New Illinois Law –Requiring University Employees to Report Procurement Communications
"Effective January 1, 2011, the Illinois Procurement Code (30 ILCS 500/1-1 et seq.) requires procurement communications be reported to the Illinois Procurement Policy Board. In pertinent part, the state reads as follows, "Any written or oral communication received by a State employee that imparts or requests material information or makes a material argument regarding potential action concerning a procurement matter, including, but not limited to, an application, a contract, or a project, shall be reported to the Procurement Policy Board." (30 ILCS 500/50-39(a))
The Illinois Procurement Policy Board has charged Illinois' university ethics officers with the responsibility of communicating to employees the enacted procurement communications requirements, and to offer guidance to employees regarding this reporting process.
The Southern Illinois University Ethics Office will try to help guide you through questions you may have regarding such communications and reporting. However, each employee is responsible for making the ultimate determination as to whether a particular communication should be reported. Conversely, employees are permitted to make a good faith determination and may wish to review the FAQs provided below. Each scenario or question will undoubtedly involve various and unique facts and circumstances for you to consider. If you feel that the communication should be reported, you are obligated to do so.
It is important to note that the guidance given by the Ethics Office or campus representatives does not constitute legal advice. The Ethics Office and Office of General Counsel will be monitoring the promulgation of final rules related to the communications reporting requirements and will provide further information if and when it becomes available.
***ALERT! Important Updated Information***
On February 17, 2011, the Executive Ethics Commission (EEC) repealed the emergency rules adopted on January 7, 2011. The EEC rules were intended to interpret and implement the Procurement Communications Reporting Requirement.
As a result of the EEC's repeal of its rules, the Office of the Governor developed and distributed on February 22, 2011 new guidance for Agencies under its jurisdiction, as a temporary measure in response to the repeal by the EEC.
There are significant changes you need to be aware. Please carefully read the attached document Guidance for the Agencies under the Jurisdiction of the Governor Regarding Procurement Communications Reporting Requirement 30 ILCS 500/50-39 as it will supersede all other interpretations of the Procurement Communication Reporting statute 30 ILCS/50-39. It is the opinion of the Office of General Counsel that the new Guidance can be relied upon at this time given the authority granted to the Governor as the supreme executive power under the Illinois Constitution.
Please note, this new Guidance exempts reporting of any communication regarding purchases under the "bid limit". This should eliminate communications reporting for all small purchases. Please check with your Purchasing department if you do not know the current bid limits for general items, professional and artistic services, and construction.
Please note the final rules have not been determined or published by the EEC. Therefore, this new guidance may be overturned when the final rules are published. We will keep you informed as things change during this fluid rules making process.
If you have any questions, please do not hesitate to contact the Ethics Office.
Who is required to report?
Under the statute, all employees who communicate with vendors (verbally or in writing) may be required to report their communication. This may include p-card holders, fiscal officers and delegates, principal investigators, deans, directors, business managers, support staff, and members of a procurement selection committee. University employees who have no participation/influence on procurement decisions are not required to report communications under the Procurement Code.
Please note, University employees who are issued the authority to make procurement decisions may not delegate procurement decisions to individuals that are not recognized as having procurement authority. In accordance with University policy, improper delegation of authority can lead to removal of procurement authority.
All employees involved in the procurement of goods and services will be required to take training on the PPB website. An employee training module/tutorial is available click here. Future training will be incorporated in the annual ethics training program.
What communication should be reported?
The intent of the law is to increase transparency and stop inappropriate interference from vendors, lobbyists, and others into University purchasing decisions.
The law requires you to report all material communications with vendors that attempt to influence your purchasing decisions. A material communication is defined as “any written or oral communication received by a State employee that imparts or requests material information or makes a material argument that a reasonable person would believe was made for the purpose of influencing procurement decisions, including but not limited to:
Examples of the procurement communications that require reporting - the following examples assume purchasing will exceed the bid limit.
Yes, this communication may develop into to a “sales pitch,” and steer the purchaser towards a certain product and if it does, it is probably material and should be reported. If, however, the communication is limited to facts such as the features and price of the equipment, it might not be material and need not be reported.
Yes, Section 50-39(a) of the Procurement Code specifically mentions change orders, so they need to be reported so long as the vendor or another person is attempting to influence the decision to make the change order, i.e., it is a “material” communication. Please note, the EEC insists that change orders are effectively new procurements, so you can’t avoid the procurement code law by calling something a change order.
It appears that the communication to invite the vendors to campus is not an attempt to influence a procurement decision, so no reporting is required. However, the communication with the vendors during the presentations would be material and an attempt to influence a purchasing decision; therefore, it should be reported unless it was held in a public forum.
What types of communications are excluded?
Examples of the procurement communications not required to be reported:
In the vast majority of cases reporting would not be required. Only if there is a communication from the vendor that requests a change in how the University conducts business or suggests or proposes changes in a purchasing decision.
No. Contracts exist for commodities available through an IPHEC agreement; hence, no reporting is required. Per the Procurement Policy Board, communications related to purchases under an existing contract do not require reporting unless the communication is related to the execution of a change order.
Normally no; but, if a vendor tries to influence the University’s buying habits in addition to or rather than offering a price, the communication should be reported.
No, since grants to the University or issued by the University are exempted from the procurement code.
Not necessarily. If the communication is simply about prices, parts numbers, availability, dates of delivery, etc., the communication would not be material and need not be reported.
No, only if the vendor tried to change your buying decision. An example would be if a vendor told you that you needed to replace rather than repair the furniture.
No, unless the vendor is attempting to change your purchasing decision. Furthermore, in this change order example, the communication is not material, so it need not be reported.
How do I file a report?
Communications are to be reported to the Procurement Policy Board via an on-line reporting tool created for this purpose. University employees will have to self-register to use the PPB reporting system at the PPB website www.illinois.gov/ppb University employees will be required to create an Illinois.gov ID before accessing the reporting system. Employees will be instructed to establish a user name and password. The domain name employees will use is for employees with an Illinois.gov ID. Click here for Reporting Tool.
SIU has no control over the PPB reporting system. So, you may contact the Procurement Call Center at 800-366-8768 select option 1 and then option 13 with systems questions and/or log-in issues. Please note, employees may request a manual registration from the call center if they do not have an Illinois driver's license to self-register online.
What needs to be reported?
The on-line reporting tool will allow you to enter your information and to submit your report directly to the PPB.
What happens to my communication report after it has been filed?
All reported procurement communications are reviewed by the SPO and made public on the PPB website.
Is there a deadline or timeframe for filing a report?
Reports should be submitted upon receipt of a communication; however, the amended Procurement Code requires communications be submitted monthly.
Are there penalties for not reporting a procurement communication?
Guilty of a Class A misdemeanor. Also, State employees who knowingly and intentionally fail to comply with the reporting requirements will be subject to suspension or discharge. 30 ILCS 500/50-39(e).
If I need some guidance who can I contact?
Frequently Asked Questions have been developed by the PPB and may be found on the PPB website under Procurement Communications Reporting. Click here.
If you have questions or require further guidance please contact Brenda Martin Assistant Director of Compliance and Ethics at:firstname.lastname@example.org or 618-536-3464.