Governor’s Executive Order 2020-15 Permits Electronic Bid Openings for School District Construction Projects

On Friday, Governor Pritzker issued Executive Order 2020-15 allowing school districts to communicate, respond to, and open bids electronically for school construction projects.  Section 10-20.21 of the Illinois School Code would otherwise prohibit bids for construction purposes from being communicated, accepted or opened electronically.  Importantly, the Executive Order does not eliminate the requirements for electronic bidding that are intended by the General Assembly to maintain the integrity of the sealed bidding process and to limit the possibility of bid rigging.  The minimum requirements for electronic bidding include a requirement that the person opening electronic bids do so using a password assigned to the bidder. The requirements also include minimum data security provisions for the database on which electronic bids are stored.

Further, whether the Governor has the authority to unilaterally amend the statute is also open to interpretation. Before moving to an electronic bidding process for construction where bids are both sent and opened electronically, school districts should seek guidance from both their IT department and attorney to ensure the school district has technology systems in place to meet the statutory obligations and to assess if electronic bidding is in the best interest of the school district. We, however, remain comfortable with clients holding public bid openings virtually through video conferencing that is open to the public regardless of whether bids were submitted electronically or not.

In light of the requirements of social distancing and the realities of school closure and work-from-home mandates brought on by the coronavirus disease 2019 (COVID-19), many school districts have considered alternatives to in-person bid openings.  This Executive Order, which will expire after the Gubernatorial Disaster Proclamation, may provide school districts with some flexibility in receiving and opening construction bids electronically during this time of year when many summer construction projects are planned for and contracts awarded.

We will continue to monitor the changes prompted by COVID-19 as they affect Illinois school districts and bring you more information as it becomes available. For more information on this topic contact the authors of this alert or any other Franczek attorney.