H.B. 426 Enrolled

1

GOVERNMENT PROCUREMENT - PRIVATE
2 PROPOSALS
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Kevin S. Garn
6 Senate Sponsor: Wayne L. Niederhauser
7
8 LONG TITLE
9 General Description:
10 This bill creates a program allowing a private entity to submit proposals to provide
11 certain products or services to the Department of Technology Services or the Board of
12 Education.
13 Highlighted Provisions:
14 This bill:
15 . creates a program allowing the submission of a proposal to provide a product or
16 service to the Department of Technology Services or the Board of Education;
17 . requires the Board of Business and Economic Development to appoint a committee
18 to evaluate a proposal under the program;
19 . defines terms;
20 . addresses the requirements of an initial proposal submitted to the committee;
21 . provides for review of an initial proposal by the committee and the affected
22 department and allows comments by various entities;
23 . addresses the procurement process for detailed proposals if the initial proposal is
24 accepted by the committee;
25 . provides requirements for a detailed proposal;
26 . makes an initial proposal a protected record under Title 63, Chapter 2, Government
27 Records Access and Management Act;
28 . allows the committee, by rule, to maintain certain portions of an initial proposal as a
29 protected record;

30 . addresses cooperation between a private entity submitting a detailed proposal and
31 the affected department;
32 . requires the Governor's Office of Planning and Budget to prepare an economic
33 feasibility report concerning a proposal;
34 . provides for the acceptance of a detailed proposal and the preparation and execution
35 of a project agreement;
36 . creates a restricted special revenue fund, comprised of monies collected from fees
37 for submitting a proposal;
38 . establishes uses for which monies may be expended from the restricted account;
39 . requires the establishment of fees for proposals and project agreements;
40 . allows for the appointment of an advisory committee to assist the committee in
41 evaluating proposals and preparing project agreements; and
42 . makes technical changes.
43 Monies Appropriated in this Bill:
44 None
45 Other Special Clauses:
46 None
47 Utah Code Sections Affected:
48 AMENDS:
49 63-2-304, as last amended by Laws of Utah 2008, Chapter 3
50 63-38f-203, as renumbered and amended by Laws of Utah 2005, Chapter 148
51 63-56-204, as last amended by Laws of Utah 2005, Chapter 169 and renumbered and
52 amended by Laws of Utah 2005, Chapter 25
53 63-56-205, as renumbered and amended by Laws of Utah 2005, Chapter 25
54 63-56-302, as renumbered and amended by Laws of Utah 2005, Chapter 25
55 63F-1-205, as last amended by Laws of Utah 2007, Chapter 306
56 ENACTS:
57 63G-6-408.5, Utah Code Annotated 1953

58 63M-1-2401, Utah Code Annotated 1953
59 63M-1-2402, Utah Code Annotated 1953
60 63M-1-2403, Utah Code Annotated 1953
61 63M-1-2404, Utah Code Annotated 1953
62 63M-1-2405, Utah Code Annotated 1953
63 63M-1-2406, Utah Code Annotated 1953
64 63M-1-2407, Utah Code Annotated 1953
65 63M-1-2408, Utah Code Annotated 1953
66 63M-1-2409, Utah Code Annotated 1953
67 63M-1-2410, Utah Code Annotated 1953
68 63M-1-2411, Utah Code Annotated 1953
69 63M-1-2412, Utah Code Annotated 1953
70
71 Be it enacted by the Legislature of the state of Utah:
72 Section 1. Section 63-2-304 is amended to read:
73 63-2-304. Protected records.
74 The following records are protected if properly classified by a governmental entity:
75 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
76 has provided the governmental entity with the information specified in Section 63-2-308 ;
77 (2) commercial information or nonindividual financial information obtained from a
78 person if:
79 (a) disclosure of the information could reasonably be expected to result in unfair
80 competitive injury to the person submitting the information or would impair the ability of the
81 governmental entity to obtain necessary information in the future;
82 (b) the person submitting the information has a greater interest in prohibiting access
83 than the public in obtaining access; and
84 (c) the person submitting the information has provided the governmental entity with the
85 information specified in Section 63-2-308 ;

86 (3) commercial or financial information acquired or prepared by a governmental entity
87 to the extent that disclosure would lead to financial speculations in currencies, securities, or
88 commodities that will interfere with a planned transaction by the governmental entity or cause
89 substantial financial injury to the governmental entity or state economy;
90 (4) records the disclosure of which could cause commercial injury to, or confer a
91 competitive advantage upon a potential or actual competitor of, a commercial project entity as
92 defined in Subsection 11-13-103 (4);
93 (5) test questions and answers to be used in future license, certification, registration,
94 employment, or academic examinations;
95 (6) records the disclosure of which would impair governmental procurement
96 proceedings or give an unfair advantage to any person proposing to enter into a contract or
97 agreement with a governmental entity, except that this Subsection (6) does not restrict the right
98 of a person to see bids submitted to or by a governmental entity after bidding has closed;
99 (7) records that would identify real property or the appraisal or estimated value of real
100 or personal property, including intellectual property, under consideration for public acquisition
101 before any rights to the property are acquired unless:
102 (a) public interest in obtaining access to the information outweighs the governmental
103 entity's need to acquire the property on the best terms possible;
104 (b) the information has already been disclosed to persons not employed by or under a
105 duty of confidentiality to the entity;
106 (c) in the case of records that would identify property, potential sellers of the described
107 property have already learned of the governmental entity's plans to acquire the property;
108 (d) in the case of records that would identify the appraisal or estimated value of
109 property, the potential sellers have already learned of the governmental entity's estimated value
110 of the property; or
111 (e) the property under consideration for public acquisition is a single family residence
112 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
113 the property as required under Section 78B-6-505 ;

114 (8) records prepared in contemplation of sale, exchange, lease, rental, or other
115 compensated transaction of real or personal property including intellectual property, which, if
116 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
117 of the subject property, unless:
118 (a) the public interest in access outweighs the interests in restricting access, including
119 the governmental entity's interest in maximizing the financial benefit of the transaction; or
120 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
121 the value of the subject property have already been disclosed to persons not employed by or
122 under a duty of confidentiality to the entity;
123 (9) records created or maintained for civil, criminal, or administrative enforcement
124 purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
125 release of the records:
126 (a) reasonably could be expected to interfere with investigations undertaken for
127 enforcement, discipline, licensing, certification, or registration purposes;
128 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
129 proceedings;
130 (c) would create a danger of depriving a person of a right to a fair trial or impartial
131 hearing;
132 (d) reasonably could be expected to disclose the identity of a source who is not
133 generally known outside of government and, in the case of a record compiled in the course of an
134 investigation, disclose information furnished by a source not generally known outside of
135 government if disclosure would compromise the source; or
136 (e) reasonably could be expected to disclose investigative or audit techniques,
137 procedures, policies, or orders not generally known outside of government if disclosure would
138 interfere with enforcement or audit efforts;
139 (10) records the disclosure of which would jeopardize the life or safety of an individual;
140 (11) records the disclosure of which would jeopardize the security of governmental
141 property, governmental programs, or governmental recordkeeping systems from damage, theft,

142 or other appropriation or use contrary to law or public policy;
143 (12) records that, if disclosed, would jeopardize the security or safety of a correctional
144 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
145 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
146 (13) records that, if disclosed, would reveal recommendations made to the Board of
147 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
148 Board of Pardons and Parole, or the Department of Human Services that are based on the
149 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
150 jurisdiction;
151 (14) records and audit workpapers that identify audit, collection, and operational
152 procedures and methods used by the State Tax Commission, if disclosure would interfere with
153 audits or collections;
154 (15) records of a governmental audit agency relating to an ongoing or planned audit
155 until the final audit is released;
156 (16) records prepared by or on behalf of a governmental entity solely in anticipation of
157 litigation that are not available under the rules of discovery;
158 (17) records disclosing an attorney's work product, including the mental impressions or
159 legal theories of an attorney or other representative of a governmental entity concerning
160 litigation;
161 (18) records of communications between a governmental entity and an attorney
162 representing, retained, or employed by the governmental entity if the communications would be
163 privileged as provided in Section 78B-1-137 ;
164 (19) (a) (i) personal files of a state legislator, including personal correspondence to or
165 from a member of the Legislature; and
166 (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
167 legislative action or policy may not be classified as protected under this section; and
168 (b) (i) an internal communication that is part of the deliberative process in connection
169 with the preparation of legislation between:

170 (A) members of a legislative body;
171 (B) a member of a legislative body and a member of the legislative body's staff; or
172 (C) members of a legislative body's staff; and
173 (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
174 legislative action or policy may not be classified as protected under this section;
175 (20) (a) records in the custody or control of the Office of Legislative Research and
176 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
177 legislation or contemplated course of action before the legislator has elected to support the
178 legislation or course of action, or made the legislation or course of action public; and
179 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
180 Office of Legislative Research and General Counsel is a public document unless a legislator asks
181 that the records requesting the legislation be maintained as protected records until such time as
182 the legislator elects to make the legislation or course of action public;
183 (21) research requests from legislators to the Office of Legislative Research and
184 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared in
185 response to these requests;
186 (22) drafts, unless otherwise classified as public;
187 (23) records concerning a governmental entity's strategy about collective bargaining or
188 pending litigation;
189 (24) records of investigations of loss occurrences and analyses of loss occurrences that
190 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
191 Uninsured Employers' Fund, or similar divisions in other governmental entities;
192 (25) records, other than personnel evaluations, that contain a personal recommendation
193 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
194 personal privacy, or disclosure is not in the public interest;
195 (26) records that reveal the location of historic, prehistoric, paleontological, or
196 biological resources that if known would jeopardize the security of those resources or of
197 valuable historic, scientific, educational, or cultural information;

198 (27) records of independent state agencies if the disclosure of the records would
199 conflict with the fiduciary obligations of the agency;
200 (28) records of an institution within the state system of higher education defined in
201 Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
202 retention decisions, and promotions, which could be properly discussed in a meeting closed in
203 accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
204 the final decisions about tenure, appointments, retention, promotions, or those students
205 admitted, may not be classified as protected under this section;
206 (29) records of the governor's office, including budget recommendations, legislative
207 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
208 policies or contemplated courses of action before the governor has implemented or rejected
209 those policies or courses of action or made them public;
210 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
211 revenue estimates, and fiscal notes of proposed legislation before issuance of the final
212 recommendations in these areas;
213 (31) records provided by the United States or by a government entity outside the state
214 that are given to the governmental entity with a requirement that they be managed as protected
215 records if the providing entity certifies that the record would not be subject to public disclosure
216 if retained by it;
217 (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
218 except as provided in Section 52-4-206 ;
219 (33) records that would reveal the contents of settlement negotiations but not including
220 final settlements or empirical data to the extent that they are not otherwise exempt from
221 disclosure;
222 (34) memoranda prepared by staff and used in the decision-making process by an
223 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
224 other body charged by law with performing a quasi-judicial function;
225 (35) records that would reveal negotiations regarding assistance or incentives offered

226 by or requested from a governmental entity for the purpose of encouraging a person to expand
227 or locate a business in Utah, but only if disclosure would result in actual economic harm to the
228 person or place the governmental entity at a competitive disadvantage, but this section may not
229 be used to restrict access to a record evidencing a final contract;
230 (36) materials to which access must be limited for purposes of securing or maintaining
231 the governmental entity's proprietary protection of intellectual property rights including patents,
232 copyrights, and trade secrets;
233 (37) the name of a donor or a prospective donor to a governmental entity, including an
234 institution within the state system of higher education defined in Section 53B-1-102 , and other
235 information concerning the donation that could reasonably be expected to reveal the identity of
236 the donor, provided that:
237 (a) the donor requests anonymity in writing;
238 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
239 classified protected by the governmental entity under this Subsection (37); and
240 (c) except for an institution within the state system of higher education defined in
241 Section 53B-1-102 , the governmental unit to which the donation is made is primarily engaged in
242 educational, charitable, or artistic endeavors, and has no regulatory or legislative authority over
243 the donor, a member of the donor's immediate family, or any entity owned or controlled by the
244 donor or the donor's immediate family;
245 (38) accident reports, except as provided in Sections 41-6a-404 , 41-12a-202 , and
246 73-18-13 ;
247 (39) a notification of workers' compensation insurance coverage described in Section
248 34A-2-205 ;
249 (40) (a) the following records of an institution within the state system of higher
250 education defined in Section 53B-1-102 , which have been developed, discovered, disclosed to,
251 or received by or on behalf of faculty, staff, employees, or students of the institution:
252 (i) unpublished lecture notes;
253 (ii) unpublished notes, data, and information:

254 (A) relating to research; and
255 (B) of:
256 (I) the institution within the state system of higher education defined in Section
257 53B-1-102 ; or
258 (II) a sponsor of sponsored research;
259 (iii) unpublished manuscripts;
260 (iv) creative works in process;
261 (v) scholarly correspondence; and
262 (vi) confidential information contained in research proposals;
263 (b) Subsection (40)(a) may not be construed to prohibit disclosure of public information
264 required pursuant to Subsection 53B-16-302 (2)(a) or (b); and
265 (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
266 (41) (a) records in the custody or control of the Office of Legislative Auditor General
267 that would reveal the name of a particular legislator who requests a legislative audit prior to the
268 date that audit is completed and made public; and
269 (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
270 Office of the Legislative Auditor General is a public document unless the legislator asks that the
271 records in the custody or control of the Office of Legislative Auditor General that would reveal
272 the name of a particular legislator who requests a legislative audit be maintained as protected
273 records until the audit is completed and made public;
274 (42) records that provide detail as to the location of an explosive, including a map or
275 other document that indicates the location of:
276 (a) a production facility; or
277 (b) a magazine;
278 (43) information contained in the database described in Section 62A-3-311.1 ;
279 (44) information contained in the Management Information System and Licensing
280 Information System described in Title 62A, Chapter 4a, Child and Family Services;
281 (45) information regarding National Guard operations or activities in support of the

282 National Guard's federal mission;
283 (46) records provided by any pawn or secondhand business to a law enforcement
284 agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
285 Secondhand Merchandise Transaction Information Act;
286 (47) information regarding food security, risk, and vulnerability assessments performed
287 by the Department of Agriculture and Food;
288 (48) except to the extent that the record is exempt from this chapter pursuant to
289 Section 63-2-106 , records related to an emergency plan or program prepared or maintained by
290 the Division of Homeland Security the disclosure of which would jeopardize:
291 (a) the safety of the general public; or
292 (b) the security of:
293 (i) governmental property;
294 (ii) governmental programs; or
295 (iii) the property of a private person who provides the Division of Homeland Security
296 information;
297 (49) records of the Department of Agriculture and Food relating to the National Animal
298 Identification System or any other program that provides for the identification, tracing, or
299 control of livestock diseases, including any program established under Title 4, Chapter 24, Utah
300 Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and
301 Quarantine;
302 (50) as provided in Section 26-39-109 :
303 (a) information or records held by the Department of Health related to a complaint
304 regarding a child care program or residential child care which the department is unable to
305 substantiate; and
306 (b) information or records related to a complaint received by the Department of Health
307 from an anonymous complainant regarding a child care program or residential child care; [and]
308 (51) unless otherwise classified as public under Section 63-2-301 and except as
309 provided under Section 41-1a-116 , an individual's home address, home telephone number, or

310 personal mobile phone number, if:
311 (a) the individual is required to provide the information in order to comply with a law,
312 ordinance, rule, or order of a government entity; and
313 (b) the subject of the record has a reasonable expectation that this information will be
314 kept confidential due to:
315 (i) the nature of the law, ordinance, rule, or order; and
316 (ii) the individual complying with the law, ordinance, rule, or order[.]; and
317 (52) an initial proposal under Title 63M, Chapter 1, Part 24, Government Procurement
318 Private Proposal Program, to the extent not made public by rules made under that chapter.
319 Section 2. Section 63-38f-203 is amended to read:
320 63-38f-203. Powers and duties of director.
321 (1) The director, with the approval of the governor, may:
322 (a) by following the procedures and requirements of Title 63, Chapter 38e, Federal
323 Funds Procedures, seek federal grants, loans, or participation in federal programs;
324 (b) enter into lawful contracts or agreements with other states, any chamber of
325 commerce organization, [and] any service club[; and], and a private entity pursuant to Section
326 63M-1-2410 ; and
327 (c) annually prepare and submit to the governor a budget of the office's financial
328 requirements.
329 (2) If any federal program requires the expenditure of state funds as a condition to
330 participation by the state in any fund, property, or service, with the governor's approval, the
331 director shall expend whatever funds are necessary out of the money provided by the
332 Legislature for the use of the office.
333 Section 3. Section 63-56-204 is amended to read:
334 63-56-204. Duties of chief procurement officer.
335 Except as otherwise specifically provided in this chapter, the chief procurement officer
336 serves as the central procurement officer of the state and shall:
337 (1) adopt office policies governing the internal functions of the Division of Purchasing

338 and General Services;
339 (2) procure or supervise the procurement of all supplies, services, and construction
340 needed by the state;
341 (3) exercise general supervision and control over all inventories or supplies belonging to
342 the state;
343 (4) establish and maintain programs for the inspection, testing, and acceptance of
344 supplies, services, and construction;
345 (5) prepare statistical data concerning the procurement and usage of all supplies,
346 services, and construction;
347 (6) before June 1, 1990, notify all public procurement units of the requirements of
348 Section 63-56-406 regarding purchases of recycled paper and recycled paper products,
349 recycling requirements, and provide guidelines on the availability of recycled paper and paper
350 products, including the sources of supply and the potential uses of various grades of recycled
351 paper;
352 (7) before July 1, 1992:
353 (a) establish standards and specifications for determining which supplies are considered
354 recycled, based upon his review of current definitions and standards employed by national
355 procurement, product recycling, and other relevant organizations and the federal Environmental
356 Protection Agency;
357 (b) compile and update as necessary the specifications, a list of recycled supplies
358 available on state contract, and sources where the supplies may be obtained;
359 (c) make the compiled information under Subsection (7)(b) available to:
360 (i) all local government entities under Section 11-37-101 ;
361 (ii) all local health departments under Section 26A-1-108.7 ;
362 (iii) all procurement officers or other persons responsible for purchasing supplies within
363 the public school system under Title 53A, State System of Public Education;
364 (iv) all procurement officers or other persons responsible for purchasing supplies within
365 the state system of higher education under Title 53B, State System of Higher Education; and

366 (v) all procurement officers or other persons responsible for purchasing supplies for all
367 public procurement units as defined in Section 63-56-105 ; and
368 (d) present a written report to the Natural Resources, Agriculture, and Environment
369 Interim Committee annually prior to November 30 regarding the purchases of recycled goods
370 on state contracts during the prior fiscal year; and
371 (8) ensure that:
372 (a) before approving a purchase, lease, or rental not covered by an existing statewide
373 contract for information technology or telecommunications supplies or services, the chief
374 information officer and the agency have provided in writing to the division, that the needs
375 analysis required in Section 63F-1-205 was completed, unless the purchase, lease, or rental is
376 approved in accordance with Title 63M, Chapter 1, Part 24, Government Procurement Private
377 Proposal Program; and
378 (b) the oversight authority required by Subsection (8)(a) is not delegated outside the
379 Division of Purchasing and General Services.
380 Section 4. Section 63-56-205 is amended to read:
381 63-56-205. Delegation of authority.
382 Subject to rules and regulations, the chief procurement officer may delegate authority to
383 designees or to any department, agency, or official. For a procurement process under Title
384 63M, Chapter 1, Part 24, Government Procurement Privat