACEC-IL supports the provisions of the bill to require community colleges to implement an affirmative action contracting program. An amendment to that affect was offered by representatives of the community colleges but was not filed and voted upon. Senator Martinez plans to hold hearings on this bill during the summer months. We hope an amendment can be developed that includes QBS, protects current sole source authority but implements an affirmative action contracting program for community colleges.
Local QBS law
HB 2488 amended the local QBS law to require local governments to email or mail RFPs to interested firms, or advertise their projects on their website or a local newspaper. Current law provides they mail notices to interested firms or advertise in a newspaper. The design professional groups were neutral on this bill but monitored it in case any other provisions were offered, such as inclusion of price information. Passed both chambers.
SB 1715, sponsored and led by Representative Bradley, creates the Illinois Hydraulic Fracturing Regulatory Act. Currently, fracturing for oil and gas is unregulated in Illinois. This bill is considered the strongest regulatory law in the country for this process and was negotiated between certain environmental and industry groups. Expectations are that southern Illinois will see significant drilling development. Firms may have opportunities to work for companies that specialize in this field, especially for access and utility needs. Passed both houses.
More state requirements on state contractors/vendors
HB 3125, sponsored by Representative Mautino and Senator Forby, requires that all companies contracting with the state must post their job openings on the website of the Department of Employment Security. ACEC-IL objected to this new requirement as another burdensome requirement that could leave firms in breach of their state contracts simply because somebody forgot to post the firm’s job opportunities on the state website. Thanks to Senator Forby, ACEC-IL was exempted from the bill’s requirements.
HB 1462, sponsored by Representative Carol Sente and Senator William Delgado, amends the Environmental Barriers Act to require CDB to update the 1997 Illinois Accessibility code by January 2016, using the ADA Standards for Accessible Design. The bill passed both chambers.
HB 2701 (Phelps) and SB 1957 ( Forby) amended the state QBS law to include the provisions of the Responsible Bidder Law, which basically requires the use of union material testers on all jobs throughout the state. Both bills were not heard in committee and were referred back to Rules Committee and are not expected to be called.
Environmental Protection Act changes
SB 33, sponsored by Senator Pam Althoff and Representative Jack Franks, authorizes IEPA to adopt rules allowing for the electronic submission of information on any of their programs. The bill passed both chambers.
House Amendment 1 to SB 2172 was proposed late in the session by the Department of Financial and Professional Regulation. It would have outlined in law the reasons and process for discipline of persons who violated the licensing laws. It would also dictated what courts should consider when licensees appeal Department rulings to the court. Because the design professional organizations were concerned with the amendment and its impact, the bill was held for further discussions and consideration in the future.
Transportation for Illinois Coalition
During the last three weeks of session several lobbyists from member organizations of TFIC talked to members of the General Assembly about a new way of funding transportation. The TFIC proposal would eliminate the 19 cent/gallon Motor Fuel Tax, eliminate the 6.25% sales tax on motor fuel, and replaced it with an 18% wholesale tax on fuel. It would have eliminated the sales tax break on ethanol but kept the tax break on biodiesel fuel. There also would have been a $10 increase in the registration fee. From the approximately $1 billion in new revenue generated, 80% would go to highways, which would have been further divided 60% state roads and 40% local roads. The other 20% would go to transit capitol and rail. Part of the program would have been funded with bonds.
After feedback from legislators and certain Legislative Leaders, the program was scaled back to eliminate just the Motor Fuel Tax and replace it with a 9.5% wholesale tax, along with a $10 license and $15 registration fee increase, generating annually $615 million in pay as you go project funds. There would be no bonds, which meant we would only need a simple majority vote to pass the program.
While it was reported that the Speaker had 45 – 50 votes for the program, the Coalition was unable to get the 10 – 15 Republican votes to pass the measure this session. However, discussions are expected to continue over the summer and fall months as there is some interest in the proposal and legislators need more time to consider the changes.
Economic Development Act of 2013
Sometimes known as the Christmas tree bill, House Amendment 2 to SB 20 is full of economic development projects that will put a lot of people to work over the next several years, including design firms. Where do we begin?
- South Suburban Airport/Peotone: Authorizes IDOT to enter into Public-Private Partnership agreements to design, build, finance and operate the airport. Interestingly, the language closely follows the Illiana PPP law that ACEC-IL helped craft. It includes important provisions about selecting Illinois companies and employees for this work, inclusion of QBS and application of design professional licensing laws, use of a RFP process, inclusion of affirmative action contracting goals, transparency through public hearings and review by Commission of Government Forecasting and Accountability. Our earlier work on both PPP laws has helped us on this bill.
- McCormick Place: changes to previous bond authorizations and tax increment financing will allow MPEA, DePaul and developers to build a new 10,000 seat arena, at least two new hotels and make improvements to Navy Pier.
- Provides property tax abatement and other provisions to help facilitate the building a $500 million fertilizer plant in Illinois.
- Creates the Brownfields Redevelopment and Intermodal Promotion Act within the South Suburban Brownfields Redevelopment Zone.
- Creates an income tax TIF in the East St. Louis River Edge Zone area.
- Authorizes IEPA to use Project Labor Agreements on LUST projects and provides additional funds for LUST projects through a sales tax transfer.
SB 20 passed both houses.
*Addendum from Dave Bender, ACEC-IL Executive Director:
From the above report, you can tell it was a very busy legislative session for ACEC-IL.
As you can tell, we had a busy session. Never before have we had so many bills that put us on the defensive. The problem with playing defense is that it takes time away from working on important, positive legislation such as a new capitol program.
In any case, we came out in pretty good shape. It appears that none of the bad bills advanced and there were some good bills that got passed. We are fortunate to have great teamwork from our usual allies, including Kim Robinson and Linda Renee Baker from ISPE, Mike Waldinger and Dan Hohl from AIA-IL, and John Nicolay from IPLSA. Each Monday, this team met for an hour or so to discuss bills, the potential impact they may have and strategy to deal with them.
2013 was the first year that former ACEC-IL Executive Director David Kennedy served as our legislative consultant. Along with our outside lobbyists – Jim Morphew and Bill Enlow, David worked very hard and long hours – well past the 71 session days to represent our association and industry. This certainly was no easy task. David personally reviewed every bill, attended dozens of meetings, participated in countless numbers of committee hearings and talked to many of the 177 members of the House and Senate. He attended receptions, dinners and fundraisers that helped solidify relationships that are so critical in this process.