H.B. 426

1

GOVERNMENT PROCUREMENT - PRIVATE
2 PROPOSALS
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Kevin S. Garn
6 Senate Sponsor: ____________
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 State
12 School Board.
13 Highlighted Provisions:
14 This bill:
15 . makes legislative findings;
16 . creates a program allowing the submission of a proposal to provide a product or
17 service to the Department of Technology Services or the State School Board;
18 . requires the Board of Business and Economic Development to appoint a committee
19 to evaluate a proposal under the program;
20 . defines terms;
21 . addresses the requirements of an initial proposal submitted to the committee;
22 . provides for review of an initial proposal by the committee and the affected
23 department;
24 . addresses the issuance of an invitation for detailed proposals if the initial proposal is
25 accepted by the committee;
26 . provides requirements for a detailed proposal;
27 . makes an initial proposal a protected record under Title 63, Chapter 2, Government

28 Records Access and Management Act;
29 . allows the committee, by rule, to maintain certain portions of an initial proposal as a
30 protected record;
31 . addresses cooperation between a private entity submitting a detailed proposal and
32 the affected department;
33 . requires the Governor's Office of Planning and Budget to prepare an economic
34 feasibility report concerning a detailed proposal;
35 . provides for the acceptance of a detailed proposal and the preparation and execution
36 of a project agreement;
37 . creates a restricted account, comprised of monies collected from fees for submitting
38 a proposal;
39 . establishes uses for which monies may be expended from the restricted account;
40 . requires the establishment of fees for proposals and project agreements;
41 . allows for the appointment of an advisory committee to assist the committee in
42 evaluating proposals and preparing project agreements; and
43 . makes technical changes.
44 Monies Appropriated in this Bill:
45 None
46 Other Special Clauses:
47 None
48 Utah Code Sections Affected:
49 AMENDS:
50 53A-20-101, as last amended by Laws of Utah 2005, Chapter 25
51 63-2-304, as last amended by Laws of Utah 2008, Chapter 3
52 63-38f-203, as renumbered and amended by Laws of Utah 2005, Chapter 148
53 63-56-102, as last amended by Laws of Utah 2007, Chapter 329
54 63F-1-205, as last amended by Laws of Utah 2007, Chapter 306
55 ENACTS:
56 63G-6-408.5, Utah Code Annotated 1953
57 63M-1-2401, Utah Code Annotated 1953
58 63M-1-2402, Utah Code Annotated 1953

59 63M-1-2403, Utah Code Annotated 1953
60 63M-1-2404, Utah Code Annotated 1953
61 63M-1-2405, Utah Code Annotated 1953
62 63M-1-2406, Utah Code Annotated 1953
63 63M-1-2407, Utah Code Annotated 1953
64 63M-1-2408, Utah Code Annotated 1953
65 63M-1-2409, Utah Code Annotated 1953
66 63M-1-2410, Utah Code Annotated 1953
67 63M-1-2411, Utah Code Annotated 1953
68 63M-1-2412, Utah Code Annotated 1953
69 63M-1-2413, Utah Code Annotated 1953
70
71 Be it enacted by the Legislature of the state of Utah:
72 Section 1. Section 53A-20-101 is amended to read:
73 53A-20-101. Construction and alteration of schools and plants -- Advertising for
74 bids -- Payment and performance bonds -- Contracts -- Bidding limitations on local
75 school boards -- Interest of local school board members.
76 (1) As used in this section, the word "sealed" does not preclude acceptance of
77 electronically sealed and submitted bids or proposals in addition to bids or proposals manually
78 sealed and submitted.
79 (2) (a) [Prior to] Except as provided in Title 63M, Chapter 1, Part 24, Government
80 Procurement Private Proposal Program, before the construction of any school or the alteration
81 of any existing school plant, if the total estimated accumulative building project cost exceeds
82 $80,000, a local school board shall advertise for bids on the project at least ten days before the
83 bid due date.
84 (b) The board shall have the advertisement published in a newspaper having general
85 circulation throughout the state and in appropriate construction trade publications that offer
86 free listings.
87 (c) A similar advertisement is required in a newspaper published or having general
88 circulation in any city or county that would be affected by the proposed project.
89 (d) The advertisement shall:

90 (i) require sealed proposals for the building project in accordance with plans and
91 specifications furnished by the local school board;
92 (ii) state where and when the proposals will be opened and shall reserve the right of the
93 board to reject any and all proposals; and
94 (iii) require a certified check or bid bond of not less than 5% of the bid to accompany
95 the bid.
96 (3) (a) The board shall meet at the time and place specified in the advertisement and
97 publicly open and read all received proposals.
98 (b) If satisfactory bids are received, the board shall award the contract to the lowest
99 responsible bidder.
100 (c) If none of the proposals are satisfactory, all shall be rejected.
101 (d) The board shall again advertise in the manner provided in this section.
102 (e) If, after advertising a second time no satisfactory bid is received, the board may
103 proceed under its own direction with the required project.
104 (4) (a) The check or bond required under Subsection (2)(d) shall be drawn in favor of
105 the local school board.
106 (b) If the successful bidder fails or refuses to enter into the contract and furnish the
107 additional bonds required under this section, then the bidder's check or bond is forfeited to the
108 district.
109 (5) A local school board shall require payment and performance bonds of the
110 successful bidder as required in Section 63-56-504 .
111 (6) (a) A local school board may require in the proposed contract that at least 10% of
112 the contract price be withheld until the project is completed and accepted by the board.
113 (b) If money is withheld, the board shall place it in an interest bearing account, and the
114 interest accrues for the benefit of the contractor and subcontractors.
115 (c) This money shall be paid upon completion of the project and acceptance by the
116 board.
117 (7) (a) A local school board may not bid on projects within the district if the total
118 accumulative estimated cost exceeds $80,000.
119 (b) The board may use its resources if no satisfactory bids are received under this
120 section.

121 (8) If the local school board determines in accordance with Section 63-56-501 to use a
122 construction manager/general contractor as its method of construction contracting management
123 on projects where the total estimated accumulative cost exceeds $80,000, it shall select the
124 construction manager/general contractor using one of the source selection methods provided
125 for in Sections 63-56-401 through 63-56-501 .
126 (9) A local school board member may not have a direct or indirect financial interest in
127 the construction project contract.
128 Section 2. Section 63-2-304 is amended to read:
129 63-2-304. Protected records.
130 The following records are protected if properly classified by a governmental entity:
131 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
132 has provided the governmental entity with the information specified in Section 63-2-308 ;
133 (2) commercial information or nonindividual financial information obtained from a
134 person if:
135 (a) disclosure of the information could reasonably be expected to result in unfair
136 competitive injury to the person submitting the information or would impair the ability of the
137 governmental entity to obtain necessary information in the future;
138 (b) the person submitting the information has a greater interest in prohibiting access
139 than the public in obtaining access; and
140 (c) the person submitting the information has provided the governmental entity with
141 the information specified in Section 63-2-308 ;
142 (3) commercial or financial information acquired or prepared by a governmental entity
143 to the extent that disclosure would lead to financial speculations in currencies, securities, or
144 commodities that will interfere with a planned transaction by the governmental entity or cause
145 substantial financial injury to the governmental entity or state economy;
146 (4) records the disclosure of which could cause commercial injury to, or confer a
147 competitive advantage upon a potential or actual competitor of, a commercial project entity as
148 defined in Subsection 11-13-103 (4);
149 (5) test questions and answers to be used in future license, certification, registration,
150 employment, or academic examinations;
151 (6) records the disclosure of which would impair governmental procurement

152 proceedings or give an unfair advantage to any person proposing to enter into a contract or
153 agreement with a governmental entity, except that this Subsection (6) does not restrict the right
154 of a person to see bids submitted to or by a governmental entity after bidding has closed;
155 (7) records that would identify real property or the appraisal or estimated value of real
156 or personal property, including intellectual property, under consideration for public acquisition
157 before any rights to the property are acquired unless:
158 (a) public interest in obtaining access to the information outweighs the governmental
159 entity's need to acquire the property on the best terms possible;
160 (b) the information has already been disclosed to persons not employed by or under a
161 duty of confidentiality to the entity;
162 (c) in the case of records that would identify property, potential sellers of the described
163 property have already learned of the governmental entity's plans to acquire the property;
164 (d) in the case of records that would identify the appraisal or estimated value of
165 property, the potential sellers have already learned of the governmental entity's estimated value
166 of the property; or
167 (e) the property under consideration for public acquisition is a single family residence
168 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
169 the property as required under Section 78B-6-505 ;
170 (8) records prepared in contemplation of sale, exchange, lease, rental, or other
171 compensated transaction of real or personal property including intellectual property, which, if
172 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
173 of the subject property, unless:
174 (a) the public interest in access outweighs the interests in restricting access, including
175 the governmental entity's interest in maximizing the financial benefit of the transaction; or
176 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
177 the value of the subject property have already been disclosed to persons not employed by or
178 under a duty of confidentiality to the entity;
179 (9) records created or maintained for civil, criminal, or administrative enforcement
180 purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
181 release of the records:
182 (a) reasonably could be expected to interfere with investigations undertaken for

183 enforcement, discipline, licensing, certification, or registration purposes;
184 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
185 proceedings;
186 (c) would create a danger of depriving a person of a right to a fair trial or impartial
187 hearing;
188 (d) reasonably could be expected to disclose the identity of a source who is not
189 generally known outside of government and, in the case of a record compiled in the course of
190 an investigation, disclose information furnished by a source not generally known outside of
191 government if disclosure would compromise the source; or
192 (e) reasonably could be expected to disclose investigative or audit techniques,
193 procedures, policies, or orders not generally known outside of government if disclosure would
194 interfere with enforcement or audit efforts;
195 (10) records the disclosure of which would jeopardize the life or safety of an
196 individual;
197 (11) records the disclosure of which would jeopardize the security of governmental
198 property, governmental programs, or governmental recordkeeping systems from damage, theft,
199 or other appropriation or use contrary to law or public policy;
200 (12) records that, if disclosed, would jeopardize the security or safety of a correctional
201 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
202 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
203 (13) records that, if disclosed, would reveal recommendations made to the Board of
204 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
205 Board of Pardons and Parole, or the Department of Human Services that are based on the
206 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
207 jurisdiction;
208 (14) records and audit workpapers that identify audit, collection, and operational
209 procedures and methods used by the State Tax Commission, if disclosure would interfere with
210 audits or collections;
211 (15) records of a governmental audit agency relating to an ongoing or planned audit
212 until the final audit is released;
213 (16) records prepared by or on behalf of a governmental entity solely in anticipation of

214 litigation that are not available under the rules of discovery;
215 (17) records disclosing an attorney's work product, including the mental impressions or
216 legal theories of an attorney or other representative of a governmental entity concerning
217 litigation;
218 (18) records of communications between a governmental entity and an attorney
219 representing, retained, or employed by the governmental entity if the communications would be
220 privileged as provided in Section 78B-1-137 ;
221 (19) (a) (i) personal files of a state legislator, including personal correspondence to or
222 from a member of the Legislature; and
223 (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
224 legislative action or policy may not be classified as protected under this section; and
225 (b) (i) an internal communication that is part of the deliberative process in connection
226 with the preparation of legislation between:
227 (A) members of a legislative body;
228 (B) a member of a legislative body and a member of the legislative body's staff; or
229 (C) members of a legislative body's staff; and
230 (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
231 legislative action or policy may not be classified as protected under this section;
232 (20) (a) records in the custody or control of the Office of Legislative Research and
233 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
234 legislation or contemplated course of action before the legislator has elected to support the
235 legislation or course of action, or made the legislation or course of action public; and
236 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
237 Office of Legislative Research and General Counsel is a public document unless a legislator
238 asks that the records requesting the legislation be maintained as protected records until such
239 time as the legislator elects to make the legislation or course of action public;
240 (21) research requests from legislators to the Office of Legislative Research and
241 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
242 in response to these requests;
243 (22) drafts, unless otherwise classified as public;
244 (23) records concerning a governmental entity's strategy about collective bargaining or

245 pending litigation;
246 (24) records of investigations of loss occurrences and analyses of loss occurrences that
247 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
248 Uninsured Employers' Fund, or similar divisions in other governmental entities;
249 (25) records, other than personnel evaluations, that contain a personal recommendation
250 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
251 personal privacy, or disclosure is not in the public interest;
252 (26) records that reveal the location of historic, prehistoric, paleontological, or
253 biological resources that if known would jeopardize the security of those resources or of
254 valuable historic, scientific, educational, or cultural information;
255 (27) records of independent state agencies if the disclosure of the records would
256 conflict with the fiduciary obligations of the agency;
257 (28) records of an institution within the state system of higher education defined in
258 Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
259 retention decisions, and promotions, which could be properly discussed in a meeting closed in
260 accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
261 the final decisions about tenure, appointments, retention, promotions, or those students
262 admitted, may not be classified as protected under this section;
263 (29) records of the governor's office, including budget recommendations, legislative
264 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
265 policies or contemplated courses of action before the governor has implemented or rejected
266 those policies or courses of action or made them public;
267 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
268 revenue estimates, and fiscal notes of proposed legislation before issuance of the final
269 recommendations in these areas;
270 (31) records provided by the United States or by a government entity outside the state
271 that are given to the governmental entity with a requirement that they be managed as protected
272 records if the providing entity certifies that the record would not be subject to public disclosure
273 if retained by it;
274 (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
275 except as provided in Section 52-4-206 ;

276 (33) records that would reveal the contents of settlement negotiations but not including
277 final settlements or empirical data to the extent that they are not otherwise exempt from
278 disclosure;
279 (34) memoranda prepared by staff and used in the decision-making process by an
280 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
281 other body charged by law with performing a quasi-judicial function;
282 (35) records that would reveal negotiations regarding assistance or incentives offered
283 by or requested from a governmental entity for the purpose of encouraging a person to expand
284 or locate a business in Utah, but only if disclosure would result in actual economic harm to the
285 person or place the governmental entity at a competitive disadvantage, but this section may not
286 be used to restrict access to a record evidencing a final contract;
287 (36) materials to which access must be limited for purposes of securing or maintaining
288 the governmental entity's proprietary protection of intellectual property rights including patents,
289 copyrights, and trade secrets;
290 (37) the name of a donor or a prospective donor to a governmental entity, including an
291 institution within the state system of higher education defined in Section 53B-1-102 , and other
292 information concerning the donation that could reasonably be expected to reveal the identity of
293 the donor, provided that:
294 (a) the donor requests anonymity in writing;
295 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
296 classified protected by the governmental entity under this Subsection (37); and
297 (c) except for an institution within the state system of higher education defined in
298 Section 53B-1-102 , the governmental unit to which the donation is made is primarily engaged
299 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
300 over the donor, a member of the donor's immediate family, or any entity owned or controlled
301 by the donor or the donor's immediate family;
302 (38) accident reports, except as provided in Sections 41-6a-404 , 41-12a-202 , and
303 73-18-13 ;
304 (39) a notification of workers' compensation insurance coverage described in Section
305 34A-2-205 ;
306 (40) (a) the following records of an institution within the state system of higher

307 education defined in Section 53B-1-102 , which have been developed, discovered, disclosed to,
308 or received by or on behalf of faculty, staff, employees, or students of the institution:
309 (i) unpublished lecture notes;
310 (ii) unpublished notes, data, and information:
311 (A) relating to research; and
312 (B) of:
313 (I) the institution within the state system of higher education defined in Section
314 53B-1-102 ; or
315 (II) a sponsor of sponsored research;
316 (iii) unpublished manuscripts;
317 (iv) creative works in process;
318 (v) scholarly correspondence; and
319 (vi) confidential information contained in research proposals;
320 (b) Subsection (40)(a) may not be construed to prohibit disclosure of public
321 information required pursuant to Subsection 53B-16-302 (2)(a) or (b); and
322 (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
323 (41) (a) records in the custody or control of the Office of Legislative Auditor General
324 that would reveal the name of a particular legislator who requests a legislative audit prior to the
325 date that audit is completed and made public; and
326 (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
327 Office of the Legislative Auditor General is a public document unless the legislator asks that
328 the records in the custody or control of the Office of Legislative Auditor General that would
329 reveal the name of a particular legislator who requests a legislative audit be maintained as
330 protected records until the audit is completed and made public;
331 (42) records that provide detail as to the location of an explosive, including a map or
332 other document that indicates the location of:
333 (a) a production facility; or
334 (b) a magazine;
335 (43) information contained in the database described in Section 62A-3-311.1 ;
336 (44) information contained in the Management Information System and Licensing
337 Information System described in Title 62A, Chapter 4a, Child and Family Services;

338 (45) information regarding National Guard operations or activities in support of the
339 National Guard's federal mission;
340 (46) records provided by any pawn or secondhand business to a law enforcement
341 agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
342 Secondhand Merchandise Transaction Information Act;
343 (47) information regarding food security, risk, and vulnerability assessments performed
344 by the Department of Agriculture and Food;
345 (48) except to the extent that the record is exempt from this chapter pursuant to Section
346 63-2-106 , records related to an emergency plan or program prepared or maintained by the
347 Division of Homeland Security the disclosure of which would jeopardize:
348 (a) the safety of the general public; or
349 (b) the security of:
350 (i) governmental property;
351 (ii) governmental programs; or
352 (iii) the property of a private person who provides the Division of Homeland Security
353 information;
354 (49) records of the Department of Agriculture and Food relating to the National
355 Animal Identification System or any other program that provides for the identification, tracing,
356 or control of livestock diseases, including any program established under Title 4, Chapter 24,
357 Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and
358 Quarantine;
359 (50) as provided in Section 26-39-109 :
360 (a) information or records held by the Department of Health related to a complaint
361 regarding a child care program or residential child care which the department is unable to
362 substantiate; and
363 (b) information or records related to a complaint received by the Department of Health
364 from an anonymous complainant regarding a child care program or residential child care; [and]
365 (51) unless otherwise classified as public under Section 63-2-301 and except as
366 provided under Section 41-1a-116 , an individual's home address, home telephone number, or
367 personal mobile phone number, if:
368 (a) the individual is required to provide the information in order to comply with a law,

369 ordinance, rule, or order of a government entity; and
370 (b) the subject of the record has a reasonable expectation that this information will be
371 kept confidential due to:
372 (i) the nature of the law, ordinance, rule, or order; and
373 (ii) the individual complying with the law, ordinance, rule, or order[.]; and
374 (52) an initial proposal under Title 63M, Chapter 1, Part 24, Government Procurement
375 Private Proposal Program, to the extent not made public by rules made under that chapter.
376 Section 3. Section 63-38f-203 is amended to read:
377 63-38f-203. Powers and duties of director.
378 (1) The director, with the approval of the governor, may:
379 (a) by following the procedures and requirements of Title 63, Chapter 38e, Federal
380 Funds Procedures, seek federal grants, loans, or participation in federal programs;
381 (b) enter into lawful contracts or agreements with other states, any chamber of
382 commerce organization, [and] any service club[; and], and a private entity pursuant to Section
383 63M-1-2411 ; and
384 (c) annually prepare and submit to the governor a budget of the office's financial
385 requirements.
386 (2) If any federal program requires the expenditure of state funds as a condition to