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 information technology or telecommunication
379 resources.
380 (2) Before negotiating a purchase, lease, or rental under Subsection (1) for an amount
381 that exceeds the value established by the chief information officer by rule in accordance with
382 Section 63F-1-206 , the chief information officer shall:
383 (a) conduct an analysis of the needs of executive branch agencies and subscribers of
384 services and the ability of the proposed information technology or telecommunications services
385 or supplies to meet those needs; and
386 (b) for purchases, leases, or rentals not covered by an existing statewide contract,
387 provide in writing to the chief procurement officer in the Division of Purchasing and General
388 Services that:
389 (i) the analysis required in Subsection (2)(a) was completed; and
390 (ii) based on the analysis, the proposed purchase, lease, rental, or master contract of
391 services, products, or supplies is practical, efficient, and economically beneficial to the state
392 and the executive branch agency or subscriber of services.
393 (3) In approving an acquisition described in Subsections (1) and (2), the chief
394 information officer shall:
395 (a) establish by administrative rule, in accordance with Section 63F-1-206 , standards
396 under which an agency must obtain approval from the chief information officer before
397 acquiring the items listed in Subsections (1) and (2);

398 (b) for those acquisitions requiring approval, determine whether the acquisition is in
399 compliance with:
400 (i) the executive branch strategic plan;
401 (ii) the applicable agency information technology plan;
402 (iii) the budget for the executive branch agency or department as adopted by the
403 Legislature; and
404 (iv) Title 63, Chapter 56, Utah Procurement Code; and
405 (c) in accordance with Section 63F-1-207 , require coordination of acquisitions between
406 two or more executive branch agencies if it is in the best interests of the state.
407 (4) (a) Each executive branch agency shall provide the chief information officer with
408 complete access to all information technology records, documents, and reports:
409 (i) at the request of the chief information officer; and
410 (ii) related to the executive branch agency's acquisition of any item listed in Subsection
411 (1).
412 (b) Beginning July 1, 2006 and in accordance with administrative rules established by
413 the department under Section 63F-1-206 , no new technology projects may be initiated by an
414 executive branch agency or the department unless the technology project is described in a
415 formal project plan and the business case analysis has been approved by the chief information
416 officer and agency head. The project plan and business case analysis required by this
417 Subsection (4) shall be in the form required by the chief information officer, and shall include:
418 (i) a statement of work to be done and existing work to be modified or displaced;
419 (ii) total cost of system development and conversion effort, including system analysis
420 and programming costs, establishment of master files, testing, documentation, special
421 equipment cost and all other costs, including overhead;
422 (iii) savings or added operating costs that will result after conversion;
423 (iv) other advantages or reasons that justify the work;
424 (v) source of funding of the work, including ongoing costs;
425 (vi) consistency with budget submissions and planning components of budgets; and
426 (vii) whether the work is within the scope of projects or initiatives envisioned when the
427 current fiscal year budget was approved.
428 (5) (a) The chief information officer and the Division of Purchasing and General

429 Services shall work cooperatively to establish procedures under which the chief information
430 officer shall monitor and approve acquisitions as provided in this section.
431 (b) The procedures established under this section shall include at least the written
432 certification required by Subsection 63-56-204 (8).
433 Section 5. Section 63G-6-408.5 is enacted to read:
434 63G-6-408.5. Procurement for submitted proposal.
435 (1) As used in this section:
436 (a) "Affected department" is as defined in Section 63M-1-2403 .
437 (b) "Board of Education" means the Utah State Board of Education.
438 (c) "Committee" is as defined in Section 63M-1-2403 .
439 (d) "Initial proposal" is a proposal submitted by a private entity under Section
440 63M-1-2406 .
441 (e) "Private entity" is as defined in Section 63M-1-2403 .
442 (f) "Project" is as defined in Section 63M-1-2403 .
443 (g) "Project agreement" is the final, signed agreement for a project, as described in
444 Section 63M-1-2411 .
445 (2) Within 30 days following receipt by the chief procurement officer of a copy of an
446 initial proposal from the committee in accordance with Subsection 63M-1-2407 (5), including
447 any comment, suggestion, or modification adopted by the committee and incorporated into the
448 initial proposal, the chief procurement officer shall issue an invitation for detailed proposals
449 that includes:
450 (a) a description of the project, including the portions of the initial proposal that are not
451 protected records under Title 63, Chapter 2, Government Records Access and Management
452 Act;
453 (b) submittal requirements;
454 (c) reasonable criteria to be used to evaluate each detailed proposal;
455 (d) the relative weight given to the criteria; and
456 (e) the deadline by which a detailed proposal may be submitted, which may not be
457 more than 60 days after the invitation is issued.
458 (3) The board shall make rules providing for:
459 (a) public notice of the invitation for detailed proposals;

460 (b) amendments to the invitation for detailed proposals; and
461 (c) the preparation of a register of detailed proposals received in response to an
462 invitation for detailed proposals under this section.
463 (4) The chief procurement officer may amend a public notice and invitation for detailed
464 proposals following its issuance to include any comments, suggestions, or modifications to the
465 project that the chief procurement officer and the committee consider beneficial to the
466 invitation for detailed proposals or the project.
467 (5) A qualified private entity that submits a detailed proposal shall acknowledge receipt
468 of an amendment issued under Subsection (4).
469 (6) The register of detailed proposals shall be made available for public inspection after
470 the detailed proposals have been submitted to the committee in accordance with Subsection (9).
471 (7) (a) A private entity shall be accorded fair and equal treatment with respect to any
472 opportunity for discussion and revision of detailed proposals.
473 (b) In conducting discussion under Subsection (7)(a), there shall be no disclosure of
474 any information derived from detailed proposals submitted by competing private entities.
475 (8) Revisions to a detailed proposal may be permitted after submission of the detailed
476 proposal if they occur before the chief procurement officer submits the detailed proposals to the
477 committee under Subsection (9).
478 (9) The chief procurement officer shall:
479 (a) review each detailed proposal; and
480 (b) submit all detailed proposals that meet the guidelines established under Subsection
481 63M-1-2409 (1) to the committee for review under Section 63M-1-2410 .
482 Section 6. Section 63M-1-2401 is enacted to read:
483 Part 24. Government Procurement Private Proposal Program
484 63M-1-2401. Title.
485 This part is known as "Government Procurement Private Proposal Program."
486 Section 7. Section 63M-1-2402 is enacted to read:
487 63M-1-2402. Legislative findings.
488 The Legislature finds that:
489 (1) there is a public need for timely and efficient acquisition, equipping, maintenance,
490 operation, implementation, or installation of information technology and telecommunications

491 products and services;
492 (2) the public need for information technology and telecommunications products and
493 services may not be wholly satisfied by existing methods of procurement in which qualifying
494 projects are acquired, designed, equipped, maintained, operated, implemented, or installed by
495 the state;
496 (3) principles that produce efficient projects in the private sector are equally applicable
497 to projects within the public sector;
498 (4) there exists, in the private sector, favorable alternative methods for providing
499 information technology and telecommunications products and services that are currently being
500 provided by the state; and
501 (5) authorizing the private sector to develop, operate, or provide one or more qualifying
502 projects may result in the development, operation, or provision of products and services to the
503 public in a more timely, more efficient, or less costly fashion, thereby benefitting the state.
504 Section 8. Section 63M-1-2403 is enacted to read:
505 63M-1-2403. Definitions.
506 As used in this part:
507 (1) "Affected department" means, as applicable, the Board of Education or the
508 Department of Technology Services.
509 (2) "Board" means the Board of Business and Economic Development created under
510 Section 63M-1-301 .
511 (3) "Board of Education" means the Utah State Board of Education.
512 (4) "Chief procurement officer" means the chief procurement officer appointed under
513 Section 63-56-203 .
514 (5) "Committee" means the proposal review committee created under Section
515 63M-1-2405 .
516 (6) "Day" means a calendar day.
517 (7) "Director" is as defined in Section 63-38f-102 .
518 (8) "Executive Appropriations Committee" means the Legislature's Executive
519 Appropriations Committee.
520 (9) "Information technology" is as defined in Section 63F-1-102 .
521 (10) "Office" means the Governor's Office of Economic Development created under

522 Section 63-38f-201 .
523 (11) "Private entity" means a person submitting a proposal under this part for the
524 purpose of entering into a project.
525 (12) "Project" means the subject of a proposal or an agreement for the procurement or
526 disposal of:
527 (a) information technology or telecommunications products or services; or
528 (b) supplies or services for or on behalf of the Department of Technology Services or
529 the Board of Education.
530 (13) "Proposal" means an unsolicited offer by a private entity to undertake a project,
531 including an initial proposal under Section 63M-1-2406 and a detailed proposal under Section
532 63M-1-2409 .
533 (14) "Services" is as defined in Section 63-56-105 .
534 (15) "Supplies" is as defined in Section 63-56-105 .
535 (16) "Telecommunications" is as defined in Section 63F-1-102 .
536 Section 9. Section 63M-1-2404 is enacted to read:
537 63M-1-2404. Government Procurement Private Proposal Program -- Proposals --
538 Rulemaking.
539 (1) There is created within the office the Government Procurement Private Proposal
540 Program.
541 (2) In accordance with this part, the board may:
542 (a) accept a proposal for a project;
543 (b) solicit comments, suggestions, and modifications to a project in accordance with
544 Section 63G-6-408.5 ; and
545 (c) make rules in accordance with Title 63, Chapter 46a, Utah Administrative
546 Rulemaking Act, establishing requirements for the procurement of a project.
547 Section 10. Section 63M-1-2405 is enacted to read:
548 63M-1-2405. Committee for reviewing proposals -- Appointment -- Accepting or
549 rejecting proposal.
550 (1) The director shall appoint a committee composed of members of the board to
551 review and evaluate a proposal submitted in accordance with this part.
552 (2) The director shall determine the number of board members that constitute a

553 committee.
554 (3) The committee shall, at all times, consist of less than a quorum of the members of
555 the board, as established under Section 63M-1-302 .
556 (4) A committee member shall serve on the committee until:
557 (a) replaced by the director; or
558 (b) the committee member ceases to be a member of the board.
559 (5) The director may fill a vacancy on the committee.
560 (6) The committee shall include the following nonvoting members in addition to the
561 members appointed under Subsection (1):
562 (a) a member of the Senate, appointed by the president of the Senate; and
563 (b) a member of the House of Representatives, appointed by the speaker of the House
564 of Representatives.
565 (7) A committee member is subject to Title 67, Chapter 16, Utah Public Officers' and
566 Employees' Ethics Act, and any additional requirement established by the board in accordance
567 with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
568 (8) The committee shall inform a private entity of the committee's decision to approve
569 or reject a proposal in writing.
570 (9) If the committee, in its sole discretion, accepts a proposal, the proposal shall be
571 evaluated under this part.
572 (10) If the committee, in its sole discretion, rejects a proposal, the committee shall
573 notify the private entity of the reason for the rejection and shall return any remaining portion of
574 the fee required under Section 63M-1-2413 .
575 Section 11. Section 63M-1-2406 is enacted to read:
576 63M-1-2406. Initial proposal -- Requirements.
577 (1) In accordance with this part, a private entity may at any time submit to the
578 committee an initial proposal for a project.
579 (2) An initial proposal shall include:
580 (a) a conceptual description of the project;
581 (b) a description of the economic benefit of the project to the state and the affected
582 department;
583 (c) information concerning the information technology and telecommunications

584 products and services, currently being provided by, the state that are similar to the project, if
585 applicable;
586 (d) an estimate of the following costs associated with the project:
587 (i) design;
588 (ii) implementation;
589 (iii) operation and maintenance; and
590 (iv) any other related project cost; and
591 (e) the name and address of a person who may be contacted for further information
592 concerning the initial proposal.
593 (3) A private entity submitting an initial proposal under this section shall pay the fee
594 required by Section 63M-1-2413 when the initial proposal is submitted.
595 (4) An initial proposal submitted under this section is a protected record under Title 63,
596 Chapter 2, Government Records Access and Management Act, until the chief procurement
597 officer issues an invitation for detailed proposals in accordance with Section 63G-6-408.5 .
598 (5) The committee shall make rules in accordance with Title 63, Chapter 46a, Utah
599 Administrative Rulemaking Act, detailing the portions of an initial proposal that remain
600 protected after the chief procurement officer issues an invitation for detailed proposals.
601 Section 12. Section 63M-1-2407 is enacted to read:
602 63M-1-2407. Review of initial proposal -- Affected department review.
603 (1) The committee shall review and evaluate an initial proposal submitted in
604 accordance with:
605 (a) this part; and
606 (b) any rule established by the board under Subsection 63M-1-2404 (2)(c).
607 (2) If, within 15 days after receipt of an initial proposal, the committee, in its sole
608 discretion, determines to proceed with the initial proposal, the committee shall submit a copy
609 of the initial proposal to the affected department.
610 (3) An affected department receiving a copy of the initial proposal under Subsection
611 (2) shall review the initial proposal and provide the committee with any comment, suggestion,
612 or modification to the project no later than 15 days after the day on which the committee
613 submits the initial proposal to the affected department.
614 (4) In reviewing an initial proposal, the affected department may share portions of the

615 initial proposal with any other state entity that will be directly affected if the proposal is
616 ultimately adopted, if the confidentiality of the initial proposal is maintained.
617 (5) If, within 30 days after receipt of the affected department's review of the initial
618 proposal under Subsection (3), the committee determines to accept an initial proposal, the
619 committee shall submit a copy of the initial proposal, including any comment, suggestion, or
620 modification adopted by the committee and incorporated into the initial proposal, to:
621 (a) the chief procurement officer in accordance with Section 63G-6-408.5 ; and
622 (b) the Executive Appropriations Committee, for informational purposes.
623 (6) Before taking any action under Subsection (5), the committee shall consider:
624 (a) any comment, suggestion, or modification to the initial proposal submitted by the
625 affected department in accordance with Subsection (3);
626 (b) the extent to which the project is practical, efficient, and economically beneficial to
627 the state and the affected department; and
628 (c) any other reasonable factor identified by the committee or required by the board by
629 rule.
630 Section 13. Section 63M-1-2408 is enacted to read:
631 63M-1-2408. Acceptance of initial proposal -- Invitation for detailed proposals.
632 If an initial proposal is accepted under Section 63M-1-2407 , the chief procurement
633 officer shall:
634 (1) take action under Section 63G-6-408.5 to issue an invitation for detailed proposals
635 that includes the portions of the initial proposal that are not protected records under Title 63,
636 Chapter 2, Government Records and Access Management Act; and
637 (2) submit all detailed proposals that meet the guidelines established under Subsection
638 63M-1-2409 (1) to:
639 (a) the committee; and
640 (b) the Governor's Office of Planning and Budget.
641 Section 14. Section 63M-1-2409 is enacted to read:
642 63M-1-2409. Detailed proposal -- Requirements -- Cooperation of affected
643 department.
644 (1) A detailed proposal submitted in response to an invitation for detailed proposals
645 under Section 63M-1-2408 shall include:

646 (a) a conceptual description of the project, including the scope of the work;
647 (b) a description of the economic benefit of the project to the state and the affected
648 department;
649 (c) an estimate of the design, implementation, operation, maintenance, or other costs
650 associated with the project;
651 (d) information concerning the information technology or telecommunication product
652 and service or other supply or service currently provided by the state that is similar to the
653 project being proposed, if applicable;
654 (e) a statement setting forth the private entity's general plan for financing the project,
655 including any appropriation by the Legislature or other public monies and, if applicable, the
656 sources of the private entity's funds and identification of any dedicated revenue source or
657 proposed debt or equity investment on behalf of the private entity;
658 (f) the name and address of the person who may be contacted for further information
659 concerning the detailed proposal;
660 (g) a statement describing the private entity's experience with other similar projects and
661 a description of why the public entity is best qualified for the project; and
662 (h) any other information:
663 (i) reasonably requested by the affected department or the committee, or required by
664 the board by rule; or
665 (ii) that the private entity considers necessary or appropriate to complete or describe
666 the detailed proposal.
667 (2) To assist each private entity in preparing a detailed proposal:
668 (a) the affected department shall provide each private entity with access to all
669 information, records, documents, and reports related to the proposal and the project that are
670 designated public records under Title 63, Chapter 2, Government Records Access and
671 Management Act; and
672 (b) the affected department and the committee shall cooperate with each private entity
673 to assist the private entity in the development of a detailed proposal that is:
674 (i) practical;
675 (ii) efficient; and
676 (iii) economically beneficial to the state and the affected department.

677 (3) The committee or any private entity may choose to terminate the development of
678 the detailed proposal at any time before the submission of the detailed proposal to the chief
679 procurement officer under Section 63G-6-408.5 .
680 Section 15. Section 63M-1-2410 is enacted to read:
681 63M-1-2410. Receipt of detailed proposals -- Economic feasibility report --
682 Acceptance of a detailed proposal.
683 (1) If the committee, in its sole discretion, determines that the detailed proposal does
684 not substantially meet the guidelines established under Subsection 63M-1-2409 (1), the
685 committee may elect not to review a detailed proposal.
686 (2) Within 30 days after the day on which it receives a detailed proposal, the
687 Governor's Office of Planning and Budget shall prepare an economic feasibility report
688 containing:
689 (a) information concerning the economic feasibility and effectiveness of the project
690 based upon competent evidence;
691 (b) a dollar amount representing the total estimated fiscal impact of the project to the
692 affected department and the state; and
693 (c) any other matter the committee requests or is required by the board by rule.
694 (3) In determining whether to reject or accept a detailed proposal, the committee shall
695 consider the following factors:
696 (a) any comment, suggestion, or modification offered by the affected department in
697 accordance with Subsection 63M-1-2407 (3);
698 (b) the economic feasibility report prepared in accordance with Subsection (2)(a);
699 (c) the source of funding and any resulting constraint necessitated by the funding
700 source;
701 (d) any alternative funding proposal;
702 (e) the extent to which the project is practical, efficient, and economically beneficial to
703 the state and the affected department; and
704 (f) any other reasonable factor identified by the committee or required by the board by
705 rule.
706 (4) If, within 30 days after the day on which the committee receives the economic
707 feasibility report prepared under Subsection (2), the committee accepts a detailed proposal, the

708 accepted detailed proposal shall be submitted to the board for approval.
709 (5) If a private entity who submitted an initial proposal on which an invitation for
710 detailed proposals is based submits a detailed proposal, the committee may not reject the
711 private entity's detailed proposal solely because of cost if the cost of the private entity's detailed
712 proposal is within the amount of the fee the private entity paid for review of the initial proposal
713 above the cost of any other detailed proposal.
714 Section 16. Section 63M-1-2411 is enacted to read:
715 63M-1-2411. Project agreement.
716 (1) If, within 30 days after the day on which the committee accepts a detailed proposal
717 under Section 63M-1-2410 , the board accepts the detailed proposal, the director shall:
718 (a) prepare a project agreement in consultation with the affected department; and
719 (b) enter into the project agreement with the private entity.
720 (2) A project agreement shall be signed by the director, the affected department, and
721 the private entity within 30 days after the day on which the board approves the detailed
722 proposal under Subsection (1).
723 (3) A project agreement shall include provisions concerning:
724 (a) the scope of the project;
725 (b) the pricing method of the project;
726 (c) the director's or the state's ability to terminate for convenience or for default, and
727 any termination compensation to be paid to the private entity, if applicable;
728 (d) the ability to monitor performance under the contract;
729 (e) the appropriate limits of liability;
730 (f) the appropriate transition of services, if applicable;
731 (g) the exceptions from applicable rules and procedures for the implementation and
732 administration of the project by the affected department; if any;
733 (h) the clauses and remedies applicable to state contracts under Title 63, Chapter 56,
734 Part 6, Contract Clauses; and
735 (i) any other matter reasonably requested by the committee or required by the board by
736 rule.
737 (4) A copy of the signed project agreement shall be submitted to:
738 (a) the affected department; and

739 (b) the Executive Appropriations Committee.
740 (5) The affected department shall implement and administer the project agreement in
741 accordance with rules made under Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
742 except as modified by the project agreement under Subsection (3)(g).
743 Section 17. Section 63M-1-2412 is enacted to read:
744 63M-1-2412. Advisory committee.
745 (1) The director may appoint an advisory committee comprised of:
746 (a) representatives of:
747 (i) the affected department for the proposal;
748 (ii) the Department of Human Resource Management; and
749 (iii) the Division of Risk Management;
750 (b) members of the public; and
751 (c) other members.
752 (2) Members of an advisory committee shall receive no compensation or benefits for
753 their services, but may receive per diem and expenses incurred in the performance of the
754 members' official duties at the rates established by the Division of Finance under Sections
755 63A-3-106 and 63A-3-107 .
756 (3) Members of an advisory committee may decline to receive per diem and expenses
757 for their service.
758 (4) An advisory committee appointed in accordance with Subsection (1) may not
759 participate in the final decision-making of the committee or the board.
760 (5) The staff, any outside consultant, and any advisory subcommittee shall:
761 (a) provide the committee and the board with professional services, including
762 architectural, engineering, legal, and financial services, to develop rules and guidelines to
763 implement the program described in this part; and
764 (b) assist the committee and the board in:
765 (i) reviewing and commenting on initial proposals;
766 (ii) reviewing and commenting on detailed proposals; and
767 (iii) preparing and negotiating the terms of any project agreement.
768 Section 18. Section 63M-1-2413 is enacted to read:
769 63M-1-2413. Private Proposal Restricted Account -- Fees.

770 (1) There is created a restricted account within the General Fund called the Private
771 Proposal Restricted Account.
772 (2) Monies collected from the payment of a fee required by this part shall be deposited
773 in the Private Proposal Restricted Account.
774 (3) Subject to appropriation by the Legislature, the board or the committee may use the
775 monies in the Private Proposal Restricted Account to offset the expense of hiring staff and
776 engaging any outside consultant.
777 (4) The board shall establish a fee in accordance with Section 63-38-3.2 for:
778 (a) reviewing an initial proposal;
779 (b) reviewing any detailed proposal; and
780 (c) preparing any project agreement.
781 (5) The board may waive the fee established under Subsection (4) if the board
782 determines that it is:
783 (a) reasonable; and
784 (b) in the best interest of the state.