First Substitute H.B. 426

Representative Kevin S. Garn proposes the following substitute bill:

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 Board of
12 Education.
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 Board of Education;
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 63-2-304, as last amended by Laws of Utah 2008, Chapter 3
51 63-38f-203, as renumbered and amended by Laws of Utah 2005, Chapter 148
52 63-56-102, as last amended by Laws of Utah 2007, Chapter 329
53 63F-1-205, as last amended by Laws of Utah 2007, Chapter 306
54 ENACTS:
55 63G-6-408.5, Utah Code Annotated 1953
56 63M-1-2401, Utah Code Annotated 1953

57 63M-1-2402, Utah Code Annotated 1953
58 63M-1-2403, Utah Code Annotated 1953
59 63M-1-2404, Utah Code Annotated 1953
60 63M-1-2405, Utah Code Annotated 1953
61 63M-1-2406, Utah Code Annotated 1953
62 63M-1-2407, Utah Code Annotated 1953
63 63M-1-2408, Utah Code Annotated 1953
64 63M-1-2409, Utah Code Annotated 1953
65 63M-1-2410, Utah Code Annotated 1953
66 63M-1-2411, Utah Code Annotated 1953
67 63M-1-2412, Utah Code Annotated 1953
68 63M-1-2413, Utah Code Annotated 1953
69
70 Be it enacted by the Legislature of the state of Utah:
71 Section 1. Section 63-2-304 is amended to read:
72 63-2-304. Protected records.
73 The following records are protected if properly classified by a governmental entity:
74 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
75 has provided the governmental entity with the information specified in Section 63-2-308 ;
76 (2) commercial information or nonindividual financial information obtained from a
77 person if:
78 (a) disclosure of the information could reasonably be expected to result in unfair
79 competitive injury to the person submitting the information or would impair the ability of the
80 governmental entity to obtain necessary information in the future;
81 (b) the person submitting the information has a greater interest in prohibiting access
82 than the public in obtaining access; and
83 (c) the person submitting the information has provided the governmental entity with
84 the information specified in Section 63-2-308 ;
85 (3) commercial or financial information acquired or prepared by a governmental entity
86 to the extent that disclosure would lead to financial speculations in currencies, securities, or
87 commodities that will interfere with a planned transaction by the governmental entity or cause

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

119 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
120 the value of the subject property have already been disclosed to persons not employed by or
121 under a duty of confidentiality to the entity;
122 (9) records created or maintained for civil, criminal, or administrative enforcement
123 purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
124 release of the records:
125 (a) reasonably could be expected to interfere with investigations undertaken for
126 enforcement, discipline, licensing, certification, or registration purposes;
127 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
128 proceedings;
129 (c) would create a danger of depriving a person of a right to a fair trial or impartial
130 hearing;
131 (d) reasonably could be expected to disclose the identity of a source who is not
132 generally known outside of government and, in the case of a record compiled in the course of
133 an investigation, disclose information furnished by a source not generally known outside of
134 government if disclosure would compromise the source; or
135 (e) reasonably could be expected to disclose investigative or audit techniques,
136 procedures, policies, or orders not generally known outside of government if disclosure would
137 interfere with enforcement or audit efforts;
138 (10) records the disclosure of which would jeopardize the life or safety of an
139 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

181 asks that the records requesting the legislation be maintained as protected records until such
182 time as 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
185 in 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
242 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority

243 over the donor, a member of the donor's immediate family, or any entity owned or controlled
244 by the 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
264 information 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
271 the records in the custody or control of the Office of Legislative Auditor General that would
272 reveal the name of a particular legislator who requests a legislative audit be maintained as
273 protected 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 Section
289 63-2-106 , records related to an emergency plan or program prepared or maintained by the
290 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
298 Animal Identification System or any other program that provides for the identification, tracing,
299 or control of livestock diseases, including any program established under Title 4, Chapter 24,
300 Utah 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-1-2411 ; 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 63-56-102 is amended to read:
334 63-56-102. Application of chapter.
335 (1) This chapter applies only to contracts solicited or entered into after the effective

336 date of this chapter unless the parties agree to its application to a contract solicited or entered
337 into prior to the effective date.
338 (2) Except as provided in [Section] Sections 63-56-103 and 63G-6-408.5 , this chapter
339 shall apply to every expenditure of public funds irrespective of their source, including federal
340 assistance, by any state agency under any contract.
341 (3) (a) Only the following sections shall apply to local public procurement units:
342 Sections 63-56-103 , 63-56-105 , 63-56-301 , 63-56-303 through 63-56-420 , 63-56-422 ,
343 63-56-501 through 63-56-602 , 63-56-801 through 63-56-806 , and 63-56-815 through
344 63-56-819 ; provided, however, that, except as provided in Sections 63-56-906 and 63-56-907 ,
345 the jurisdiction of the procurement appeals board is limited to matters involving state agencies.
346 (b) Subsections 63-56-208 (1)(b), 63-56-503 (4), and 63-56-504 (2) also apply to local
347 public procurement units.
348 (c) For the purpose of application of those sections and subsections to a local public
349 procurement unit, "state" shall mean "local public procurement unit," "chief procurement
350 officer" or "head of a purchasing agency" shall mean any person conducting procurement for a
351 local public procurement unit, and "rules and regulations" shall mean ordinances and rules and
352 regulations promulgated by a local public procurement unit to implement or supplement those
353 sections.
354 (d) In addition to the sections and subsections listed above and except as provided in
355 Subsection 17B-1-108 (3) relating to local districts, each local public procurement unit shall
356 adopt ordinances relating to the procurement of architect-engineer services not inconsistent
357 with the provisions of Part 7, Architect-Engineer Services.
358 (e) Any other section of this chapter, or its implementing regulations, may be adopted
359 by any local public procurement unit.
360 (f) Any other implementing regulations adopted by local public procurement units may
361 not be inconsistent with the provisions of this chapter.
362 (4) Unless otherwise provided by statute, this chapter does not apply to procurement of
363 real property.
364 Section 4. Section 63F-1-205 is amended to read:
365 63F-1-205. Approval of acquisitions of information technology.
366 (1) (a) [In] Except as provided in Title 63M, Chapter 1, Part 24, Government

367 Procurement Private Proposal Program, in accordance with Subsection (2), the chief
368 information officer shall approve the acquisition by an executive branch agency of:
369 (i) information technology equipment;
370 (ii) telecommunications equipment;
371 (iii) software;
372 (iv) services related to the items listed in Subsections (1)(a)(i) through (iii); and
373 (v) data acquisition.
374 (b) The chief information officer may negotiate the purchase, lease, or rental of private
375 or public information technology or telecommunication services or facilities in accordance with
376 this section.
377 (c) Where practical, efficient, and economically beneficial, the chief information
378 officer shall use existing private and public info