Second 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: Wayne L. Niederhauser
7
8 LONG TITLE
9 General Description:
10 This bill creates a program allowing a private entity to submit proposals to provide
11 certain products or services to the Department of Technology Services or the Board of
12 Education.
13 Highlighted Provisions:
14 This bill:
15 . creates a program allowing the submission of a proposal to provide a product or
16 service to the Department of Technology Services or the Board of Education;
17 . requires the Board of Business and Economic Development to appoint a committee
18 to evaluate a proposal under the program;
19 . defines terms;
20 . addresses the requirements of an initial proposal submitted to the committee;
21 . provides for review of an initial proposal by the committee and the affected
22 department;
23 . addresses the issuance of an invitation for detailed proposals if the initial proposal is
24 accepted by the committee;
25 . provides requirements for a detailed proposal;

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

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

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

119 under a duty of confidentiality to the entity;
120 (9) records created or maintained for civil, criminal, or administrative enforcement
121 purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
122 release of the records:
123 (a) reasonably could be expected to interfere with investigations undertaken for
124 enforcement, discipline, licensing, certification, or registration purposes;
125 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
126 proceedings;
127 (c) would create a danger of depriving a person of a right to a fair trial or impartial
128 hearing;
129 (d) reasonably could be expected to disclose the identity of a source who is not
130 generally known outside of government and, in the case of a record compiled in the course of
131 an investigation, disclose information furnished by a source not generally known outside of
132 government if disclosure would compromise the source; or
133 (e) reasonably could be expected to disclose investigative or audit techniques,
134 procedures, policies, or orders not generally known outside of government if disclosure would
135 interfere with enforcement or audit efforts;
136 (10) records the disclosure of which would jeopardize the life or safety of an
137 individual;
138 (11) records the disclosure of which would jeopardize the security of governmental
139 property, governmental programs, or governmental recordkeeping systems from damage, theft,
140 or other appropriation or use contrary to law or public policy;
141 (12) records that, if disclosed, would jeopardize the security or safety of a correctional
142 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
143 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
144 (13) records that, if disclosed, would reveal recommendations made to the Board of
145 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
146 Board of Pardons and Parole, or the Department of Human Services that are based on the
147 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
148 jurisdiction;
149 (14) records and audit workpapers that identify audit, collection, and operational

150 procedures and methods used by the State Tax Commission, if disclosure would interfere with
151 audits or collections;
152 (15) records of a governmental audit agency relating to an ongoing or planned audit
153 until the final audit is released;
154 (16) records prepared by or on behalf of a governmental entity solely in anticipation of
155 litigation that are not available under the rules of discovery;
156 (17) records disclosing an attorney's work product, including the mental impressions or
157 legal theories of an attorney or other representative of a governmental entity concerning
158 litigation;
159 (18) records of communications between a governmental entity and an attorney
160 representing, retained, or employed by the governmental entity if the communications would be
161 privileged as provided in Section 78B-1-137 ;
162 (19) (a) (i) personal files of a state legislator, including personal correspondence to or
163 from a member of the Legislature; and
164 (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
165 legislative action or policy may not be classified as protected under this section; and
166 (b) (i) an internal communication that is part of the deliberative process in connection
167 with the preparation of legislation between:
168 (A) members of a legislative body;
169 (B) a member of a legislative body and a member of the legislative body's staff; or
170 (C) members of a legislative body's staff; and
171 (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
172 legislative action or policy may not be classified as protected under this section;
173 (20) (a) records in the custody or control of the Office of Legislative Research and
174 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
175 legislation or contemplated course of action before the legislator has elected to support the
176 legislation or course of action, or made the legislation or course of action public; and
177 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
178 Office of Legislative Research and General Counsel is a public document unless a legislator
179 asks that the records requesting the legislation be maintained as protected records until such
180 time as the legislator elects to make the legislation or course of action public;

181 (21) research requests from legislators to the Office of Legislative Research and
182 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
183 in response to these requests;
184 (22) drafts, unless otherwise classified as public;
185 (23) records concerning a governmental entity's strategy about collective bargaining or
186 pending litigation;
187 (24) records of investigations of loss occurrences and analyses of loss occurrences that
188 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
189 Uninsured Employers' Fund, or similar divisions in other governmental entities;
190 (25) records, other than personnel evaluations, that contain a personal recommendation
191 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
192 personal privacy, or disclosure is not in the public interest;
193 (26) records that reveal the location of historic, prehistoric, paleontological, or
194 biological resources that if known would jeopardize the security of those resources or of
195 valuable historic, scientific, educational, or cultural information;
196 (27) records of independent state agencies if the disclosure of the records would
197 conflict with the fiduciary obligations of the agency;
198 (28) records of an institution within the state system of higher education defined in
199 Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
200 retention decisions, and promotions, which could be properly discussed in a meeting closed in
201 accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
202 the final decisions about tenure, appointments, retention, promotions, or those students
203 admitted, may not be classified as protected under this section;
204 (29) records of the governor's office, including budget recommendations, legislative
205 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
206 policies or contemplated courses of action before the governor has implemented or rejected
207 those policies or courses of action or made them public;
208 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
209 revenue estimates, and fiscal notes of proposed legislation before issuance of the final
210 recommendations in these areas;
211 (31) records provided by the United States or by a government entity outside the state

212 that are given to the governmental entity with a requirement that they be managed as protected
213 records if the providing entity certifies that the record would not be subject to public disclosure
214 if retained by it;
215 (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
216 except as provided in Section 52-4-206 ;
217 (33) records that would reveal the contents of settlement negotiations but not including
218 final settlements or empirical data to the extent that they are not otherwise exempt from
219 disclosure;
220 (34) memoranda prepared by staff and used in the decision-making process by an
221 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
222 other body charged by law with performing a quasi-judicial function;
223 (35) records that would reveal negotiations regarding assistance or incentives offered
224 by or requested from a governmental entity for the purpose of encouraging a person to expand
225 or locate a business in Utah, but only if disclosure would result in actual economic harm to the
226 person or place the governmental entity at a competitive disadvantage, but this section may not
227 be used to restrict access to a record evidencing a final contract;
228 (36) materials to which access must be limited for purposes of securing or maintaining
229 the governmental entity's proprietary protection of intellectual property rights including patents,
230 copyrights, and trade secrets;
231 (37) the name of a donor or a prospective donor to a governmental entity, including an
232 institution within the state system of higher education defined in Section 53B-1-102 , and other
233 information concerning the donation that could reasonably be expected to reveal the identity of
234 the donor, provided that:
235 (a) the donor requests anonymity in writing;
236 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
237 classified protected by the governmental entity under this Subsection (37); and
238 (c) except for an institution within the state system of higher education defined in
239 Section 53B-1-102 , the governmental unit to which the donation is made is primarily engaged
240 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
241 over the donor, a member of the donor's immediate family, or any entity owned or controlled
242 by the donor or the donor's immediate family;

243 (38) accident reports, except as provided in Sections 41-6a-404 , 41-12a-202 , and
244 73-18-13 ;
245 (39) a notification of workers' compensation insurance coverage described in Section
246 34A-2-205 ;
247 (40) (a) the following records of an institution within the state system of higher
248 education defined in Section 53B-1-102 , which have been developed, discovered, disclosed to,
249 or received by or on behalf of faculty, staff, employees, or students of the institution:
250 (i) unpublished lecture notes;
251 (ii) unpublished notes, data, and information:
252 (A) relating to research; and
253 (B) of:
254 (I) the institution within the state system of higher education defined in Section
255 53B-1-102 ; or
256 (II) a sponsor of sponsored research;
257 (iii) unpublished manuscripts;
258 (iv) creative works in process;
259 (v) scholarly correspondence; and
260 (vi) confidential information contained in research proposals;
261 (b) Subsection (40)(a) may not be construed to prohibit disclosure of public
262 information required pursuant to Subsection 53B-16-302 (2)(a) or (b); and
263 (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
264 (41) (a) records in the custody or control of the Office of Legislative Auditor General
265 that would reveal the name of a particular legislator who requests a legislative audit prior to the
266 date that audit is completed and made public; and
267 (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
268 Office of the Legislative Auditor General is a public document unless the legislator asks that
269 the records in the custody or control of the Office of Legislative Auditor General that would
270 reveal the name of a particular legislator who requests a legislative audit be maintained as
271 protected records until the audit is completed and made public;
272 (42) records that provide detail as to the location of an explosive, including a map or
273 other document that indicates the location of:

274 (a) a production facility; or
275 (b) a magazine;
276 (43) information contained in the database described in Section 62A-3-311.1 ;
277 (44) information contained in the Management Information System and Licensing
278 Information System described in Title 62A, Chapter 4a, Child and Family Services;
279 (45) information regarding National Guard operations or activities in support of the
280 National Guard's federal mission;
281 (46) records provided by any pawn or secondhand business to a law enforcement
282 agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
283 Secondhand Merchandise Transaction Information Act;
284 (47) information regarding food security, risk, and vulnerability assessments performed
285 by the Department of Agriculture and Food;
286 (48) except to the extent that the record is exempt from this chapter pursuant to Section
287 63-2-106 , records related to an emergency plan or program prepared or maintained by the
288 Division of Homeland Security the disclosure of which would jeopardize:
289 (a) the safety of the general public; or
290 (b) the security of:
291 (i) governmental property;
292 (ii) governmental programs; or
293 (iii) the property of a private person who provides the Division of Homeland Security
294 information;
295 (49) records of the Department of Agriculture and Food relating to the National
296 Animal Identification System or any other program that provides for the identification, tracing,
297 or control of livestock diseases, including any program established under Title 4, Chapter 24,
298 Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and
299 Quarantine;
300 (50) as provided in Section 26-39-109 :
301 (a) information or records held by the Department of Health related to a complaint
302 regarding a child care program or residential child care which the department is unable to
303 substantiate; and
304 (b) information or records related to a complaint received by the Department of Health

305 from an anonymous complainant regarding a child care program or residential child care; [and]
306 (51) unless otherwise classified as public under Section 63-2-301 and except as
307 provided under Section 41-1a-116 , an individual's home address, home telephone number, or
308 personal mobile phone number, if:
309 (a) the individual is required to provide the information in order to comply with a law,
310 ordinance, rule, or order of a government entity; and
311 (b) the subject of the record has a reasonable expectation that this information will be
312 kept confidential due to:
313 (i) the nature of the law, ordinance, rule, or order; and
314 (ii) the individual complying with the law, ordinance, rule, or order[.]; and
315 (52) an initial proposal under Title 63M, Chapter 1, Part 24, Government Procurement
316 Private Proposal Program, to the extent not made public by rules made under that chapter.
317 Section 2. Section 63-38f-203 is amended to read:
318 63-38f-203. Powers and duties of director.
319 (1) The director, with the approval of the governor, may:
320 (a) by following the procedures and requirements of Title 63, Chapter 38e, Federal
321 Funds Procedures, seek federal grants, loans, or participation in federal programs;
322 (b) enter into lawful contracts or agreements with other states, any chamber of
323 commerce organization, [and] any service club[; and], and a private entity pursuant to Section
324 63M-1-2410 ; and
325 (c) annually prepare and submit to the governor a budget of the office's financial
326 requirements.
327 (2) If any federal program requires the expenditure of state funds as a condition to
328 participation by the state in any fund, property, or service, with the governor's approval, the
329 director shall expend whatever funds are necessary out of the money provided by the
330 Legislature for the use of the office.
331 Section 3. Section 63-56-102 is amended to read:
332 63-56-102. Application of chapter.
333 (1) This chapter applies only to contracts solicited or entered into after the effective
334 date of this chapter unless the parties agree to its application to a contract solicited or entered
335 into prior to the effective date.

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

367 (i) information technology equipment;
368 (ii) telecommunications equipment;
369 (iii) software;
370 (iv) services related to the items listed in Subsections (1)(a)(i) through (iii); and
371 (v) data acquisition.
372 (b) The chief information officer may negotiate the purchase, lease, or rental of private
373 or public information technology or telecommunication services or facilities in accordance with
374 this section.
375 (c) Where practical, efficient, and economically beneficial, the chief information
376 officer shall use existing private and public information technology or telecommunication
377 resources.
378 (2) Before negotiating a purchase, lease, or rental under Subs