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Third Substitute S.B. 190
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7 LONG TITLE
8 General Description:
9 This bill amends and makes corrections, modifications, and recodification changes to
10 Title 63G, Chapter 6a, Utah Procurement Code.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . relocates and makes corrections to definitions;
15 . makes corrections in the use of terms;
16 . subject to specified exceptions, designates as protected:
17 . certain records that would impair governmental procurement proceedings or
18 give an unfair advantage to a potential contractor; and
19 . records submitted in response to a request for information;
20 . describes the applicability of, and exceptions to, the Utah Procurement Code;
21 . describes the procurement units that have independent procurement authority;
22 . clarifies the prequalification process for potential bidders, offerors, or contractors;
23 . modifies public notice provisions;
24 . changes small purchase requirements;
25 . modifies provisions relating to a cost-benefit analysis and the publication of scores
26 awarded by an evaluation committee;
27 . provides that a public transit district may contract with a county or municipality to
28 fund a transportation project without going through a standard procurement process
29 or an exception to a standard procurement process;
30 . changes the date by which a person responsible for procurements in a procurement
31 unit in the executive branch is required to complete training on making small
32 purchases;
33 . repeals a section relating to interest rates and reenacts the language into another
34 section relating to interest rates;
35 . subject to certain exceptions, prohibits a person with an outstanding tax lien from
36 submitting a quote, bid, or offer to, or contracting with, a procurement unit;
37 . describes contract types that are permitted and, subject to certain exceptions,
38 contract types that are prohibited;
39 . describes contract requirements and grants rulemaking authority relating to contract
40 requirements;
41 . describes requirements relating to installment payments and leases;
42 . modifies procurement appeal provisions;
43 . modifies provisions relating to agreements and cooperation between procurement
44 units;
45 . addresses cooperative purchasing, purchasing under a contract held by another
46 procurement unit, and purchasing directly from another government entity;
47 . repeals Part 22, Ethical Requirements;
48 . modifies criminal provisions and addresses additional unlawful activity relating to
49 the Utah Procurement Code; and
50 . makes technical and conforming changes.
51 Money Appropriated in this Bill:
52 None
53 Other Special Clauses:
54 If approved by two-thirds of all members elected to each house, this bill takes effect on
55 May 1, 2013.
56 Utah Code Sections Affected:
57 AMENDS:
58 10-3-1304 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 347
59 10-3-1305 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 347
60 10-8-2, as last amended by Laws of Utah 2010, Chapter 90
61 17-16a-4 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 347
62 17-50-302, as last amended by Laws of Utah 2010, Chapter 385
63 17B-1-106, as last amended by Laws of Utah 2009, Chapter 188
64 31A-31-104, as last amended by Laws of Utah 2008, Chapter 382
65 53-5-708, as last amended by Laws of Utah 2010, Chapter 62
66 53A-2-123, as last amended by Laws of Utah 2009, Chapter 188
67 54-3-28, as last amended by Laws of Utah 2008, Chapter 382
68 62A-16-204, as enacted by Laws of Utah 2010, Chapter 239
69 63C-4-102, as last amended by Laws of Utah 2012, Chapters 324 and 377
70 63G-2-201, as last amended by Laws of Utah 2012, Chapter 377
71 63G-2-202, as last amended by Laws of Utah 2012, Chapter 377
72 63G-2-301, as last amended by Laws of Utah 2012, Chapter 377
73 63G-2-305, as last amended by Laws of Utah 2012, Chapters 331 and 377
74 63G-2-309, as last amended by Laws of Utah 2012, Chapter 377
75 63G-2-403, as last amended by Laws of Utah 2012, Chapter 377
76 63G-2-406, as enacted by Laws of Utah 2012, Chapter 377
77 63G-6a-103 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 235
78 and renumbered and amended by Laws of Utah 2012, Chapter 347 and last amended
79 by Coordination Clause, Laws of Utah 2012, Chapter 347
80 63G-6a-105 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 91
81 and renumbered and amended by Laws of Utah 2012, Chapter 347 and last amended
82 by Coordination Clause, Laws of Utah 2012, Chapter 347
83 63G-6a-106 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
84 Chapter 347
85 63G-6a-107 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
86 Chapter 347
87 63G-6a-108 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
88 63G-6a-201 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
89 63G-6a-203 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 91
90 and renumbered and amended by Laws of Utah 2012, Chapter 347 and last amended
91 by Coordination Clause, Laws of Utah 2012, Chapter 347
92 63G-6a-204 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
93 Chapter 347
94 63G-6a-302 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
95 Chapter 347
96 63G-6a-303 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
97 Chapter 347
98 63G-6a-305 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
99 Chapter 347
100 63G-6a-402 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
101 63G-6a-403 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
102 63G-6a-404 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
103 63G-6a-406 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
104 63G-6a-407 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
105 Chapter 347
106 63G-6a-408 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
107 63G-6a-503 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
108 63G-6a-602 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
109 63G-6a-603 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
110 63G-6a-604 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
111 63G-6a-605 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
112 63G-6a-606 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
113 63G-6a-607 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
114 63G-6a-608 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
115 63G-6a-609 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
116 63G-6a-610 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
117 63G-6a-611 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
118 63G-6a-612 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
119 63G-6a-702 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
120 63G-6a-703 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
121 63G-6a-704 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
122 63G-6a-705 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
123 63G-6a-707 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
124 63G-6a-708 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
125 63G-6a-709 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
126 63G-6a-710 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
127 63G-6a-711 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
128 Chapter 347
129 63G-6a-802 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
130 Chapter 347
131 63G-6a-804 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
132 Chapter 347
133 63G-6a-805 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
134 Chapter 347
135 63G-6a-902 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
136 Chapter 347
137 63G-6a-903 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
138 Chapter 347
139 63G-6a-904 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
140 Chapter 347
141 63G-6a-1002 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
142 Chapter 347
143 63G-6a-1003 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
144 Chapter 347
145 63G-6a-1102 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
146 Chapter 347
147 63G-6a-1103 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
148 Chapter 347
149 63G-6a-1202 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter
150 330 and renumbered and amended by Laws of Utah 2012, Chapter 347
151 63G-6a-1203 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
152 Chapter 347
153 63G-6a-1204 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
154 63G-6a-1205 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
155 Chapter 347
156 63G-6a-1206 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
157 Chapter 347
158 63G-6a-1302 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter
159 330 and renumbered and amended by Laws of Utah 2012, Chapter 347
160 63G-6a-1303 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
161 Chapter 347
162 63G-6a-1502 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
163 Chapter 347
164 63G-6a-1503 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
165 Chapter 347
166 63G-6a-1506 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
167 Chapter 347
168 63G-6a-1603 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 91
169 and renumbered and amended by Laws of Utah 2012, Chapter 347 and last amended
170 by Coordination Clause, Laws of Utah 2012, Chapter 347
171 63G-6a-1702 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
172 Chapter 347 and last amended by Coordination Clause, Laws of Utah 2012, Chapter
173 347
174 63G-6a-1703 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
175 Chapter 347 and last amended by Coordination Clause, Laws of Utah 2012, Chapter
176 347
177 63G-6a-1704 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 91
178 and renumbered and amended by Laws of Utah 2012, Chapter 347 and last amended
179 by Coordination Clause, Laws of Utah 2012, Chapter 347
180 63G-6a-1802 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
181 Chapter 347 and last amended by Coordination Clause, Laws of Utah 2012, Chapter 347
182 63G-6a-1902 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
183 Chapter 347 and last amended by Coordination Clause, Laws of Utah 2012, Chapter
184 347
185 63G-6a-1903 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 91
186 and renumbered and amended by Laws of Utah 2012, Chapter 347 and last amended
187 by Coordination Clause, Laws of Utah 2012, Chapter 347
188 63G-6a-1904 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 91
189 and renumbered and amended by Laws of Utah 2012, Chapter 347 and last amended
190 by Coordination Clause, Laws of Utah 2012, Chapter 347
191 63G-6a-1905 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 91
192 and renumbered and amended by Laws of Utah 2012, Chapter 347 and last amended
193 by Coordination Clause, Laws of Utah 2012, Chapter 347
194 63G-6a-1910 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
195 Chapter 347 and last amended by Coordination Clause, Laws of Utah 2012, Chapter
196 347
197 63G-6a-1911 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
198 Chapter 347 and last amended by Coordination Clause, Laws of Utah 2012, Chapter
199 347
200 63G-6a-2002 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
201 Chapter 347
202 63G-6a-2003 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
203 Chapter 347
204 63G-6a-2004 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
205 Chapter 347
206 63G-6a-2101 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
207 63G-6a-2102 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
208 Chapter 347
209 63G-6a-2103 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
210 Chapter 347
211 63G-6a-2104 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
212 Chapter 347
213 63G-6a-2105 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
214 Chapter 347
215 63G-6a-2302 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
216 Chapter 347
217 63G-6a-2305 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
218 63G-6a-2306 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
219 63G-6a-2307 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
220 67-16-4 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapters 202,
221 202, and 347
222 67-16-5 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 347
223 67-16-5.3 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 347
224 67-16-5.6, as enacted by Laws of Utah 2000, Chapter 108
225 67-16-6 (Effective 05/01/13), as last amended by Laws of Utah 2012, Chapter 347
226 77-38-3, as last amended by Laws of Utah 2011, Chapter 131
227 78A-4-106, as last amended by Laws of Utah 2012, Chapter 377
228 ENACTS:
229 63G-6a-505, Utah Code Annotated 1953
230 63G-6a-709.5, Utah Code Annotated 1953
231 63G-6a-806, Utah Code Annotated 1953
232 63G-6a-905, Utah Code Annotated 1953
233 63G-6a-1208, Utah Code Annotated 1953
234 63G-6a-1209, Utah Code Annotated 1953
235 63G-6a-1210, Utah Code Annotated 1953
236 63G-6a-2304.5, Utah Code Annotated 1953
237 63G-6a-2308, Utah Code Annotated 1953
238 REPEALS AND REENACTS:
239 63G-6a-104 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347 and
240 last amended by Coordination Clause, Laws of Utah 2012, Chapter 347
241 RENUMBERS AND AMENDS:
242 63G-6a-1204.5 (Effective 05/01/13), (Renumbered from 63G-6a-405 (Effective
243 05/01/13), as enacted by Laws of Utah 2012, Chapter 347)
244 REPEALS:
245 63G-6-506.5, as enacted by Laws of Utah 2012, Chapter 330
246 63G-6a-1908 (Effective 05/01/13), as renumbered and amended by Laws of Utah 2012,
247 Chapter 347 and last amended by Coordination Clause, Laws of Utah 2012, Chapter
248 347
249 63G-6a-2201 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
250 63G-6a-2202 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
251 63G-6a-2303 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
252 63G-6a-2304 (Effective 05/01/13), as enacted by Laws of Utah 2012, Chapter 347
253
254 Be it enacted by the Legislature of the state of Utah:
255 Section 1. Section 10-3-1304 (Effective 05/01/13) is amended to read:
256 10-3-1304 (Effective 05/01/13). Use of office for personal benefit prohibited.
257 (1) As used in this section, "economic benefit tantamount to a gift" includes:
258 (a) a loan at an interest rate that is substantially lower than the commercial rate then
259 currently prevalent for similar loans; and
260 (b) compensation received for private services rendered at a rate substantially
261 exceeding the fair market value of the services.
262 (2) [
263 officer or municipal employee[
264
265 (a) disclose or improperly use private, controlled, or protected information acquired by
266 reason of the officer's or employee's official position or in the course of official duties in order
267 to further substantially the officer's or employee's personal economic interest or to secure
268 special privileges or exemptions for the officer or employee or for others;
269 (b) use or attempt to use the officer's or employee's official position to:
270 (i) further substantially the officer's or employee's personal economic interest; or
271 (ii) secure special privileges for the officer or employee or for others; or
272 (c) knowingly receive, accept, take, seek, or solicit, directly or indirectly, for the officer
273 or employee or for another, a gift of substantial value or a substantial economic benefit
274 tantamount to a gift that:
275 (i) would tend improperly to influence a reasonable person in the person's position to
276 depart from the faithful and impartial discharge of the person's public duties; or
277 (ii) the person knows or that a reasonable person in that position should know under
278 the circumstances is primarily for the purpose of rewarding the person for official action taken.
279 (3) Subsection (2)(c) does not apply to:
280 (a) an occasional nonpecuniary gift having a value of less than $50;
281 (b) an award publicly presented in recognition of public services;
282 (c) any bona fide loan made in the ordinary course of business; or
283 (d) a political campaign contribution.
284 (4) This section does not apply to an elected or appointed officer or municipal
285 employee who engages in conduct that constitutes a violation of this section to the extent that
286 the elected or appointed officer or municipal employee is chargeable, for the same conduct,
287 under Section 76-8-105 .
288 Section 2. Section 10-3-1305 (Effective 05/01/13) is amended to read:
289 10-3-1305 (Effective 05/01/13). Compensation for assistance in transaction
290 involving municipality -- Public disclosure and filing required.
291 (1) As used in this section, "municipal body" means any public board, commission,
292 committee, or other public group organized to make public policy decisions or to advise
293 persons who make public policy decisions.
294 (2) [
295 an appointed officer, who is a member of a public body[
296
297 for assisting any person or business entity in any transaction involving the municipality in
298 which the member is an officer unless the member:
299 (a) files with the mayor a sworn statement giving the information required by this
300 section; and
301 (b) discloses the information required by Subsection (5) in an open meeting to the
302 members of the body of which the officer is a member immediately before the discussion.
303 (3) It is an offense for an appointed officer who is not a member of a public body or a
304 municipal employee to receive or agree to receive compensation for assisting any person or
305 business entity in any transaction involving the municipality by which the person is employed
306 unless the officer or employee:
307 (a) files with the mayor a sworn statement giving the information required by this
308 section; and
309 (b) discloses the information required by Subsection (5) to:
310 (i) the officer or employee's immediate supervisor; and
311 (ii) any other municipal officer or employee who may rely upon the employee's
312 representations in evaluating or approving the transaction.
313 (4) (a) The officer or employee shall file the statement required to be filed by this
314 section 10 days before the date of any agreement between the elected or appointed officer or
315 municipal employee and the person or business entity being assisted or 10 days before the
316 receipt of compensation by the officer or employee, whichever is earlier.
317 (b) The statement is public information and shall be available for examination by the
318 public.
319 (5) The statement and disclosure shall contain:
320 (a) the name and address of the officer or municipal employee;
321 (b) the name and address of the person or business entity being or to be assisted or in
322 which the appointed or elected official or municipal employee has a substantial interest; and
323 (c) a brief description of the transaction as to which service is rendered or is to be
324 rendered and of the nature of the service performed or to be performed.
325 (6) This section does not apply to an elected officer, or an appointed officer, who is a
326 member of a public body and who engages in conduct that constitutes a violation of this section
327 to the extent that the elected officer or appointed officer is chargeable, for the same conduct,
328 under Section 76-8-105 .
329 Section 3. Section 10-8-2 is amended to read:
330 10-8-2. Appropriations -- Acquisition and disposal of property -- Municipal
331 authority -- Corporate purpose -- Procedure -- Notice of intent to acquire real property.
332 (1) (a) A municipal legislative body may:
333 (i) appropriate money for corporate purposes only;
334 (ii) provide for payment of debts and expenses of the corporation;
335 (iii) subject to Subsections (4) and (5), purchase, receive, hold, sell, lease, convey, and
336 dispose of real and personal property for the benefit of the municipality, whether the property is
337 within or without the municipality's corporate boundaries, if the action is in the public interest
338 and complies with other law;
339 (iv) improve, protect, and do any other thing in relation to this property that an
340 individual could do; and
341 (v) subject to Subsection (2) and after first holding a public hearing, authorize
342 municipal services or other nonmonetary assistance to be provided to or waive fees required to
343 be paid by a nonprofit entity, whether or not the municipality receives consideration in return.
344 (b) A municipality may:
345 (i) furnish all necessary local public services within the municipality;
346 (ii) purchase, hire, construct, own, maintain and operate, or lease public utilities
347 located and operating within and operated by the municipality; and
348 (iii) subject to Subsection (1)(c), acquire by eminent domain, or otherwise, property
349 located inside or outside the corporate limits of the municipality and necessary for any of the
350 purposes stated in Subsections (1)(b)(i) and (ii), subject to restrictions imposed by Title 78B,
351 Chapter 6, Part 5, Eminent Domain, and general law for the protection of other communities.
352 (c) Each municipality that intends to acquire property by eminent domain under
353 Subsection (1)(b) shall, upon the first contact with the owner of the property sought to be
354 acquired, deliver to the owner a copy of a booklet or other materials provided by the Office of
355 the Property Rights Ombudsman, created under Section 13-43-201 , dealing with the property
356 owner's rights in an eminent domain proceeding.
357 (d) Subsection (1)(b) may not be construed to diminish any other authority a
358 municipality may claim to have under the law to acquire by eminent domain property located
359 inside or outside the municipality.
360 (2) (a) Services or assistance provided pursuant to Subsection (1)(a)(v) is not subject to
361 the provisions of Subsection (3).
362 (b) The total amount of services or other nonmonetary assistance provided or fees
363 waived under Subsection (1)(a)(v) in any given fiscal year may not exceed 1% of the
364 municipality's budget for that fiscal year.
365 (3) It is considered a corporate purpose to appropriate money for any purpose that, in
366 the judgment of the municipal legislative body, provides for the safety, health, prosperity,
367 moral well-being, peace, order, comfort, or convenience of the inhabitants of the municipality
368 subject to the following:
369 (a) The net value received for any money appropriated shall be measured on a
370 project-by-project basis over the life of the project.
371 (b) The criteria for a determination under this Subsection (3) shall be established by the
372 municipality's legislative body. A determination of value received, made by the municipality's
373 legislative body, shall be presumed valid unless it can be shown that the determination was
374 arbitrary, capricious, or illegal.
375 (c) The municipality may consider intangible benefits received by the municipality in
376 determining net value received.
377 (d) (i) Prior to the municipal legislative body making any decision to appropriate any
378 funds for a corporate purpose under this section, a public hearing shall be held.
379 (ii) Notice of the hearing described in Subsection (3)(d)(i) shall be published:
380 (A) (I) in a newspaper of general circulation at least 14 days before the date of the
381 hearing; or
382 (II) if there is no newspaper of general circulation, by posting notice in at least three
383 conspicuous places within the municipality for the same time period; and
384 (B) on the Utah Public Notice Website created in Section 63F-1-701 , at least 14 days
385 before the date of the hearing.
386 (e) A study shall be performed before notice of the public hearing is given and shall be
387 made available at the municipality for review by interested parties at least 14 days immediately
388 prior to the public hearing, setting forth an analysis and demonstrating the purpose for the
389 appropriation. In making the study, the following factors shall be considered:
390 (i) what identified benefit the municipality will receive in return for any money or
391 resources appropriated;
392 (ii) the municipality's purpose for the appropriation, including an analysis of the way
393 the appropriation will be used to enhance the safety, health, prosperity, moral well-being,
394 peace, order, comfort, or convenience of the inhabitants of the municipality; and
395 (iii) whether the appropriation is necessary and appropriate to accomplish the
396 reasonable goals and objectives of the municipality in the area of economic development, job
397 creation, affordable housing, blight elimination, job preservation, the preservation of historic
398 structures and property, and any other public purpose.
399 (f) (i) An appeal may be taken from a final decision of the municipal legislative body,
400 to make an appropriation.
401 (ii) The appeal shall be filed within 30 days after the date of that decision, to the
402 district court.
403 (iii) Any appeal shall be based on the record of the proceedings before the legislative
404 body.
405 (iv) A decision of the municipal legislative body shall be presumed to be valid unless
406 the appealing party shows that the decision was arbitrary, capricious, or illegal.
407 (g) The provisions of this Subsection (3) apply only to those appropriations made after
408 May 6, 2002.
409 (h) This section applies only to appropriations not otherwise approved pursuant to Title
410 10, Chapter 5, Uniform Fiscal Procedures Act for Utah Towns, or Title 10, Chapter 6, Uniform
411 Fiscal Procedures Act for Utah Cities.
412 (4) (a) Before a municipality may dispose of a significant parcel of real property, the
413 municipality shall:
414 (i) provide reasonable notice of the proposed disposition at least 14 days before the
415 opportunity for public comment under Subsection (4)(a)(ii); and
416 (ii) allow an opportunity for public comment on the proposed disposition.
417 (b) Each municipality shall, by ordinance, define what constitutes:
418 (i) a significant parcel of real property for purposes of Subsection (4)(a); and
419 (ii) reasonable notice for purposes of Subsection (4)(a)(i).
420 (5) (a) Except as provided in Subsection (5)(d), each municipality intending to acquire
421 real property for the purpose of expanding the municipality's infrastructure or other facilities
422 used for providing services that the municipality offers or intends to offer shall provide written
423 notice, as provided in this Subsection (5), of its intent to acquire the property if:
424 (i) the property is located:
425 (A) outside the boundaries of the municipality; and
426 (B) in a county of the first or second class; and
427 (ii) the intended use of the property is contrary to:
428 (A) the anticipated use of the property under the general plan of the county in whose
429 unincorporated area or the municipality in whose boundaries the property is located; or
430 (B) the property's current zoning designation.
431 (b) Each notice under Subsection (5)(a) shall:
432 (i) indicate that the municipality intends to acquire real property;
433 (ii) identify the real property; and
434 (iii) be sent to:
435 (A) each county in whose unincorporated area and each municipality in whose
436 boundaries the property is located; and
437 (B) each affected entity.
438 (c) A notice under this Subsection (5) is a protected record as provided in Subsection
439 63G-2-305 [
440 (d) (i) The notice requirement of Subsection (5)(a) does not apply if the municipality
441 previously provided notice under Section 10-9a-203 identifying the general location within the
442 municipality or unincorporated part of the county where the property to be acquired is located.
443 (ii) If a municipality is not required to comply with the notice requirement of
444 Subsection (5)(a) because of application of Subsection (5)(d)(i), the municipality shall provide
445 the notice specified in Subsection (5)(a) as soon as practicable after its acquisition of the real
446 property.
447 Section 4. Section 17-16a-4 (Effective 05/01/13) is amended to read:
448 17-16a-4 (Effective 05/01/13). Prohibited use of official position -- Exception.
449 (1) Except as provided in Subsection (3) or (4), it is an offense for an elected or
450 appointed officer[
451
452 (a) disclose confidential information acquired by reason of the officer's official position
453 or use that information to secure special privileges or exemptions for himself or others;
454 (b) use or attempt to use the officer's official position to secure special privileges for
455 the officer or for others; or
456 (c) knowingly receive, accept, take, seek or solicit, directly or indirectly, any gift or
457 loan for the officer or for another, if the gift or loan tends to influence the officer in the
458 discharge of the officer's official duties.
459 (2) This section is inapplicable to:
460 (a) an occasional nonpecuniary gift having a value of less than $50;
461 (b) an award publicly presented;
462 (c) any bona fide loan made in the ordinary course of business; or
463 (d) political campaign contributions actually used in a political campaign.
464 (3) A member of a county legislative body who is also a member of the governing
465 board of a provider of mental health or substance abuse services under contract with the county
466 does not commit an offense under Subsection (1)(a) or (b) by discharging, in good faith, the
467 duties and responsibilities of each position, if the county legislative body member does not
468 participate in the process of selecting the mental health or substance abuse service provider.
469 (4) This section does not apply to an elected or appointed officer who engages in
470 conduct that constitutes a violation of this section to the extent that the elected or appointed
471 officer is chargeable, for the same conduct, under Section 76-8-105 .
472 Section 5. Section 17-50-302 is amended to read:
473 17-50-302. General county powers.
474 (1) (a) Except as provided in Subsection (1)(b), a county may:
475 (i) as prescribed by statute:
476 (A) levy a tax;
477 (B) perform an assessment;
478 (C) collect a tax;
479 (D) borrow money; or
480 (E) levy and collect a special assessment for a conferred benefit; or
481 (ii) provide a service, exercise a power, or perform a function that is reasonably related
482 to the safety, health, morals, and welfare of county inhabitants, except as limited or prohibited
483 by statute.
484 (b) A county or a governmental instrumentality of a county may not perform an action
485 described in Subsection (1)(a)(i) or provide a service, exercise a power, or perform a function
486 described in Subsection (1)(a)(ii) in another county or a municipality within the other county
487 without first entering into an agreement under Title 11, Chapter 13, Interlocal Cooperation Act,
488 or other contract with the other county to perform the action, provide the service, exercise the
489 power, or perform the function.
490 (2) (a) A county may:
491 (i) sue and be sued;
492 (ii) subject to Subsection (2)(c), acquire real property by tax sale, purchase, lease,
493 contract, or gift, and hold the real property as necessary and proper for county purposes;
494 (iii) (A) subject to Subsection (2)(b), acquire real property by condemnation, as
495 provided in Title 78B, Chapter 6, Part 5, Eminent Domain; and
496 (B) hold the real property as necessary and proper for county purposes;
497 (iv) as may be necessary to the exercise of its powers, acquire personal property by
498 purchase, lease, contract, or gift, and hold such personal property; and
499 (v) manage and dispose of its property as the interests of its inhabitants may require.
500 (b) (i) For purposes of Subsection (2)(a)(iii), water rights that are not appurtenant to
501 land do not constitute real property that may be acquired by the county through condemnation.
502 (ii) Nothing in Subsection (2)(a)(iii) may be construed to authorize a county to acquire
503 by condemnation the rights to water unless the land to which those water rights are appurtenant
504 is acquired by condemnation.
505 (c) (i) Except as provided in Subsection (2)(c)(iv), each county intending to acquire
506 real property for the purpose of expanding the county's infrastructure or other facilities used for
507 providing services that the county offers or intends to offer shall provide written notice, as
508 provided in this Subsection (2)(c), of its intent to acquire the property if:
509 (A) the property is located:
510 (I) outside the boundaries of the unincorporated area of the county; and
511 (II) in a county of the first or second class; and
512 (B) the intended use of the property is contrary to:
513 (I) the anticipated use of the property under the general plan of the county in whose
514 unincorporated area or the municipality in whose boundaries the property is located; or
515 (II) the property's current zoning designation.
516 (ii) Each notice under Subsection (2)(c)(i) shall:
517 (A) indicate that the county intends to acquire real property;
518 (B) identify the real property; and
519 (C) be sent to:
520 (I) each county in whose unincorporated area and each municipality in whose
521 boundaries the property is located; and
522 (II) each affected entity.
523 (iii) A notice under this Subsection (2)(c) is a protected record as provided in
524 Subsection 63G-2-305 [
525 (iv) (A) The notice requirement of Subsection (2)(c)(i) does not apply if the county
526 previously provided notice under Section 17-27a-203 identifying the general location within
527 the municipality or unincorporated part of the county where the property to be acquired is
528 located.
529 (B) If a county is not required to comply with the notice requirement of Subsection
530 (2)(c)(i) because of application of Subsection (2)(c)(iv)(A), the county shall provide the notice
531 specified in Subsection (2)(c)(i) as soon as practicable after its acquisition of the real property.
532 Section 6. Section 17B-1-106 is amended to read:
533 17B-1-106. Notice before preparing or amending a long-range plan or acquiring
534 certain property.
535 (1) As used in this section:
536 (a) (i) "Affected entity" means each county, municipality, local district under this title,
537 special service district, school district, interlocal cooperation entity established under Title 11,
538 Chapter 13, Interlocal Cooperation Act, and specified public utility:
539 (A) whose services or facilities are likely to require expansion or significant
540 modification because of an intended use of land; or
541 (B) that has filed with the local district a copy of the general or long-range plan of the
542 county, municipality, local district, school district, interlocal cooperation entity, or specified
543 public utility.
544 (ii) "Affected entity" does not include the local district that is required under this
545 section to provide notice.
546 (b) "Specified public utility" means an electrical corporation, gas corporation, or
547 telephone corporation, as those terms are defined in Section 54-2-1 .
548 (2) (a) If a local district under this title located in a county of the first or second class
549 prepares a long-range plan regarding its facilities proposed for the future or amends an already
550 existing long-range plan, the local district shall, before preparing a long-range plan or
551 amendments to an existing long-range plan, provide written notice, as provided in this section,
552 of its intent to prepare a long-range plan or to amend an existing long-range plan.
553 (b) Each notice under Subsection (2)(a) shall:
554 (i) indicate that the local district intends to prepare a long-range plan or to amend a
555 long-range plan, as the case may be;
556 (ii) describe or provide a map of the geographic area that will be affected by the
557 long-range plan or amendments to a long-range plan;
558 (iii) be:
559 (A) sent to each county in whose unincorporated area and each municipality in whose
560 boundaries is located the land on which the proposed long-range plan or amendments to a
561 long-range plan are expected to indicate that the proposed facilities will be located;
562 (B) sent to each affected entity;
563 (C) sent to the Automated Geographic Reference Center created in Section 63F-1-506 ;
564 (D) sent to each association of governments, established pursuant to an interlocal
565 agreement under Title 11, Chapter 13, Interlocal Cooperation Act, of which a county or
566 municipality described in Subsection (2)(b)(iii)(A) is a member; and
567 (E) (I) placed on the Utah Public Notice Website created under Section 63F-1-701 , if
568 the local district:
569 (Aa) is required under Subsection 52-4-203 (3) to use that website to provide public
570 notice of a meeting; or
571 (Bb) voluntarily chooses to place notice on that website despite not being required to
572 do so under Subsection (2)(b)(iii)(E)(I)(Aa); or
573 (II) the state planning coordinator appointed under Section 63J-4-202 , if the local
574 district does not provide notice on the Utah Public Notice Website under Subsection
575 (2)(b)(iii)(E)(I);
576 (iv) with respect to the notice to counties and municipalities described in Subsection
577 (2)(b)(iii)(A) and affected entities, invite them to provide information for the local district to
578 consider in the process of preparing, adopting, and implementing the long-range plan or
579 amendments to a long-range plan concerning:
580 (A) impacts that the use of land proposed in the proposed long-range plan or
581 amendments to a long-range plan may have on the county, municipality, or affected entity; and
582 (B) uses of land that the county, municipality, or affected entity is planning or
583 considering that may conflict with the proposed long-range plan or amendments to a long-range
584 plan; and
585 (v) include the address of an Internet website, if the local district has one, and the name
586 and telephone number of a person where more information can be obtained concerning the
587 local district's proposed long-range plan or amendments to a long-range plan.
588 (3) (a) Except as provided in Subsection (3)(d), each local district intending to acquire
589 real property in a county of the first or second class for the purpose of expanding the district's
590 infrastructure or other facilities used for providing the services that the district is authorized to
591 provide shall provide written notice, as provided in this Subsection (3), of its intent to acquire
592 the property if the intended use of the property is contrary to:
593 (i) the anticipated use of the property under the county or municipality's general plan;
594 or
595 (ii) the property's current zoning designation.
596 (b) Each notice under Subsection (3)(a) shall:
597 (i) indicate that the local district intends to acquire real property;
598 (ii) identify the real property; and
599 (iii) be sent to:
600 (A) each county in whose unincorporated area and each municipality in whose
601 boundaries the property is located; and
602 (B) each affected entity.
603 (c) A notice under this Subsection (3) is a protected record as provided in Subsection
604 63G-2-305 [
605 (d) (i) The notice requirement of Subsection (3)(a) does not apply if the local district
606 previously provided notice under Subsection (2) identifying the general location within the
607 municipality or unincorporated part of the county where the property to be acquired is located.
608 (ii) If a local district is not required to comply with the notice requirement of
609 Subsection (3)(a) because of application of Subsection (3)(d)(i), the local district shall provide
610 the notice specified in Subsection (3)(a) as soon as practicable after its acquisition of the real
611 property.
612 Section 7. Section 31A-31-104 is amended to read:
613 31A-31-104. Disclosure of information.
614 (1) (a) Subject to Subsection (2), upon written request by an insurer to an authorized
615 agency, the authorized agency may release to the insurer information or evidence that is
616 relevant to any suspected insurance fraud.
617 (b) Upon written request by an authorized agency to an insurer, the insurer or an agent
618 authorized by the insurer to act on the insurer's behalf shall release to the authorized agency
619 information or evidence that is relevant to any suspected insurance fraud.
620 (2) (a) Any information or evidence furnished to an authorized agency under this
621 section may be classified as a protected record in accordance with Subsection
622 63G-2-305 [
623 (b) Any information or evidence furnished to an insurer under this section is not
624 subject to discovery in a civil proceeding unless, after reasonable notice to any insurer, agent,
625 or any authorized agency that has an interest in the information and subsequent hearing, a court
626 determines that the public interest and any ongoing criminal investigation will not be
627 jeopardized by the disclosure.
628 (c) An insurer shall report to the department agency terminations based upon a
629 violation of this chapter.
630 Section 8. Section 53-5-708 is amended to read:
631 53-5-708. Permit -- Names private.
632 (1) (a) The bureau shall maintain a record in its office of any permit issued under this
633 part.
634 (b) Notwithstanding the requirements of Subsection 63G-2-301 (2)(b), the names,
635 addresses, telephone numbers, dates of birth, and Social Security numbers of persons receiving
636 permits are protected records under Subsection 63G-2-305 [
637 (2) The bureau shall immediately file a copy of each permit it issues under this part.
638 Section 9. Section 53A-2-123 is amended to read:
639 53A-2-123. Notice before preparing or amending a long-range plan or acquiring
640 certain property.
641 (1) As used in this section:
642 (a) "Affected entity" means each county, municipality, local district under Title 17B,
643 Limited Purpose Local Government Entities - Local Districts, special service district under
644 Title 17D, Chapter 1, Special Service District Act, interlocal cooperation entity established
645 under Title 11, Chapter 13, Interlocal Cooperation Act, and specified public utility:
646 (i) whose services or facilities are likely to require expansion or significant
647 modification because of an intended use of land; or
648 (ii) that has filed with the school district a copy of the general or long-range plan of the
649 county, municipality, local district, special service district, school district, interlocal
650 cooperation entity, or specified public utility.
651 (b) "Specified public utility" means an electrical corporation, gas corporation, or
652 telephone corporation, as those terms are defined in Section 54-2-1 .
653 (2) (a) If a school district located in a county of the first or second class prepares a
654 long-range plan regarding its facilities proposed for the future or amends an already existing
655 long-range plan, the school district shall, before preparing a long-range plan or amendments to
656 an existing long-range plan, provide written notice, as provided in this section, of its intent to
657 prepare a long-range plan or to amend an existing long-range plan.
658 (b) Each notice under Subsection (2)(a) shall:
659 (i) indicate that the school district intends to prepare a long-range plan or to amend a
660 long-range plan, as the case may be;
661 (ii) describe or provide a map of the geographic area that will be affected by the
662 long-range plan or amendments to a long-range plan;
663 (iii) be:
664 (A) sent to each county in whose unincorporated area and each municipality in whose
665 boundaries is located the land on which the proposed long-range plan or amendments to a
666 long-range plan are expected to indicate that the proposed facilities will be located;
667 (B) sent to each affected entity;
668 (C) sent to the Automated Geographic Reference Center created in Section 63F-1-506 ;
669 (D) sent to each association of governments, established pursuant to an interlocal
670 agreement under Title 11, Chapter 13, Interlocal Cooperation Act, of which a county or
671 municipality described in Subsection (2)(b)(iii)(A) is a member; and
672 (E) placed on the Utah Public Notice Website created under Section 63F-1-701 ;
673 (iv) with respect to the notice to counties and municipalities described in Subsection
674 (2)(b)(iii)(A) and affected entities, invite them to provide information for the school district to
675 consider in the process of preparing, adopting, and implementing the long-range plan or
676 amendments to a long-range plan concerning:
677 (A) impacts that the use of land proposed in the proposed long-range plan or
678 amendments to a long-range plan may have on the county, municipality, or affected entity; and
679 (B) uses of land that the county, municipality, or affected entity is planning or
680 considering that may conflict with the proposed long-range plan or amendments to a long-range
681 plan; and
682 (v) include the address of an Internet website, if the school district has one, and the
683 name and telephone number of a person where more information can be obtained concerning
684 the school district's proposed long-range plan or amendments to a long-range plan.
685 (3) (a) Except as provided in Subsection (3)(d), each school district intending to
686 acquire real property in a county of the first or second class for the purpose of expanding the
687 district's infrastructure or other facilities shall provide written notice, as provided in this
688 Subsection (3), of its intent to acquire the property if the intended use of the property is
689 contrary to:
690 (i) the anticipated use of the property under the county or municipality's general plan;
691 or
692 (ii) the property's current zoning designation.
693 (b) Each notice under Subsection (3)(a) shall:
694 (i) indicate that the school district intends to acquire real property;
695 (ii) identify the real property; and
696 (iii) be sent to:
697 (A) each county in whose unincorporated area and each municipality in whose
698 boundaries the property is located; and
699 (B) each affected entity.
700 (c) A notice under this Subsection (3) is a protected record as provided in Subsection
701 63G-2-305 [
702 (d) (i) The notice requirement of Subsection (3)(a) does not apply if the school district
703 previously provided notice under Subsection (2) identifying the general location within the
704 municipality or unincorporated part of the county where the property to be acquired is located.
705 (ii) If a school district is not required to comply with the notice requirement of
706 Subsection (3)(a) because of application of Subsection (3)(d)(i), the school district shall
707 provide the notice specified in Subsection (3)(a) as soon as practicable after its acquisition of
708 the real property.
709 Section 10. Section 54-3-28 is amended to read:
710 54-3-28. Notice required of certain public utilities before preparing or amending
711 a long-range plan or acquiring certain property.
712 (1) As used in this section:
713 (a) (i) "Affected entity" means each county, municipality, local district under Title 17B,
714 Limited Purpose Local Government Entities - Local Districts, special service district, school
715 district, interlocal cooperation entity established under Title 11, Chapter 13, Interlocal
716 Cooperation Act, and specified public utility:
717 (A) whose services or facilities are likely to require expansion or significant
718 modification because of expected uses of land under a proposed long-range plan or under
719 proposed amendments to a long-range plan; or
720 (B) that has filed with the specified public utility a copy of the general or long-range
721 plan of the county, municipality, local district, special service district, school district, interlocal
722 cooperation entity, or specified public utility.
723 (ii) "Affected entity" does not include the specified public utility that is required under
724 Subsection (2) to provide notice.
725 (b) "Specified public utility" means an electrical corporation, gas corporation, or
726 telephone corporation, as those terms are defined in Section 54-2-1 .
727 (2) (a) If a specified public utility prepares a long-range plan regarding its facilities
728 proposed for the future in a county of the first or second class or amends an already existing
729 long-range plan, the specified public utility shall, before preparing a long-range plan or
730 amendments to an existing long-range plan, provide written notice, as provided in this section,
731 of its intent to prepare a long-range plan or to amend an existing long-range plan.
732 (b) Each notice under Subsection (2) shall:
733 (i) indicate that the specified public utility intends to prepare a long-range plan or to
734 amend a long-range plan, as the case may be;
735 (ii) describe or provide a map of the geographic area that will be affected by the
736 long-range plan or amendments to a long-range plan;
737 (iii) be sent to:
738 (A) each county in whose unincorporated area and each municipality in whose
739 boundaries is located the land on which the proposed long-range plan or amendments to a
740 long-range plan are expected to indicate that the proposed facilities will be located;
741 (B) each affected entity;
742 (C) the Automated Geographic Reference Center created in Section 63F-1-506 ;
743 (D) each association of governments, established pursuant to an interlocal agreement
744 under Title 11, Chapter 13, Interlocal Cooperation Act, of which a county or municipality
745 described in Subsection (2)(b)(iii)(A) is a member; and
746 (E) the state planning coordinator appointed under Section 63J-4-202 ;
747 (iv) with respect to the notice to counties and municipalities described in Subsection
748 (2)(b)(iii)(A) and affected entities, invite them to provide information for the specified public
749 utility to consider in the process of preparing, adopting, and implementing the long-range plan
750 or amendments to a long-range plan concerning:
751 (A) impacts that the use of land proposed in the proposed long-range plan or
752 amendments to a long-range plan may have on the county, municipality, or affected entity; and
753 (B) uses of land that the county, municipality, or affected entity is planning or
754 considering that may conflict with the proposed long-range plan or amendments to a long-range
755 plan; and
756 (v) include the address of an Internet website, if the specified public utility has one, and
757 the name and telephone number of a person where more information can be obtained
758 concerning the specified public utility's proposed long-range plan or amendments to a
759 long-range plan.
760 (3) (a) Except as provided in Subsection (3)(d), each specified public utility intending
761 to acquire real property in a county of the first or second class for the purpose of expanding its
762 infrastructure or other facilities used for providing the services that the specified public utility
763 is authorized to provide shall provide written notice, as provided in this Subsection (3), of its
764 intent to acquire the property if the intended use of the property is contrary to:
765 (i) the anticipated use of the property under the county or municipality's general plan;
766 or
767 (ii) the property's current zoning designation.
768 (b) Each notice under Subsection (3)(a) shall:
769 (i) indicate that the specified public utility intends to acquire real property;
770 (ii) identify the real property; and
771 (iii) be sent to:
772 (A) each county in whose unincorporated area and each municipality in whose
773 boundaries the property is located; and
774 (B) each affected entity.
775 (c) A notice under this Subsection (3) is a protected record as provided in Subsection
776 63G-2-305 [
777 (d) (i) The notice requirement of Subsection (3)(a) does not apply if the specified
778 public utility previously provided notice under Subsection (2) identifying the general location
779 within the municipality or unincorporated part of the county where the property to be acquired
780 is located.
781 (ii) If a specified public utility is not required to comply with the notice requirement of
782 Subsection (3)(a) because of application of Subsection (3)(d)(i), the specified public utility
783 shall provide the notice specified in Subsection (3)(a) as soon as practicable after its acquisition
784 of the real property.
785 Section 11. Section 62A-16-204 is amended to read:
786 62A-16-204. Fatality Review Committee Proceedings.
787 (1) A majority vote of committee members present constitutes the action of the
788 committee.
789 (2) The department shall give the committee access to all reports, records, and other
790 documents that are relevant to the fatality under investigation, including:
791 (a) narrative reports;
792 (b) case files;
793 (c) autopsy reports; and
794 (d) police reports, unless the report is protected from disclosure under Subsection
795 63G-2-305 [
796 (3) The Utah State Hospital and the Utah State Developmental Center shall provide
797 protected health information to the committee if requested by a fatality review coordinator.
798 (4) A committee shall convene its first meeting within 14 days after the day on which a
799 formal fatality review is ordered under Subsection 62A-16-201 (6), unless this time is extended,
800 for good cause, by the director of the Office of Services Review.
801 (5) A committee may interview a staff member, a provider, or any other person who
802 may have knowledge or expertise that is relevant to the fatality review.
803 (6) A committee shall render an advisory opinion regarding:
804 (a) whether the provisions of law, rule, policy, and procedure relating to the deceased
805 individual and the deceased individual's family were complied with;
806 (b) whether the fatality was responded to properly;
807 (c) whether to recommend that a law, rule, policy, or procedure be changed; and
808 (d) whether additional training is needed.
809 Section 12. Section 63C-4-102 is amended to read:
810 63C-4-102. Duties.
811 (1) The Constitutional Defense Council is a council to assist the governor and the
812 Legislature on the following types of issues:
813 (a) the constitutionality of federal mandates;
814 (b) when making recommendations to challenge the federal mandates and regulations
815 described in Subsections (1)(f)(i) through (v), the rationale for and effectiveness of those
816 federal mandates or regulations;
817 (c) legal and policy issues surrounding state and local government rights under R.S.
818 2477;
819 (d) legal issues relating to the rights of the School and Institutional Trust Lands
820 Administration and its beneficiaries;
821 (e) a disagreement with another state regarding the use or ownership of water; and
822 (f) the advisability, feasibility, estimated cost, and likelihood of success of challenging:
823 (i) federal court rulings that:
824 (A) hinder the management of the state's prison system and place undue financial
825 hardship on the state's taxpayers;
826 (B) impact a power or a right reserved to the state or its citizens by the United States
827 Constitution, Amendment IX or X; or
828 (C) expand or grant a power to the United States government beyond the limited,
829 enumerated powers granted by the United States Constitution;
830 (ii) federal laws or regulations that reduce or negate water rights or the rights of owners
831 of private property, or the rights and interest of state and local governments, including
832 sovereignty interests and the power to provide for the health, safety, and welfare, and promote
833 the prosperity of their inhabitants;
834 (iii) conflicting federal regulations or policies in land management on federal land;
835 (iv) federal intervention that would damage the state's mining, timber, and ranching
836 industries;
837 (v) the authority of the Environmental Protection Agency and Congress to mandate
838 local air quality standards and penalties; and
839 (vi) other issues that are relevant to this Subsection (1).
840 (2) The council shall:
841 (a) provide advice to the governor, state planning coordinator, and the public lands
842 policy coordinator concerning coordination of:
843 (i) state and local government rights under R.S. 2477; and
844 (ii) other public lands issues;
845 (b) approve a plan for R.S. 2477 rights developed in accordance with Section
846 63C-4-104 ; and
847 (c) review, at least quarterly:
848 (i) financial statements concerning implementation of the plan for R.S. 2477 rights;
849 and
850 (ii) financial and other reports from the Public Lands Policy Coordinating Office
851 concerning its activities.
852 (3) The council chair may require the attorney general or a designee to provide
853 testimony on potential legal actions that would enhance the state's sovereignty or authority on
854 issues affecting Utah and the well-being of its citizens.
855 (4) The council chair may direct the attorney general to initiate and prosecute any
856 action that the council determines will further its purposes, including an action described in
857 Section 67-5-29 .
858 (5) (a) Subject to the provisions of this section, the council may select and employ
859 attorneys to implement the purposes and duties of the council.
860 (b) The council chair may, in consultation with the council, direct any council attorney
861 in any manner considered appropriate by the attorney general to best serve the purposes of the
862 council.
863 (c) The attorney general shall negotiate a contract for services with any attorney
864 selected and approved for employment under this section.
865 (6) The council chair may, only with the concurrence of the council, review and
866 approve all claims for payments for:
867 (a) legal services that are submitted to the council;
868 (b) an action filed in accordance with Section 67-5-29 ; and
869 (c) costs related to a constitutional defense plan approved in accordance with Section
870 63C-4-104 that are submitted by:
871 (i) the Public Lands Policy Coordinating Office;
872 (ii) the School and Institutional Trust Lands Administration; or
873 (iii) the Office of the Attorney General.
874 (7) Within five business days' notice, the council chair may, with the concurrence of
875 the council, order the attorney general or an attorney employed by the council to cease work to
876 be charged to the fund.
877 (8) (a) At least 20 calendar days before the state submits comments on the draft
878 environmental impact statement or environmental assessment for a proposed land management
879 plan of any federal land management agency, the governor shall make those documents
880 available to:
881 (i) members of the council; and
882 (ii) any county executive, county council member, or county commissioner of a county
883 that is covered by the management plan and that has established formal cooperating agency
884 status with the relevant federal land management agency regarding the proposed plan.
885 (b) (i) Council members or local government officials receiving the documents may
886 make recommendations to the governor or the governor's designee concerning changes to the
887 documents before they are submitted to the federal land management agency.
888 (ii) Council members or local government officials shall submit recommendations to
889 the governor or the governor's designee no later than 10 calendar days after receiving the
890 documents under Subsection (8)(a).
891 (c) Documents transmitted or received under this Subsection (8) are drafts and are
892 protected records pursuant to Subsection 63G-2-305 [
893 (9) The council shall submit a report on December 1 of each year by electronic mail
894 that summarizes the council's activities to each legislator.
895 Section 13. Section 63G-2-201 is amended to read:
896 63G-2-201. Right to inspect records and receive copies of records.
897 (1) Every person has the right to inspect a public record free of charge, and the right to
898 take a copy of a public record during normal working hours, subject to Sections 63G-2-203 and
899 63G-2-204 .
900 (2) A record is public unless otherwise expressly provided by statute.
901 (3) The following records are not public:
902 (a) a record that is private, controlled, or protected under Sections 63G-2-302 ,
903 63G-2-303 , 63G-2-304 , and 63G-2-305 ; and
904 (b) a record to which access is restricted pursuant to court rule, another state statute,
905 federal statute, or federal regulation, including records for which access is governed or
906 restricted as a condition of participation in a state or federal program or for receiving state or
907 federal funds.
908 (4) Only a record specified in Section 63G-2-302 , 63G-2-303 , 63G-2-304 , or
909 63G-2-305 may be classified private, controlled, or protected.
910 (5) (a) A governmental entity may not disclose a record that is private, controlled, or
911 protected to any person except as provided in Subsection (5)(b), Subsection (5)(c), Section
912 63G-2-202 , 63G-2-206 , or 63G-2-303 .
913 (b) A governmental entity may disclose a record that is private under Subsection
914 63G-2-302 (2) or protected under Section 63G-2-305 to persons other than those specified in
915 Section 63G-2-202 or 63G-2-206 if the head of a governmental entity, or a designee,
916 determines that:
917 (i) there is no interest in restricting access to the record; or
918 (ii) the interests favoring access are greater than or equal to the interest favoring
919 restriction of access.
920 (c) In addition to the disclosure under Subsection (5)(b), a governmental entity may
921 disclose a record that is protected under Subsection 63G-2-305 [
922 (i) the head of the governmental entity, or a designee, determines that the disclosure:
923 (A) is mutually beneficial to:
924 (I) the subject of the record;
925 (II) the governmental entity; and
926 (III) the public; and
927 (B) serves a public purpose related to:
928 (I) public safety; or
929 (II) consumer protection; and
930 (ii) the person who receives the record from the governmental entity agrees not to use
931 or allow the use of the record for advertising or solicitation purposes.
932 (6) (a) The disclosure of a record to which access is governed or limited pursuant to
933 court rule, another state statute, federal statute, or federal regulation, including a record for
934 which access is governed or limited as a condition of participation in a state or federal program
935 or for receiving state or federal funds, is governed by the specific provisions of that statute,
936 rule, or regulation.
937 (b) This chapter applies to records described in Subsection (6)(a) insofar as this chapter
938 is not inconsistent with the statute, rule, or regulation.
939 (7) A governmental entity shall provide a person with a certified copy of a record if:
940 (a) the person requesting the record has a right to inspect it;
941 (b) the person identifies the record with reasonable specificity; and
942 (c) the person pays the lawful fees.
943 (8) (a) In response to a request, a governmental entity is not required to:
944 (i) create a record;
945 (ii) compile, format, manipulate, package, summarize, or tailor information;
946 (iii) provide a record in a particular format, medium, or program not currently
947 maintained by the governmental entity;
948 (iv) fulfill a person's records request if the request unreasonably duplicates prior
949 records requests from that person; or
950 (v) fill a person's records request if:
951 (A) the record requested is accessible in the identical physical form and content in a
952 public publication or product produced by the governmental entity receiving the request;
953 (B) the governmental entity provides the person requesting the record with the public
954 publication or product; and
955 (C) the governmental entity specifies where the record can be found in the public
956 publication or product.
957 (b) Upon request, a governmental entity may provide a record in a particular form
958 under Subsection (8)(a)(ii) or (iii) if:
959 (i) the governmental entity determines it is able to do so without unreasonably
960 interfering with the governmental entity's duties and responsibilities; and
961 (ii) the requester agrees to pay the governmental entity for providing the record in the
962 requested form in accordance with Section 63G-2-203 .
963 (9) (a) A governmental entity may allow a person requesting more than 50 pages of
964 records to copy the records if:
965 (i) the records are contained in files that do not contain records that are exempt from
966 disclosure, or the records may be segregated to remove private, protected, or controlled
967 information from disclosure; and
968 (ii) the governmental entity provides reasonable safeguards to protect the public from
969 the potential for loss of a public record.
970 (b) When the requirements of Subsection (9)(a) are met, the governmental entity may:
971 (i) provide the requester with the facilities for copying the requested records and
972 require that the requester make the copies; or
973 (ii) allow the requester to provide the requester's own copying facilities and personnel
974 to make the copies at the governmental entity's offices and waive the fees for copying the
975 records.
976 (10) (a) A governmental entity that owns an intellectual property right and that offers
977 the intellectual property right for sale or license may control by ordinance or policy the
978 duplication and distribution of the material based on terms the governmental entity considers to
979 be in the public interest.
980 (b) Nothing in this chapter shall be construed to limit or impair the rights or protections
981 granted to the governmental entity under federal copyright or patent law as a result of its
982 ownership of the intellectual property right.
983 (11) A governmental entity may not use the physical form, electronic or otherwise, in
984 which a record is stored to deny, or unreasonably hinder the rights of a person to inspect and
985 receive a copy of a record under this chapter.
986 (12) Subject to the requirements of Subsection (8), a governmental entity shall provide
987 access to an electronic copy of a record in lieu of providing access to its paper equivalent if:
988 (a) the person making the request requests or states a preference for an electronic copy;
989 (b) the governmental entity currently maintains the record in an electronic format that
990 is reproducible and may be provided without reformatting or conversion; and
991 (c) the electronic copy of the record:
992 (i) does not disclose other records that are exempt from disclosure; or
993 (ii) may be segregated to protect private, protected, or controlled information from
994 disclosure without the undue expenditure of public resources or funds.
995 Section 14. Section 63G-2-202 is amended to read:
996 63G-2-202. Access to private, controlled, and protected documents.
997 (1) Upon request, and except as provided in Subsection (11)(a), a governmental entity
998 shall disclose a private record to:
999 (a) the subject of the record;
1000 (b) the parent or legal guardian of an unemancipated minor who is the subject of the
1001 record;
1002 (c) the legal guardian of a legally incapacitated individual who is the subject of the
1003 record;
1004 (d) any other individual who:
1005 (i) has a power of attorney from the subject of the record;
1006 (ii) submits a notarized release from the subject of the record or the individual's legal
1007 representative dated no more than 90 days before the date the request is made; or
1008 (iii) if the record is a medical record described in Subsection 63G-2-302 (1)(b), is a
1009 health care provider, as defined in Section 26-33a-102 , if releasing the record or information in
1010 the record is consistent with normal professional practice and medical ethics; or
1011 (e) any person to whom the record must be provided pursuant to:
1012 (i) court order as provided in Subsection (7); or
1013 (ii) a legislative subpoena as provided in Title 36, Chapter 14, Legislative Subpoena
1014 Powers.
1015 (2) (a) Upon request, a governmental entity shall disclose a controlled record to:
1016 (i) a physician, psychologist, certified social worker, insurance provider or producer, or
1017 a government public health agency upon submission of:
1018 (A) a release from the subject of the record that is dated no more than 90 days prior to
1019 the date the request is made; and
1020 (B) a signed acknowledgment of the terms of disclosure of controlled information as
1021 provided by Subsection (2)(b); and
1022 (ii) any person to whom the record must be disclosed pursuant to:
1023 (A) a court order as provided in Subsection (7); or
1024 (B) a legislative subpoena as provided in Title 36, Chapter 14, Legislative Subpoena
1025 Powers.
1026 (b) A person who receives a record from a governmental entity in accordance with
1027 Subsection (2)(a)(i) may not disclose controlled information from that record to any person,
1028 including the subject of the record.
1029 (3) If there is more than one subject of a private or controlled record, the portion of the
1030 record that pertains to another subject shall be segregated from the portion that the requester is
1031 entitled to inspect.
1032 (4) Upon request, and except as provided in Subsection (10) or (11)(b), a governmental
1033 entity shall disclose a protected record to:
1034 (a) the person who submitted the record;
1035 (b) any other individual who:
1036 (i) has a power of attorney from all persons, governmental entities, or political
1037 subdivisions whose interests were sought to be protected by the protected classification; or
1038 (ii) submits a notarized release from all persons, governmental entities, or political
1039 subdivisions whose interests were sought to be protected by the protected classification or from
1040 their legal representatives dated no more than 90 days prior to the date the request is made;
1041 (c) any person to whom the record must be provided pursuant to:
1042 (i) a court order as provided in Subsection (7); or
1043 (ii) a legislative subpoena as provided in Title 36, Chapter 14, Legislative Subpoena
1044 Powers; or
1045 (d) the owner of a mobile home park, subject to the conditions of Subsection
1046 41-1a-116 (5).
1047 (5) A governmental entity may disclose a private, controlled, or protected record to
1048 another governmental entity, political subdivision, another state, the United States, or a foreign
1049 government only as provided by Section 63G-2-206 .
1050 (6) Before releasing a private, controlled, or protected record, the governmental entity
1051 shall obtain evidence of the requester's identity.
1052 (7) A governmental entity shall disclose a record pursuant to the terms of a court order
1053 signed by a judge from a court of competent jurisdiction, provided that:
1054 (a) the record deals with a matter in controversy over which the court has jurisdiction;
1055 (b) the court has considered the merits of the request for access to the record;
1056 (c) the court has considered and, where appropriate, limited the requester's use and
1057 further disclosure of the record in order to protect:
1058 (i) privacy interests in the case of private or controlled records;
1059 (ii) business confidentiality interests in the case of records protected under Subsection
1060 63G-2-305 (1), (2), [
1061 (iii) privacy interests or the public interest in the case of other protected records;
1062 (d) to the extent the record is properly classified private, controlled, or protected, the
1063 interests favoring access, considering limitations thereon, are greater than or equal to the
1064 interests favoring restriction of access; and
1065 (e) where access is restricted by a rule, statute, or regulation referred to in Subsection
1066 63G-2-201 (3)(b), the court has authority independent of this chapter to order disclosure.
1067 (8) (a) A governmental entity may disclose or authorize disclosure of private or
1068 controlled records for research purposes if the governmental entity:
1069 (i) determines that the research purpose cannot reasonably be accomplished without
1070 use or disclosure of the information to the researcher in individually identifiable form;
1071 (ii) determines that:
1072 (A) the proposed research is bona fide; and
1073 (B) the value of the research is greater than or equal to the infringement upon personal
1074 privacy;
1075 (iii) (A) requires the researcher to assure the integrity, confidentiality, and security of
1076 the records; and
1077 (B) requires the removal or destruction of the individual identifiers associated with the
1078 records as soon as the purpose of the research project has been accomplished;
1079 (iv) prohibits the researcher from:
1080 (A) disclosing the record in individually identifiable form, except as provided in
1081 Subsection (8)(b); or
1082 (B) using the record for purposes other than the research approved by the governmental
1083 entity; and
1084 (v) secures from the researcher a written statement of the researcher's understanding of
1085 and agreement to the conditions of this Subsection (8) and the researcher's understanding that
1086 violation of the terms of this Subsection (8) may subject the researcher to criminal prosecution
1087 under Section 63G-2-801 .
1088 (b) A researcher may disclose a record in individually identifiable form if the record is
1089 disclosed for the purpose of auditing or evaluating the research program and no subsequent use
1090 or disclosure of the record in individually identifiable form will be made by the auditor or
1091 evaluator except as provided by this section.
1092 (c) A governmental entity may require indemnification as a condition of permitting
1093 research under this Subsection (8).
1094 (9) (a) Under Subsections 63G-2-201 (5)(b) and 63G-2-401 (6), a governmental entity
1095 may disclose to persons other than those specified in this section records that are:
1096 (i) private under Section 63G-2-302 ; or
1097 (ii) protected under Section 63G-2-305 subject to Section 63G-2-309 if a claim for
1098 business confidentiality has been made under Section 63G-2-309 .
1099 (b) Under Subsection 63G-2-403 (11)(b), the records committee may require the
1100 disclosure to persons other than those specified in this section of records that are:
1101 (i) private under Section 63G-2-302 ;
1102 (ii) controlled under Section 63G-2-304 ; or
1103 (iii) protected under Section 63G-2-305 subject to Section 63G-2-309 if a claim for
1104 business confidentiality has been made under Section 63G-2-309 .
1105 (c) Under Subsection 63G-2-404 (8), the court may require the disclosure of records
1106 that are private under Section 63G-2-302 , controlled under Section 63G-2-304 , or protected
1107 under Section 63G-2-305 to persons other than those specified in this section.
1108 (10) A record contained in the Management Information System, created in Section
1109 62A-4a-1003 , that is found to be unsubstantiated, unsupported, or without merit may not be
1110 disclosed to any person except the person who is alleged in the report to be a perpetrator of
1111 abuse, neglect, or dependency.
1112 (11) (a) A private record described in Subsection 63G-2-302 (2)(f) may only be
1113 disclosed as provided in Subsection (1)(e).
1114 (b) A protected record described in Subsection 63G-2-305 [
1115 disclosed as provided in Subsection (4)(c) or Section 62A-3-312 .
1116 (12) (a) A private, protected, or controlled record described in Section 62A-16-301
1117 shall be disclosed as required under:
1118 (i) Subsections 62A-16-301 (1)(b), (2), and (4)(c); and
1119 (ii) Subsections 62A-16-302 (1) and (6).
1120 (b) A record disclosed under Subsection (12)(a) shall retain its character as private,
1121 protected, or controlled.
1122 Section 15. Section 63G-2-301 is amended to read:
1123 63G-2-301. Records that must be disclosed.
1124 (1) As used in this section:
1125 (a) "Business address" means a single address of a governmental agency designated for
1126 the public to contact an employee or officer of the governmental agency.
1127 (b) "Business email address" means a single email address of a governmental agency
1128 designated for the public to contact an employee or officer of the governmental agency.
1129 (c) "Business telephone number" means a single telephone number of a governmental
1130 agency designated for the public to contact an employee or officer of the governmental agency.
1131 (2) The following records are public except to the extent they contain information
1132 expressly permitted to be treated confidentially under the provisions of Subsections
1133 63G-2-201 (3)(b) and (6)(a):
1134 (a) laws;
1135 (b) the name, gender, gross compensation, job title, job description, business address,
1136 business email address, business telephone number, number of hours worked per pay period,
1137 dates of employment, and relevant education, previous employment, and similar job
1138 qualifications of a current or former employee or officer of the governmental entity, excluding:
1139 (i) undercover law enforcement personnel; and
1140 (ii) investigative personnel if disclosure could reasonably be expected to impair the
1141 effectiveness of investigations or endanger any individual's safety;
1142 (c) final opinions, including concurring and dissenting opinions, and orders that are
1143 made by a governmental entity in an administrative, adjudicative, or judicial proceeding except
1144 that if the proceedings were properly closed to the public, the opinion and order may be
1145 withheld to the extent that they contain information that is private, controlled, or protected;
1146 (d) final interpretations of statutes or rules by a governmental entity unless classified as
1147 protected as provided in Subsection 63G-2-305 [
1148 (e) information contained in or compiled from a transcript, minutes, or report of the
1149 open portions of a meeting of a governmental entity as provided by Title 52, Chapter 4, Open
1150 and Public Meetings Act, including the records of all votes of each member of the
1151 governmental entity;
1152 (f) judicial records unless a court orders the records to be restricted under the rules of
1153 civil or criminal procedure or unless the records are private under this chapter;
1154 (g) unless otherwise classified as private under Section 63G-2-303 , records or parts of
1155 records filed with or maintained by county recorders, clerks, treasurers, surveyors, zoning
1156 commissions, the Division of Forestry, Fire, and State Lands, the School and Institutional Trust
1157 Lands Administration, the Division of Oil, Gas, and Mining, the Division of Water Rights, or
1158 other governmental entities that give public notice of:
1159 (i) titles or encumbrances to real property;
1160 (ii) restrictions on the use of real property;
1161 (iii) the capacity of persons to take or convey title to real property; or
1162 (iv) tax status for real and personal property;
1163 (h) records of the Department of Commerce that evidence incorporations, mergers,
1164 name changes, and uniform commercial code filings;
1165 (i) data on individuals that would otherwise be private under this chapter if the
1166 individual who is the subject of the record has given the governmental entity written
1167 permission to make the records available to the public;
1168 (j) documentation of the compensation that a governmental entity pays to a contractor
1169 or private provider;
1170 (k) summary data;
1171 (l) voter registration records, including an individual's voting history, except for those
1172 parts of the record that are classified as private in Subsection 63G-2-302 (1)(i);
1173 (m) for an elected official, as defined in Section 11-47-102 , a telephone number, if
1174 available, and email address, if available, where that elected official may be reached as required
1175 in Title 11, Chapter 47, Access to Elected Officials;
1176 (n) for a school community council member, a telephone number, if available, and
1177 email address, if available, where that elected official may be reached directly as required in
1178 Section 53A-1a-108 ; and
1179 (o) annual audited financial statements of the Utah Educational Savings Plan described
1180 in Section 53B-8a-111 .
1181 (3) The following records are normally public, but to the extent that a record is
1182 expressly exempt from disclosure, access may be restricted under Subsection 63G-2-201 (3)(b),
1183 Section 63G-2-302 , 63G-2-304 , or 63G-2-305 :
1184 (a) administrative staff manuals, instructions to staff, and statements of policy;
1185 (b) records documenting a contractor's or private provider's compliance with the terms
1186 of a contract with a governmental entity;
1187 (c) records documenting the services provided by a contractor or a private provider to
1188 the extent the records would be public if prepared by the governmental entity;
1189 (d) contracts entered into by a governmental entity;
1190 (e) any account, voucher, or contract that deals with the receipt or expenditure of funds
1191 by a governmental entity;
1192 (f) records relating to government assistance or incentives publicly disclosed,
1193 contracted for, or given by a governmental entity, encouraging a person to expand or relocate a
1194 business in Utah, except as provided in Subsection 63G-2-305 [
1195 (g) chronological logs and initial contact reports;
1196 (h) correspondence by and with a governmental entity in which the governmental entity
1197 determines or states an opinion upon the rights of the state, a political subdivision, the public,
1198 or any person;
1199 (i) empirical data contained in drafts if:
1200 (i) the empirical data is not reasonably available to the requester elsewhere in similar
1201 form; and
1202 (ii) the governmental entity is given a reasonable opportunity to correct any errors or
1203 make nonsubstantive changes before release;
1204 (j) drafts that are circulated to anyone other than:
1205 (i) a governmental entity;
1206 (ii) a political subdivision;
1207 (iii) a federal agency if the governmental entity and the federal agency are jointly
1208 responsible for implementation of a program or project that has been legislatively approved;
1209 (iv) a government-managed corporation; or
1210 (v) a contractor or private provider;
1211 (k) drafts that have never been finalized but were relied upon by the governmental
1212 entity in carrying out action or policy;
1213 (l) original data in a computer program if the governmental entity chooses not to
1214 disclose the program;
1215 (m) arrest warrants after issuance, except that, for good cause, a court may order
1216 restricted access to arrest warrants prior to service;
1217 (n) search warrants after execution and filing of the return, except that a court, for good
1218 cause, may order restricted access to search warrants prior to trial;
1219 (o) records that would disclose information relating to formal charges or disciplinary
1220 actions against a past or present governmental entity employee if:
1221 (i) the disciplinary action has been completed and all time periods for administrative
1222 appeal have expired; and
1223 (ii) the charges on which the disciplinary action was based were sustained;
1224 (p) records maintained by the Division of Forestry, Fire, and State Lands, the School
1225 and Institutional Trust Lands Administration, or the Division of Oil, Gas, and Mining that
1226 evidence mineral production on government lands;
1227 (q) final audit reports;
1228 (r) occupational and professional licenses;
1229 (s) business licenses; and
1230 (t) a notice of violation, a notice of agency action under Section 63G-4-201 , or similar
1231 records used to initiate proceedings for discipline or sanctions against persons regulated by a
1232 governmental entity, but not including records that initiate employee discipline.
1233 (4) The list of public records in this section is not exhaustive and should not be used to
1234 limit access to records.
1235 Section 16. Section 63G-2-305 is amended to read:
1236 63G-2-305. Protected records.
1237 The following records are protected if properly classified by a governmental entity:
1238 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
1239 has provided the governmental entity with the information specified in Section 63G-2-309 ;
1240 (2) commercial information or nonindividual financial information obtained from a
1241 person if:
1242 (a) disclosure of the information could reasonably be expected to result in unfair
1243 competitive injury to the person submitting the information or would impair the ability of the
1244 governmental entity to obtain necessary information in the future;
1245 (b) the person submitting the information has a greater interest in prohibiting access
1246 than the public in obtaining access; and
1247 (c) the person submitting the information has provided the governmental entity with
1248 the information specified in Section 63G-2-309 ;
1249 (3) commercial or financial information acquired or prepared by a governmental entity
1250 to the extent that disclosure would lead to financial speculations in currencies, securities, or
1251 commodities that will interfere with a planned transaction by the governmental entity or cause
1252 substantial financial injury to the governmental entity or state economy;
1253 (4) records, the disclosure of which could cause commercial injury to, or confer a
1254 competitive advantage upon a potential or actual competitor of, a commercial project entity as
1255 defined in Subsection 11-13-103 (4);
1256 (5) test questions and answers to be used in future license, certification, registration,
1257 employment, or academic examinations;
1258 (6) records, the disclosure of which would impair governmental procurement
1259 proceedings or give an unfair advantage to any person proposing to enter into a contract or
1260 agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
1261 Subsection (6) does not restrict the right of a person to have access to, [
1262 or grant has been awarded and signed by all parties, a bid, proposal, [
1263 information submitted to or by a governmental entity in response to:
1264 (a) [
1265 (b) a request for proposals;
1266 (c) a request for quotes;
1267 [
1268 [
1269 (7) information submitted to or by a governmental entity in response to a request for
1270 information, except, subject to Subsections (1) and (2), that this Subsection (7) does not restrict
1271 the right of a person to have access to the information, after:
1272 (a) a contract directly relating to the subject of the request for information has been
1273 awarded and signed by all parties; or
1274 (b) (i) a final determination is made not to enter into a contract that relates to the
1275 subject of the request for information; and
1276 (ii) at least two years have passed after the day on which the request for information is
1277 issued;
1278 [
1279 real or personal property, including intellectual property, under consideration for public
1280 acquisition before any rights to the property are acquired unless:
1281 (a) public interest in obtaining access to the information is greater than or equal to the
1282 governmental entity's need to acquire the property on the best terms possible;
1283 (b) the information has already been disclosed to persons not employed by or under a
1284 duty of confidentiality to the entity;
1285 (c) in the case of records that would identify property, potential sellers of the described
1286 property have already learned of the governmental entity's plans to acquire the property;
1287 (d) in the case of records that would identify the appraisal or estimated value of
1288 property, the potential sellers have already learned of the governmental entity's estimated value
1289 of the property; or
1290 (e) the property under consideration for public acquisition is a single family residence
1291 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
1292 the property as required under Section 78B-6-505 ;
1293 [
1294 compensated transaction of real or personal property including intellectual property, which, if
1295 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
1296 of the subject property, unless:
1297 (a) the public interest in access is greater than or equal to the interests in restricting
1298 access, including the governmental entity's interest in maximizing the financial benefit of the
1299 transaction; or
1300 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
1301 the value of the subject property have already been disclosed to persons not employed by or
1302 under a duty of confidentiality to the entity;
1303 [
1304 enforcement purposes or audit purposes, or for discipline, licensing, certification, or
1305 registration purposes, if release of the records:
1306 (a) reasonably could be expected to interfere with investigations undertaken for
1307 enforcement, discipline, licensing, certification, or registration purposes;
1308 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
1309 proceedings;
1310 (c) would create a danger of depriving a person of a right to a fair trial or impartial
1311 hearing;
1312 (d) reasonably could be expected to disclose the identity of a source who is not
1313 generally known outside of government and, in the case of a record compiled in the course of
1314 an investigation, disclose information furnished by a source not generally known outside of
1315 government if disclosure would compromise the source; or
1316 (e) reasonably could be expected to disclose investigative or audit techniques,
1317 procedures, policies, or orders not generally known outside of government if disclosure would
1318 interfere with enforcement or audit efforts;
1319 [
1320 individual;
1321 [
1322 governmental property, governmental programs, or governmental recordkeeping systems from
1323 damage, theft, or other appropriation or use contrary to law or public policy;
1324 [
1325 correctional facility, or records relating to incarceration, treatment, probation, or parole, that
1326 would interfere with the control and supervision of an offender's incarceration, treatment,
1327 probation, or parole;
1328 [
1329 of Pardons and Parole by an employee of or contractor for the Department of Corrections, the
1330 Board of Pardons and Parole, or the Department of Human Services that are based on the
1331 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
1332 jurisdiction;
1333 [
1334 procedures and methods used by the State Tax Commission, if disclosure would interfere with
1335 audits or collections;
1336 [
1337 audit until the final audit is released;
1338 [
1339 [
1340 insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a
1341 judicial, quasi-judicial, or administrative proceeding;
1342 [
1343 to or from a member of the Legislature; and
1344 (ii) notwithstanding Subsection [
1345 legislative action or policy may not be classified as protected under this section; and
1346 (b) (i) an internal communication that is part of the deliberative process in connection
1347 with the preparation of legislation between:
1348 (A) members of a legislative body;
1349 (B) a member of a legislative body and a member of the legislative body's staff; or
1350 (C) members of a legislative body's staff; and
1351 (ii) notwithstanding Subsection [
1352 legislative action or policy may not be classified as protected under this section;
1353 [
1354 and General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
1355 legislation or contemplated course of action before the legislator has elected to support the
1356 legislation or course of action, or made the legislation or course of action public; and
1357 (b) notwithstanding Subsection [
1358 to the Office of Legislative Research and General Counsel is a public document unless a
1359 legislator asks that the records requesting the legislation be maintained as protected records
1360 until such time as the legislator elects to make the legislation or course of action public;
1361 [
1362 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
1363 in response to these requests;
1364 [
1365 [
1366 (a) collective bargaining; or
1367 (b) imminent or pending litigation;
1368 [
1369 occurrences that may be covered by the Risk Management Fund, the Employers' Reinsurance
1370 Fund, the Uninsured Employers' Fund, or similar divisions in other governmental entities;
1371 [
1372 recommendation concerning an individual if disclosure would constitute a clearly unwarranted
1373 invasion of personal privacy, or disclosure is not in the public interest;
1374 [
1375 biological resources that if known would jeopardize the security of those resources or of
1376 valuable historic, scientific, educational, or cultural information;
1377 [
1378 conflict with the fiduciary obligations of the agency;
1379 [
1380 in Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
1381 retention decisions, and promotions, which could be properly discussed in a meeting closed in
1382 accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
1383 the final decisions about tenure, appointments, retention, promotions, or those students
1384 admitted, may not be classified as protected under this section;
1385 [
1386 legislative proposals, and policy statements, that if disclosed would reveal the governor's
1387 contemplated policies or contemplated courses of action before the governor has implemented
1388 or rejected those policies or courses of action or made them public;
1389 [
1390 analysis, revenue estimates, and fiscal notes of proposed legislation before issuance of the final
1391 recommendations in these areas;
1392 [
1393 state that are given to the governmental entity with a requirement that they be managed as
1394 protected records if the providing entity certifies that the record would not be subject to public
1395 disclosure if retained by it;
1396 [
1397 body except as provided in Section 52-4-206 ;
1398 [
1399 including final settlements or empirical data to the extent that they are not otherwise exempt
1400 from disclosure;
1401 [
1402 an administrative law judge, a member of the Board of Pardons and Parole, or a member of any
1403 other body charged by law with performing a quasi-judicial function;
1404 [
1405 offered by or requested from a governmental entity for the purpose of encouraging a person to
1406 expand or locate a business in Utah, but only if disclosure would result in actual economic
1407 harm to the person or place the governmental entity at a competitive disadvantage, but this
1408 section may not be used to restrict access to a record evidencing a final contract;
1409 [
1410 maintaining the governmental entity's proprietary protection of intellectual property rights
1411 including patents, copyrights, and trade secrets;
1412 [
1413 including an institution within the state system of higher education defined in Section
1414 53B-1-102 , and other information concerning the donation that could reasonably be expected to
1415 reveal the identity of the donor, provided that:
1416 (a) the donor requests anonymity in writing;
1417 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
1418 classified protected by the governmental entity under this Subsection [
1419 (c) except for an institution within the state system of higher education defined in
1420 Section 53B-1-102 , the governmental unit to which the donation is made is primarily engaged
1421 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
1422 over the donor, a member of the donor's immediate family, or any entity owned or controlled
1423 by the donor or the donor's immediate family;
1424 [
1425 73-18-13 ;
1426 [
1427 Section 34A-2-205 ;
1428 [
1429 education defined in Section 53B-1-102 , which have been developed, discovered, disclosed to,
1430 or received by or on behalf of faculty, staff, employees, or students of the institution:
1431 (i) unpublished lecture notes;
1432 (ii) unpublished notes, data, and information:
1433 (A) relating to research; and
1434 (B) of:
1435 (I) the institution within the state system of higher education defined in Section
1436 53B-1-102 ; or
1437 (II) a sponsor of sponsored research;
1438 (iii) unpublished manuscripts;
1439 (iv) creative works in process;
1440 (v) scholarly correspondence; and
1441 (vi) confidential information contained in research proposals;
1442 (b) Subsection [
1443 information required pursuant to Subsection 53B-16-302 (2)(a) or (b); and
1444 (c) Subsection [
1445 [
1446 General that would reveal the name of a particular legislator who requests a legislative audit
1447 prior to the date that audit is completed and made public; and
1448 (b) notwithstanding Subsection [
1449 submitted to the Office of the Legislative Auditor General is a public document unless the
1450 legislator asks that the records in the custody or control of the Office of Legislative Auditor
1451 General that would reveal the name of a particular legislator who requests a legislative audit be
1452 maintained as protected records until the audit is completed and made public;
1453 [
1454 map or other document that indicates the location of:
1455 (a) a production facility; or
1456 (b) a magazine;
1457 [
1458 (a) contained in the statewide database of the Division of Aging and Adult Services
1459 created by Section 62A-3-311.1 ; or
1460 (b) received or maintained in relation to the Identity Theft Reporting Information
1461 System (IRIS) established under Section 67-5-22 ;
1462 [
1463 Licensing Information System described in Title 62A, Chapter 4a, Child and Family Services;
1464 [
1465 the National Guard's federal mission;
1466 [
1467 agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
1468 Secondhand Merchandise Transaction Information Act;
1469 [
1470 performed by the Department of Agriculture and Food;
1471 [
1472 Section 63G-2-106 , records related to an emergency plan or program, a copy of which is
1473 provided to or prepared or maintained by the Division of Emergency Management, and the
1474 disclosure of which would jeopardize:
1475 (a) the safety of the general public; or
1476 (b) the security of:
1477 (i) governmental property;
1478 (ii) governmental programs; or
1479 (iii) the property of a private person who provides the Division of Emergency
1480 Management information;
1481 [
1482 identification, tracing, or control of livestock diseases, including any program established under
1483 Title 4, Chapter 24, Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Control of
1484 Animal Disease;
1485 [
1486 (a) information or records held by the Department of Health related to a complaint
1487 regarding a child care program or residential child care which the department is unable to
1488 substantiate; and
1489 (b) information or records related to a complaint received by the Department of Health
1490 from an anonymous complainant regarding a child care program or residential child care;
1491 [
1492 as provided under Section 41-1a-116 , an individual's home address, home telephone number,
1493 or personal mobile phone number, if:
1494 (a) the individual is required to provide the information in order to comply with a law,
1495 ordinance, rule, or order of a government entity; and
1496 (b) the subject of the record has a reasonable expectation that this information will be
1497 kept confidential due to:
1498 (i) the nature of the law, ordinance, rule, or order; and
1499 (ii) the individual complying with the law, ordinance, rule, or order;
1500 [
1501 individual that is engaged in, or that provides goods or services for, medical or scientific
1502 research that is:
1503 (a) conducted within the state system of higher education, as defined in Section
1504 53B-1-102 ; and
1505 (b) conducted using animals;
1506 [
1507 Procurement Private Proposal Program, to the extent not made public by rules made under that
1508 chapter;
1509 [
1510 Performance Evaluation Commission concerning an individual commissioner's vote on
1511 whether or not to recommend that the voters retain a judge;
1512 [
1513 Evaluation Commission concerning a judge, unless Section 20A-7-702 or Title 78A, Chapter
1514 12, Judicial Performance Evaluation Commission Act, requires disclosure of, or makes public,
1515 the information or report;
1516 [
1517 Section 62A-4a-1003 ;
1518 [
1519 Office in furtherance of any contract or other agreement made in accordance with Section
1520 63J-4-603 ;
1521 [
1522 under Section 53-10-602 ;
1523 [
1524 audio, the release of which are governed by Section 77-37-4 ;
1525 [
1526 (a) a management plan for a water conveyance facility in the possession of the Division
1527 of Water Resources or the Board of Water Resources; or
1528 (b) an outline of an emergency response plan in possession of the state or a county or
1529 municipality;
1530 [
1531 General of Medicaid Services, created in Section 63J-4a-201 :
1532 (a) records that would disclose information relating to allegations of personal
1533 misconduct, gross mismanagement, or illegal activity of a person if the information or
1534 allegation cannot be corroborated by the Office of Inspector General of Medicaid Services
1535 through other documents or evidence, and the records relating to the allegation are not relied
1536 upon by the Office of Inspector General of Medicaid Services in preparing a final investigation
1537 report or final audit report;
1538 (b) records and audit workpapers to the extent they would disclose the identity of a
1539 person who, during the course of an investigation or audit, communicated the existence of any
1540 Medicaid fraud, waste, or abuse, or a violation or suspected violation of a law, rule, or
1541 regulation adopted under the laws of this state, a political subdivision of the state, or any
1542 recognized entity of the United States, if the information was disclosed on the condition that
1543 the identity of the person be protected;
1544 (c) before the time that an investigation or audit is completed and the final
1545 investigation or final audit report is released, records or drafts circulated to a person who is not
1546 an employee or head of a governmental entity for the person's response or information;
1547 (d) records that would disclose an outline or part of any investigation, audit survey
1548 plan, or audit program; or
1549 (e) requests for an investigation or audit, if disclosure would risk circumvention of an
1550 investigation or audit;
1551 [
1552 Medicaid Services, the fraud unit, or the Department of Health, to discover Medicaid fraud,
1553 waste, or abuse;
1554 [
1555 Occupational and Professional Licensing under Subsection 58-68-304 (3) or (4); and
1556 [
1557 Section 17. Section 63G-2-309 is amended to read:
1558 63G-2-309. Confidentiality claims.
1559 (1) (a) (i) Any person who provides to a governmental entity a record that the person
1560 believes should be protected under Subsection 63G-2-305 (1) or (2) or both Subsections
1561 63G-2-305 (1) and (2) shall provide with the record:
1562 (A) a written claim of business confidentiality; and
1563 (B) a concise statement of reasons supporting the claim of business confidentiality.
1564 (ii) Any of the following who provides to an institution within the state system of
1565 higher education defined in Section 53B-1-102 a record that the person or governmental entity
1566 believes should be protected under Subsection 63G-2-305 [
1567 Subsections 63G-2-305 [
1568 system of higher education a written claim of business confidentiality in accordance with
1569 Section 53B-16-304 :
1570 (A) a person;
1571 (B) a federal governmental entity;
1572 (C) a state governmental entity; or
1573 (D) a local governmental entity.
1574 (b) A person or governmental entity who complies with this Subsection (1) shall be
1575 notified by the governmental entity to whom the request for a record is made if:
1576 (i) a record claimed to be protected under one of the following is classified public:
1577 (A) Subsection 63G-2-305 (1);
1578 (B) Subsection 63G-2-305 (2);
1579 (C) Subsection 63G-2-305 [
1580 (D) Subsection 63G-2-305 [
1581 (E) a combination of the provisions described in Subsections (1)(b)(i)(A) through (D);
1582 or
1583 (ii) the governmental entity to whom the request for a record is made determines that
1584 the record claimed to be protected under a provision listed in Subsection (1)(b)(i) should be
1585 released after balancing interests under Subsection 63G-2-201 (5)(b) or 63G-2-401 (6).
1586 (2) Except as provided by court order, the governmental entity to whom the request for
1587 a record is made may not disclose a record claimed to be protected under a provision listed in
1588 Subsection (1)(b)(i) but which the governmental entity or records committee determines should
1589 be disclosed until the period in which to bring an appeal expires or the end of the appeals
1590 process, including judicial appeal. This Subsection (2) does not apply where the claimant, after
1591 notice, has waived the claim by not appealing or intervening before the records committee.
1592 (3) Disclosure or acquisition of information under this chapter does not constitute
1593 misappropriation under Subsection 13-24-2 (2).
1594 Section 18. Section 63G-2-403 is amended to read:
1595 63G-2-403. Appeals to the records committee.
1596 (1) A petitioner, including an aggrieved person who did not participate in the appeal to
1597 the governmental entity's chief administrative officer, may appeal to the records committee by
1598 filing a notice of appeal with the executive secretary no later than:
1599 (a) 30 days after the day on which the chief administrative officer of the governmental
1600 entity grants or denies the record request in whole or in part, including a denial under
1601 Subsection 63G-2-204 (8);
1602 (b) 45 days after the day on which the original request for a record is made if:
1603 (i) the circumstances described in Subsection 63G-2-401 (1)(b) occur; and
1604 (ii) the chief administrative officer failed to make a determination under Section
1605 63G-2-401 .
1606 (2) The notice of appeal shall contain the following information:
1607 (a) the petitioner's name, mailing address, and daytime telephone number;
1608 (b) a copy of any denial of the record request; and
1609 (c) the relief sought.
1610 (3) The petitioner:
1611 (a) shall, on the day on which the petitioner files an appeal to the records committee,
1612 serve a copy of the appeal on the government entity, described in Subsection (1), to which the
1613 appeal relates; and
1614 (b) may file a short statement of facts, reasons, and legal authority in support of the
1615 appeal.
1616 (4) (a) Except as provided in Subsection (4)(b), no later than five business days after
1617 receiving a notice of appeal, the executive secretary of the records committee shall:
1618 (i) schedule a hearing for the records committee to discuss the appeal at the next
1619 regularly scheduled committee meeting falling at least 14 days after the date the notice of
1620 appeal is filed but no longer than 52 calendar days after the date the notice of appeal was filed
1621 except that the records committee may schedule an expedited hearing upon application of the
1622 petitioner and good cause shown;
1623 (ii) send a copy of the notice of hearing to the petitioner; and
1624 (iii) send a copy of the notice of appeal, supporting statement, and a notice of hearing
1625 to:
1626 (A) each member of the records committee;
1627 (B) the records officer and the chief administrative officer of the governmental entity
1628 from which the appeal originated;
1629 (C) any person who made a business confidentiality claim under Section 63G-2-309 for
1630 a record that is the subject of the appeal; and
1631 (D) all persons who participated in the proceedings before the governmental entity's
1632 chief administrative officer.
1633 (b) (i) The executive secretary of the records committee may decline to schedule a
1634 hearing if the record series that is the subject of the appeal has been found by the committee in
1635 a previous hearing involving the same government entity to be appropriately classified as
1636 private, controlled, or protected.
1637 (ii) (A) If the executive secretary of the records committee declines to schedule a
1638 hearing, the executive secretary of the records committee shall send a notice to the petitioner
1639 indicating that the request for hearing has been denied and the reason for the denial.
1640 (B) The committee shall make rules to implement this section as provided by Title
1641 63G, Chapter 3, Utah Administrative Rulemaking Act.
1642 (5) (a) A written statement of facts, reasons, and legal authority in support of the
1643 governmental entity's position must be submitted to the executive secretary of the records
1644 committee not later than five business days before the hearing.
1645 (b) The governmental entity shall send a copy of the written statement to the petitioner
1646 by first class mail, postage prepaid. The executive secretary shall forward a copy of the written
1647 statement to each member of the records committee.
1648 (6) (a) No later than 10 business days after the notice of appeal is sent by the executive
1649 secretary, a person whose legal interests may be substantially affected by the proceeding may
1650 file a request for intervention before the records committee.
1651 (b) Any written statement of facts, reasons, and legal authority in support of the
1652 intervener's position shall be filed with the request for intervention.
1653 (c) The person seeking intervention shall provide copies of the statement described in
1654 Subsection (6)(b) to all parties to the proceedings before the records committee.
1655 (7) The records committee shall hold a hearing within the period of time described in
1656 Subsection (4).
1657 (8) At the hearing, the records committee shall allow the parties to testify, present
1658 evidence, and comment on the issues. The records committee may allow other interested
1659 persons to comment on the issues.
1660 (9) (a) The records committee may review the disputed records. However, if the
1661 committee is weighing the various interests under Subsection (11), the committee must review
1662 the disputed records. The review shall be in camera.
1663 (b) Members of the records committee may not disclose any information or record
1664 reviewed by the committee in camera unless the disclosure is otherwise authorized by this
1665 chapter.
1666 (10) (a) Discovery is prohibited, but the records committee may issue subpoenas or
1667 other orders to compel production of necessary evidence.
1668 (b) When the subject of a records committee subpoena disobeys or fails to comply with
1669 the subpoena, the records committee may file a motion for an order to compel obedience to the
1670 subpoena with the district court.
1671 (c) The records committee's review shall be de novo.
1672 (11) (a) No later than seven business days after the hearing, the records committee shall
1673 issue a signed order either granting the petition in whole or in part or upholding the
1674 determination of the governmental entity in whole or in part.
1675 (b) Except as provided in Section 63G-2-406 , the records committee may, upon
1676 consideration and weighing of the various interests and public policies pertinent to the
1677 classification and disclosure or nondisclosure, order the disclosure of information properly
1678 classified as private, controlled, or protected if the public interest favoring access is greater
1679 than or equal to the interest favoring restriction of access.
1680 (c) In making a determination under Subsection (11)(b), the records committee shall
1681 consider and, where appropriate, limit the requester's use and further disclosure of the record in
1682 order to protect:
1683 (i) privacy interests in the case of a private or controlled record;
1684 (ii) business confidentiality interests in the case of a record protected under Subsection
1685 63G-2-305 (1), (2), [
1686 (iii) privacy interests or the public interest in the case of other protected records.
1687 (12) The order of the records committee shall include:
1688 (a) a statement of reasons for the decision, including citations to this chapter, court rule
1689 or order, another state statute, federal statute, or federal regulation that governs disclosure of
1690 the record, provided that the citations do not disclose private, controlled, or protected
1691 information;
1692 (b) a description of the record or portions of the record to which access was ordered or
1693 denied, provided that the description does not disclose private, controlled, or protected
1694 information or information exempt from disclosure under Subsection 63G-2-201 (3)(b);
1695 (c) a statement that any party to the proceeding before the records committee may
1696 appeal the records committee's decision to district court; and
1697 (d) a brief summary of the appeals process, the time limits for filing an appeal, and a
1698 notice that in order to protect its rights on appeal, the party may wish to seek advice from an
1699 attorney.
1700 (13) If the records committee fails to issue a decision within 57 calendar days of the
1701 filing of the notice of appeal, that failure shall be considered the equivalent of an order denying
1702 the appeal. The petitioner shall notify the records committee in writing if the petitioner
1703 considers the appeal denied.
1704 (14) (a) Unless a notice of intent to appeal is filed under Subsection (14)(b), each party
1705 to the proceeding shall comply with the order of the records committee.
1706 (b) If a party disagrees with the order of the records committee, that party may file a
1707 notice of intent to appeal the order of the records committee.
1708 (c) If the records committee orders the governmental entity to produce a record and no
1709 appeal is filed, or if, as a result of the appeal, the governmental entity is required to produce a
1710 record, the governmental entity shall:
1711 (i) produce the record; and
1712 (ii) file a notice of compliance with the records committee.
1713 (d) (i) If the governmental entity that is ordered to produce a record fails to file a notice
1714 of compliance or a notice of intent to appeal, the records committee may do either or both of
1715 the following:
1716 (A) impose a civil penalty of up to $500 for each day of continuing noncompliance; or
1717 (B) send written notice of the governmental entity's noncompliance to:
1718 (I) the governor for executive branch entities;
1719 (II) the Legislative Management Committee for legislative branch entities; and
1720 (III) the Judicial Council for judicial branch agencies entities.
1721 (ii) In imposing a civil penalty, the records committee shall consider the gravity and
1722 circumstances of the violation, including whether the failure to comply was due to neglect or
1723 was willful or intentional.
1724 Section 19. Section 63G-2-406 is amended to read:
1725 63G-2-406. Evidentiary standards for release of certain enforcement and
1726 litigation records.
1727 (1) A record that is classified as protected under Subsection 63G-2-305 [
1728
1729 provisions of Subsection 63G-2-401 (6), 63G-2-403 (11)(b), or 63G-2-404 (8)(a) only if the
1730 person or party seeking disclosure of the record has established, by a preponderance of the
1731 evidence, that the public interest favoring access is equal to or greater than the interest favoring
1732 restriction of access.
1733 (2) A record that is classified as protected under Subsection 63G-2-305 [
1734 be ordered to be disclosed under the provisions of Subsection 63G-2-401 (6),
1735 63G-2-403 (11)(b), or 63G-2-404 (8) only if the person or party seeking disclosure of the record
1736 has established, by clear and convincing evidence, that the public interest favoring access is
1737 equal to or greater than the interest favoring restriction of access.
1738 Section 20. Section 63G-6a-103 (Effective 05/01/13) is amended to read:
1739 63G-6a-103 (Effective 05/01/13). Definitions.
1740 As used in this chapter:
1741 [
1742 [
1743 [
1744 [
1745 [
1746
1747
1748 [
1749 [
1750
1751 [
1752
1753
1754 [
1755
1756
1757 [
1758 [
1759
1760 [
1761
1762 [
1763 [
1764 [
1765
1766 [
1767 [
1768
1769 [
1770 [
1771 [
1772
1773 [
1774
1775 [
1776 (a) professional services within the scope of the practice of architecture as defined in
1777 Section 58-3a-102 ; or
1778 (b) professional engineering as defined in Section 58-22-102 .
1779 [
1780 [
1781
1782 [
1783 [
1784 procurement officer that directs the contractor to suspend work or make changes, as authorized
1785 by contract, without the consent of the contractor[
1786 [
1787 rate of delivery, period of performance, price, quantity, or other provisions of a contract, upon
1788 mutual agreement of the parties to the contract.
1789 [
1790 under Subsection 63G-6a-302 (1).
1791 [
1792 improving, or repairing a public building or public work.
1793 (b) "Construction" does not include the routine operation, routine repair, or routine
1794 maintenance of an existing structure, building, or real property.
1795 [
1796 into a contract for the management of a construction project when the contract allows the
1797 contractor to subcontract for additional labor and materials that are not included in the
1798 contractor's cost proposal submitted at the time of the procurement of the contractor's services.
1799 (b) "Construction manager/general contractor" does not include a contractor whose
1800 only subcontract work not included in the contractor's cost proposal submitted as part of the
1801 procurement of the contractor's services is to meet subcontracted portions of change orders
1802 approved within the scope of the project.
1803 [
1804 procurement item.
1805 [
1806 procurement unit.
1807 [
1808 or on behalf of, more than one [
1809 an external procurement unit.
1810 (11) "Cost-plus-a-percentage-of-cost contract" means a contract where the contractor is
1811 paid a percentage over and above the contractor's actual expenses or costs.
1812 [
1813 is reimbursed for costs which are allowed and allocated in accordance with the contract terms
1814 and the provisions of this chapter, and a fee, if any.
1815 [
1816 (14) "Definite quantity contract" means a fixed price contract that provides for the
1817 supply of a specified amount of goods over a specified period, with deliveries scheduled
1818 according to a specified schedule.
1819 [
1820 construction by the use of a single contract with the design-build provider.
1821 [
1822 [
1823 [
1824 list, schedule, or other form that:
1825 (a) is regularly maintained by a manufacturer or contractor;
1826 (b) is either published or otherwise available for inspection by customers; and
1827 (c) states prices at which sales are currently or were last made to a significant number
1828 of any category of buyers or buyers constituting the general buying public for the supplies or
1829 services involved.
1830 (18) "Fixed price contract" means a contract that provides a price, for each
1831 procurement item obtained under the contract, that is not subject to adjustment except to the
1832 extent that:
1833 (a) the contract provides, under circumstances specified in the contract, for an
1834 adjustment in price that is not based on cost to the contractor; or
1835 (b) an adjustment is required by law.
1836 (19) "Fixed price contract with price adjustment" means a fixed price contract that
1837 provides for an upward or downward revision of price, precisely described in the contract, that:
1838 (a) is based on the consumer price index or another commercially acceptable index,
1839 source, or formula; and
1840 (b) is not based on a percentage of the cost to the contractor.
1841 (20) (a) "Grant" means furnishing, by a public entity or by any other public or private
1842 source, financial or other assistance to a person to support a program authorized by law.
1843 (b) "Grant" does not include:
1844 (i) an award whose primary purpose is to procure an end product or procurement item;
1845 or
1846 (ii) a contract that is awarded as a result of a procurement or a procurement process.
1847 (21) "Head of a [
1848 (a) as it relates to [
1849 person designated by rule made by the applicable rulemaking authority;
1850 (b) as it relates to [
1851 (i) the director of a division; or
1852 (ii) any other person designated by the board, by rule;
1853 (c) as it relates to [
1854 (i) the Judicial Council; or
1855 (ii) any other person designated by the Judicial Council, by rule;
1856 [
1857
1858 [
1859 [
1860 [
1861
1862 (i) the legislative body of the [
1863 unit; or
1864 (ii) any other person designated by the [
1865 procurement unit;
1866 (e) as it relates to a local district, the board of trustees of the local district or a designee
1867 of the board of trustees;
1868 (f) as it relates to a special service district, the governing body of the special service
1869 district or a designee of the governing body;
1870 (g) as it relates to a local building authority, the board of directors of the local building
1871 authority or a designee of the board of directors;
1872 (h) as it relates to a conservation district, the board of supervisors of the conservation
1873 district or a designee of the board of supervisors;
1874 (i) as it relates to a public corporation, the board of directors of the public corporation
1875 or a designee of the board of directors;
1876 [
1877 the board of the school district, or the board's designee;
1878 [
1879 over the charter school, or the individual's or body's designee;
1880 [
1881 the institution of higher education, or the president's designee; or
1882 [
1883
1884 [
1885 [
1886 [
1887
1888 [
1889
1890 [
1891
1892 [
1893 [
1894
1895 [
1896
1897 [
1898
1899 [
1900 [
1901
1902 [
1903 [
1904
1905 [
1906
1907 (m) as it relates to a public transit district, the board of trustees or a designee of the
1908 board of trustees.
1909 (22) "Indefinite quantity contract" means a fixed price contract that:
1910 (a) is for an indefinite amount of procurement items to be supplied as ordered by a
1911 procurement unit; and
1912 (b) (i) does not require a minimum purchase amount; or
1913 (ii) provides a maximum purchase limit.
1914 (23) "Independent procurement authority" means authority granted to a procurement
1915 unit, under Subsection 63G-6a-108 (2), to engage in a procurement without oversight or control
1916 of the division.
1917 [
1918 attached or incorporated by reference, used for soliciting bids to provide a procurement item to
1919 a [
1920 (25) "Issuing procurement unit" means:
1921 (a) the division, if the division issues the invitation for bids or the request for
1922 proposals; or
1923 (b) the procurement unit, with independent procurement authority, that issues the
1924 invitation for bids or the request for proposals.
1925 (26) "Labor hour contract" is a contract where:
1926 (a) the supplies and materials are not provided by, or through, the contractor; and
1927 (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
1928 profit for a specified number of labor hours or days.
1929 [
1930 quantity of a procurement item to more than one bidder or offeror.
1931 [
1932 period, including a contract that permits renewal of the contract, without competition, beyond
1933 the first year of the contract.
1934 [
1935 [
1936 [
1937 preference under the requirements of this chapter.
1938 [
1939 leasing with an option to purchase, or otherwise acquiring a procurement item.
1940 (b) "Procure" or "procurement" includes all functions that pertain to the obtaining of a
1941 procurement item, including:
1942 (i) the description of requirements;
1943 (ii) the selection process;
1944 (iii) solicitation of sources;
1945 (iv) the preparation for soliciting a procurement item;
1946 (v) the award of a contract; and
1947 (vi) all phases of contract administration.
1948 [
1949 [
1950 [
1951
1952 [
1953
1954 [
1955 [
1956
1957 [
1958
1959 [
1960
1961 (34) "Procurement officer" means:
1962 (a) as it relates to a procurement unit with independent procurement authority:
1963 (i) the head of the procurement unit;
1964 (ii) a designee of the head of the procurement unit; or
1965 (iii) a person designated by rule made by the applicable rulemaking authority; or
1966 (b) as it relates to the division or a procurement unit without independent procurement
1967 authority, the chief procurement officer.
1968 [
1969 specialized knowledge and discretion in the performance of the service, including:
1970 (a) legal services;
1971 (b) consultation services;
1972 (c) architectural services;
1973 (d) engineering;
1974 (e) design;
1975 (f) underwriting;
1976 (g) bond counsel;
1977 (h) financial advice; [
1978 (i) construction management[
1979 [
1980 [
1981
1982 [
1983
1984 [
1985
1986
1987 (j) medical services;
1988 (k) psychiatric services; or
1989 (l) counseling services.
1990 (36) "Protest officer" means:
1991 (a) as it relates to the division or a procurement unit with independent procurement
1992 authority:
1993 (i) the head of the procurement unit;
1994 (ii) a designee of the head of the procurement unit; or
1995 (iii) a person designated by rule made by the applicable rulemaking authority; or
1996 (b) as it relates to a procurement unit without independent procurement authority, the
1997 chief procurement officer or the chief procurement officer's designee.
1998 [
1999 procurement unit requests information relating to a procurement item.
2000 [
2001 are attached or incorporated by reference, used for soliciting proposals to provide a
2002 procurement item to a [
2003 (39) "Requirements contract" means a contract:
2004 (a) where a contractor agrees to provide a procurement unit's entire requirements for
2005 certain procurement items at prices specified in the contract during the contract period; and
2006 (b) that:
2007 (i) does not require a minimum purchase amount; or
2008 (ii) provides a maximum purchase limit.
2009 [
2010 (a) is capable, in all respects, to fully perform the contract requirements solicited in an
2011 invitation for bids or a request for proposals; and
2012 (b) has the integrity and reliability to ensure good faith performance.
2013 [
2014 invitation for bids or a request for proposals that conforms in all material respects to the
2015 invitation for bids or request for proposals.
2016 [
2017 proposals.
2018 [
2019 not involving the delivery of a specific end product other than a report that is incidental to the
2020 required performance.
2021 (b) "Services" does not include an employment agreement or a collective bargaining
2022 agreement.
2023 [
2024 characteristics, or nature of a procurement item included in an invitation for bids or a request
2025 for proposals, or otherwise specified or agreed to by a [
2026 description of:
2027 (a) a requirement for inspecting or testing a procurement item; or
2028 (b) preparing a procurement item for delivery.
2029 [
2030 obtaining a procurement item:
2031 (a) bidding, as described in Part 6, Bidding;
2032 (b) request for proposals, as described in Part 7, Request for Proposals; or
2033 (c) small purchases, in accordance with the requirements established under Section
2034 63G-6a-408 .
2035 (46) "State cooperative contract" means a contract awarded by the division.
2036 [
2037 another subcontractor to provide services or labor for design or construction.
2038 (b) "Subcontractor" includes a trade contractor or specialty contractor.
2039 (c) "Subcontractor" does not include a supplier who provides only materials,
2040 equipment, or supplies to a contractor or subcontractor.
2041 [
2042 [
2043 identical in price.
2044 (50) "Time and materials contract" means a contract where the contractor is paid:
2045 (a) the actual cost of direct labor at specified hourly rates;
2046 (b) the actual cost of materials and equipment usage; and
2047 (c) an additional amount, expressly described in the contract, to cover overhead and
2048 profit, that is not based on a percentage of the cost to the contractor.
2049 Section 21. Section 63G-6a-104 (Effective 05/01/13) is repealed and reenacted to
2050 read:
2051 63G-6a-104 (Effective 05/01/13). Definitions of government entities.
2052 As used in this chapter:
2053 (1) "Applicable rulemaking authority" means:
2054 (a) as it relates to a legislative procurement unit, the Legislative Management
2055 Committee, which shall adopt a policy establishing requirements applicable to a legislative
2056 procurement unit;
2057 (b) as it relates to a judicial procurement unit, the Judicial Council;
2058 (c) as it relates to an executive branch procurement unit, except to the extent provided
2059 in Subsections (1)(d) through (g), the board;
2060 (d) as it relates to the State Building Board, created in Section 63A-5-101 , the State
2061 Building Board, but only to the extent that the rules relate to procurement authority expressly
2062 granted to the State Building Board by statute;
2063 (e) as it relates to the Division of Facilities Construction and Management, created in
2064 Section 63A-5-201 , the director of the Division of Facilities Construction and Management,
2065 but only to the extent that the rules relate to procurement authority expressly granted to the
2066 Division of Facilities Construction and Management by statute;
2067 (f) as it relates to the Office of the Attorney General, the attorney general, but only to
2068 the extent that the rules relate to procurement authority expressly granted to the attorney
2069 general by statute;
2070 (g) as it relates to the Department of Transportation, created in Section 72-1-201 , the
2071 executive director of the Department of Transportation, but only to the extent that the rules
2072 relate to procurement authority expressly granted to the Department of Transportation by
2073 statute;
2074 (h) as it relates to a local government procurement unit, the legislative body of the local
2075 government procurement unit, not as a delegation of authority from the Legislature, but under
2076 the local government procurement unit's own legislative authority;
2077 (i) as it relates to a school district or a public school, the Utah State Procurement Policy
2078 Board, except to the extent that a school district makes its own nonadministrative rules, with
2079 respect to a particular subject, that do not conflict with the provisions of this chapter;
2080 (j) as it relates to a state institution of higher education, the State Board of Regents;
2081 (k) as it relates to a public transit district, the chief executive of the public transit
2082 district;
2083 (l) as it relates to a local district or a special service district:
2084 (i) before May 13, 2014, the board of trustees of the local district or the governing body
2085 of the special service district; or
2086 (ii) on or after May 13, 2014, the board, except to the extent that the board of trustees
2087 of the local district or the governing body of the special service district makes its own rules:
2088 (A) with respect to a subject addressed by board rules; or
2089 (B) that are in addition to board rules; or
2090 (m) as it relates to a procurement unit, other than a procurement unit described in
2091 Subsections (1)(a) through (l), the board.
2092 (2) "Board" means the Utah State Procurement Policy Board, created in Section
2093 63G-6a-202 .
2094 (3) "Building board" means the State Building Board created in Section 63A-5-101 .
2095 (4) "Conservation district" is as defined in Section 17D-3-102 .
2096 (5) "Division" means the Division of Purchasing and General Services.
2097 (6) "Educational procurement unit" means:
2098 (a) a school district;
2099 (b) a public school, including a local school board or a charter school;
2100 (c) Utah Schools for the Deaf and Blind;
2101 (d) the Utah Education Network; or
2102 (e) an institution of higher education of the state.
2103 (7) "Executive branch procurement unit" means each department, division, office,
2104 bureau, agency, or other organization within the state executive branch, including the division
2105 and the attorney general's office.
2106 (8) "External procurement unit" means:
2107 (a) a buying organization not located in this state which, if located in this state, would
2108 qualify as a procurement unit; or
2109 (b) an agency of the United States.
2110 (9) "Judicial procurement unit" means:
2111 (a) the Utah Supreme Court;
2112 (b) the Utah Court of Appeals;
2113 (c) the Judicial Council;
2114 (d) a state judicial district; or
2115 (e) each office, committee, subcommittee, or other organization within the state
2116 judicial branch.
2117 (10) "Legislative procurement unit" means:
2118 (a) the Legislature;
2119 (b) the Senate;
2120 (c) the House of Representatives;
2121 (d) a staff office of an entity described in Subsection (10)(a), (b), or (c); or
2122 (e) each office, committee, subcommittee, or other organization within the state
2123 legislative branch.
2124 (11) "Local building authority" is as defined in Section 17D-2-102 .
2125 (12) "Local district" is as defined in Section 17B-1-102 .
2126 (13) "Local government procurement unit" means:
2127 (a) a county or municipality, and each office or agency of the county or municipality,
2128 unless the county or municipality adopts its own procurement code by ordinance;
2129 (b) a county or municipality, and each office or agency of the county or municipality,
2130 that has adopted this entire chapter by ordinance; or
2131 (c) a county or municipality, and each office or agency of the county or municipality,
2132 that has adopted a portion of this chapter by ordinance, to the extent that the term is used in the
2133 adopted portion of this chapter.
2134 (14) (a) "Procurement unit" means:
2135 (i) a legislative procurement unit;
2136 (ii) an executive branch procurement unit;
2137 (iii) a judicial procurement unit;
2138 (iv) an educational procurement unit;
2139 (v) a local government procurement unit;
2140 (vi) a local district;
2141 (vii) a special service district;
2142 (viii) a local building authority;
2143 (ix) a conservation district;
2144 (x) a public corporation; or
2145 (xi) a public transit district.
2146 (b) "Procurement unit" does not include a political subdivision created under Title 11,
2147 Chapter 13, Interlocal Cooperation Act.
2148 (15) "Public corporation" is as defined in Section 63E-1-102 .
2149 (16) "Public entity" means any state government entity or a political subdivision of the
2150 state, including:
2151 (a) a procurement unit;
2152 (b) a municipality or county, regardless of whether the municipality or county has
2153 adopted this chapter or any part of this chapter; and
2154 (c) any other government entity located in Utah that expends public funds.
2155 (17) "Public transit district" means a public transit district organized under Title 17B,
2156 Chapter 2a, Part 8, Public Transit District Act.
2157 (18) "Special service district" is as defined in Section 17D-1-102 .
2158 Section 22. Section 63G-6a-105 (Effective 05/01/13) is amended to read:
2159 63G-6a-105 (Effective 05/01/13). Application of chapter.
2160 (1) The provisions of this chapter that are enacted on [
2161 only to a procurement advertised, or begun on or after [
2162 parties agree to have the provisions apply with respect to a procurement that was advertised or
2163 begun before [
2164 2013.
2165 (2) (a) Except as provided in Section 63G-6a-107 , this chapter shall apply to every
2166 expenditure of public funds irrespective of the source of the funds, including federal assistance,
2167 by any [
2168 (b) The provisions of this chapter do not apply to a public entity that is not a [
2169 procurement unit.
2170 (3) Except as provided in Subsection 17B-1-108 (3) relating to local districts, [
2171
2172 resolutions relating to the procurement of architect-engineer services not inconsistent with the
2173 provisions of Part 15, Architect-Engineer Services[
2174 (a) an educational procurement unit;
2175 (b) a conservation district;
2176 (c) a local building authority;
2177 (d) a local district;
2178 (e) a public corporation; or
2179 (f) a special service district.
2180 (4) Any section of this chapter, or its implementing regulations, may be adopted by
2181 [
2182 (a) a county;
2183 (b) a municipality; or
2184 (c) the Utah Housing Corporation.
2185 (5) Rules adopted under this chapter shall be consistent with the provisions of this
2186 chapter.
2187 (6) [
2188 procurement unit may not adopt rules, policies, or regulations that are inconsistent with this
2189 chapter.
2190 (7) Unless otherwise provided by statute, this chapter does not apply to procurement of
2191 real property.
2192 Section 23. Section 63G-6a-106 (Effective 05/01/13) is amended to read:
2193 63G-6a-106 (Effective 05/01/13). Specific statutory authority -- Limitations on
2194 authority of chief procurement officer and division.
2195 (1) The procurement authority given to a [
2196 provisions shall be retained, and shall be applied only to the extent described in those
2197 provisions:
2198 (a) Title 53B, State System of Higher Education;
2199 (b) Title 63A, Chapter 5, State Building Board - Division of Facilities Construction
2200 and Management;
2201 (c) Title 67, Chapter 5, Attorney General;
2202 (d) Title 72, Transportation Code; and
2203 (e) Title 78A, Chapter 5, District Courts.
2204 (2) Except as otherwise provided in Sections 63G-6a-105 and 63G-6a-107 , a [
2205 procurement unit shall conduct a procurement in accordance with this chapter.
2206 (3) (a) The Department of Transportation may make rules governing the procurement
2207 of highway construction or improvement.
2208 (b) The applicable rulemaking authority for a public transit district may make rules
2209 governing the procurement of a transit construction project or a transit improvement project.
2210 [
2211 (4) Except to the extent otherwise agreed to in a memorandum of understanding
2212 between the division and the following entities, the authority of the chief procurement officer
2213 and of the division does not extend to[
2214 authority.
2215 [
2216 [
2217 [
2218 (5) An entity described in Subsection (4) [
2219
2220 officer or the division, but consistent with the requirements of this chapter:
2221 (a) engage in a standard procurement process;
2222 (b) procure an item under an exception, as provided in this chapter, to the requirement
2223 to use a standard procurement process; or
2224 (c) otherwise engage in an act authorized or required by this chapter.
2225 (6) The attorney general may, in accordance with the provisions of this chapter, but
2226 without involvement by the division or the chief procurement officer:
2227 (a) retain outside counsel; or
2228 (b) procure litigation support services, including retaining an expert witness.
2229 (7) [
2230 Subsection (4) that is not represented by the attorney general's office may, in accordance with
2231 the provisions of this chapter, but without involvement by the division or the chief procurement
2232 officer:
2233 (a) retain outside counsel; or
2234 (b) procure litigation support services, including retaining an expert witness.
2235 (8) The state auditor's office may, in accordance with the provisions of this chapter, but
2236 without involvement by the division or the chief procurement officer, procure audit services.
2237 (9) The state treasurer may, in accordance with the provisions of this chapter, but
2238 without involvement by the division or the chief procurement officer, procure:
2239 (a) deposit and investment services; and
2240 (b) services related to issuing bonds.
2241 Section 24. Section 63G-6a-107 (Effective 05/01/13) is amended to read:
2242 63G-6a-107 (Effective 05/01/13). Exemptions from chapter -- Compliance with
2243 federal law.
2244 (1) Except for Part 23, Unlawful Conduct and Penalties, the provisions of this chapter
2245 are not applicable to:
2246 (a) funds administered under the Percent-for-Art Program of the Utah Percent-for-Art
2247 Act;
2248 (b) grants awarded by the state or contracts between the state and [
2249
2250 following:
2251 (i) an educational procurement unit;
2252 (ii) a conservation district;
2253 (iii) a local building authority;
2254 (iv) a local district;
2255 (v) a public corporation;
2256 (vi) a special service district;
2257 (vii) a public transit district; or
2258 (viii) two or more of the entities described in Subsections (1)(b)(i) through (vii), acting
2259 under legislation that authorizes intergovernmental cooperation;
2260 (c) medical supplies or medical equipment, including service agreements for medical
2261 equipment, obtained through a purchasing consortium by the Utah State Hospital, the Utah
2262 State Developmental Center, the University of Utah Hospital, or any other hospital owned by
2263 the state or a political subdivision of the state, if:
2264 (i) the consortium uses a competitive procurement process; and
2265 (ii) the chief administrative officer of the hospital makes a written finding that the
2266 prices for purchasing medical supplies and medical equipment through the consortium are
2267 competitive with market prices;
2268 (d) goods purchased for resale; or
2269 [
2270 (2) (a) Notwithstanding Subsection (1), the provisions of Part 23, Unlawful Conduct
2271 and Penalties, are not applicable to an entity described in Subsection (1)(b)(ii), (iii), (iv), (vi),
2272 (vii), or (viii).
2273 [
2274 from complying with the terms and conditions of any grant, gift, or bequest that is otherwise
2275 consistent with law.
2276 (3) Notwithstanding any conflicting provision of this chapter, when a procurement
2277 involves the expenditure of federal assistance, federal contract funds, local matching funds, or
2278 federal financial participation funds, the [
2279 shall comply with mandatory applicable federal law and regulations not reflected in this
2280 chapter.
2281 (4) This chapter does not supersede the requirements for retention or withholding of
2282 construction proceeds and release of construction proceeds as provided in Section 13-8-5 .
2283 Section 25. Section 63G-6a-108 (Effective 05/01/13) is amended to read:
2284 63G-6a-108 (Effective 05/01/13). Procurements under direction and control of
2285 division -- Exception for procurement unit with independent procurement authority.
2286 (1) Except as provided in Subsection (2), a [
2287 in a procurement unless:
2288 (a) the procurement is made under the direction and control of the division; or
2289 (b) the division, pursuant to rules made by the board, permits the [
2290 unit to make the procurement on its own.
2291 [
2292 [
2293 [
2294 [
2295 (2) Subsection (1) does not apply to the following procurement units, all of which have
2296 independent procurement authority:
2297 (a) a legislative procurement unit;
2298 (b) a judicial procurement unit;
2299 (c) an educational procurement unit;
2300 (d) a local government procurement unit;
2301 (e) a conservation district;
2302 (f) a local building authority;
2303 (g) a local district;
2304 (h) a public corporation;
2305 (i) a special service district;
2306 (j) the Utah Housing Corporation; or
2307 (k) a public transit district.
2308 (3) A procurement unit with independent procurement authority is not exempt from
2309 complying with the requirements of this chapter.
2310 Section 26. Section 63G-6a-201 (Effective 05/01/13) is amended to read:
2311
2312 63G-6a-201 (Effective 05/01/13). Title.
2313 This part is known as "Utah State Procurement Policy Board."
2314 Section 27. Section 63G-6a-203 (Effective 05/01/13) is amended to read:
2315 63G-6a-203 (Effective 05/01/13). Powers and duties of board.
2316 (1) In addition to making rules in accordance with Section 63G-6a-402 and the other
2317 provisions of this chapter, the board shall consider and decide matters of policy within the
2318 provisions of this chapter, including those referred to it by the chief procurement officer.
2319 (2) (a) The board may:
2320 (i) audit and monitor the implementation of its rules and the requirements of this
2321 chapter;
2322 (ii) upon the request of [
2323
2324 board, review the procurement unit's proposed rules to ensure that they are not inconsistent
2325 with the provisions of this chapter or rules made by the board; and
2326 (iii) approve the use of innovative procurement processes.
2327 (b) Except as provided in Section 63G-6a-1702 , the board may not exercise authority
2328 over the award or administration of:
2329 (i) any particular contract; or
2330 (ii) any dispute, claim, or litigation pertaining to any particular contract.
2331 [
2332 [
2333 [
2334 [
2335
2336 (3) Except as otherwise expressly provided in this chapter, the board does not have
2337 authority over a matter involving a procurement unit with independent procurement authority.
2338 Section 28. Section 63G-6a-204 (Effective 05/01/13) is amended to read:
2339 63G-6a-204 (Effective 05/01/13). Applicability of rules and regulations of Utah
2340 State Procurement Policy Board and State Building Board -- Report to interim
2341 committee.
2342 (1) Except as provided in Subsection (2), rules made by the board under this chapter
2343 shall govern all [
2344 authority.
2345 (2) The building board rules governing procurement of construction, architect-engineer
2346 services, and leases apply to the procurement of construction, architect-engineer services, and
2347 leases of real property by the Division of Facilities Construction and Management.
2348 (3) An applicable rulemaking authority may make its own rules, consistent with this
2349 chapter, governing procurement by a person over which the applicable rulemaking authority
2350 has rulemaking authority.
2351 (4) The board shall make a report on or before July 1 of each year to a legislative
2352 interim committee, designated by the Legislative Management Committee created under
2353 Section 36-12-6 , on the establishment, implementation, and enforcement of the rules made
2354 under Section 63G-6a-203 .
2355 (5) Notwithstanding Subsection 63G-3-301 (13)(b), an applicable rulemaking authority
2356 is, on or before May 13, 2014, required to initiate rulemaking proceedings for rules required to
2357 be made under this chapter.
2358 Section 29. Section 63G-6a-302 (Effective 05/01/13) is amended to read:
2359 63G-6a-302 (Effective 05/01/13). Chief procurement officer -- Appointment --
2360 Qualifications -- Authority.
2361 (1) The executive director of the Department of Administrative Services, with the
2362 consent of the governor, shall appoint the chief procurement officer after considering
2363 recommendations from the board.
2364 (2) The chief procurement officer shall:
2365 (a) have a minimum of eight years' experience in the large-scale procurement of
2366 supplies and services or services and construction, at least five years of which shall have been
2367 in public or comparable private procurement within 12 years preceding the date of
2368 appointment; and
2369 (b) be a person with demonstrated executive and organizational ability.
2370 (3) The chief procurement officer appointed under Subsection (1) is also the director of
2371 the Division of Purchasing and General Services.
2372 [
2373
2374 [
2375 [
2376 [
2377 (4) The chief procurement officer has authority over a procurement by a procurement
2378 unit, except:
2379 (a) a procurement unit with independent procurement authority; or
2380 (b) as otherwise expressly provided in this chapter.
2381 Section 30. Section 63G-6a-303 (Effective 05/01/13) is amended to read:
2382 63G-6a-303 (Effective 05/01/13). Duties of chief procurement officer.
2383 Except as otherwise specifically provided in this chapter, the chief procurement officer
2384 serves as the central procurement officer of the state and shall:
2385 (1) adopt office policies governing the internal functions of the division;
2386 (2) procure or supervise each procurement over which the chief procurement officer
2387 has authority;
2388 (3) establish and maintain programs for the inspection, testing, and acceptance of each
2389 procurement item over which the chief procurement officer has authority;
2390 (4) prepare statistical data concerning each procurement and procurement usage of a
2391 state procurement unit;
2392 (5) ensure that:
2393 (a) before approving a procurement not covered by an existing statewide contract for
2394 information technology or telecommunications supplies or services, the chief information
2395 officer and the agency have stated in writing to the division that the needs analysis required in
2396 Section 63F-1-205 was completed, unless the procurement is approved in accordance with
2397 Title 63M, Chapter 1, Part 26, Government Procurement Private Proposal Program; and
2398 (b) the oversight authority required by Subsection(5)(a) is not delegated outside the
2399 division; and
2400 (6) provide training to [
2401 [
2402 Section 31. Section 63G-6a-305 (Effective 05/01/13) is amended to read:
2403 63G-6a-305 (Effective 05/01/13). Duty of chief procurement officer in
2404 maintaining specifications.
2405 (1) The chief procurement officer may prepare, issue, revise, maintain, and monitor the
2406 use of specifications for each procurement over which the chief procurement officer has
2407 authority.
2408 (2) The chief procurement officer shall obtain expert advice and assistance from
2409 personnel of [
2410 in writing to a [
2411 specifications.
2412 (3) For a procurement under Title 63M, Chapter 1, Part 26, Government Procurement
2413 Private Proposal Program, any delegation by the chief procurement officer under this section
2414 shall be made to the Governor's Office of Economic Development.
2415 Section 32. Section 63G-6a-402 (Effective 05/01/13) is amended to read:
2416 63G-6a-402 (Effective 05/01/13). Procurement unit required to comply with Utah
2417 Procurement Code and applicable rules -- Rulemaking authority -- Reporting.
2418 (1) Except as otherwise provided in Section 63G-6a-107 , Section 63G-6a-403 , Part 8,
2419 Exceptions to Procurement Requirements, or elsewhere in this chapter, a [
2420 unit may not obtain a procurement item, unless:
2421 (a) if the [
2422 a procurement unit with independent procurement authority, the [
2423 (i) uses a standard procurement process or an exception to a standard procurement
2424 process, described in Part 8, Exceptions to Procurement Requirements; and
2425 (ii) complies with:
2426 (A) the requirements of this chapter; and
2427 (B) the rules made pursuant to this chapter by the applicable rulemaking authority;
2428 (b) [
2429 [
2430 procurement unit complies with:
2431 (i) the requirements of this chapter that are adopted by the [
2432 procurement unit; and
2433 (ii) all other procurement requirements that the [
2434 unit is required to comply with; or
2435 (c) if the [
2436 Subsections (1)(a) or (b), the [
2437 (i) obtains the procurement item under the direction and approval of the division,
2438 unless otherwise provided by a rule made by the board;
2439 (ii) uses a standard procurement process; and
2440 (iii) complies with:
2441 (A) the requirements of this chapter; and
2442 (B) the rules made pursuant to this chapter by the applicable rulemaking authority.
2443 [
2444
2445
2446 [
2447 rules relating to the management and control of procurements and procurement procedures by a
2448 [
2449 (3) (a) Rules made under Subsection (2) shall ensure compliance with the federal
2450 contract prohibition provisions of the Sudan Accountability and Divestment Act of 2007 (Pub.
2451 L. No. 110-174) that prohibit contracting with a person doing business in Sudan.
2452 (b) The State Building Board rules governing procurement of construction,
2453 architect-engineer services, and leases apply to the procurement of construction,
2454 architect-engineer services, and leases of real property by the Division of Facilities
2455 Construction and Management.
2456 (4) An applicable rulemaking authority that is subject to Title 63G, Chapter 3, Utah
2457 Administrative Rulemaking Act, shall make the rules described in this chapter in accordance
2458 with the provisions of Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
2459 (5) The State Building Board shall make a report on or before July 1 of each year to a
2460 legislative interim committee, designated by the Legislative Management Committee created
2461 under Section 36-12-6 , on the establishment, implementation, and enforcement of the rules
2462 made by the State Building Board under this chapter.
2463 Section 33. Section 63G-6a-403 (Effective 05/01/13) is amended to read:
2464 63G-6a-403 (Effective 05/01/13). Prequalification of potential vendors.
2465 (1) (a) As used in this section, "vendor" means:
2466 (i) a bidder;
2467 (ii) an offeror; or
2468 (iii) a contractor, including an architect or an engineer.
2469 [
2470 [
2471 procurement item specified by the [
2472 [
2473 approved vendor list to the prequalified potential [
2474 type of procurement item.
2475 (2) To prequalify potential [
2476 procurement item, a [
2477 (3) A [
2478 (a) publish the request for qualifications in accordance with the requirements of
2479 Section 63G-6a-402 ;
2480 (b) state in the request for qualifications:
2481 (i) the type of procurement item to which the request for qualifications relates;
2482 (ii) the scope of work to be performed;
2483 (iii) the instructions and the deadline for providing information in response to the
2484 request for qualifications;
2485 (iv) the minimum criteria for prequalification;
2486 (v) the period of time during which the list of prequalified potential [
2487
2488 prequalified potential [
2489 Subsection (8)(b); and
2490 (vi) that a [
2491 a request for proposals, during the time period described in Subsection (3)(b)(v), to the
2492 potential [
2493 procurement item.
2494 (4) The minimum criteria described in Subsection (3)(b)(iv):
2495 (a) shall include the prequalification requirements unique to the procurement;
2496 (b) may include performance rating criteria; and
2497 (c) may not be so restrictive that the criteria unreasonably limit competition.
2498 (5) A [
2499
2500 [
2501 (6) A potential [
2502 potential [
2503 (a) submits a timely, responsive response to the request for [
2504 qualifications; and
2505 (b) meets the minimum criteria for qualification described in Subsection (3)(b)(iv).
2506 (7) If a request for qualifications will result in only one [
2507 vendor being placed on the list of prequalified potential [
2508 (a) the [
2509 (b) the list may not be used by the [
2510 (8) The [
2511 (a) before making the list of prequalified potential [
2512 available to the public, provide each potential [
2513 information in response to the request, but who did not meet the minimum qualifications for
2514 placement on the list, a written justification statement describing why the potential [
2515
2516 (b) within 30 days after the day of the deadline described in Subsection (3)(b)(iii),
2517 make the list of prequalified potential [
2518 Section 34. Section 63G-6a-404 (Effective 05/01/13) is amended to read:
2519 63G-6a-404 (Effective 05/01/13). Approved vendor list.
2520 [
2521 (1) (a) As used in this section, "vendor" is as defined in Subsection 63G-6a-403 (1)(a).
2522 (b) The process described in this section may not be used for construction projects that
2523 cost more than an amount specified by the applicable rulemaking authority.
2524 (c) The division or a procurement unit with independent procurement authority may
2525 compile a list of approved [
2526 obtained.
2527 (2) An approved [
2528 (a) timely, responsive [
2529
2530
2531 described in Part 15, Architect-Engineer Services.
2532 (3) In order to ensure equal treatment of [
2533
2534 services described in Subsection (4) or (5) the procurement unit shall use one of the following
2535 methods in an unbiased manner:
2536 (a) a rotation system, organized alphabetically, numerically, or randomly;
2537 (b) assigning [
2538 (c) classifying each [
2539 expertise, qualifications, or field.
2540 (4) (a) For a construction project that costs less than the amount established by the
2541 applicable rulemaking authority, under Subsection (1)(b), a procurement unit shall select a
2542 potential construction contractor from an approved potential contractor list, using an invitation
2543 for bids or a request for proposals.
2544 (b) For architectural or engineering services for a construction project described in
2545 Subsection (4)(a), a procurement unit shall select a potential contractor from an approved
2546 potential contractor list:
2547 (i) using a rotation system, organized alphabetically, numerically, or randomly;
2548 (ii) assigning a potential contractor to a specified geographical area; or
2549 (iii) classifying each potential contractor based on the potential contractor's field or
2550 area of expertise.
2551 (5) A procurement unit may not use an approved vendor list described in this section
2552 for a construction project with a cost that is equal to or greater than the amount established by
2553 the applicable rulemaking authority under Subsection (1)(b).
2554 (6) (a) After selecting a potential contractor under Subsection (4)(b), a procurement
2555 unit shall enter into fee negotiations with the potential contractor.
2556 (b) If, after good faith negotiations, the procurement unit and the potential contractor
2557 are unable to negotiate a fee that is acceptable to both parties, the procurement unit shall select
2558 another contractor under Subsection (4)(b) and enter into fee negotiations with that potential
2559 contractor.
2560 Section 35. Section 63G-6a-406 (Effective 05/01/13) is amended to read:
2561 63G-6a-406 (Effective 05/01/13). Public notice of procurement process or sole
2562 source procurement.
2563 (1) [
2564 independent procurement authority that issues an invitation for bids, a request for proposals, or
2565 [
2566 published in accordance with this section, shall provide public notice that includes:
2567 (a) for an invitation for bids or a request for proposals, the name of the [
2568
2569 (b) the name of the [
2570 [
2571 contact the [
2572 for bids[
2573 (d) for a notice of sole source procurement, contact information and other information
2574 relating to contesting, or obtaining additional information in relation to, the sole source
2575 procurement;
2576 [
2577 closing of the invitation for bids or request for proposals;
2578 (f) for a notice of sole source procurement, the earliest date that the procurement unit
2579 may make the sole source procurement;
2580 [
2581 proposals, or [
2582 [
2583 the standard procurement process or sole source procurement.
2584 (2) Except as provided in Subsection [
2585 proposals, the [
2586 described in Subsection (1), using at least one of the following methods:
2587 (a) at least [
2588 other response, publish the notice:
2589 (i) in a newspaper of general circulation in the state; or
2590 (ii) in a newspaper of local circulation in the area:
2591 (A) directly impacted by the procurement; or
2592 (B) over which the [
2593 (b) at least [
2594 of a bid or other response, publish the notice:
2595 (i) on the main website for the [
2596 procurement unit or the procurement unit acquiring the procurement item; or
2597 (ii) on a state website that is owned, managed by, or provided under contract with, the
2598 division for posting a public procurement notice.
2599 (3) Except as provided in Subsection (4), for a sole source procurement for which
2600 notice is required to be published in accordance with this section, the procurement unit making
2601 the sole source procurement shall publish the notice described in Subsection (1), using at least
2602 one of the following methods:
2603 (a) at least seven days before the day on which the procurement unit makes the sole
2604 source procurement, publish the notice:
2605 (i) in a newspaper of general circulation in the state; or
2606 (ii) in a newspaper of local circulation in the area:
2607 (A) directly impacted by the procurement; or
2608 (B) over which the procurement unit has jurisdiction; or
2609 (b) at least seven consecutive days before the day on which the procurement unit makes
2610 the sole source procurement, publish the notice:
2611 (i) on the main website for the procurement unit acquiring the procurement item; or
2612 (ii) on a state website that is owned by, managed by, or provided under contract with,
2613 the division for posting a procurement notice.
2614 [
2615 procurement unit making a sole source procurement may reduce the [
2616 described in Subsection (2) or (3), if the procurement officer or the procurement officer's
2617 designee signs a written statement that:
2618 (a) states that a shorter time is needed; and
2619 (b) as it relates to an invitation for bids or a request for proposals, determines that
2620 competition from multiple sources may be obtained within the shorter period of time.
2621 [
2622 copy of an invitation for bids[
2623
2624
2625 (b) A procurement unit making a sole source procurement shall make a copy of
2626 information related to the sole source procurement available for public inspection at the main
2627 office of the procurement unit or on the website described in Subsection (3)(b).
2628 Section 36. Section 63G-6a-407 (Effective 05/01/13) is amended to read:
2629 63G-6a-407 (Effective 05/01/13). Purpose of specifications.
2630 (1) All specifications shall seek to promote the overall economy and best use for the
2631 purposes intended and encourage competition in satisfying the needs of the [
2632 procurement unit, and may not be unduly restrictive.
2633 (2) The requirements of this part regarding the purposes and nonrestrictiveness of
2634 specifications shall apply to all specifications, including those prepared by architects,
2635 engineers, designers, and draftsmen for public contracts.
2636 Section 37. Section 63G-6a-408 (Effective 05/01/13) is amended to read:
2637 63G-6a-408 (Effective 05/01/13). Small purchases.
2638 (1) As used in this section:
2639 (a) "Annual cumulative threshold" means the maximum total annual amount,
2640 established by the applicable rulemaking authority under Subsection (2)(a)(i), that a
2641 procurement unit may expend to obtain procurement items from the same source under this
2642 section.
2643 (b) "Individual procurement threshold" means the maximum amount, established by
2644 the applicable rulemaking authority under Subsection (2)(a)(ii), for which a procurement unit
2645 may purchase a procurement item under this section.
2646 (c) "Single procurement aggregate threshold" means the maximum total amount,
2647 established by the applicable rulemaking authority under Subsection (2)(a)(iii), that a
2648 procurement unit may expend to obtain multiple procurement items from one source at one
2649 time under this section.
2650 [
2651 purchases, including:
2652 [
2653
2654 [
2655
2656 (i) an annual cumulative threshold;
2657 (ii) an individual procurement threshold; and
2658 (iii) a single procurement aggregate threshold;
2659 (b) establishing procurement requirements relating to the thresholds described in
2660 Subsection (2)(a); and
2661 (c) the use of electronic, telephone, or written quotes.
2662 (3) Expenditures made under this section by a procurement unit may not exceed a
2663 threshold established by the applicable rulemaking authority, unless the chief procurement
2664 officer or the head of a procurement unit with independent procurement authority gives written
2665 authorization to exceed the threshold that includes the reasons for exceeding the threshold.
2666 [
2667 branch procurement unit may not obtain a procurement item through a small purchase standard
2668 procurement process if the procurement item may be obtained through a state cooperative
2669 contract or a contract awarded by the chief procurement officer under Subsection
2670 63G-6a-2105 (1).
2671 [
2672 [
2673 [
2674
2675 [
2676 [
2677
2678 (a) the procurement item is obtained for an unanticipated, urgent or unanticipated,
2679 emergency condition, including:
2680 (i) an item needed to avoid stopping a public construction project;
2681 (ii) an immediate repair to a facility or equipment; or
2682 (iii) another emergency condition; or
2683 (b) the chief procurement officer or the head of a procurement unit that is an executive
2684 branch procurement unit with independent procurement authority:
2685 (i) determines in writing that it is in the best interest of the procurement unit to obtain
2686 an individual procurement item outside of the state contract, comparing:
2687 (A) the contract terms and conditions applicable to the procurement item under the
2688 state contract with the contract terms and conditions applicable to the procurement item if the
2689 procurement item is obtained outside of the state contract;
2690 (B) the maintenance and service applicable to the procurement item under the state
2691 contract with the maintenance and service applicable to the procurement item if the
2692 procurement item is obtained outside of the state contract;
2693 (C) the warranties applicable to the procurement item under the state contract with the
2694 warranties applicable to the procurement item if the procurement item is obtained outside of
2695 the state contract;
2696 (D) the quality of the procurement item under the state contract with the quality of the
2697 procurement item if the procurement item is obtained outside of the state contract; and
2698 (E) the cost of the procurement item under the state contract with the cost of the
2699 procurement item if the procurement item is obtained outside of the state contract;
2700 (ii) for a procurement item that, if defective in its manufacture, installation, or
2701 performance, may result in serious physical injury, death, or substantial property damage,
2702 determines in writing that the terms and conditions, relating to liability for injury, death, or
2703 property damage, available from the source other than the contractor who holds the state
2704 contract, are similar to, or better than, the terms and conditions available under the state
2705 contract; and
2706 (iii) grants an exception, in writing, to the requirement described in Subsection (4).
2707 [
2708 expressly provided in this section, a procurement unit:
2709 [
2710 section for ongoing, continuous, and regularly scheduled procurements that exceed the annual
2711 cumulative threshold; and
2712 [
2713 exceed the annual cumulative threshold through a contract awarded through [
2714 standard procurement process described in this chapter or an applicable exception to [
2715 another standard procurement process, described in Part 8, Exceptions to Procurement
2716 Requirements.
2717 [
2718
2719
2720
2721 (7) This section does not prohibit regularly scheduled payments for a procurement item
2722 obtained under another provision of this chapter.
2723 [
2724 into one or more smaller procurements with the intent to make a procurement:
2725 (a) qualify as a small purchase, if, before dividing the procurement, it would not have
2726 qualified as a small purchase; or
2727 (b) meet a threshold established by rule made by the applicable rulemaking authority,
2728 if, before dividing the procurement, it would not have met the threshold.
2729 [
2730 includes doing any of the following with the intent or knowledge described in Subsection [
2731 (8):
2732 (a) making two or more separate purchases;
2733 (b) dividing an invoice or purchase order into two or more invoices or purchase orders;
2734 or
2735 (c) making smaller purchases over a period of time.
2736 [
2737 penalties described in Section 63G-6a-2305 .
2738 [
2739 may conduct an audit of [
2740 procurement unit to verify compliance with the requirements of this section.
2741 [
2742 unit may not make a small purchase after January 1, [
2743 officer certifies that the person responsible for procurements in the [
2744 has satisfactorily completed training on this section and the rules made under this section.
2745 Section 38. Section 63G-6a-503 (Effective 05/01/13) is amended to read:
2746 63G-6a-503 (Effective 05/01/13). Request for information and response
2747 nonbinding.
2748 (1) A request for information is not a procurement process and may not be used to
2749 make a purchase or enter into a contract. A [
2750 standard procurement process, or comply with an exception to the requirement to use a
2751 standard procurement process described in Part 8, Exceptions to Procurement Requirements, in
2752 order to make a purchase or enter into a contract.
2753 (2) A response to a request for information is not an offer and may not be accepted to
2754 form a binding contract.
2755 Section 39. Section 63G-6a-505 is enacted to read:
2756 63G-6a-505. Protected information.
2757 Information submitted to or by a governmental entity in response to a request for
2758 information is protected under Section 63G-2-305 .
2759 Section 40. Section 63G-6a-602 (Effective 05/01/13) is amended to read:
2760 63G-6a-602 (Effective 05/01/13). Contracts awarded by bidding.
2761 (1) Except as otherwise provided in this chapter, [
2762 division or a procurement unit with independent procurement authority shall award a contract
2763 for a procurement by bidding, in accordance with the rules of the applicable rulemaking
2764 authority.
2765 (2) The bidding standard procurement process is appropriate to use when cost is the
2766 major factor in determining the award of a procurement.
2767 Section 41. Section 63G-6a-603 (Effective 05/01/13) is amended to read:
2768 63G-6a-603 (Effective 05/01/13). Invitation for bids -- Contents -- Notice.
2769 (1) The bidding standard procurement process begins when [
2770
2771 invitation for bids.
2772 (2) An invitation for bids shall:
2773 (a) state the period of time during which bids will be accepted;
2774 (b) describe the manner in which a bid shall be submitted;
2775 (c) state the place where a bid shall be submitted; and
2776 (d) include, or incorporate by reference:
2777 (i) a description of the procurement items sought;
2778 (ii) the objective criteria that will be used to evaluate the bids; and
2779 (iii) the required contractual terms and conditions.
2780 (3) An [
2781 invitation for bids in accordance with the requirements of Section 63G-6a-406 .
2782 Section 42. Section 63G-6a-604 (Effective 05/01/13) is amended to read:
2783 63G-6a-604 (Effective 05/01/13). Bid opening and acceptance.
2784 (1) Bids shall be opened:
2785 (a) publicly, except as provided in Section 63G-6a-611 ;
2786 (b) in the presence of one or more witnesses, unless an electronic bid opening process
2787 is used where bidders may see the opening of the bid electronically; and
2788 (c) at the time and place indicated in the invitation for bids.
2789 (2) Bids shall be accepted unconditionally, without alteration or correction, except as
2790 otherwise authorized by this chapter.
2791 (3) (a) The procurement officer shall reject a bid that is not responsive or responsible.
2792 (b) A bid that is not responsive includes a bid that:
2793 (i) is conditional;
2794 (ii) attempts to modify the bid requirements;
2795 (iii) contains additional terms or conditions; or
2796 (iv) fails to conform with the requirements or specifications of the invitation for bids.
2797 (c) A bid that is not responsible includes a bid where the procurement officer
2798 reasonably concludes that the bidder or an employee, agent, or subcontractor of the bidder, at
2799 any tier, is unable to satisfactorily fulfill the bid requirements.
2800 (4) An [
2801 after the time for submission of a bid has expired.
2802 (5) The procurement officer shall:
2803 (a) record the name of each bidder and the amount of each bid; and
2804 (b) after the bid is awarded, make the information described in Subsection (5)(a)
2805 available for public disclosure.
2806 Section 43. Section 63G-6a-605 (Effective 05/01/13) is amended to read:
2807 63G-6a-605 (Effective 05/01/13). Correction or withdrawal of bids -- Cancellation
2808 of award.
2809 (1) Correction or withdrawal of inadvertently erroneous bids, or the cancellation of an
2810 award or a contract that is based on an unintentionally erroneous bid, may be made in
2811 accordance with the rules of the applicable rulemaking authority.
2812 (2) Notwithstanding Subsection (1), the following changes may not be made to a bid
2813 after the bid opening:
2814 (a) changes in bid pricing;
2815 (b) changes in the cost evaluation formula; or
2816 (c) changes in other provisions that are prejudicial to fair competition or to the interest
2817 of the [
2818 (3) A decision to permit the correction or withdrawal of a bid or the cancellation of an
2819 award or a contract under Subsection (1) shall be supported in a written document, signed by
2820 the chief procurement officer, the procurement officer, or the head of the [
2821
2822 Section 44. Section 63G-6a-606 (Effective 05/01/13) is amended to read:
2823 63G-6a-606 (Effective 05/01/13). Evaluation of bids -- Award -- Cancellation --
2824 Disqualification.
2825 (1) [
2826 independent procurement authority shall evaluate each bid using the objective criteria
2827 described in the invitation for bids, which may include:
2828 (a) experience;
2829 (b) performance ratings;
2830 (c) inspection;
2831 (d) testing;
2832 (e) quality;
2833 (f) workmanship;
2834 (g) time and manner of delivery;
2835 (h) references;
2836 (i) financial stability;
2837 (j) cost;
2838 (k) suitability for a particular purpose; or
2839 (l) other objective criteria specified in the invitation for bids.
2840 (2) Criteria not described in the invitation for bids may not be used to evaluate a bid.
2841 (3) The [
2842 (a) award the contract as soon as practicable to:
2843 (i) the lowest responsive and responsible bidder who meets the objective criteria
2844 described in the invitation for bids; or
2845 (ii) if, in accordance with Subsection (4), the procurement officer or the head of the
2846 [
2847 (3)(a)(i), the next lowest responsive and responsible bidder who meets the objective criteria
2848 described in the invitation for bids; or
2849 (b) cancel the invitation for bids without awarding a contract.
2850 (4) In accordance with Subsection (5), the procurement officer or the head of the
2851 [
2852 (a) a violation of this chapter;
2853 (b) a violation of a requirement of the invitation for bids;
2854 (c) unlawful or unethical conduct; or
2855 (d) a change in circumstance that, had the change been known at the time the bid was
2856 submitted, would have caused the bidder to not be the lowest responsive and responsible bidder
2857 who meets the objective criteria described in the invitation for bids.
2858 (5) A procurement officer or head of [
2859 unit who disqualifies a bidder under Subsection (4) shall:
2860 (a) make a written finding, stating the reasons for disqualification; and
2861 (b) provide a copy of the written finding to the disqualified bidder.
2862 (6) If [
2863 bids without awarding a contract, the [
2864 make available for public inspection a written justification for the cancellation.
2865 Section 45. Section 63G-6a-607 (Effective 05/01/13) is amended to read:
2866 63G-6a-607 (Effective 05/01/13). Action when all bids are over budget.
2867 (1) Except as provided in Subsection (2) or (3), if the fiscal officer for the [
2868 procurement unit certifies that all accepted bids exceed available funds and that the lowest
2869 responsive and responsible bidder does not exceed the available funds by more than 5%, the
2870 procurement officer may negotiate an adjustment of the bid price and bid requirements with the
2871 lowest responsive and responsible bidder in order to bring the bid within the amount of
2872 available funds.
2873 (2) A procurement officer may not adjust the bid requirements under Subsection (1) if
2874 there is a substantial likelihood that, had the adjustment been included in the invitation for
2875 bids, a person that did not submit a bid would have submitted a responsive, responsible, and
2876 competitive bid.
2877 (3) The Division of Facilities Construction and Management is exempt from the
2878 requirements of this section if:
2879 (a) the building board adopts rules governing procedures when all accepted bids exceed
2880 available funds; and
2881 (b) the Division of Facilities Construction and Management complies with the rules
2882 described in Subsection (3)(a).
2883 Section 46. Section 63G-6a-608 (Effective 05/01/13) is amended to read:
2884 63G-6a-608 (Effective 05/01/13). Tie bids -- Resolution -- Copies provided to
2885 attorney general.
2886 (1) A procurement officer shall resolve a tie bid in accordance with a method
2887 established by rule made by the applicable rulemaking authority. The method may include
2888 awarding the tie bid:
2889 (a) to the tie bidder who:
2890 (i) is a provider of state products, if no other tie bidder is a responsive provider of state
2891 products;
2892 (ii) is closest to the point of delivery;
2893 (iii) received the previous award; or
2894 (iv) will provide the earliest delivery date;
2895 (b) by drawing lots; or
2896 (c) by any other reasonable method of resolving a tie bid.
2897 (2) The method chosen by the procurement officer to resolve a tie bid shall be at the
2898 sole discretion of the procurement officer, subject to the rules established under Subsection (1).
2899 (3) A [
2900 the procurement to the attorney general if an award of a contract to a tie bidder exceeds
2901 $100,000 in expenditures.
2902 Section 47. Section 63G-6a-609 (Effective 05/01/13) is amended to read:
2903 63G-6a-609 (Effective 05/01/13). Multiple stage bidding process.
2904 (1) [
2905 independent procurement authority may conduct a bid in multiple stages, to:
2906 (a) narrow the number of bidders who will progress to a subsequent stage;
2907 (b) prequalify bidders for subsequent stages, in accordance with Section 63G-6a-403 ;
2908 (c) enter into a contract for a single procurement; or
2909 (d) award multiple contracts for a series of upcoming procurements.
2910 (2) The invitation for bids for a multiple stage bidding process shall:
2911 (a) describe the requirements for, and purpose of, each stage of the process;
2912 (b) indicate whether the [
2913 award:
2914 (i) a single contract; or
2915 (ii) multiple contracts for a series of upcoming procurements; and
2916 (c) state that:
2917 (i) the first stage is for prequalification only;
2918 (ii) a bidder may not submit any pricing information in the first stage of the process;
2919 and
2920 (iii) bids in the second stage will only be accepted from a person who prequalifies in
2921 the first stage.
2922 (3) During the first stage, the [
2923 (a) shall prequalify bidders to participate in subsequent stages, in accordance with
2924 Section 63G-6a-403 ;
2925 (b) shall prohibit the submission of pricing information until the final stage; and
2926 (c) may, before beginning the second stage, request additional information to clarify
2927 the qualifications of the bidders who submit timely responses.
2928 (4) Contracts may only be awarded for a procurement item described in stage one of
2929 the invitation for bids.
2930 (5) [
2931 independent procurement authority may conduct a bid in as many stages as it determines to be
2932 appropriate.
2933 (6) Except as otherwise expressly provided in this section, [
2934
2935 conduct a multiple stage process in accordance with this part.
2936 (7) The applicable rulemaking authority may make rules governing the use of a
2937 multiple stage process described in this section.
2938 Section 48. Section 63G-6a-610 (Effective 05/01/13) is amended to read:
2939 63G-6a-610 (Effective 05/01/13). Contracts awarded by reverse auction.
2940 (1) Reverse auction bidding may be used if the procurement officer determines, in
2941 writing, that reverse auction bidding will provide the best value to the [
2942 unit.
2943 (2) Reverse auction bidding is appropriate to use when there are multiple prequalified
2944 providers of a procurement item.
2945 Section 49. Section 63G-6a-611 (Effective 05/01/13) is amended to read:
2946 63G-6a-611 (Effective 05/01/13). Invitation for bids for reverse auction -- Notice
2947 contents -- Agreement to terms and conditions.
2948 (1) The reverse auction bidding process begins when [
2949 the division or a procurement unit with independent procurement authority issues an invitation
2950 for bids to prequalify bidders to participate in the reverse auction.
2951 (2) The invitation for bids shall:
2952 (a) state the period of time during which bids will be accepted;
2953 (b) state that the bid will be conducted by reverse auction;
2954 (c) describe the procurement items sought;
2955 (d) describe the minimum requirements to become prequalified;
2956 (e) state the required contractual terms and conditions; and
2957 (f) describe the procedure that the [
2958 procurement unit with independent procurement authority will follow in conducting the reverse
2959 auction.
2960 (3) In order to participate in a reverse auction, a bidder shall agree to:
2961 (a) the specifications, and contractual terms and conditions, of the procurement; and
2962 (b) be trained in, and abide by, the procedure that the [
2963 division or the procurement unit with independent procurement authority will follow in
2964 conducting the reverse auction.
2965 (4) [
2966 independent procurement authority shall publish an invitation for bids for a reverse auction in
2967 accordance with the requirements of Section 63G-6a-406 .
2968 Section 50. Section 63G-6a-612 (Effective 05/01/13) is amended to read:
2969 63G-6a-612 (Effective 05/01/13). Conduct of reverse auction.
2970 (1) When conducting a reverse auction, [
2971 or a procurement unit with independent procurement authority:
2972 (a) may conduct the reverse auction at a physical location or by electronic means;
2973 (b) shall permit all prequalified bidders to participate in the reverse auction;
2974 (c) may not permit a bidder to participate in the reverse auction if the bidder did not
2975 prequalify to participate in the reverse auction;
2976 (d) may not accept a bid after the time for submission of a bid has expired;
2977 (e) shall update the bids on a real time basis; and
2978 (f) shall conduct the reverse auction in a manner that permits each bidder to:
2979 (i) bid against each other; and
2980 (ii) lower the bidder's price below the lowest bid before the reverse auction closes.
2981 (2) At the end of the reverse auction, the [
2982 unit shall:
2983 (a) award the contract as soon as practicable to the lowest responsive and responsible
2984 bidder who meets the objective criteria described in the invitation for bids; or
2985 (b) cancel the reverse auction without awarding a contract.
2986 (3) After the reverse auction is finished, the procurement officer shall make publicly
2987 available:
2988 (a) (i) the amount of the final bid submitted by each bidder during the reverse auction;
2989 and
2990 (ii) the identity of the bidder that submitted each final bid; and
2991 (b) if practicable:
2992 (i) the amount of each bid submitted during the reverse auction; and
2993 (ii) the identity of the bidder that submitted each bid.
2994 Section 51. Section 63G-6a-702 (Effective 05/01/13) is amended to read:
2995 63G-6a-702 (Effective 05/01/13). Contracts awarded by request for proposals.
2996 (1) A request for proposals standard procurement process may be used instead of
2997 bidding if the procurement officer determines, in writing, that the request for proposals
2998 standard procurement process will provide the best value to the [
2999 (2) The request for proposals standard procurement process is appropriate to use for:
3000 (a) the procurement of professional services;
3001 (b) a design-build procurement;
3002 (c) when cost is not the most important factor to be considered in making the selection
3003 that is most advantageous to the [
3004 (d) when factors, in addition to cost, are highly significant in making the selection that
3005 is most advantageous to the [
3006 Section 52. Section 63G-6a-703 (Effective 05/01/13) is amended to read:
3007 63G-6a-703 (Effective 05/01/13). Request for proposals -- Notice -- Contents.
3008 (1) The request for proposals standard procurement process begins when [
3009
3010 authority issues a request for proposals.
3011 (2) A request for proposals shall:
3012 (a) state the period of time during which a proposal will be accepted;
3013 (b) describe the manner in which a proposal shall be submitted;
3014 (c) state the place where a proposal shall be submitted;
3015 (d) include, or incorporate by reference:
3016 (i) a description of the procurement items sought;
3017 (ii) a description of the subjective and objective criteria that will be used to evaluate
3018 the proposal; and
3019 (iii) the standard contractual terms and conditions required by the authorized
3020 purchasing entity;
3021 (e) state the relative weight that will be given to each score awarded for the criteria
3022 described in Subsection (2)(d)(ii), including cost;
3023 (f) state the formula that will be used to determine the score awarded for the cost of
3024 each proposal;
3025 (g) if the request for proposals will be conducted in multiple stages, as described in
3026 Section 63G-6a-710 , include a description of the stages and the criteria and scoring that will be
3027 used to screen offerors at each stage; and
3028 (h) state that discussions may be conducted with offerors who submit proposals
3029 determined to be reasonably susceptible of being selected for award, followed by an
3030 opportunity to make best and final offers, but that proposals may be accepted without
3031 discussions.
3032 (3) [
3033 independent procurement authority shall publish a request for proposals in accordance with the
3034 requirements of Section 63G-6a-406 .
3035 Section 53. Section 63G-6a-704 (Effective 05/01/13) is amended to read:
3036 63G-6a-704 (Effective 05/01/13). Opening of proposals and acceptance.
3037 (1) An [
3038 proposals are opened in a manner that avoids disclosing the contents to competing offerors
3039 during the evaluation process.
3040 (2) An [
3041 proposal:
3042 (a) after the time for submission of a proposal has expired; or
3043 (b) that is not responsive to the request for proposals.
3044 Section 54. Section 63G-6a-705 (Effective 05/01/13) is amended to read:
3045 63G-6a-705 (Effective 05/01/13). Discussions -- Best and final offers.
3046 (1) After proposals are received and opened, the [
3047 procurement unit may conduct discussions with the offerors and allow the offerors to make
3048 best and final offers after the discussions.
3049 (2) The [
3050 (a) ensure that each offeror receives fair and equal treatment with respect to the other
3051 offerors;
3052 (b) establish a schedule and procedures for conducting discussions;
3053 (c) ensure that information in each proposal and information gathered during
3054 discussions is not shared with other offerors until the contract is awarded;
3055 (d) ensure that auction tactics are not used in the discussion process, including
3056 discussing and comparing the costs and features of other proposals; and
3057 (e) set a common date and time for the submission of best and final offers.
3058 (3) If an offeror chooses not to participate in a discussion or does not make a timely
3059 best and final offer, the offer submitted by the offerors before the conduct of discussions shall
3060 be treated as the offeror's best and final offer.
3061 Section 55. Section 63G-6a-707 (Effective 05/01/13) is amended to read:
3062 63G-6a-707 (Effective 05/01/13). Evaluation of proposals -- Evaluation
3063 committee.
3064 (1) Each proposal shall be evaluated using the criteria described in the request for
3065 proposals, which may include:
3066 (a) experience;
3067 (b) performance ratings;
3068 (c) inspection;
3069 (d) testing;
3070 (e) quality;
3071 (f) workmanship;
3072 (g) time, manner, or schedule of delivery;
3073 (h) references;
3074 (i) financial stability;
3075 (j) suitability for a particular purpose;
3076 (k) management plans;
3077 (l) cost; or
3078 (m) other subjective or objective criteria specified in the request for proposals.
3079 (2) Criteria not described in the request for proposals may not be used to evaluate a
3080 proposal.
3081 (3) The [
3082 (a) appoint an evaluation committee consisting of at least three individuals [
3083
3084 (b) ensure that the evaluation committee and each member of the evaluation
3085 committee:
3086 (i) does not have a conflict of interest with any of the offerors;
3087 (ii) can fairly evaluate each proposal;
3088 (iii) does not contact or communicate with an offeror for any reason other than
3089 conducting the standard procurement process; and
3090 (iv) conducts the evaluation in a manner that ensures a fair and competitive process
3091 and avoids the appearance of impropriety.
3092 (4) The evaluation committee may conduct interviews with, or participate in
3093 presentations by, the offerors.
3094 (5) Except as provided in Subsection (6) or (7), each member of the evaluation
3095 committee is prohibited from knowing, or having access to, any information relating to the
3096 cost, or the scoring of the cost, of a proposal until after the evaluation committee submits its
3097 final recommended scores on all other criteria to the [
3098 procurement unit.
3099 (6) (a) As used in this Subsection (6), "management fee" includes only the following
3100 fees of the construction manager/general contractor:
3101 (i) preconstruction phase services;
3102 (ii) monthly supervision fees for the construction phase; and
3103 (iii) overhead and profit for the construction phase.
3104 (b) When selecting a construction manager/general contractor for a construction
3105 project, the evaluation committee:
3106 (i) may, at any time after the opening of the responses to the request for proposals, have
3107 access to, and consider, the management fee proposed by the offerors; and
3108 (ii) except as provided in Subsection (7), may not know or have access to any other
3109 information relating to the cost of construction submitted by the offerors, until after the
3110 evaluation committee submits its final recommended scores on all other criteria to the
3111 [
3112 (7) An [
3113 comply with Subsection (5) if, before opening the responses to the request for proposals, the
3114 head of the [
3115 rule made by the applicable rulemaking authority:
3116 (a) signs a written statement:
3117 (i) indicating that, due to the nature of the proposal or other circumstances, it is in the
3118 best interest of the [
3119 (ii) describing the nature of the proposal and the other circumstances relied upon to
3120 waive compliance with Subsection (5); and
3121 (b) makes the written statement available to the public, upon request.
3122 (8) The evaluation committee shall award scores to each responsive and responsible
3123 proposal that has not been disqualified from consideration under the provisions of this chapter.
3124 Section 56. Section 63G-6a-708 (Effective 05/01/13) is amended to read:
3125 63G-6a-708 (Effective 05/01/13). Cost-benefit analysis.
3126 [
3127
3128 [
3129
3130
3131 [
3132
3133 [
3134 including the score for cost, is awarded to [
3135 [
3136 proposal and the lowest cost proposal exceeds the greater of $10,000 or 5% of the lowest cost
3137 [
3138
3139 analysis that:
3140 (a) explains, in general terms, the advantage to the [
3141 awarding the contract to the higher cost offeror;
3142 (b) includes, except as provided in Subsection [
3143 financial value to the [
3144 contract to the higher cost offeror;
3145 (c) includes, to the extent that assigning a financial value to a particular criteria is not
3146 practicable, a statement describing:
3147 (i) why it is not practicable to assign a financial value to the criteria; and
3148 (ii) in nonfinancial terms, the advantage to the [
3149 particular criteria, of awarding the contract to the higher cost offeror;
3150 (d) demonstrates that the value of the advantage to the [
3151 awarding the contract to the higher cost offeror exceeds the value of the difference between the
3152 cost of the higher cost [
3153 and
3154 (e) includes any other information required by rule made by the applicable rulemaking
3155 authority.
3156 (2) If the informal cost-benefit analysis described in Subsection (1) does not justify
3157 award of the contract to the offeror that received the highest score, the issuing procurement
3158 unit:
3159 (a) may not award the contract to the offeror that received the highest score; and
3160 (b) may award the contract to the offeror that received the next highest score, unless:
3161 (i) an informal cost-benefit analysis is required, because the difference between the
3162 cost proposed by the offeror that received the next highest score and the lowest cost proposal
3163 exceeds the greater of $10,000 or 5% of the lowest cost proposal; and
3164 (ii) the informal cost-benefit analysis does not justify award of the contract to the
3165 offeror that received the next highest score.
3166 (3) If the informal cost-benefit analysis described in Subsection (1) does not justify
3167 award of the contract to the offeror, described in Subsection (2), that received the next highest
3168 score, the issuing procurement unit:
3169 (a) may not award the contract to the offeror that received the next highest score; and
3170 (b) shall continue with the process described in Subsection (2) for each offeror that
3171 received the next highest score, until the issuing procurement unit:
3172 (i) awards the contract in accordance with the provisions of this section; or
3173 (ii) cancels the request for proposals.
3174 (4) (a) An issuing procurement unit is not required to make the cost-benefit analysis
3175 described in this section for a contract with a construction manager/general contractor if the
3176 contract is awarded based solely on the qualifications of the construction manager/general
3177 contractor and the management fee described in Subsection 63G-6a-706 (6).
3178 (b) The applicable rulemaking authority shall make rules that establish procedures and
3179 criteria for awarding a contract described in Subsection (4)(a) to ensure that:
3180 (i) a competitive process is maintained; and
3181 (ii) the contract awarded is in the best interest of the procurement unit.
3182 Section 57. Section 63G-6a-709 (Effective 05/01/13) is amended to read:
3183 63G-6a-709 (Effective 05/01/13). Award of contract -- Cancellation --
3184 Disqualification.
3185 (1) After the evaluation and scoring of proposals is completed, the [
3186
3187 (a) except as provided in Section 63G-6a-708 , award the contract as soon as practicable
3188 to:
3189 (i) the responsive and responsible offeror with the highest total score; or
3190 (ii) if, in accordance with Subsection (2), the procurement officer or the head of the
3191 [
3192 Subsection (1)(a)(i), the responsive and responsible offeror with the next highest total score; or
3193 (b) cancel the request for proposals without awarding a contract.
3194 (2) In accordance with Subsection (3), the procurement officer or the head of the
3195 [
3196 (a) a violation of this chapter;
3197 (b) a violation of a requirement of the request for proposals;
3198 (c) unlawful or unethical conduct; or
3199 (d) a change in circumstance that, had the change been known at the time the proposal
3200 was submitted, would have caused the proposal to not have the highest score.
3201 (3) A procurement officer or head of an [
3202 procurement unit who disqualifies an offeror under Subsection (2) shall:
3203 (a) make a written finding, stating the reasons for disqualification; and
3204 (b) provide a copy of the written finding to the disqualified offeror.
3205 (4) If an [
3206 proposals without awarding a contract, the [
3207 unit shall make available for public inspection a written justification for the cancellation.
3208 Section 58. Section 63G-6a-709.5 is enacted to read:
3209 63G-6a-709.5. Publication of award and scores.
3210 The issuing procurement unit shall, on the day on which the award of a contract is
3211 announced, make available to each offeror and to the public a written statement that includes:
3212 (1) the name of the offeror to which the contract is awarded and the total score awarded
3213 by the evaluation committee to that offeror;
3214 (2) the total score awarded by the evaluation committee to each offeror to which the
3215 contract is not awarded, without identifying which offeror received which score; and
3216 (3) any cost-benefit analysis made, under Section 63G-6a-708 , in relation to the request
3217 for proposals.
3218 Section 59. Section 63G-6a-710 (Effective 05/01/13) is amended to read:
3219 63G-6a-710 (Effective 05/01/13). Multiple stage process.
3220 (1) [
3221 independent procurement authority may conduct a request for proposals in stages, where an
3222 earlier stage is used to qualify offerors for subsequent stages or to narrow the number of
3223 offerors that will move on to subsequent stages.
3224 (2) Except as otherwise expressly provided in this section, [
3225
3226 conduct a multiple stage process in accordance with this part.
3227 Section 60. Section 63G-6a-711 (Effective 05/01/13) is amended to read:
3228 63G-6a-711 (Effective 05/01/13). Procurement for submitted proposal.
3229 (1) As used in this section:
3230 (a) "Committee" is as defined in Section 63M-1-2602 .
3231 (b) "Initial proposal" is a proposal submitted by a private entity under Section
3232 63M-1-2605 .
3233 (2) After receipt by the chief procurement officer of a copy of an initial proposal from
3234 the committee in accordance with Subsection 63M-1-2606 (5), including any comment,
3235 suggestion, or modification to the initial proposal, the chief procurement officer shall initiate a
3236 standard procurement process in compliance with this chapter.
3237 (3) The chief procurement officer or designee shall:
3238 (a) review each detailed proposal received in accordance with Title 63M, Chapter 1,
3239 Part 26, Government Procurement Private Proposal Program; and
3240 (b) submit all detailed proposals that meet the guidelines established under Subsection
3241 63M-1-2608 (1) to the committee for review under Section 63M-1-2609 .
3242 (4) For purposes of this chapter, the Governor's Office of Economic Development is
3243 considered [
3244 authority for a procurement [
3245 Procurement Private Proposal Program.
3246 Section 61. Section 63G-6a-802 (Effective 05/01/13) is amended to read:
3247 63G-6a-802 (Effective 05/01/13). Sole source -- Award of contract without
3248 competition -- Notice.
3249 (1) As used in this section:
3250 (a) "Transitional costs" mean the costs of changing from an existing provider of, or
3251 type of, a procurement item to another provider of, or type of, procurement item.
3252 (b) "Transitional costs" include:
3253 (i) training costs;
3254 (ii) conversion costs;
3255 (iii) compatibility costs;
3256 (iv) system downtime;
3257 (v) disruption of service;
3258 (vi) staff time necessary to put the transition into effect;
3259 (vii) installation costs; and
3260 (viii) ancillary software, hardware, equipment, or construction costs.
3261 (c) "Transitional costs" do not include:
3262 (i) the costs of preparing for or engaging in a procurement process; or
3263 (ii) contract negotiation or contract drafting costs.
3264 (2) [
3265 may award a contract [
3266 procurement officer, the head of [
3267 designee of either who is senior to the procurement officer or the head of the [
3268
3269 (a) there is only one source for the procurement item; or
3270 (b) the award to a specific supplier, service provider, or contractor is a condition of a
3271 donation that will fund the full cost of the supply, service, or construction item.
3272 (3) Circumstances under which there is only one source for a procurement item may
3273 include:
3274 (a) where the most important consideration in obtaining a procurement item is the
3275 compatibility of equipment, technology, software, accessories, replacement parts, or service;
3276 (b) where a procurement item is needed for trial use or testing;
3277 (c) where transitional costs are unreasonable or cost prohibitive; or
3278 (d) procurement of public utility services.
3279 (4) The applicable rulemaking authority shall make rules regarding the publication of
3280 notice for a sole source procurement that, at a minimum, require publication of notice of a sole
3281 source procurement, in accordance with Section 63G-6a-406 , if the cost of the procurement
3282 exceeds $50,000.
3283 (5) [
3284 independent procurement authority who awards a sole source contract on behalf of [
3285 another procurement unit shall negotiate with the contractor to ensure that the terms of the
3286 contract, including price and delivery, are in the best interest of the [
3287 (6) [
3288 procurement authority may extend a contract for a reasonable period of time without engaging
3289 in a standard procurement process, if:
3290 (a) the award of a new contract for the procurement item is delayed due to a protest or
3291 appeal;
3292 (b) the standard procurement process is delayed due to unintentional error;
3293 (c) changes in industry standards require significant changes to specifications for the
3294 procurement item;
3295 (d) the extension is necessary to prevent the loss of federal funds;
3296 (e) the extension is necessary to address a circumstance where the appropriation of
3297 state or federal funds has been delayed; or
3298 (f) the extension covers the period of time during which contract negotiations with a
3299 new provider are being conducted.
3300 Section 62. Section 63G-6a-804 (Effective 05/01/13) is amended to read:
3301 63G-6a-804 (Effective 05/01/13). Purchase of prison industry goods.
3302 (1) (a) A [
3303 goods and services produced by the Utah Correctional Industries Division as provided in this
3304 section.
3305 (b) A political subdivision of the state may, and is encouraged to, purchase goods and
3306 services under this section.
3307 (c) A [
3308 to purchase goods or services under this section.
3309 (2) On or before July 1 of each year, the director of the Utah Correctional Industries
3310 shall:
3311 (a) publish and distribute to all [
3312 entities a catalog of goods and services provided by the Correctional Industries Division,
3313 including a description and price of each item offered for sale; and
3314 (b) update and revise the catalog described in Subsection (2)(a) during the year as the
3315 director considers necessary.
3316 (3) (a) A procurement unit that is not a political subdivision of the state may not
3317 purchase any goods or services provided by the Correctional Industries Division from any other
3318 source unless it has been determined in writing by the director of Correctional Industries and by
3319 the procurement officer or in the case of institutions of higher education, the institutional
3320 procurement officer, that purchase from the Correctional Industries Division is not feasible due
3321 to one of the following circumstances:
3322 (i) the good or service offered by the division does not meet the reasonable
3323 requirements of the [
3324 (ii) the good or service cannot be supplied within a reasonable time by the division; or
3325 (iii) the cost of the good or service, including basic price, transportation costs, and
3326 other expenses of acquisition, is not competitive with the cost of procuring the item from
3327 another source.
3328 (b) In cases of disagreement under Subsection (3)(a):
3329 (i) the decision may be appealed to a board consisting of:
3330 (A) the director of the Department of Corrections;
3331 (B) the director of Administrative Services; and
3332 (C) a neutral third party agreed upon by the other two members of the board;
3333 (ii) in the case of an institution of higher education of the state, the president of the
3334 institution, or the president's designee, shall make the final decision; or
3335 (iii) in the case of [
3336 entities, a person designated by the applicable rulemaking authority shall make the final
3337 decision[
3338 (A) a legislative procurement unit;
3339 (B) a judicial procurement unit; or
3340 (C) a public transit district.
3341 Section 63. Section 63G-6a-805 (Effective 05/01/13) is amended to read:
3342 63G-6a-805 (Effective 05/01/13). Purchase from community rehabilitation
3343 programs.
3344 (1) As used in this section:
3345 (a) "Advisory board" means the Purchasing from Persons with Disabilities Advisory
3346 Board created under this section.
3347 (b) "Central not-for-profit association" means a group of experts designated by the
3348 advisory board to do the following, under guidelines established by the advisory board:
3349 (i) assist the advisory board with its functions; and
3350 (ii) facilitate the implementation of advisory board policies.
3351 (c) (i) "Community rehabilitation program" means a program that is operated primarily
3352 for the purpose of the employment and training of persons with a disability by a government
3353 agency or qualified nonprofit organization which is an income tax exempt organization under
3354 26 U.S.C. Sec. 501(c)(3) of the Internal Revenue Code.
3355 (ii) A community rehabilitation program:
3356 (A) maintains an employment ratio of at least 75% of the program employees under the
3357 procurement contract in question have severe disabilities;
3358 (B) (I) complies with any applicable occupational health and safety standards
3359 prescribed by the United States Department of Labor; or
3360 (II) is a supported employment program approved by the Utah State Office of
3361 Rehabilitation;
3362 (C) has its principal place of business in Utah;
3363 (D) produces any good provided under this section in Utah; and
3364 (E) provides any service that is provided by individuals with a majority of whom
3365 domiciled in Utah.
3366 (d) "Person with a disability" means a person with any disability as defined by and
3367 covered under the Americans with Disabilities Act of 1990, 42 U.S.C. 12102.
3368 (2) There is created within the division the Purchasing from Persons with Disabilities
3369 Advisory Board.
3370 (3) The advisory board shall consist of three members, as follows:
3371 (a) the director of the division or the director's designee;
3372 (b) the executive director of the Utah State Office of Rehabilitation, created under
3373 Section 53A-24-103 , or the executive director's designee; and
3374 (c) a representative of the private business community who shall be appointed to a
3375 three-year term by the governor with the advice and consent of the Senate.
3376 (4) The advisory board shall meet, as needed, to facilitate the procurement of goods
3377 and services from community rehabilitation programs by a [
3378 chapter by:
3379 (a) identifying goods and services that are available from community rehabilitation
3380 programs in accordance with the requirements of Subsection (7);
3381 (b) approving prices in accordance with Subsection (7)(c) for goods and services that
3382 are identified under Subsection (4)(a);
3383 (c) developing, maintaining, and approving a preferred procurement contract list of
3384 goods and services identified and priced under Subsections (4)(a) and (b);
3385 (d) reviewing bids received by a community rehabilitation program; and
3386 (e) awarding and renewing specified contracts for set contract times, without
3387 competitive bidding, for the purchase of goods and services under Subsection (7).
3388 (5) The provisions of Subsections (4) and (7)(a) are an exception to the procurement
3389 provisions under this chapter.
3390 (6) (a) The advisory board may designate a central not-for-profit association, appoint
3391 its members, and establish guidelines for its duties.
3392 (b) The designated central not-for-profit association serves at the pleasure of the
3393 advisory board. The central not-for-profit association or its individual members may be
3394 removed by the advisory board at any time by a majority vote of the advisory board.
3395 (c) Subject to the advisory board guidelines and discretion, a designated central
3396 not-for-profit association may be assigned to perform the following duties:
3397 (i) identify qualified community rehabilitation programs and the goods and services
3398 that they provide or have the potential to provide;
3399 (ii) help ensure that goods and services are provided at reasonable quality and delivery
3400 levels;
3401 (iii) recommend pricing for goods and services;
3402 (iv) review bids and recommend the award of contracts under the advisory board's
3403 direction;
3404 (v) collect and report program data to the advisory board and to the division; and
3405 (vi) other duties specified by the advisory board.
3406 (7) Except as provided under Subsection (9), notwithstanding any provision of this
3407 chapter to the contrary, each [
3408 produced by a community rehabilitation program using the preferred procurement contract list
3409 approved under Subsection (4)(c) if:
3410 (a) the good or service offered for sale by a community rehabilitation program
3411 reasonably conforms to the needs and specifications of the [
3412 (b) the community rehabilitation program can supply the good or service within a
3413 reasonable time; and
3414 (c) the price of the good or service is reasonably competitive with the cost of procuring
3415 the good or service from another source.
3416 (8) Each community rehabilitation program:
3417 (a) may submit a bid to the advisory board at any time and not necessarily in response
3418 to an invitation for bids; and
3419 (b) shall certify on any bid it submits to the advisory board or to a [
3420 unit under this section that it is claiming a preference under this section.
3421 (9) During a fiscal year, the requirement for a [
3422 goods and services produced by a community rehabilitation program under the preferred
3423 procurement list under Subsection (7) does not apply if the division determines that the total
3424 amount of procurement contracts with community rehabilitation programs has reached $5
3425 million for that fiscal year.
3426 (10) In the case of conflict between a purchase under this section and a purchase under
3427 Section 63G-6a-804 , this section prevails.
3428 Section 64. Section 63G-6a-806 is enacted to read:
3429 63G-6a-806. Exception for public transit district contracting with a county or
3430 municipality.
3431 A public transit district, organized under Title 17B, Chapter 2a, Part 8, Public Transit
3432 District Act, may, without going through a standard procurement process or an exception to a
3433 standard procurement process described in Part 8, Exception to Procurement Requirements:
3434 (1) contract with a county or municipality to receive money from the county or
3435 municipality; and
3436 (2) use the money described in Subsection (1) to fund a transportation project or a
3437 transit-related program in accordance with rules made by the applicable rulemaking authority.
3438 Section 65. Section 63G-6a-902 (Effective 05/01/13) is amended to read:
3439 63G-6a-902 (Effective 05/01/13). Cancellation and rejection of bids and
3440 proposals.
3441 (1) An [
3442 invitation for bids, a request for proposals, or other solicitation or reject any or all bids or
3443 proposal responses, in whole or in part, as may be specified in the solicitation, when it is in the
3444 best interests of the [
3445 rulemaking authority.
3446 (2) The reasons for a cancellation or rejection described in Subsection (1) shall be
3447 made part of the contract file.
3448 Section 66. Section 63G-6a-903 (Effective 05/01/13) is amended to read:
3449 63G-6a-903 (Effective 05/01/13). Determination of nonresponsibility of bidder or
3450 offeror.
3451 (1) A determination of nonresponsibility of a bidder or offeror made by an [
3452
3453 rules of the applicable rulemaking authority.
3454 (2) The unreasonable failure of a bidder or offeror to promptly supply information in
3455 connection with an inquiry with respect to responsibility may be grounds for a determination of
3456 nonresponsibility with respect to the bidder or offeror.
3457 (3) Subject to Title 63G, Chapter 2, Government Records Access and Management
3458 Act, information furnished by a bidder or offeror pursuant to this section may not be disclosed
3459 outside of [
3460 written consent by the bidder or offeror.
3461 Section 67. Section 63G-6a-904 (Effective 05/01/13) is amended to read:
3462 63G-6a-904 (Effective 05/01/13). Debarment from consideration for award of
3463 contracts -- Causes for debarment.
3464 (1) After reasonable notice to the person involved and reasonable opportunity for that
3465 person to be heard, the chief procurement officer, a procurement officer, or the head of [
3466
3467 after consultation with the [
3468 debarment is sought and, if the [
3469 attorney general:
3470 (a) debar a person for cause from consideration for award of contracts for a period not
3471 to exceed three years; or
3472 (b) suspend a person from consideration for award of contracts if there is probable
3473 cause to believe that the person has engaged in any activity that might lead to debarment.
3474 (2) A suspension described in Subsection (1)(b) may not be for a period exceeding
3475 three months, unless an indictment has been issued for an offense which would be a cause for
3476 debarment under Subsection (3), in which case the suspension shall, at the request of the
3477 attorney general, remain in effect until after the trial of the suspended person.
3478 (3) The causes for debarment include the following:
3479 (a) conviction of a criminal offense as an incident to obtaining or attempting to obtain a
3480 public or private contract or subcontract or in the performance of a public or private contract or
3481 subcontract;
3482 (b) conviction under state or federal statutes of embezzlement, theft, forgery, bribery,
3483 falsification or destruction of records, receiving stolen property, or any other offense indicating
3484 a lack of business integrity or business honesty which currently, seriously, and directly affects
3485 responsibility as a state contractor;
3486 (c) conviction under state or federal antitrust statutes;
3487 (d) failure without good cause to perform in accordance with the terms of the contract;
3488 (e) a violation of this chapter[
3489 (f) any other cause that the chief procurement officer, the procurement officer, or the
3490 head of [
3491 authority determines to be so serious and compelling as to affect responsibility as a state
3492 contractor, including debarment by another governmental entity.
3493 Section 68. Section 63G-6a-905 is enacted to read:
3494 63G-6a-905. Quote, bid, offer, or contract prohibited by person with outstanding
3495 tax lien -- Exceptions -- Rejection of quote, bid, or offer.
3496 (1) Except as provided in Subsection (2), a person with an outstanding tax lien in the
3497 state may not:
3498 (a) submit a quote, bid, or offer to a procurement unit; or
3499 (b) contract to provide a procurement item to a procurement unit.
3500 (2) Subsection (1) does not apply to the extent that a procurement officer determines it
3501 is in the public interest to grant an exception to the requirements of Subsection (1) for a
3502 particular quote, bid, offer, or contract specified by the procurement officer.
3503 (3) A procurement unit may reject a quote, bid, or offer submitted in violation of
3504 Subsection (1).
3505 Section 69. Section 63G-6a-1002 (Effective 05/01/13) is amended to read:
3506 63G-6a-1002 (Effective 05/01/13). Reciprocal preference for providers of state
3507 products.
3508 (1) (a) An [
3509 procurements, give a reciprocal preference to those bidders offering procurement items that are
3510 produced, manufactured, mined, grown, or performed in Utah over those bidders offering
3511 procurement items that are produced, manufactured, mined, grown, or performed in any state
3512 that gives or requires a preference to procurement items that are produced, manufactured,
3513 mined, grown, or performed in that state.
3514 (b) The amount of reciprocal preference shall be equal to the amount of the preference
3515 applied by the other state for that particular procurement item.
3516 (c) In order to receive a reciprocal preference under this section, the bidder shall certify
3517 on the bid that the procurement items offered are produced, manufactured, mined, grown, or
3518 performed in Utah.
3519 (d) The reciprocal preference is waived if the certification described in Subsection
3520 (1)(c) does not appear on the bid.
3521 (2) (a) If the bidder submitting the lowest responsive and responsible bid offers
3522 procurement items that are produced, manufactured, mined, grown, or performed in a state that
3523 gives or requires a preference, and if another bidder has submitted a responsive and responsible
3524 bid offering procurement items that are produced, manufactured, mined, grown, or performed
3525 in Utah, and with the benefit of the reciprocal preference, the bid of the other bidder is equal to
3526 or less than the original lowest bid, the [
3527 shall:
3528 (i) give notice to the bidder offering procurement items that are produced,
3529 manufactured, mined, grown, or performed in Utah that the bidder qualifies as a preferred
3530 bidder; and
3531 (ii) make the purchase from the preferred bidder if the bidder agrees, in writing, to
3532 meet the low bid within 72 hours after notification that the bidder is a preferred bidder.
3533 (b) The [
3534 price submitted by the lowest bidder in the notice the [
3535 procurement unit submits to the preferred bidder.
3536 (c) The [
3537 contract with any other bidder for the purchase until 72 hours have elapsed after notification to
3538 the preferred bidder.
3539 (3) (a) If there is more than one preferred bidder, the [
3540 issuing procurement unit shall award the contract to the willing preferred bidder who was the
3541 lowest preferred bidder originally.
3542 (b) If there were two or more equally low preferred bidders, the [
3543
3544 authority to determine which bidder should be awarded the contract.
3545 (4) The provisions of this section do not apply if application of this section might
3546 jeopardize the receipt of federal funds.
3547 Section 70. Section 63G-6a-1003 (Effective 05/01/13) is amended to read:
3548 63G-6a-1003 (Effective 05/01/13). Preference for resident contractors.
3549 (1) As used in this section, "resident contractor" means a person, partnership,
3550 corporation, or other business entity that:
3551 (a) either has its principal place of business in Utah or that employs workers who are
3552 residents of this state when available; and
3553 (b) was transacting business on the date when bids for the public contract were first
3554 solicited.
3555 (2) (a) When awarding contracts for construction, an [
3556 issuing procurement unit shall grant a resident contractor a reciprocal preference over a
3557 nonresident contractor from any state that gives or requires a preference to contractors from
3558 that state.
3559 (b) The amount of the reciprocal preference shall be equal to the amount of the
3560 preference applied by the state of the nonresident contractor.
3561 (3) (a) In order to receive the reciprocal preference under this section, the bidder shall
3562 certify on the bid that the bidder qualifies as a resident contractor.
3563 (b) The reciprocal preference is waived if the certification described in Subsection
3564 (2)(a) does not appear on the bid.
3565 (4) (a) If the contractor submitting the lowest responsive and responsible bid is not a
3566 resident contractor whose principal place of business is in a state that gives or requires a
3567 preference to contractors from that state, and if a resident contractor has also submitted a
3568 responsive and responsible bid, and, with the benefit of the reciprocal preference, the resident
3569 contractor's bid is equal to or less than the original lowest bid, the [
3570
3571 (i) give notice to the resident contractor that the resident contractor qualifies as a
3572 preferred resident contractor; and
3573 (ii) issue the contract to the resident contractor if the resident contractor agrees, in
3574 writing, to meet the low bid within 72 hours after notification that the resident contractor is a
3575 preferred resident contractor.
3576 (b) The [
3577 price submitted by the lowest bidder in the notice that the [
3578 issuing procurement unit submits to the preferred resident contractor.
3579 (c) The [
3580 contract with any other bidder for the construction until 72 hours have elapsed after notification
3581 to the preferred resident contractor.
3582 (5) (a) If there is more than one preferred resident contractor, the [
3583
3584 resident contractor who was the lowest preferred resident contractor originally.
3585 (b) If there were two or more equally low preferred resident contractors, the
3586 [
3587 applicable rulemaking authority to determine which bidder should be awarded the contract.
3588 (6) The provisions of this section do not apply if application of this section might
3589 jeopardize the receipt of federal funds.
3590 Section 71. Section 63G-6a-1102 (Effective 05/01/13) is amended to read:
3591 63G-6a-1102 (Effective 05/01/13). Bid security requirements -- Directed
3592 suretyship prohibited -- Penalty.
3593 (1) Bid security in an amount equal to at least 5% of the amount of the bid shall be
3594 required for all competitive bidding for construction contracts. Bid security shall be a bond
3595 provided by a surety company authorized to do business in this state, the equivalent in cash, or
3596 any other form satisfactory to the state.
3597 (2) When a bidder fails to comply with the requirement for bid security described in the
3598 invitation for bids, the bid shall be rejected unless, pursuant to rules of the applicable
3599 rulemaking authority, the [
3600 that the failure to comply with the security requirements is nonsubstantial.
3601 (3) After the bids are opened, they shall be irrevocable for the period specified in the
3602 invitation for bids, except as provided in Section 63G-6a-605 . If a bidder is permitted to
3603 withdraw a bid before award, no action shall be taken against the bidder or the bid security.
3604 (4) (a) When issuing an invitation for a bid under this chapter, the procurement officer
3605 or the head of an [
3606 carrying out a construction project may not require a person or entity who is bidding for a
3607 contract to obtain a bond of the type described in Subsection (1) from a specific insurance or
3608 surety company, producer, agent, or broker.
3609 (b) A person who violates Subsection (4)(a) is guilty of an infraction.
3610 Section 72. Section 63G-6a-1103 (Effective 05/01/13) is amended to read:
3611 63G-6a-1103 (Effective 05/01/13). Bonds necessary when contract is awarded --
3612 Waiver -- Action -- Attorney fees.
3613 (1) When a construction contract is awarded under this chapter, the contractor to whom
3614 the contract is awarded shall deliver the following bonds or security to the state, which shall
3615 become binding on the parties upon the execution of the contract:
3616 (a) a performance bond satisfactory to the state that is in an amount equal to 100% of
3617 the price specified in the contract and is executed by a surety company authorized to do
3618 business in this state or any other form satisfactory to the state; and
3619 (b) a payment bond satisfactory to the state that is in an amount equal to 100% of the
3620 price specified in the contract and is executed by a surety company authorized to do business in
3621 this state or any other form satisfactory to the state, which is for the protection of each person
3622 supplying labor, service, equipment, or material for the performance of the work provided for
3623 in the contract.
3624 (2) (a) When a construction contract is awarded under this chapter, the procurement
3625 officer or the head of the [
3626 for carrying out the construction project may not require a contractor to whom a contract is
3627 awarded to obtain a bond of the types referred to in Subsection (1) from a specific insurance or
3628 surety company, producer, agent, or broker.
3629 (b) A person who violates Subsection (2)(a) is guilty of an infraction.
3630 (3) Rules of the applicable rulemaking authority may provide for waiver of the
3631 requirement of a bid, performance, or payment bond for circumstances in which the
3632 procurement officer considers any or all of the bonds to be unnecessary to protect the [
3633 procurement unit.
3634 (4) A person shall have a right of action on a payment bond under this section for any
3635 unpaid amount due to the person if:
3636 (a) the person has furnished labor, service, equipment, or material for the work
3637 provided for in the contract for which the payment bond is furnished under this section; and
3638 (b) the person has not been paid in full within 90 days after the last day on which the
3639 person performed the labor or service or supplied the equipment or material for which the
3640 claim is made.
3641 (5) An action upon a payment bond may only be brought in a court of competent
3642 jurisdiction in a county where the construction contract was to be performed. The action is
3643 barred if not commenced within one year after the last day on which the claimant performed
3644 the labor or service or supplied the equipment or material on which the claim is based. The
3645 obligee named in the bond need not be joined as a party to the action.
3646 (6) In any suit upon a payment bond, the court shall award reasonable attorney fees to
3647 the prevailing party, which fees shall be taxed as costs in the action.
3648 Section 73. Section 63G-6a-1202 (Effective 05/01/13) is amended to read:
3649 63G-6a-1202 (Effective 05/01/13). Required contract clauses -- Computation of
3650 price adjustments -- Use of rules and regulations.
3651 (1) The rules of the applicable rulemaking authority shall require for state construction
3652 contracts, and may permit or require for contracts for supplies and services, the inclusion of
3653 clauses providing for adjustments in prices, time of performance, or other appropriate contract
3654 provisions, and covering the following subjects:
3655 (a) the unilateral right of the procurement officer to order in writing changes in the
3656 work within the scope of the contract and changes in the time of performance of the contract
3657 that do not alter the scope of the contract work;
3658 (b) variations occurring between estimated quantities of work in a contract and actual
3659 quantities;
3660 (c) suspension of work ordered by the procurement officer; and
3661 (d) site conditions differing from those indicated in the construction contract, or
3662 ordinarily encountered, except that differing site conditions clauses required by the rules need
3663 not be included in a construction contract when:
3664 (i) the contract is negotiated;
3665 (ii) the contractor provides the site or design; or
3666 (iii) the parties have otherwise agreed with respect to the risk of differing site
3667 conditions.
3668 (2) Adjustments in price pursuant to clauses described in Subsection (1) shall be
3669 computed in one or more of the following ways:
3670 (a) by agreement on a fixed price adjustment before commencement of the pertinent
3671 performance or as soon thereafter as practicable;
3672 (b) by unit prices specified in the contract or subsequently agreed upon;
3673 (c) by the costs attributable to the events or situations under the clauses with
3674 adjustment of profit or fee, all as specified in the contract or subsequently agreed upon;
3675 (d) in any other manner as the contracting parties may mutually agree; or
3676 (e) in the absence of agreement by the parties, by a unilateral determination by the
3677 procurement officer of the costs attributable to the events or situations under the clauses with
3678 adjustment of profit or fee, all as computed by the procurement officer in accordance with
3679 applicable rules and subject to the provisions of Part 17, Procurement Appeals Board, and Part
3680 18, Appeals to Court and Court Proceedings.
3681 (3) A contractor shall be required to submit cost or pricing data if any adjustment in
3682 contract price is subject to the provisions of Section 63G-6a-1206 .
3683 (4) The rules of the applicable rulemaking authority shall require for construction
3684 contracts, and may permit or require for contracts for supplies and services, the inclusion of
3685 clauses providing for appropriate remedies and covering at least the following subjects:
3686 (a) liquidated damages as appropriate;
3687 (b) specified excuses for delay or nonperformance;
3688 (c) termination of the contract for default; and
3689 (d) termination of the contract in whole or in part for the convenience of the [
3690 procurement unit.
3691 (5) The contract clauses described in this section shall be established by rule.
3692 However, the procurement officer or the head of an [
3693 procurement unit may modify the clauses for inclusion in any particular contract. The
3694 applicable rulemaking authority may, by rule, require that:
3695 (a) variations be supported by a written determination that describes the circumstances
3696 justifying the variations; and
3697 (b) notice of any material variation shall be included in the invitation for bids or
3698 request for proposals.
3699 (6) A contract for construction entered into by a [
3700 a clause that addresses the rights of the parties when, after the contract is executed, site
3701 conditions are discovered that:
3702 (a) the contractor did not know existed, and should not have known existed, at the time
3703 that the contract was executed; and
3704 (b) materially impacts the costs of construction.
3705 Section 74. Section 63G-6a-1203 (Effective 05/01/13) is amended to read:
3706 63G-6a-1203 (Effective 05/01/13). Contracts -- Certain indemnification provisions
3707 forbidden.
3708 (1) As used in this section, "design professional" means:
3709 (a) an architect, licensed under Title 58, Chapter 3a, Architects Licensing Act;
3710 (b) a landscape architect, licensed under Title 58, Chapter 53, Landscape Architects
3711 Licensing Act; [
3712 (c) a professional engineer or professional land surveyor, licensed under Title 58,
3713 Chapter 22, Professional Engineers and Professional Land Surveyors Licensing Act.
3714 (2) (a) A contract, including an amendment to an existing contract, entered into under
3715 this chapter may not require that a design professional indemnify another from liability claims
3716 that arise out of the design professional's services, unless the liability claim arises from the
3717 design professional's negligent act, wrongful act, error or omission, or other liability imposed
3718 by law.
3719 (b) Subsection (2)(a) may not be waived by contract.
3720 (c) Notwithstanding Subsections (2)(a) and (b), a design professional may be required
3721 to indemnify a person for whom the design professional has direct or indirect control or
3722 responsibility.
3723 Section 75. Section 63G-6a-1204 (Effective 05/01/13) is amended to read:
3724 63G-6a-1204 (Effective 05/01/13). Multiyear contracts.
3725 (1) Except as provided in Subsection (7), a [
3726 multiyear contract resulting from an invitation for bids or a request for proposals, if:
3727 (a) the procurement officer determines, in the discretion of the procurement officer,
3728 that entering into a multiyear contract is in the best interest of the [
3729 and
3730 (b) the invitation for bids or request for proposals:
3731 (i) states the term of the contract, including all possible renewals of the contract;
3732 (ii) states the conditions for renewal of the contract; and
3733 (iii) includes the provisions of Subsections (3) through (5) that are applicable to the
3734 contract.
3735 (2) In making the determination described in Subsection (1)(a), the procurement officer
3736 shall consider whether entering into a multiyear contract will:
3737 (a) result in significant savings to the [
3738 (i) reduction of the administrative burden in procuring, negotiating, or administering
3739 contracts;
3740 (ii) continuity in operations of the [
3741 (iii) the ability to obtain a volume or term discount;
3742 (b) encourage participation by a person who might not otherwise be willing or able to
3743 compete for a shorter term contract; or
3744 (c) provide an incentive for a bidder or offeror to improve productivity through capital
3745 investment or better technology.
3746 (3) (a) The determination described in Subsection (1)(a) is discretionary and is not
3747 required to be in writing or otherwise recorded.
3748 (b) Except as provided in Subsections (4) and (5), notwithstanding any provision of an
3749 invitation for bids, a request for proposals, or a contract to the contrary, a multiyear contract,
3750 including a contract that was awarded outside of an invitation for bids or request for proposals
3751 process, may not continue or be renewed for any year after the first year of the multiyear
3752 contract if adequate funds are not appropriated or otherwise available to continue or renew the
3753 contract.
3754 (4) A multiyear contract that is funded solely by federal funds may be continued or
3755 renewed for any year after the first year of the multiyear contract if:
3756 (a) adequate funds to continue or renew the contract have not been, but are expected to
3757 be appropriated by, and received from, the federal government;
3758 (b) continuation or renewal of the contract before the money is appropriated or
3759 received is permitted by the federal government; and
3760 (c) the contract states that it may be cancelled, without penalty, if the anticipated
3761 federal funds are not appropriated or received.
3762 (5) A multiyear contract that is funded in part by federal funds may be continued or
3763 renewed for any year after the first year of the multiyear contract if:
3764 (a) the portion of the contract that is to be funded by funds of a public entity are
3765 appropriated;
3766 (b) adequate federal funds to continue or renew the contract have not been, but are
3767 expected to be, appropriated by, and received from, the federal government;
3768 (c) continuation or renewal of the contract before the federal money is appropriated or
3769 received is permitted by the federal government; and
3770 (d) the contract states that it may be cancelled, without penalty, if the anticipated
3771 federal funds are not appropriated or received.
3772 (6) A [
3773 the end of the multiyear contract term or the renewal periods described in the contract, unless
3774 the [
3775 an exception, described in this chapter, to using a standard procurement process.
3776 (7) A multiyear contract, including any renewal periods, may not exceed a period of
3777 five years, unless:
3778 (a) the procurement officer determines, in writing, that:
3779 (i) a longer period is necessary in order to obtain the procurement item;
3780 (ii) a longer period is customary for industry standards; or
3781 (iii) a longer period is in the best interest of the [
3782 (b) the written determination described in Subsection (7)(a) is included in the file
3783 relating to the procurement.
3784 (8) This section does not apply to a contract for the design or construction of a facility,
3785 a road, [
3786 Section 76. Section 63G-6a-1204.5 (Effective 05/01/13) , which is renumbered from
3787 Section 63G-6a-405 (Effective 05/01/13) is renumbered and amended to read:
3788 [
3789 05/01/13). Multiple award contracts.
3790 (1) (a) [
3791 independent procurement authority may enter into multiple award contracts with bidders or
3792 offerors.
3793 (b) The applicable rulemaking authority may make rules, consistent with this section,
3794 regulating the use of multiple award contracts.
3795 (2) Multiple award contracts may be in [
3796 procurement unit's best interest if award to two or more bidders or offerors for similar
3797 procurement items is needed or desired for adequate delivery, service, availability, or product
3798 compatibility.
3799 (3) [
3800 award contracts under this section shall:
3801 (a) exercise care to protect and promote competition among bidders or offerors when
3802 seeking to enter into multiple award contracts;
3803 (b) name all eligible users of the multiple award contracts in the invitation for bids or
3804 request for proposals; and
3805 (c) if the [
3806 multiple award contracts before issuing the invitation for bids or request for proposals, state in
3807 the invitation for bids or request for proposals that the [
3808 procurement unit may enter into multiple award contracts at the end of the procurement
3809 process.
3810 (4) [
3811 award contracts under this section shall:
3812 (a) obtain, under the multiple award contracts, all of its normal, recurring requirements
3813 for the procurement items that are the subject of the contracts until the contracts terminate; and
3814 (b) reserve the right to obtain the procurement items described in Subsection (4)(a)
3815 separately from the contracts if:
3816 (i) there is a need to obtain a quantity of the procurement items that exceeds the
3817 amount specified in the contracts; or
3818 (ii) the procurement officer makes a written finding that the procurement items
3819 available under the contract will not effectively or efficiently meet a nonrecurring special need
3820 of a [
3821 [
3822
3823
3824
3825 [
3826 procurement under this section.
3827 Section 77. Section 63G-6a-1205 (Effective 05/01/13) is amended to read:
3828 63G-6a-1205 (Effective 05/01/13). Regulation of contract types -- Permitted and
3829 prohibited contract types.
3830 (1) Except as otherwise provided in this section, and subject to rules made under this
3831 section by the applicable rulemaking authority, a [
3832 contract that will promote the best interests of the [
3833 (2) An applicable rulemaking authority:
3834 (a) may make rules governing, placing restrictions on, or prohibiting the use of any
3835 type of contract; and
3836 (b) may not make rules that permit the use of a contract:
3837 (i) that is prohibited under this section; or
3838 (ii) in a manner that is prohibited under this section.
3839 [
3840 [
3841
3842 [
3843
3844 [
3845 [
3846 procurement unit, or a designee of either, may not use a type of contract, other than a firm fixed
3847 price contract, unless the procurement officer makes a written determination that:
3848 (a) the proposed contractor's accounting system will permit timely development of all
3849 necessary cost data in the form required by the specific contract type contemplated; [
3850 (b) the proposed contractor's accounting system is adequate to allocate costs in
3851 accordance with generally accepted accounting principles[
3852 (c) the use of a specified type of contract, other than a firm fixed price contract, is in
3853 the best interest of the procurement unit, taking into consideration the following criteria:
3854 (i) the type and complexity of the procurement item;
3855 (ii) the difficulty of estimating performance costs at the time the contract is entered
3856 into, due to factors that may include:
3857 (A) the difficulty of determining definitive specifications;
3858 (B) the difficulty of determining the risks, to the contractor, that are inherent in the
3859 nature of the work to be performed; or
3860 (C) the difficulty to clearly determine other factors necessary to enter into an accurate
3861 firm fixed price contract;
3862 (iii) the administrative costs to the procurement unit and the contractor;
3863 (iv) the degree to which the procurement unit is required to provide technical
3864 coordination during performance of the contract;
3865 (v) the impact that the choice of contract type may have upon the level of competition
3866 for award of the contract;
3867 (vi) the stability of material prices, commodity prices, and wage rates in the applicable
3868 market;
3869 (vii) the impact of the contract type on the level of urgency related to obtaining the
3870 procurement item;
3871 (viii) the impact of any applicable governmental regulation relating to the contract; and
3872 (ix) other criteria that the procurement officer determines may relate to determining the
3873 contract type that is in the best interest of the procurement unit.
3874 (4) Contract types that, subject to the provisions of this section and rules made under
3875 this section, may be used by a procurement unit include the following:
3876 (a) a fixed price contract;
3877 (b) a fixed price contract with price adjustment;
3878 (c) a time and materials contract;
3879 (d) a labor hour contract;
3880 (e) a definite quantity contract;
3881 (f) an indefinite quantity contract;
3882 (g) a requirements contract; or
3883 (h) a contract that includes one of the following construction delivery methods:
3884 (i) design-build;
3885 (ii) design-bid-build; or
3886 (iii) construction manager/general contractor.
3887 (5) Except as it applies to a change order, a procurement unit may not enter into a
3888 cost-plus-percentage-of-cost contract, unless:
3889 (a) use of a cost-plus-percentage-of-cost contract is approved by the procurement
3890 officer;
3891 (b) it is standard practice in the industry to obtain the procurement item through a
3892 cost-plus-percentage-of-cost contract; and
3893 (c) the percentage and the method of calculating costs in the contract are in accordance
3894 with industry standards.
3895 (6) A procurement unit may not enter into a cost-reimbursement contract, unless the
3896 procurement officer makes a written determination that:
3897 (a) (i) a cost-reimbursement contract is likely to cost less than any other type of
3898 permitted contract; or
3899 (ii) it is impracticable to obtain the procurement item under any other type of permitted
3900 contract; and
3901 (b) the proposed contractor's accounting system:
3902 (i) will timely develop the cost data in the form necessary for the procurement unit to
3903 timely and accurately make payments under the contract; and
3904 (ii) will allocate costs in accordance with generally accepted accounting principles.
3905 Section 78. Section 63G-6a-1206 (Effective 05/01/13) is amended to read:
3906 63G-6a-1206 (Effective 05/01/13). Rules and regulations to determine allowable
3907 incurred costs -- Required information -- Auditing of books.
3908 (1) (a) The applicable rulemaking authority may, by rule, establish the cost principles
3909 to be included in a cost-reimbursement contract to determine incurred costs for the purpose of
3910 calculating a reimbursement.
3911 (b) The cost principles established by rule under Subsection (1)(a) may be modified, by
3912 contract, if the procurement officer or head of the [
3913 procurement unit approves the modification.
3914 (2) Except as provided in Subsection (5), a person who seeks to be, or is, a party in a
3915 cost-based contract with a [
3916 (a) submit cost or pricing data relating to determining the cost or pricing amount; and
3917 (b) certify that, to the best of the contractor's knowledge and belief, the cost or pricing
3918 data submitted is accurate and complete as of the date specified by the [
3919 unit.
3920 (3) The procurement officer shall ensure that the date specified under Subsection (2)(b)
3921 is before:
3922 (a) the pricing of any contract awarded by a standard procurement process or pursuant
3923 to a sole source procurement, if the total contract price is expected to exceed an amount
3924 established by rule made by the applicable rulemaking authority; or
3925 (b) the pricing of any change order that is expected to exceed an amount established by
3926 rule made by the applicable rulemaking authority.
3927 (4) A contract or change order that requires a certification described in Subsection (2)
3928 shall include a provision that the price to the [
3929 shall be adjusted to exclude any significant sums by which the [
3930 that the price was increased because the contractor provided cost or pricing data that was
3931 inaccurate, incomplete, or not current as of the date specified by the procurement officer.
3932 (5) A [
3933 (a) the contract price is based on adequate price competition;
3934 (b) the contract price is based on established catalogue prices or market prices;
3935 (c) the contract price is set by law or rule; or
3936 (d) the procurement states, in writing:
3937 (i) that, in accordance with rules made by the applicable rulemaking authority, the
3938 requirements of Subsection (2) may be waived; and
3939 (ii) the reasons for the waiver.
3940 (6) The procurement officer may, at reasonable times and places, only to the extent that
3941 the books and records relate to the applicable cost or pricing data, audit the books and records
3942 of:
3943 (a) a person who has submitted cost or pricing data pursuant to this section; or
3944 (b) a contractor or subcontractor under a contract or subcontract other than a firm fixed
3945 price contract.
3946 (7) Unless a shorter time is provided for by contract:
3947 (a) a person described in Subsection (6)(a) shall maintain the books and records
3948 described in Subsection (6) for three years after the day on which the fiscal year in which final
3949 payment is made under the contract ends;
3950 (b) a contractor shall maintain the books and records described in Subsection (6) for
3951 three years after the day on which the fiscal year in which final payment under the prime
3952 contract ends; and
3953 (c) a subcontractor shall maintain the books and records described in Subsection (6) for
3954 three years after the day on which the fiscal year in which final payment is made under the
3955 subcontract ends.
3956 Section 79. Section 63G-6a-1208 is enacted to read:
3957 63G-6a-1208. Installment payments -- Contract prepayments.
3958 (1) A contract entered into by a procurement unit may provide for installment
3959 payments, including interest charges, over a period of time, if the procurement officer makes a
3960 written finding that:
3961 (a) the use of installment payments are in the interest of the procurement unit;
3962 (b) installment payments are not used as a method of avoiding budgetary constraints;
3963 (c) the procurement unit has obtained all budgetary approvals and other approvals
3964 required for making the installment payments;
3965 (d) all aspects of the installment payments required in the contract are in accordance
3966 with the requirements of law; and
3967 (e) for a contract awarded through an invitation for bids or a request for proposals, the
3968 invitation for bids or request for proposals indicates that installment payments are required or
3969 permitted.
3970 (2) A procurement unit may not pay for a procurement item before the procurement
3971 item is received by the procurement unit, unless the procurement officer makes a written
3972 finding that it is necessary or beneficial for the procurement unit to pay for the procurement
3973 item before the procurement item is received by the procurement unit.
3974 (3) Circumstances where prepayment may be necessary for, or beneficial to, the
3975 procurement unit include:
3976 (a) when it is customary in the industry to prepay for the procurement item;
3977 (b) if the procurement unit will receive an identifiable benefit by prepaying, including
3978 reduced costs, additional procurement items, early delivery, better service, or better contract
3979 terms; or
3980 (c) other circumstances permitted by rule made by the applicable rulemaking authority.
3981 (4) The applicable rulemaking authority may make rules governing prepayments.
3982 (5) A prepaid expenditure shall be supported by documentation indicating:
3983 (a) the amount of the prepayment;
3984 (b) the prepayment schedule;
3985 (c) the procurement items to which each prepayment relates;
3986 (d) the remedies for a contractor's noncompliance with requirements relating to the
3987 provision of the procurement items; and
3988 (e) all other terms and conditions relating to the payments and the procurement items.
3989 (6) The procurement officer or the procurement officer's designee may require a
3990 performance bond, of up to 100% of the prepayment amount, from the person to whom the
3991 prepayments are made.
3992 Section 80. Section 63G-6a-1209 is enacted to read:
3993 63G-6a-1209. Leases.
3994 (1) As used in this section, "lease" means for a procurement unit to lease or
3995 lease-purchase a procurement item from a person.
3996 (2) This section does not apply to the lease of real property.
3997 (3) A procurement unit may not lease a procurement item unless the procurement unit
3998 complies with the requirements of this section.
3999 (4) A procurement unit may lease a procurement item if:
4000 (a) the procurement officer determines that it is in the best interest of the procurement
4001 unit to lease the procurement item, after the procurement officer:
4002 (i) investigates alternative means of obtaining the procurement item; and
4003 (ii) considers the costs and benefits of the alternative means of obtaining the
4004 procurement item;
4005 (b) all conditions for renewal and cost are included in the lease;
4006 (c) the lease is awarded through a standard procurement process, or an exception to a
4007 standard procurement process described in Part 8, Exceptions to Procurement Requirements;
4008 (d) for a standard procurement process, the invitation for bids, request for proposals, or
4009 request for quotes states:
4010 (i) that the procurement unit is seeking, or willing to consider, a lease; and
4011 (ii) for a lease purchase, that the procurement unit is seeking, or willing to consider, a
4012 lease-purchase;
4013 (e) the lease is not used to avoid competition; and
4014 (f) the lease complies to all other provisions of law or rule applicable to the lease.
4015 Section 81. Section 63G-6a-1210 is enacted to read:
4016 63G-6a-1210. Contract provisions for incentives, damages, and penalties.
4017 A procurement unit may include in a contract terms that provide for:
4018 (1) incentives, including bonuses;
4019 (2) payment of damages, including liquidated damages; or
4020 (3) penalties.
4021 Section 82. Section 63G-6a-1302 (Effective 05/01/13) is amended to read:
4022 63G-6a-1302 (Effective 05/01/13). Alternative methods of construction
4023 contracting management.
4024 (1) The applicable rulemaking authority shall, by rule provide as many alternative
4025 methods of construction contracting management as determined to be feasible.
4026 (2) The rules described in Subsection (1) shall:
4027 (a) grant to the procurement officer or the head of the [
4028 procurement unit responsible for carrying out the construction project the discretion to select
4029 the appropriate method of construction contracting management for a particular project; and
4030 (b) require the procurement officer to execute and include in the contract file a written
4031 statement describing the facts that led to the selection of a particular method of construction
4032 contracting management for each project.
4033 (3) Before choosing a construction contracting management method, the procurement
4034 officer or the head of the [
4035 carrying out the construction project shall consider the following factors:
4036 (a) when the project must be ready to be occupied;
4037 (b) the type of project;
4038 (c) the extent to which the requirements of the [
4039 they are to be met are known;
4040 (d) the location of the project;
4041 (e) the size, scope, complexity, and economics of the project;
4042 (f) the source of funding and any resulting constraints necessitated by the funding
4043 source;
4044 (g) the availability, qualification, and experience of public personnel to be assigned to
4045 the project and the amount of time that the public personnel can devote to the project; and
4046 (h) the availability, qualifications, and experience of outside consultants and
4047 contractors to complete the project under the various methods being considered.
4048 (4) An applicable rulemaking authority may make rules that authorize the use of a
4049 construction manager/general contractor as one method of construction contracting
4050 management.
4051 (5) The rules described in Subsection (2) shall require that:
4052 (a) the construction manager/general contractor be selected using:
4053 (i) a standard procurement process; or
4054 (ii) an exception to the requirement to use a standard procurement process, described in
4055 Part 8, Exceptions to Procurement Requirements; and
4056 (b) when entering into a subcontract that was not specifically included in the
4057 construction manager/general contractor's cost proposal, the construction manager/general
4058 contractor shall procure the subcontractor by using a standard procurement process, or an
4059 exception to the requirement to use a standard procurement process, described in Part 8,
4060 Exceptions to Procurement Requirements, in the same manner as if the subcontract work was
4061 procured directly by the [
4062 (6) Procurement rules adopted by the State Building Board under Subsections (1)
4063 through (3) for state building construction projects may authorize the use of a design-build
4064 provider as one method of construction contracting management.
4065 (7) A design-build contract may include a provision for obtaining the site for the
4066 construction project.
4067 (8) A design-build contract or a construction manager/general contractor contract may
4068 include provision by the contractor of operations, maintenance, or financing.
4069 Section 83. Section 63G-6a-1303 (Effective 05/01/13) is amended to read:
4070 63G-6a-1303 (Effective 05/01/13). Drug and alcohol testing required for state
4071 construction contracts.
4072 (1) As used in this section:
4073 (a) "Contractor" means a person who is or may be awarded a state construction
4074 contract.
4075 (b) "Covered individual" means an individual who:
4076 (i) on behalf of a contractor or subcontractor provides services directly related to
4077 design or construction under a state construction contract; and
4078 (ii) is in a safety sensitive position, including a design position that has responsibilities
4079 that directly affect the safety of an improvement to real property that is the subject of a state
4080 construction contract.
4081 (c) "Drug and alcohol testing policy" means a policy under which a contractor or
4082 subcontractor tests a covered individual to establish, maintain, or enforce the prohibition of:
4083 (i) the manufacture, distribution, dispensing, possession, or use of drugs or alcohol,
4084 except the medically prescribed possession and use of a drug; or
4085 (ii) the impairment of judgment or physical abilities due to the use of drugs or alcohol.
4086 (d) "Random testing" means that a covered individual is subject to periodic testing for
4087 drugs and alcohol:
4088 (i) in accordance with a drug and alcohol testing policy; and
4089 (ii) on the basis of a random selection process.
4090 (e) "State executive entity" means:
4091 (i) a state executive branch:
4092 (A) department;
4093 (B) division;
4094 (C) agency;
4095 (D) board;
4096 (E) commission;
4097 (F) council;
4098 (G) committee; or
4099 (H) institution; or
4100 (ii) a state institution of higher education, as defined in Section 53B-3-102 .
4101 (f) "State construction contract" means a contract for design or construction entered
4102 into by a state executive entity.
4103 (2) Except as provided in Subsection (7), a state executive entity may not enter into a
4104 state construction contract unless the public construction contract requires that the contractor
4105 demonstrate to the state executive entity that the contractor:
4106 (a) has and will maintain a drug and alcohol testing policy during the period of the state
4107 construction contract that applies to the covered individuals hired by the contractor;
4108 (b) posts in one or more conspicuous places notice to covered individuals hired by the
4109 contractor that the contractor has the drug and alcohol testing policy described in Subsection
4110 (2)(a);
4111 (c) subjects the covered individuals to random testing under the drug and alcohol
4112 testing policy described in Subsection (2)(a) if at any time during the period of the state
4113 construction contract there are 10 or more individuals who are covered individuals hired by the
4114 contractor; and
4115 (d) requires that as a condition of contracting with the contractor, a subcontractor:
4116 (i) has and will maintain a drug and alcohol testing policy during the period of the state
4117 construction contract that applies to the covered individuals hired by the subcontractor;
4118 (ii) posts in one or more conspicuous places notice to covered individuals hired by the
4119 subcontractor that the subcontractor has the drug and alcohol testing policy described in
4120 Subsection (2)(d)(i); and
4121 (iii) subjects the covered individuals hired by the subcontractor to random testing under
4122 the drug and alcohol testing policy described in Subsection (2)(d)(i) if at any time during the
4123 period of the state construction contract there are 10 or more individuals who are covered
4124 individuals hired by the subcontractor.
4125 (3) (a) Except as otherwise provided in this Subsection (3), if a contractor or
4126 subcontractor fails to comply with Subsection (2), the contractor or subcontractor may be
4127 suspended or debarred in accordance with this chapter.
4128 (b) A state executive entity shall include in a state construction contract:
4129 (i) a reference to the rules described in Subsection (4)(b); or
4130 (ii) if the applicable rulemaking authority has not made the rules described in
4131 Subsection (4)(b), a process that provides a contractor or subcontractor reasonable notice and
4132 opportunity to cure a violation of this section before suspension or debarment of the contractor
4133 or subcontractor in light of the circumstances of the state construction contract or the violation.
4134 (c) (i) A contractor is not subject to penalties for the failure of a subcontractor to
4135 comply with Subsection (2).
4136 (ii) A subcontractor is not subject to penalties for the failure of a contractor to comply
4137 with Subsection (2).
4138 (4) An [
4139 (a) may make rules that establish the requirements and procedures a contractor is
4140 required to follow to comply with Subsection (2); and
4141 (b) shall make rules that establish:
4142 (i) the penalties that may be imposed in accordance with Subsection (3); and
4143 (ii) a process that provides a contractor or subcontractor reasonable notice and
4144 opportunity to cure a violation of this section before suspension or debarment of the contractor
4145 or subcontractor in light of the circumstances of the state construction contract or the violation.
4146 (5) The failure of a contractor or subcontractor to meet the requirements of Subsection
4147 (2):
4148 (a) may not be the basis for a protest or other action from a prospective bidder, offeror,
4149 or contractor under Part 17, Procurement Appeals Board, or Part 18, Appeals to Court and
4150 Court Proceedings; and
4151 (b) may not be used by a state [
4152 bidder, an offeror, a contractor, or a subcontractor as a basis for an action that would suspend,
4153 disrupt, or terminate the design or construction under a state construction contract.
4154 (6) (a) After a state executive entity enters into a state construction contract in
4155 compliance with this section, the state is not required to audit, monitor, or take any other action
4156 to ensure compliance with this section.
4157 (b) The state is not liable in any action related to this section, including not being liable
4158 in relation to:
4159 (i) a contractor or subcontractor having or not having a drug and alcohol testing policy;
4160 (ii) failure to test for a drug or alcohol under a contractor's or subcontractor's drug and
4161 alcohol testing policy;
4162 (iii) the requirements of a contractor's or subcontractor's drug and alcohol testing
4163 policy;
4164 (iv) a contractor's or subcontractor's implementation of a drug and alcohol testing
4165 policy, including procedures for:
4166 (A) collection of a sample;
4167 (B) testing of a sample;
4168 (C) evaluation of a test; or
4169 (D) disciplinary or rehabilitative action on the basis of a test result;
4170 (v) an individual being under the influence of drugs or alcohol; or
4171 (vi) an individual under the influence of drugs or alcohol harming another person or
4172 causing property damage.
4173 (7) This section does not apply if the state executive entity determines that the
4174 application of this section would severely disrupt the operation of a [
4175 to the detriment of the [
4176 (a) jeopardizing the receipt of federal funds;
4177 (b) causing the state construction contract to be a sole source contract; or
4178 (c) causing the state construction contract to be an emergency procurement.
4179 (8) If a contractor or subcontractor meets the requirements of this section, this section
4180 may not be construed to restrict the contractor's or subcontractor's ability to impose or
4181 implement an otherwise lawful provision as part of a drug and alcohol testing policy.
4182 Section 84. Section 63G-6a-1502 (Effective 05/01/13) is amended to read:
4183 63G-6a-1502 (Effective 05/01/13). Policy regarding architect-engineer services.
4184 (1) It is the policy of this state to publicly announce all requirements for
4185 architect-engineer services and to negotiate contracts for architect-engineer services on the
4186 basis of demonstrated competence and qualification for the type of services required, and at fair
4187 and reasonable prices.
4188 (2) Architect-engineer services shall be procured as provided in this part except as
4189 [
4190 63G-6a-802 , and 63G-6a-803 .
4191 (3) This part does not affect the authority of, and does not apply to procedures
4192 undertaken by, a [
4193 the capacity of employees of the [
4194 Section 85. Section 63G-6a-1503 (Effective 05/01/13) is amended to read:
4195 63G-6a-1503 (Effective 05/01/13). Selection committee for architect-engineer
4196 services.
4197 (1) In the procurement of architect-engineer services, the procurement officer or the
4198 head of [
4199 the lawful practice of their profession to submit annually a statement of qualifications and
4200 performance data.
4201 (2) The Building Board shall be the evaluation committee for architect-engineer
4202 services contracts under its authority.
4203 (3) An evaluation committee for architect-engineer services contracts not under the
4204 authority of the Building Board shall be established in accordance with rules made by the
4205 applicable rulemaking authority.
4206 (4) An evaluation committee shall:
4207 (a) evaluate current statements of qualifications and performance data on file with the
4208 state, together with those that may be submitted by other firms in response to the
4209 announcement of the proposed contract;
4210 (b) consider no less than three firms; and
4211 (c) based upon criteria established and published by the [
4212 issuing procurement unit, select no less than three of the firms considered to be the most highly
4213 qualified to provide the services required.
4214 Section 86. Section 63G-6a-1506 (Effective 05/01/13) is amended to read:
4215 63G-6a-1506 (Effective 05/01/13). Restrictions on procurement of
4216 architect-engineer services.
4217 (1) Except as provided in Subsection (2), when [
4218 division or a procurement unit with independent procurement authority, in accordance with
4219 Section 63G-6a-1502 , elects to obtain architect or engineering services by using a competitive
4220 procurement process and has provided public notice of its competitive procurement process:
4221 (a) a higher education entity, or any part of one, may not submit a proposal in response
4222 to the [
4223 (b) the [
4224 perform the architect or engineering services solicited in the competitive procurement process
4225 to a higher education entity or any part of one.
4226 (2) Subsection (1) does not apply when the [
4227 unit is procuring architect or engineer services for contracts related to research activities and
4228 technology transfer.
4229 Section 87. Section 63G-6a-1603 (Effective 05/01/13) is amended to read:
4230 63G-6a-1603 (Effective 05/01/13). Decisions of protest officer to be in writing --
4231 Effect of no writing.
4232 (1) After a timely protest is filed in accordance with Section 63G-6a-1602 , the protest
4233 officer:
4234 (a) shall consider the protest; and
4235 (b) may hold a hearing on the protest.
4236 (2) (a) The protest officer may:
4237 (i) subpoena witnesses and compel their attendance at a protest hearing; or
4238 (ii) subpoena documents for production at a protest hearing.
4239 (b) The Rules of Evidence do not apply to a protest hearing.
4240 (c) The [
4241 relating to intervention in a protest, including designating:
4242 (i) who may intervene; and
4243 (ii) the time and manner of intervention.
4244 (d) If a hearing on a protest is held under this section, the protest officer shall:
4245 (i) record the hearing;
4246 (ii) preserve all evidence presented at the hearing; and
4247 (iii) preserve all records and other evidence relied upon in reaching the written decision
4248 described in this section.
4249 (e) Regardless of whether a hearing on a protest is held under this section, the protest
4250 officer shall preserve all records and other evidence relied upon in reaching the written
4251 decision.
4252 (f) The records described in Subsections (2)(d) and (e) may not be destroyed until the
4253 decision, and any appeal of the decision, becomes final.
4254 (g) A protest officer who holds a hearing, considers a protest, or issues a written
4255 decision under this section does not waive the right to, at a later date, question or challenge the
4256 protest officer's jurisdiction to hold the hearing, consider the protest, or render the decision.
4257 (3) A protest officer, or the protest officer's designee, shall promptly issue a written
4258 decision regarding any protest, debarment, suspension, or contract controversy if it is not
4259 settled by mutual agreement. The decision shall state the reasons for the action taken and
4260 inform the protestor, contractor, or prospective contractor of the right to judicial or
4261 administrative review as provided in this chapter.
4262 (4) (a) A decision described in this section is effective until stayed or reversed on
4263 appeal, except to the extent provided in Section 63G-6a-1903 . A person who issues a decision
4264 described in Subsection (1) shall mail, email, or otherwise immediately furnish a copy of the
4265 decision to the protestor, prospective contractor, or contractor. [
4266 (b) A decision described in Subsection (4)(a) that is issued in relation to a procurement
4267 unit other than a legislative procurement unit or a judicial procurement unit shall be final and
4268 conclusive unless the protestor, prospective contractor, or contractor:
4269 [
4270 district court in accordance with Subsection 63G-6a-1802 (5);
4271 [
4272 appeal under Section 63G-6a-1702 ; or
4273 [
4274 (c) A decision described in Subsection (4)(a) that is issued in relation to a legislative
4275 procurement unit or a judicial procurement unit shall be final and conclusive unless the
4276 protestor, prospective contractor, or contractor:
4277 (i) for a controversy described in Section 63G-6a-1905 , commences an action in
4278 district court in accordance with Subsection 63G-6a-1802 (5);
4279 (ii) for a controversy related to a solicitation or the award of a contract, files an appeal
4280 under Subsection 63G-6a-1802 (1)(b); or
4281 (iii) for a debarment or suspension, files an appeal under Subsection
4282 63G-6a-1802 (1)(b).
4283 (5) If the protest officer does not issue the written decision regarding a protest or a
4284 contract controversy within 30 calendar days after the day on which a written request for a final
4285 decision is filed with the protest officer, or within a longer period as may be agreed upon by the
4286 parties, the protester, prospective contractor, or contractor may proceed as if an adverse
4287 decision had been received.
4288 (6) Except for a controversy described in Section 63G-6a-1905 , a determination under
4289 this section by the protest officer regarding an issue of fact may not be overturned on appeal
4290 unless the decision is arbitrary and capricious or clearly erroneous.
4291 Section 88. Section 63G-6a-1702 (Effective 05/01/13) is amended to read:
4292 63G-6a-1702 (Effective 05/01/13). Appeal to Utah State Procurement Policy
4293 Board -- Appointment of procurement appeals panel -- Proceedings.
4294 (1) This part applies to all procurement units other than:
4295 (a) a legislative procurement unit;
4296 (b) a judicial procurement unit;
4297 (c) a county or municipality; or
4298 (d) a public transit district.
4299 [
4300 described in Subsection (1) may appeal the protest decision to the [
4301 by:
4302 (a) filing a written notice of appeal with the chair of the [
4303 within seven days after:
4304 (i) the day on which the written decision described in Section 63G-6a-1603 is:
4305 (A) personally served on the party or the party's representative; or
4306 (B) emailed or mailed to the address or email address of record provided by the party
4307 under Subsection 63G-6a-1602 (3); or
4308 (ii) the day on which the 30-day period described in Subsection 63G-6a-1603 (5) ends,
4309 if a written decision is not issued before the end of the 30-day period;
4310 (b) including in the filing document the person's address of record and email address of
4311 record; and
4312 (c) at the time that the notice of appeal described in Subsection [
4313 complying with the requirements of Section 63G-6a-1703 regarding the posting of a security
4314 deposit or a bond.
4315 [
4316 unless:
4317 (a) a decision on the protest has been issued; or
4318 (b) a decision is not issued and the 30-day period described in Subsection
4319 63G-6a-1603 (5), or a longer period agreed to by the parties, has passed.
4320 [
4321 not employed by the [
4322 or other action complained of:
4323 (a) shall, within seven days after the day on which the chair receives a timely written
4324 notice of appeal under Subsection [
4325 (i) a procurement appeals panel to hear and decide the appeal, consisting of at least
4326 three individuals, each of whom shall be:
4327 (A) a member of the [
4328 (B) a designee of a member appointed under Subsection [
4329 designee is approved by the chair; and
4330 (ii) one of the members of the procurement appeals panel to be the chair of the panel;
4331 (b) may:
4332 (i) appoint the same procurement appeals panel to hear more than one appeal; or
4333 (ii) appoint a separate procurement appeals panel for each appeal; and
4334 (c) may not appoint a person to a procurement appeals panel if the person is employed
4335 by the [
4336 complained of.
4337 [
4338 (a) consist of an odd number of members;
4339 (b) except as provided in Subsection [
4340 appeal within 60 days after the day on which the procurement appeals panel is appointed,
4341 unless all parties stipulate to a later date;
4342 (c) at least seven days before the proceeding, mail, email, or hand-deliver a written
4343 notice of the proceeding to the parties to the appeal; and
4344 (d) within seven days after the day on which the proceeding ends:
4345 (i) issue a written decision on the appeal; and
4346 (ii) mail, email, or hand-deliver the written decision on the appeal to the parties to the
4347 appeal and to the protest officer.
4348 [
4349 beyond the 60-day period described in Subsection [
4350 determines that the continuance is in the interests of justice.
4351 [
4352 (a) shall consider the appeal based solely on:
4353 (i) the protest decision;
4354 (ii) the record considered by the person who issued the protest decision; and
4355 (iii) if a protest hearing was held, the record of the protest hearing;
4356 (b) may not take additional evidence; and
4357 (c) shall uphold the decision of the protest officer, unless the decision is arbitrary and
4358 capricious or clearly erroneous.
4359 [
4360 officer is arbitrary and [
4361 (a) shall remand the matter to the protest officer, to cure the problem or render a new
4362 decision;
4363 (b) may recommend action that the protest officer should take; and
4364 (c) may not order that:
4365 (i) a contract be awarded to a certain person;
4366 (ii) a contract or solicitation be cancelled; or
4367 (iii) any other action be taken other than the action described in Subsection [
4368 [
4369 conduct of an appeals proceeding, including rules that provide for:
4370 (a) expedited proceedings; and
4371 (b) electronic participation in the proceedings by panel members and participants.
4372 [
4373 Section 89. Section 63G-6a-1703 (Effective 05/01/13) is amended to read:
4374 63G-6a-1703 (Effective 05/01/13). Requirement to post a security deposit or bond
4375 -- Exceptions -- Forfeiture of security deposit or bond.
4376 (1) Except as provided by rule made under Subsection (2)(a), a person who files an
4377 appeal under Section 63G-6a-1702 shall, at the time that the appeal is filed, pay a security
4378 deposit or post a bond with the protest officer in an amount that is the greater of:
4379 (a) for the appeal of a debarment or suspension, $1,000;
4380 (b) for any type of procurement, $1,000;
4381 (c) for an invitation for bids, 5% of:
4382 (i) the lowest bid amount, if the bid opening has occurred; or
4383 (ii) the estimated contract cost, established in accordance with Subsection (2)(b), if the
4384 bid opening has not yet occurred;
4385 (d) for a request for proposals, 5% of:
4386 (i) the lowest cost proposed in a response to a request for proposals, if the opening of
4387 proposals has occurred; or
4388 (ii) the estimated contract cost, established in accordance with Subsection (2)(b), if the
4389 opening of proposals has not occurred; or
4390 (e) for a type of procurement other than an invitation for bids or a request for
4391 proposals, the amount established in accordance with Subsection (2).
4392 (2) The [
4393 63G, Chapter 3, Utah Administrative Rulemaking Act, that establish:
4394 (a) circumstances and procedures under which the requirement for paying a security
4395 deposit or posting a bond may be waived or reduced on grounds, including:
4396 (i) that the person filing the appeal is impecunious;
4397 (ii) circumstances where certain small purchases are involved; or
4398 (iii) other grounds determined by the Division of Purchasing and General Services to
4399 be appropriate; and
4400 (b) the method used to determine:
4401 (i) the estimated contract cost described in Subsections (1)(c)(ii) and (1)(d)(ii); and
4402 (ii) the amount described in Subsection (1)(e).
4403 (3) The chair of the [
4404 under Section 63G-6a-1702 if the actual or prospective bidder, offeror, or contractor fails to
4405 timely pay the security deposit or post the bond required under Subsection (1).
4406 (4) The chair of the [
4407 (a) retain the security deposit or bond until the protest and any appeal of the protest
4408 decision is final;
4409 (b) as it relates to a security deposit:
4410 (i) deposit the security deposit into an interest-bearing account; and
4411 (ii) after any appeal of the protest decision becomes final, return the security deposit
4412 and the interest it accrues to the person who paid the security deposit, unless the security
4413 deposit is forfeited to the General Fund under Subsection (5); and
4414 (c) as it relates to a bond:
4415 (i) retain the bond until the protest and any appeal of the protest decision becomes
4416 final; and
4417 (ii) after the protest and any appeal of the protest decision becomes final, return the
4418 bond to the person who posted the bond, unless the bond is forfeited to the General Fund under
4419 Subsection (5).
4420 (5) A security deposit that is paid, or a bond that is posted, under this section shall
4421 forfeit to the General Fund if:
4422 (a) the person who paid the security deposit or posted the bond fails to ultimately
4423 prevail on appeal; and
4424 (b) the procurement appeals panel finds that the protest or appeal is frivolous or that its
4425 primary purpose is to harass or cause a delay.
4426 Section 90. Section 63G-6a-1704 (Effective 05/01/13) is amended to read:
4427 63G-6a-1704 (Effective 05/01/13). Discontinued appeal with prejudice, except as
4428 authorized.
4429 After notice of an appeal to the [
4430 63G-6a-1702 , no party may discontinue the appeal without prejudice, except as authorized by
4431 the procurement appeals panel appointed for the appeal.
4432 Section 91. Section 63G-6a-1802 (Effective 05/01/13) is amended to read:
4433 63G-6a-1802 (Effective 05/01/13). Appeal to Utah Court of Appeals --
4434 Jurisdiction of district court.
4435 (1) (a) Subject to Subsection (2), a person who receives an adverse decision, or [
4436
4437 Court of Appeals within seven days after the day on which the decision is issued.
4438 (b) A person who receives an adverse decision in a protest relating to a legislative
4439 procurement unit, a judicial procurement unit, a local government procurement unit, or a public
4440 transit district may appeal the decision to the Utah Court of Appeals within seven days after the
4441 day on which the decision is issued.
4442 (2) [
4443 not appeal the decision of a procurement appeals panel, unless the appeal is:
4444 (a) recommended by the protest officer involved; and
4445 (b) except for a [
4446 general's office, approved by the attorney general.
4447 (3) The Utah Court of Appeals:
4448 (a) shall consider the appeal as an appellate court;
4449 (b) may not hear the matter as a trial de novo; and
4450 (c) may not overturn a finding or decision of the protest officer or a procurement
4451 appeals panel, unless the finding or decision is arbitrary and capricious or clearly erroneous.
4452 (4) The Utah Court of Appeals is encouraged to:
4453 (a) give an appeal made under Subsection (1) priority; and
4454 (b) consider the appeal and render a decision in an expeditious manner.
4455 (5) The district court shall have original jurisdiction in a cause of action between a
4456 contractor and [
4457 relation to, an existing contract between the contractor and [
4458 Section 92. Section 63G-6a-1902 (Effective 05/01/13) is amended to read:
4459 63G-6a-1902 (Effective 05/01/13). Requirement to exhaust administrative
4460 remedies -- Protests and appeals.
4461 (1) A person may not challenge a procurement, a procurement process, the award of a
4462 contract relating to a procurement, a debarment, or a suspension, in a court, before an
4463 administrative officer or body, or in any other forum other than the forum permitted in this
4464 chapter.
4465 (2) A person who desires to challenge a procurement, a procurement process, the award
4466 of a contract relating to a procurement, a debarment, or a suspension, shall bring the challenge,
4467 in accordance with the requirements of this chapter, by timely filing:
4468 (a) a protest in accordance with Section 63G-6a-1602 ;
4469 (b) any appeal of the protest decision involving a procurement unit, other than a
4470 legislative procurement unit, a judicial procurement unit, a local government procurement unit,
4471 or a public transit district, in accordance with Section 63G-6a-1702 ; and
4472 (c) any appeal from a procurement appeals panel, or from a protest decision of a
4473 legislative procurement unit, a judicial procurement unit, a local government procurement unit,
4474 or a public transit district, in accordance with Section 63G-6a-1802 .
4475 (3) A person who files a protest or appeal under this chapter is limited to protesting or
4476 appealing on the grounds specified in the filing document described in Subsection
4477 63G-6a-1602 .
4478 (4) In hearing a protest or an appeal under this chapter relating to an expenditure of
4479 federal assistance, federal contract funds, or a federal grant, the person who hears the appeal
4480 shall ensure compliance with federal law and regulations relating to the expenditure.
4481 Section 93. Section 63G-6a-1903 (Effective 05/01/13) is amended to read:
4482 63G-6a-1903 (Effective 05/01/13). Effect of timely protest or appeal.
4483 In the event of a timely protest under Subsection 63G-6a-1602 (1), or a timely appeal of
4484 the protest under Section 63G-6a-1702 or 63G-6a-1802 , a [
4485
4486 procurement unit, a local government procurement unit, or a public transit district, may not
4487 proceed further with the solicitation or with the award of the contract until:
4488 (1) all administrative and judicial remedies are exhausted;
4489 (2) for a protest under Section 63G-6a-1602 or an appeal under Section 63G-6a-1702 :
4490 (a) the chief procurement officer, after consultation with the attorney general's office
4491 and the head of the using agency, makes a written determination that award of the contract
4492 without delay is necessary to protect substantial interests of the state;
4493 (b) the head of the purchasing agency, after consultation with the attorney general's
4494 office, makes a written determination that award of the contract without delay is necessary to
4495 protect substantial interests of the state; or
4496 (c) for a [
4497 office, the [
4498
4499 delay is necessary to protect substantial interests of the [
4500 (3) for an appeal under Section 63G-6a-1802 , or an appeal to a higher court than
4501 district court:
4502 (a) the chief procurement officer, after consultation with the attorney general's office
4503 and the head of the using agency, makes a written determination that award of the contract
4504 without delay is in the best interest of the state;
4505 (b) the head of the purchasing agency, after consultation with the attorney general's
4506 office, makes a written determination that award of the contract without delay is in the best
4507 interest of the state; or
4508 (c) for a [
4509 office, the [
4510
4511 delay is necessary to protect the best interest of the [
4512 Section 94. Section 63G-6a-1904 (Effective 05/01/13) is amended to read:
4513 63G-6a-1904 (Effective 05/01/13). Costs to or against protestor.
4514 (1) When a protest is sustained administratively or upon administrative or judicial
4515 review and the protesting bidder or offeror should have been awarded the contract under the
4516 solicitation but is not, the protestor shall be entitled to the following relief as a claim against
4517 the state:
4518 (a) the reasonable costs incurred in connection with the solicitation, including bid
4519 preparation and appeal costs; and
4520 (b) any equitable relief determined to be appropriate by the reviewing administrative or
4521 judicial body.
4522 (2) When a protest is not sustained by a procurement appeals panel, the protestor shall
4523 reimburse the [
4524 including personnel costs, attorney fees, other legal costs, expenses incurred by the attorney
4525 general's office, the per diem and expenses paid by the [
4526 witnesses or appeals panel members, and any additional expenses incurred by the staff of the
4527 [
4528 the procurement appeals panel for that case.
4529 (3) The provisions of Title 63G, Chapter 7, Part 4, Notice of Claim Against a
4530 Governmental Entity or a Government Employee, and Section 63G-7-601 do not apply to
4531 actions brought under this chapter by an aggrieved party for equitable relief or reasonable costs
4532 incurred in preparing or appealing an unsuccessful bid or offer.
4533 Section 95. Section 63G-6a-1905 (Effective 05/01/13) is amended to read:
4534 63G-6a-1905 (Effective 05/01/13). Authority to resolve controversy between state
4535 and contractor.
4536 A protest officer, or the protest officer's designee, is authorized, before commencement
4537 of an action in court concerning a controversy that arises between [
4538 and a contractor in relation to an existing contract between the [
4539 contractor, including controversies based upon breach of contract, mistake, misrepresentation,
4540 or other cause for contract modification or rescission, to settle and resolve the controversy.
4541 Section 96. Section 63G-6a-1910 (Effective 05/01/13) is amended to read:
4542 63G-6a-1910 (Effective 05/01/13). Interest rates.
4543 (1) [
4544 contractors under this chapter, interest on amounts ultimately determined to be due to a
4545 contractor or the state are payable at the rate applicable to judgments from the date the claim
4546 arose through the date of decision or judgment, whichever is later.
4547 (2) Unless otherwise specified in a lawful contract between a procurement unit and the
4548 person making a bond claim against the procurement unit, the interest rate applicable to the
4549 bond claim is the rate described in Subsection 15-1-1 (2).
4550 [
4551 Section 97. Section 63G-6a-1911 (Effective 05/01/13) is amended to read:
4552 63G-6a-1911 (Effective 05/01/13). Determinations final except when arbitrary
4553 and capricious.
4554 The determinations required under the following provisions are final and conclusive
4555 unless they are arbitrary and capricious or clearly erroneous:
4556 (1) Section 63G-6a-605 ;
4557 (2) Section 63G-6a-702 ;
4558 (3) [
4559 (4) Subsection 63G-6a-709 (1);
4560 (5) Section 63G-6a-803 ;
4561 (6) Section 63G-6a-804 ;
4562 (7) Section 63G-6a-903 ;
4563 (8) Subsection 63G-6a-1204 (1) or (2);
4564 (9) Subsection 63G-6a-1204 (5);
4565 (10) Section 63G-6a-1205 ; or
4566 (11) Subsection 63G-6a-1206 (5).
4567 Section 98. Section 63G-6a-2002 (Effective 05/01/13) is amended to read:
4568 63G-6a-2002 (Effective 05/01/13). Records -- Retention.
4569 (1) All procurement records shall be retained and disposed of in accordance with Title
4570 63G, Chapter 2, Government Records Access and Management Act.
4571 (2) Written determinations required by this chapter shall be retained in the appropriate
4572 official contract file of:
4573 (a) the division;
4574 (b) the [
4575 authority; or
4576 (c) for a [
4577 judicial procurement unit, the person designated by rule made by the applicable rulemaking
4578 authority.
4579 (3) A [
4580 request, [
4581 an expenditure of $50 or more is made, for the longer of:
4582 (a) four years;
4583 (b) the time otherwise required by law; or
4584 (c) the time period provided by rule made by the applicable rulemaking authority.
4585 (4) The written record described in Subsection (3) shall include:
4586 (a) the name of the provider from whom the procurement was made;
4587 (b) a description of the procurement item;
4588 (c) the date of the procurement; and
4589 (d) the expenditure made for the procurement.
4590 Section 99. Section 63G-6a-2003 (Effective 05/01/13) is amended to read:
4591 63G-6a-2003 (Effective 05/01/13). Records of contracts made -- Audits --
4592 Contract requirements.
4593 The chief procurement officer, the procurement officer, or the head of [
4594
4595 record [
4596 in accordance with Title 63G, Chapter 2, Government Records Access and Management Act.
4597 The record shall contain each contractor's name, the amount and type of each contract, and a
4598 listing of the procurement items to which the contract relates.
4599 Section 100. Section 63G-6a-2004 (Effective 05/01/13) is amended to read:
4600 63G-6a-2004 (Effective 05/01/13). Chief procurement officer's collection of
4601 information on procurement items.
4602 (1) To the extent possible, the chief procurement officer may collect information
4603 concerning the type, cost, quality, and quantity of commonly used procurement items procured
4604 or used by [
4605 (2) The chief procurement officer may make the information described in Subsection
4606 (1) available to any [
4607 Section 101. Section 63G-6a-2101 (Effective 05/01/13) is amended to read:
4608
4609 63G-6a-2101 (Effective 05/01/13). Title.
4610 This part is known as "Interaction Between [
4611 Section 102. Section 63G-6a-2102 (Effective 05/01/13) is amended to read:
4612 63G-6a-2102 (Effective 05/01/13). Agreements between procurement units.
4613 [
4614
4615 [
4616 [
4617 [
4618 (a) the procurement [
4619 requirements of Section 63G-6a-2105 ; or
4620 (b) the disposal of a procurement item;
4621 [
4622 [
4623 facilities;
4624 [
4625 procurement unit providing the personnel the direct and indirect cost of providing the
4626 personnel, in accordance with the agreement; or
4627 [
4628 [
4629 precedence over the [
4630 [
4631 provided, in accordance with the agreement.
4632 [
4633
4634
4635 [
4636 [
4637 Section 103. Section 63G-6a-2103 (Effective 05/01/13) is amended to read:
4638 63G-6a-2103 (Effective 05/01/13). Services between procurement units.
4639 (1) Upon request, a [
4640 [
4641 (a) standard forms;
4642 (b) printed manuals;
4643 (c) qualified products lists;
4644 (d) source information;
4645 (e) common use commodities listings;
4646 (f) supplier prequalification information;
4647 (g) supplier performance ratings;
4648 (h) debarred and suspended bidders lists;
4649 (i) forms for invitation for bids, requests for proposals, instructions to bidders, general
4650 contract provisions, and contract forms; or
4651 (j) contracts or published summaries of contracts, including price and time of delivery
4652 information.
4653 (2) A [
4654 procurement unit, including:
4655 (a) development of specifications;
4656 (b) development of quality assurance test methods, including receiving, inspection, and
4657 acceptance procedures;
4658 (c) use of testing and inspection facilities; or
4659 (d) use of personnel training programs.
4660 (3) [
4661 and publish a schedule of fees for the services provided under Subsections (1) and (2).
4662 Section 104. Section 63G-6a-2104 (Effective 05/01/13) is amended to read:
4663 63G-6a-2104 (Effective 05/01/13). Compliance by one procurement unit pursuant
4664 to agreement considered compliance by others to agreement.
4665 (1) When a [
4666 procurement complies with the requirements of this chapter, any [
4667 participating in the purchase is considered to have complied with this chapter.
4668 (2) A [
4669 procurement agreement for the purpose of circumventing this chapter.
4670 Section 105. Section 63G-6a-2105 (Effective 05/01/13) is amended to read:
4671 63G-6a-2105 (Effective 05/01/13). Participation of a public entity or a
4672 procurement unit in agreements or contracts of procurement units -- Cooperative
4673 purchasing -- State cooperative contracts.
4674 [
4675
4676 (1) The chief procurement officer may, in accordance with the requirements of this
4677 chapter, enter into a cooperative procurement, and a contract that is awarded as a result of a
4678 cooperative procurement, with:
4679 (a) another state;
4680 (b) an external procurement unit; or
4681 (c) a public entity in Utah or outside of Utah.
4682 (2) A public entity may obtain a procurement item from a state cooperative contract or
4683 a contract awarded by the chief procurement officer under Subsection (1), without signing a
4684 participating addendum if the quote, invitation for bids, or request for proposals used to obtain
4685 the contract includes a statement indicating that the resulting contract will be issued on behalf
4686 of a public entity in Utah.
4687 (3) Except as provided in Section 63G-6a-408 , or as otherwise provided in this chapter,
4688 an executive branch procurement unit may not obtain a procurement item from a source other
4689 than a state cooperative contract or a contract awarded by the chief procurement officer under
4690 Subsection (1), if the procurement item is available under a state cooperative contract or a
4691 contract awarded by the chief procurement officer under Subsection (1).
4692 [
4693 (a) contract with the federal government without going through a standard procurement
4694 process or an exception to a standard procurement process[
4695 Procurement Requirements, if the procurement item obtained under the contract is provided:
4696 (i) directly by the federal government and not by a person contracting with the federal
4697 government; or
4698 (ii) by a person under contract with the federal government that obtained the contract in
4699 a manner that substantially complies with the provisions of this chapter;
4700 [
4701
4702 (b) participate in, sponsor, conduct, or administer a cooperative procurement with
4703 another Utah procurement unit or another public entity in Utah, if:
4704 (i) each party unit involved in the cooperative procurement enters into an agreement
4705 describing the rights and duties of each party;
4706 (ii) the procurement is conducted, and the contract awarded, in accordance with the
4707 requirements of this chapter;
4708 (iii) the request for quotes, the invitation for bids, or the request for proposals:
4709 (A) clearly indicates that the procurement is a cooperative procurement; and
4710 (B) identifies each party that may purchase under the resulting contract; and
4711 (iv) each party involved in the cooperative procurement signs a participating addendum
4712 describing its rights and obligations in relation to the resulting contract; or
4713 (c) purchase under, or otherwise participate in, an agreement or contract of an external
4714 [
4715 (i) each party involved in the cooperative procurement enters into an agreement
4716 describing the rights and duties of each party;
4717 [
4718 chapter; [
4719 [
4720
4721
4722 [
4723
4724
4725
4726 (iii) the request for quotes, the invitation for bids, or the request for proposals:
4727 (A) clearly indicates that the procurement is a cooperative procurement; and
4728 (B) identifies each party that may purchase under the resulting contract; and
4729 (iv) each party involved in the cooperative procurement signs a participating addendum
4730 describing its rights and obligations in relation to the resulting contract.
4731 (5) A procurement unit may not obtain a procurement item under a contract that results
4732 from a cooperative procurement described in Subsection (4), if the procurement unit:
4733 (a) is not identified under Subsection (4)(b)(iii)(B) or (4)(c)(iii)(B); or
4734 (b) does not sign a participating addendum to the contract as required by this section.
4735 (6) A procurement unit, other than a legislative procurement unit or a judicial
4736 procurement unit, may not obtain a procurement item under a contract held by the United
4737 States General Services Administration, unless, based upon documentation provided by the
4738 procurement unit, the Director of the State Division of Purchasing and General Services
4739 determines in writing that the United States General Services Administration procured the
4740 contract in a manner that substantially complies with the provisions of this chapter.
4741 Section 106. Section 63G-6a-2302 (Effective 05/01/13) is amended to read:
4742 63G-6a-2302 (Effective 05/01/13). Duty to report factual information to attorney
4743 general.
4744 If a [
4745 in a violation of Section 63G-6a-2304.5 , collusion, or other anticompetitive practices [
4746
4747 procurement unit shall transmit a notice of the relevant facts to the attorney general.
4748 Section 107. Section 63G-6a-2304.5 is enacted to read:
4749 63G-6a-2304.5. Gratuities -- Kickbacks -- Unlawful use of position or influence.
4750 (1) As used in this section:
4751 (a) "Contract administrator" means a person who administers a current contract, on
4752 behalf of a public entity, including:
4753 (i) making payments relating to the contract;
4754 (ii) ensuring compliance with the contract;
4755 (iii) auditing a contractor in relation to the contract; or
4756 (iv) enforcing the contract.
4757 (b) "Contribution" means:
4758 (i) a voluntary gift or donation to a public entity for the public entity's use, and not for a
4759 particular person employed by a public entity, including:
4760 (A) a philanthropic donation;
4761 (B) services;
4762 (C) money; or
4763 (D) other items of value;
4764 (ii) admission to a seminar, vendor fair, charitable event, fundraising event, or similar
4765 event that relates to the function of the public entity;
4766 (iii) purchase of a booth at an event sponsored by the public entity or a group of which
4767 the public entity is a member; or
4768 (iv) sponsorship of an event that is organized by the public entity.
4769 (c) "Gratuity" means anything of value, including:
4770 (i) money;
4771 (ii) a loan at an interest rate below the market rate or with terms that are more
4772 advantageous to the person receiving the loan than terms offered generally on the market;
4773 (iii) an award;
4774 (iv) employment;
4775 (v) admission to an event;
4776 (vi) a meal;
4777 (vii) lodging;
4778 (viii) travel; or
4779 (ix) entertainment for which a charge is normally made.
4780 (d) "Family member" means a parent, stepparent, spouse, sibling, stepsibling, child,
4781 stepchild, grandparent, great-grandparent, grandchild, or great-grandchild.
4782 (e) (i) "Hospitality gift" means a promotional or hospitality item, including, a pen,
4783 pencil, stationery, toy, pin, trinket, snack, nonalcoholic beverage, or appetizer.
4784 (ii) "Hospitality gift" does not include money, a meal, a ticket, admittance to an event,
4785 entertainment for which a charge is normally made, travel, or lodging.
4786 (f) "Interested person" means a person who is interested in any way in the sale of a
4787 procurement item or insurance to a public entity.
4788 (g) "Kickback" means a gratuity given in exchange for favorable treatment in a pending
4789 procurement or the administration of a contract.
4790 (h) "Pending procurement" means a procurement at any stage, including:
4791 (i) preparing to engage in a standard procurement process, including preparing
4792 documents that will be used in the standard procurement process;
4793 (ii) engaging in a standard procurement process;
4794 (iii) evaluating, or making a recommendation regarding, a quote, a bid, or a response;
4795 and
4796 (iv) awarding a contract or otherwise making a decision to obtain a procurement item
4797 from a particular person.
4798 (i) "Procurement participant" means a person involved in:
4799 (i) administering, conducting, or making decisions regarding a standard procurement
4800 process;
4801 (ii) making a recommendation regarding award of a contract or regarding a decision to
4802 obtain a procurement item for a particular person;
4803 (iii) evaluating a quote, a bid, or a response; or
4804 (iv) awarding a contract or otherwise making a decision to obtain a procurement item
4805 from a particular person.
4806 (2) Nothing in this section exempts a person subject to the provisions of Title 67,
4807 Chapter 16, Utah Public Officers' and Employees Ethics Act, from complying with the
4808 provisions of the Utah Public Officers' and Employees Ethics Act.
4809 (3) (a) Except as provided in Subsection (6) or (7), it is unlawful for an interested
4810 person to give, offer, or promise to give a gratuity to:
4811 (i) a procurement participant; or
4812 (ii) an individual who the person knows is a family member of a procurement
4813 participant.
4814 (b) Except as provided in Subsection (6) or (7), it is unlawful for a procurement
4815 participant to ask, receive, offer to receive, accept, or ask for a promise to receive a gratuity
4816 from an interested person.
4817 (c) Except as provided in Subsection (6) or (7), it is unlawful for a contractor to give a
4818 gratuity to:
4819 (i) a contract administrator of the contractor's contract; or
4820 (ii) an individual who the contractor knows is a family member of a contract
4821 administrator of the contractor's contract.
4822 (d) Except as provided in Subsection (6) or (7), it is unlawful for a person who is a
4823 contract administrator of a contract to ask, receive, offer to receive, accept, or ask for a promise
4824 to receive, for the contract administrator or a family member of the contract administrator, a
4825 gratuity from the contractor for that contract.
4826 (4) (a) It is unlawful for a person to give, offer, or promise to give a kickback to a
4827 procurement participant or to another person for the benefit of a procurement participant.
4828 (b) It is unlawful for a procurement participant to ask, receive, offer to receive, accept,
4829 or ask for a promise to receive a kickback for the procurement participant or for another
4830 person.
4831 (c) It is unlawful for a person to give a kickback to a contract administrator, or to
4832 another person for the benefit of a contract administrator.
4833 (d) It is unlawful for a contract administrator to ask, receive, offer to receive, accept, or
4834 ask for a promise to receive a kickback for the contract administrator or for another person.
4835 (5) It is unlawful for a procurement participant to use the procurement participant's
4836 position or influence to obtain a personal benefit for the procurement participant, or for a
4837 family member of the procurement participant, from an interested person.
4838 (6) A person is not guilty of a violation of Subsection (3) for giving, offering,
4839 promising to give, receiving, or accepting a hospitality gift if, as it relates to a procurement
4840 participant or a contract administrator:
4841 (a) the total value of all hospitality gifts given, offered, or promised to, or received or
4842 accepted by, the procurement participant or contract administrator in relation to a particular
4843 procurement or contract is less than $10; and
4844 (b) the total value of all hospitality gifts given, offered, or promised to, or received or
4845 accepted by, the procurement participant or contract administrator from any one person,
4846 vendor, bidder, responder, or contractor in a calendar year is less than $50.
4847 (7) (a) A person is not guilty of a violation of this section for giving, offering, or
4848 promising a contribution to a public entity, unless the contribution is given, offered, or
4849 promised with the intent to induce a person to make a procurement decision, or to take action
4850 in relation to the administration of a contract, in reciprocation for the contribution.
4851 (b) A person is not guilty of a violation of this section for receiving or accepting a
4852 contribution on behalf of a public entity, unless the person accepts or receives the contribution
4853 in exchange for making a procurement decision, or for taking action in relation to the
4854 administration of a contract, in reciprocation for the contribution.
4855 (c) A person is not guilty of a violation of this section if the person gives, offers, or
4856 makes a pledge, in the form of a contribution to an organization to which a procurement
4857 participant or contract administrator belongs, unless the contribution is given, offered, or
4858 pledged with the intent to induce a person to make a procurement decision, or to take action in
4859 relation to the administration of a contract, in reciprocation for the contribution.
4860 (8) A person who violates this section is guilty of:
4861 (a) a felony of the second degree if the total value of the gratuity or kickback is $1,000
4862 or more;
4863 (b) a felony of the third degree if the total value of the gratuity or kickback is $250 or
4864 more, but less then $1,000;
4865 (c) a class A misdemeanor if the total value of the gratuity or kickback is $100 or more,
4866 but less than $250; or
4867 (d) a class B misdemeanor if the total value of the gratuity or kickback is less than
4868 $100.
4869 Section 108. Section 63G-6a-2305 (Effective 05/01/13) is amended to read:
4870 63G-6a-2305 (Effective 05/01/13). Penalties for artificially dividing a purchase.
4871 A person who violates Subsection 63G-6a-408 [
4872 (1) a felony of the second degree if the total value of the divided procurements is
4873 $1,000,000 or more;
4874 (2) a felony of the third degree if the total value of the divided procurements is
4875 $250,000 or more, but less than $1,000,000;
4876 (3) a class A misdemeanor if the total value of the divided procurements is $100,000 or
4877 more, but less than $250,000; or
4878 (4) a class B misdemeanor if the total value of the divided procurements is less than
4879 $100,000.
4880 Section 109. Section 63G-6a-2306 (Effective 05/01/13) is amended to read:
4881 63G-6a-2306 (Effective 05/01/13). Penalties.
4882 (1) Except as provided in Subsection (2), in addition to any penalty contained in any
4883 other provision of law, a public officer or public employee who intentionally violates a
4884 provision of Section [
4885 63G-6a-2305 shall be dismissed from employment or removed from office.
4886 (2) An elected official who intentionally violates a provision of Section [
4887
4888 office in accordance with the requirements of law relating to removal of the elected official
4889 from office.
4890 (3) Except as provided in Subsection (4), a public officer or public employee who
4891 intentionally violates a provision of this chapter[
4892 subject to disciplinary action, up to and including dismissal from employment or dismissal
4893 from office.
4894 (4) An elected official who intentionally violates a provision of this chapter[
4895
4896 with the requirements of law relating to discipline of the elected official or removal of the
4897 elected official from office.
4898 Section 110. Section 63G-6a-2307 (Effective 05/01/13) is amended to read:
4899 63G-6a-2307 (Effective 05/01/13). Contract awarded in relation to criminal
4900 conduct void.
4901 If a person who is awarded a contract intentionally violates a provision of Section
4902 [
4903 is void and unenforceable.
4904 Section 111. Section 63G-6a-2308 is enacted to read:
4905 63G-6a-2308. Exemption.
4906 (1) This part does not apply to:
4907 (a) a county, a municipality, a local district, a special service district, a conservation
4908 district, or a political subdivision created under Title 11, Chapter 13, Interlocal Cooperation
4909 Act; or
4910 (b) as it relates to a procurement by, or a contract with, a person described in
4911 Subsection (1)(a):
4912 (i) a procurement participant, interested person, or contract administrator of a person
4913 described in Subsection (1)(a); or
4914 (ii) a family member of a person described in Subsection (1)(b)(i).
4915 (2) A person described in Subsection (1) is, as it is applicable to the person, required to
4916 comply with:
4917 (a) Title 67, Chapter 16, Utah Public Officers' and Employees' Ethics Act;
4918 (b) Section 76-8-105 ; and
4919 (c) all other applicable provisions of law.
4920 Section 112. Section 67-16-4 (Effective 05/01/13) is amended to read:
4921 67-16-4 (Effective 05/01/13). Improperly disclosing or using private, controlled,
4922 or protected information -- Using position to secure privileges or exemptions -- Accepting
4923 employment which would impair independence of judgment or ethical performance --
4924 Exception.
4925 (1) [
4926 employee, or legislator[
4927
4928 (a) accept employment or engage in any business or professional activity that he might
4929 reasonably expect would require or induce him to improperly disclose controlled information
4930 that he has gained by reason of his official position;
4931 (b) disclose or improperly use controlled, private, or protected information acquired by
4932 reason of his official position or in the course of official duties in order to further substantially
4933 the officer's or employee's personal economic interest or to secure special privileges or
4934 exemptions for himself or others;
4935 (c) use or attempt to use his official position to:
4936 (i) further substantially the officer's or employee's personal economic interest; or
4937 (ii) secure special privileges or exemptions for himself or others;
4938 (d) accept other employment that he might expect would impair his independence of
4939 judgment in the performance of his public duties; or
4940 (e) accept other employment that he might expect would interfere with the ethical
4941 performance of his public duties.
4942 (2) (a) Subsection (1) does not apply to the provision of education-related services to
4943 public school students by public education employees acting outside their regular employment.
4944 (b) The conduct referred to in Subsection (2)(a) is subject to Section 53A-1-402.5 .
4945 (3) This section does not apply to a public officer, public employee, or legislator who
4946 engages in conduct that constitutes a violation of this section to the extent that the public
4947 officer, public employee, or legislator is chargeable, for the same conduct, under Section
4948 63G-6a-2304.5 or Section 76-8-105 .
4949 Section 113. Section 67-16-5 (Effective 05/01/13) is amended to read:
4950 67-16-5 (Effective 05/01/13). Accepting gift, compensation, or loan -- When
4951 prohibited.
4952 (1) As used in this section, "economic benefit tantamount to a gift" includes:
4953 (a) a loan at an interest rate that is substantially lower than the commercial rate then
4954 currently prevalent for similar loans; and
4955 (b) compensation received for private services rendered at a rate substantially
4956 exceeding the fair market value of the services.
4957 (2) [
4958 public employee[
4959
4960 or another a gift of substantial value or a substantial economic benefit tantamount to a gift:
4961 (a) that would tend improperly to influence a reasonable person in the person's position
4962 to depart from the faithful and impartial discharge of the person's public duties;
4963 (b) that the public officer or public employee knows or that a reasonable person in that
4964 position should know under the circumstances is primarily for the purpose of rewarding the
4965 public officer or public employee for official action taken; or
4966 (c) if the public officer or public employee recently has been, is now, or in the near
4967 future may be involved in any governmental action directly affecting the donor or lender,
4968 unless a disclosure of the gift, compensation, or loan and other relevant information has been
4969 made in the manner provided in Section 67-16-6 .
4970 (3) Subsection (2) does not apply to:
4971 (a) an occasional nonpecuniary gift, having a value of not in excess of $50;
4972 (b) an award publicly presented in recognition of public services;
4973 (c) any bona fide loan made in the ordinary course of business; or
4974 (d) a political campaign contribution.
4975 (4) This section does not apply to a public officer or public employee who engages in
4976 conduct that constitutes a violation of this section to the extent that the public officer or public
4977 employee is chargeable, for the same conduct, under Section 63G-6a-2304.5 or Section
4978 76-8-105 .
4979 Section 114. Section 67-16-5.3 (Effective 05/01/13) is amended to read:
4980 67-16-5.3 (Effective 05/01/13). Requiring donation, payment, or service to
4981 government agency in exchange for approval -- When prohibited.
4982 (1) [
4983 employee, or legislator[
4984
4985 application or request for a permit, approval, or other authorization, that the person donate
4986 personal property, money, or services to any agency.
4987 (2) (a) Subsection (1) does not apply to any donation of property, funds, or services to
4988 an agency that is:
4989 (i) expressly required by statute, ordinance, or agency rule;
4990 (ii) mutually agreed to between the applicant and the entity issuing the permit,
4991 approval, or other authorization;
4992 (iii) made voluntarily by the applicant; or
4993 (iv) a condition of a consent decree, settlement agreement, or other binding instrument
4994 entered into to resolve, in whole or in part, an actual or threatened agency enforcement action.
4995 (b) If a person donates property, funds, or services to an agency, the agency shall, as
4996 part of the permit or other written authorization:
4997 (i) identify that a donation has been made;
4998 (ii) describe the donation;
4999 (iii) certify, in writing, that the donation was voluntary; and
5000 (iv) place that information in its files.
5001 (3) This section does not apply to a public officer, public employee, or legislator who
5002 engages in conduct that constitutes a violation of this section to the extent that the public
5003 officer, public employee, or legislator is chargeable, for the same conduct, under Section
5004 63G-6a-2304.5 or Section 76-8-105 .
5005 Section 115. Section 67-16-5.6 is amended to read:
5006 67-16-5.6. Offering donation, payment, or service to government agency in
5007 exchange for approval -- When prohibited.
5008 (1) [
5009
5010 personal property, money, or services to any agency on the condition that the agency or any
5011 other agency approve any application or request for a permit, approval, or other authorization.
5012 (2) (a) Subsection (1) does not apply to any donation of property, funds, or services to
5013 an agency that is:
5014 (i) otherwise expressly required by statute, ordinance, or agency rule;
5015 (ii) mutually agreed to between the applicant and the entity issuing the permit,
5016 approval, or other authorization;
5017 (iii) a condition of a consent decree, settlement agreement, or other binding instrument
5018 entered into to resolve, in whole or in part, an actual or threatened agency enforcement action;
5019 or
5020 (iv) made without condition.
5021 (b) The person making the donation of property, funds, or services shall include with
5022 the donation a signed written statement certifying that the donation is made without condition.
5023 (c) The agency receiving the donation shall place the signed written statement in its
5024 files.
5025 (3) This section does not apply to a person who engages in conduct that constitutes a
5026 violation of this section to the extent that the person is chargeable, for the same conduct, under
5027 Section 63G-6a-2304.5 or Section 76-8-105 .
5028 Section 116. Section 67-16-6 (Effective 05/01/13) is amended to read:
5029 67-16-6 (Effective 05/01/13). Receiving compensation for assistance in transaction
5030 involving an agency -- Filing sworn statement.
5031 (1) [
5032 public employee[
5033
5034 entity in any transaction involving an agency unless the public officer or public employee files
5035 a sworn, written statement containing the information required by Subsection (2) with:
5036 (a) the head of the officer or employee's own agency;
5037 (b) the agency head of the agency with which the transaction is being conducted; and
5038 (c) the state attorney general.
5039 (2) The statement shall contain:
5040 (a) the name and address of the public officer or public employee involved;
5041 (b) the name of the public officer's or public employee's agency;
5042 (c) the name and address of the person or business entity being or to be assisted; and
5043 (d) a brief description of:
5044 (i) the transaction as to which service is rendered or is to be rendered; and
5045 (ii) the nature of the service performed or to be performed.
5046 (3) The statement required to be filed under Subsection (1) shall be filed within 10
5047 days after the date of any agreement between the public officer or public employee and the
5048 person or business entity being assisted or the receipt of compensation, whichever is earlier.
5049 (4) The statement is public information and shall be available for examination by the
5050 public.
5051 (5) This section does not apply to a public officer or public employee who engages in
5052 conduct that constitutes a violation of this section to the extent that the public officer or public
5053 employee is chargeable, for the same conduct, under Section 63G-6a-2304.5 or Section
5054 76-8-105 .
5055 Section 117. Section 77-38-3 is amended to read:
5056 77-38-3. Notification to victims -- Initial notice, election to receive subsequent
5057 notices -- Form of notice -- Protected victim information.
5058 (1) Within seven days of the filing of felony criminal charges against a defendant, the
5059 prosecuting agency shall provide an initial notice to reasonably identifiable and locatable
5060 victims of the crime contained in the charges, except as otherwise provided in this chapter.
5061 (2) The initial notice to the victim of a crime shall provide information about electing
5062 to receive notice of subsequent important criminal justice hearings listed in Subsections
5063 77-38-2 (5)(a) through (f) and rights under this chapter.
5064 (3) The prosecuting agency shall provide notice to a victim of a crime for the important
5065 criminal justice hearings, provided in Subsections 77-38-2 (5)(a) through (f) which the victim
5066 has requested.
5067 (4) (a) The responsible prosecuting agency may provide initial and subsequent notices
5068 in any reasonable manner, including telephonically, electronically, orally, or by means of a
5069 letter or form prepared for this purpose.
5070 (b) In the event of an unforeseen important criminal justice hearing, listed in
5071 Subsections 77-38-2 (5)(a) through (f) for which a victim has requested notice, a good faith
5072 attempt to contact the victim by telephone shall be considered sufficient notice, provided that
5073 the prosecuting agency subsequently notifies the victim of the result of the proceeding.
5074 (5) (a) The court shall take reasonable measures to ensure that its scheduling practices
5075 for the proceedings provided in Subsections 77-38-2 (5)(a) through (f) permit an opportunity for
5076 victims of crimes to be notified.
5077 (b) The court shall also consider whether any notification system it might use to
5078 provide notice of judicial proceedings to defendants could be used to provide notice of those
5079 same proceedings to victims of crimes.
5080 (6) A defendant or, if it is the moving party, Adult Probation and Parole, shall give
5081 notice to the responsible prosecuting agency of any motion for modification of any
5082 determination made at any of the important criminal justice hearings provided in Subsections
5083 77-38-2 (5)(a) through (f) in advance of any requested court hearing or action so that the
5084 prosecuting agency may comply with its notification obligation.
5085 (7) (a) Notice to a victim of a crime shall be provided by the Board of Pardons and
5086 Parole for the important criminal justice hearing provided in Subsection 77-38-2 (5)(g).
5087 (b) The board may provide notice in any reasonable manner, including telephonically,
5088 electronically, orally, or by means of a letter or form prepared for this purpose.
5089 (8) Prosecuting agencies and the Board of Pardons and Parole are required to give
5090 notice to a victim of a crime for the proceedings provided in Subsections 77-38-2 (5)(a) through
5091 (f) only where the victim has responded to the initial notice, requested notice of subsequent
5092 proceedings, and provided a current address and telephone number if applicable.
5093 (9) (a) Law enforcement and criminal justice agencies shall refer any requests for
5094 notice or information about crime victim rights from victims to the responsible prosecuting
5095 agency.
5096 (b) In a case in which the Board of Pardons and Parole is involved, the responsible
5097 prosecuting agency shall forward any request for notice it has received from a victim to the
5098 Board of Pardons and Parole.
5099 (10) In all cases where the number of victims exceeds 10, the responsible prosecuting
5100 agency may send any notices required under this chapter in its discretion to a representative
5101 sample of the victims.
5102 (11) (a) A victim's address, telephone number, and victim impact statement maintained
5103 by a peace officer, prosecuting agency, Youth Parole Authority, Division of Juvenile Justice
5104 Services, Department of Corrections, and Board of Pardons and Parole, for purposes of
5105 providing notice under this section, is classified as protected as provided in Subsection
5106 63G-2-305 [
5107 (b) The victim's address, telephone number, and victim impact statement is available
5108 only to the following persons or entities in the performance of their duties:
5109 (i) a law enforcement agency, including the prosecuting agency;
5110 (ii) a victims' right committee as provided in Section 77-37-5 ;
5111 (iii) a governmentally sponsored victim or witness program;
5112 (iv) the Department of Corrections;
5113 (v) the Utah Office for Victims of Crime;
5114 (vi) the Commission on Criminal and Juvenile Justice; and
5115 (vii) the Board of Pardons and Parole.
5116 (12) The notice provisions as provided in this section do not apply to misdemeanors as
5117 provided in Section 77-38-5 and to important juvenile justice hearings as provided in Section
5118 77-38-2 .
5119 Section 118. Section 78A-4-106 is amended to read:
5120 78A-4-106. Appellate Mediation Office -- Protected records and information --
5121 Governmental immunity.
5122 (1) Unless a more restrictive rule of court is adopted pursuant to Subsection
5123 63G-2-201 (3)(b), information and records relating to any matter on appeal received or
5124 generated by the Chief Appellate Mediator or other staff of the Appellate Mediation Office as a
5125 result of any party's participation or lack of participation in the settlement program shall be
5126 maintained as protected records pursuant to Subsections 63G-2-305 [
5127 (18), and (33).
5128 (2) In addition to the access restrictions on protected records provided in Section
5129 63G-2-202 , the information and records may not be disclosed to judges, staff, or employees of
5130 any court of this state.
5131 (3) The Chief Appellate Mediator may disclose statistical and other demographic
5132 information as may be necessary and useful to report on the status and to allow supervision and
5133 oversight of the Appellate Mediation Office.
5134 (4) When acting as mediators, the Chief Appellate Mediator and other professional
5135 staff of the Appellate Mediation Office shall be immune from liability pursuant to Title 63G,
5136 Chapter 7, Governmental Immunity Act of Utah.
5137 (5) Pursuant to Utah Constitution, Article VIII, Section 4, the Supreme Court may
5138 exercise overall supervision of the Appellate Mediation Office as part of the appellate process.
5139 Section 119. Repealer.
5140 This bill repeals:
5141 Section 63G-6-506.5, Interest rate for bond claim.
5142 Section 63G-6a-1908 (Effective 05/01/13), Resolution of local public procurement
5143 controversies.
5144 Section 63G-6a-2201 (Effective 05/01/13), Title.
5145 Section 63G-6a-2202 (Effective 05/01/13), Ethical requirements for public
5146 procurement.
5147 Section 63G-6a-2303 (Effective 05/01/13), Offering a gratuity.
5148 Section 63G-6a-2304 (Effective 05/01/13), Accepting or requesting a gratuity.
5149 Section 120. Effective date.
5150 If approved by two-thirds of all members elected to each house, this bill takes effect on
5151 May 1, 2013.
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