This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Fri, Mar 4, 2016 at 1:12 PM by lpoole.
This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Mon, Mar 7, 2016 at 9:42 AM by lpoole.
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7 LONG TITLE
8 General Description:
9 This bill modifies provisions relating to the Utah Procurement Code.
10 Highlighted Provisions:
11 This bill:
12 ▸ modifies and adds definitions;
13 ▸ rearranges some procurement provisions;
14 ▸ modifies provisions relating to the head of a procurement unit with independent
15 procurement authority;
16 ▸ modifies exemptions from the procurement code;
17 ▸ rewrites provisions relating to requests for statement of qualifications and approved
18 vendor lists;
19 ▸ authorizes a procurement unit to establish price based on specified established
20 terms;
21 ▸ modifies provisions relating to correcting immaterial errors in a solicitation and
22 clarifying information in a solicitation response;
23 ▸ modifies duties and responsibilities of the chief procurement officer;
24 ▸ modifies provisions relating to a request for information;
25 ▸ modifies provisions relating to standard procurement processes;
26 ▸ modifies provisions relating to the evaluation process;
27 ▸ modifies best and final offer provisions;
28 ▸ modifies provisions relating to awarding and canceling a contract and the
29 disqualification of offerors;
30 ▸ modifies provisions relating to exceptions to standard procurement processes;
31 ▸ modifies provisions relating to procurement protests;
32 ▸ modifies a provision relating to reporting unlawful conduct; and
33 ▸ makes technical and conforming changes.
34 Money Appropriated in this Bill:
35 None
36 Other Special Clauses:
37 This bill provides a special effective date.
38 This bill provides a coordination clause.
39 Utah Code Sections Affected:
40 AMENDS:
41 17B-2a-818.5, as last amended by Laws of Utah 2014, Chapter 425
42 19-1-206, as last amended by Laws of Utah 2014, Chapter 425
43 53A-1a-511, as last amended by Laws of Utah 2015, Chapters 138, 150, and 232
44 63A-5-205, as last amended by Laws of Utah 2014, Chapter 425
45 63C-9-403, as last amended by Laws of Utah 2014, Chapter 425
46 63F-1-205, as last amended by Laws of Utah 2015, Chapters 114 and 283
47 63G-6a-103, as last amended by Laws of Utah 2015, Chapters 218 and 464
48 63G-6a-105, as last amended by Laws of Utah 2015, Chapters 218 and 464
49 63G-6a-106, as last amended by Laws of Utah 2015, Chapters 218 and 362
50 63G-6a-107, as last amended by Laws of Utah 2015, Chapters 218, 306, and 464
51 63G-6a-109, as last amended by Laws of Utah 2015, Chapter 464
52 63G-6a-203, as last amended by Laws of Utah 2013, Chapters 278 and 445
53 63G-6a-401, as enacted by Laws of Utah 2012, Chapter 347
54 63G-6a-501, as enacted by Laws of Utah 2012, Chapter 347
55 63G-6a-603, as last amended by Laws of Utah 2014, Chapter 196
56 63G-6a-604, as last amended by Laws of Utah 2013, Chapter 445
57 63G-6a-606, as last amended by Laws of Utah 2015, Chapter 97
58 63G-6a-609, as last amended by Laws of Utah 2015, Chapter 218
59 63G-6a-611, as last amended by Laws of Utah 2014, Chapter 196
60 63G-6a-703, as last amended by Laws of Utah 2014, Chapter 196
61 63G-6a-707, as last amended by Laws of Utah 2015, Chapters 97 and 218
62 63G-6a-707.5, as renumbered and amended by Laws of Utah 2014, Chapter 196
63 63G-6a-708, as last amended by Laws of Utah 2014, Chapter 196
64 63G-6a-709, as last amended by Laws of Utah 2014, Chapter 196
65 63G-6a-802, as last amended by Laws of Utah 2014, Chapter 196
66 63G-6a-803, as enacted by Laws of Utah 2012, Chapter 347
67 63G-6a-806, as enacted by Laws of Utah 2013, Chapter 445
68 63G-6a-1206, as last amended by Laws of Utah 2014, Chapter 196
69 63G-6a-1206.5, as enacted by Laws of Utah 2015, Chapter 218
70 63G-6a-1502, as last amended by Laws of Utah 2015, Chapter 218
71 63G-6a-1503.5, as enacted by Laws of Utah 2015, Chapter 218
72 63G-6a-1601, as enacted by Laws of Utah 2012, Chapter 347
73 63G-6a-1602, as last amended by Laws of Utah 2014, Chapter 196
74 63G-6a-1603, as last amended by Laws of Utah 2015, Chapter 218
75 63G-6a-1702, as last amended by Laws of Utah 2015, Chapters 218, 258, and 464
76 63G-6a-1703, as last amended by Laws of Utah 2015, Chapter 218
77 63G-6a-1903, as last amended by Laws of Utah 2015, Chapter 218
78 63G-6a-2002, as last amended by Laws of Utah 2013, Chapter 445
79 63G-6a-2003, as last amended by Laws of Utah 2013, Chapter 445
80 63G-6a-2105, as last amended by Laws of Utah 2014, Chapter 196
81 63G-6a-2404, as enacted by Laws of Utah 2014, Chapter 196
82 63G-6a-2407, as enacted by Laws of Utah 2014, Chapter 196
83 63G-10-403, as last amended by Laws of Utah 2015, Chapter 258
84 72-6-107.5, as last amended by Laws of Utah 2014, Chapter 425
85 79-2-404, as last amended by Laws of Utah 2014, Chapter 425
86 ENACTS:
87 63G-6a-106.5, Utah Code Annotated 1953
88 63G-6a-113, Utah Code Annotated 1953
89 63G-6a-114, Utah Code Annotated 1953
90 63G-6a-115, Utah Code Annotated 1953
91 63G-6a-410, Utah Code Annotated 1953
92 63G-6a-507, Utah Code Annotated 1953
93 63G-6a-802.3, Utah Code Annotated 1953
94 63G-6a-802.7, Utah Code Annotated 1953
95 63G-6a-1206.3, Utah Code Annotated 1953
96 63G-6a-1601.5, Utah Code Annotated 1953
97 REPEALS AND REENACTS:
98 63G-6a-303, as last amended by Laws of Utah 2015, Chapters 218, 258, and 283
99 63G-6a-605, as last amended by Laws of Utah 2013, Chapter 445
100 63G-6a-706, as enacted by Laws of Utah 2012, Chapter 347
101 RENUMBERS AND AMENDS:
102 63G-6a-110, (Renumbered from 63G-6a-402, as last amended by Laws of Utah 2015,
103 Chapter 218)
104 63G-6a-111, (Renumbered from 63G-6a-407, as last amended by Laws of Utah 2013,
105 Chapter 445)
106 63G-6a-112, (Renumbered from 63G-6a-406, as last amended by Laws of Utah 2014,
107 Chapter 196)
108 63G-6a-409, (Renumbered from 63G-6a-502, as enacted by Laws of Utah 2012,
109 Chapter 347)
110 63G-6a-506, (Renumbered from 63G-6a-408, as last amended by Laws of Utah 2015,
111 Chapter 218)
112 REPEALS:
113 63G-6a-104, as last amended by Laws of Utah 2015, Chapter 218
114 63G-6a-403, as last amended by Laws of Utah 2015, Chapter 97
115 63G-6a-404, as last amended by Laws of Utah 2014, Chapter 196
116 63G-6a-503, as last amended by Laws of Utah 2013, Chapter 445
117 63G-6a-504, as enacted by Laws of Utah 2012, Chapter 347
118 63G-6a-505, as enacted by Laws of Utah 2013, Chapter 445
119 Utah Code Sections Affected by Coordination Clause:
120 63G-6a-103, as last amended by Laws of Utah 2015, Chapters 218 and 464
121 63G-6a-116, Utah Code Annotated 1953
122
123 Be it enacted by the Legislature of the state of Utah:
124 Section 1. Section 17B-2a-818.5 is amended to read:
125 17B-2a-818.5. Contracting powers of public transit districts -- Health insurance
126 coverage.
127 (1) For purposes of this section:
128 (a) "Employee" means an "employee," "worker," or "operative" as defined in Section
129 34A-2-104 who:
130 (i) works at least 30 hours per calendar week; and
131 (ii) meets employer eligibility waiting requirements for health care insurance which
132 may not exceed the first day of the calendar month following 60 days from the date of hire.
133 (b) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
134 (c) "Qualified health insurance coverage" is as defined in Section 26-40-115.
135 (d) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
136 (2) (a) Except as provided in Subsection (3), this section applies to a design or
137 construction contract entered into by the public transit district on or after July 1, 2009, and to a
138 prime contractor or to a subcontractor in accordance with Subsection (2)(b).
139 (b) (i) A prime contractor is subject to this section if the prime contract is in the
140 amount of $1,500,000 or greater.
141 (ii) A subcontractor is subject to this section if a subcontract is in the amount of
142 $750,000 or greater.
143 (3) This section does not apply if:
144 (a) the application of this section jeopardizes the receipt of federal funds;
145 (b) the contract is a sole source contract; or
146 (c) the contract is an emergency procurement.
147 (4) (a) This section does not apply to a change order as defined in Section 63G-6a-103,
148 or a modification to a contract, when the contract does not meet the initial threshold required
149 by Subsection (2).
150 (b) A person who intentionally uses change orders or contract modifications to
151 circumvent the requirements of Subsection (2) is guilty of an infraction.
152 (5) (a) A contractor subject to Subsection (2) shall demonstrate to the public transit
153 district that the contractor has and will maintain an offer of qualified health insurance coverage
154 for the contractor's employees and the employee's dependents during the duration of the
155 contract.
156 (b) If a subcontractor of the contractor is subject to Subsection (2)(b), the contractor
157 shall demonstrate to the public transit district that the subcontractor has and will maintain an
158 offer of qualified health insurance coverage for the subcontractor's employees and the
159 employee's dependents during the duration of the contract.
160 (c) (i) (A) A contractor who fails to meet the requirements of Subsection (5)(a) during
161 the duration of the contract is subject to penalties in accordance with an ordinance adopted by
162 the public transit district under Subsection (6).
163 (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
164 requirements of Subsection (5)(b).
165 (ii) (A) A subcontractor who fails to meet the requirements of Subsection (5)(b) during
166 the duration of the contract is subject to penalties in accordance with an ordinance adopted by
167 the public transit district under Subsection (6).
168 (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
169 requirements of Subsection (5)(a).
170 (6) The public transit district shall adopt ordinances:
171 (a) in coordination with:
172 (i) the Department of Environmental Quality in accordance with Section 19-1-206;
173 (ii) the Department of Natural Resources in accordance with Section 79-2-404;
174 (iii) the State Building Board in accordance with Section 63A-5-205;
175 (iv) the State Capitol Preservation Board in accordance with Section 63C-9-403; and
176 (v) the Department of Transportation in accordance with Section 72-6-107.5; and
177 (b) which establish:
178 (i) the requirements and procedures a contractor shall follow to demonstrate to the
179 public transit district compliance with this section which shall include:
180 (A) that a contractor will not have to demonstrate compliance with Subsection (5)(a) or
181 (b) more than twice in any 12-month period; and
182 (B) that the actuarially equivalent determination required for the qualified health
183 insurance coverage in Subsection (1) is met by the contractor if the contractor provides the
184 department or division with a written statement of actuarial equivalency from either:
185 (I) the Utah Insurance Department;
186 (II) an actuary selected by the contractor or the contractor's insurer; or
187 (III) an underwriter who is responsible for developing the employer group's premium
188 rates;
189 (ii) the penalties that may be imposed if a contractor or subcontractor intentionally
190 violates the provisions of this section, which may include:
191 (A) a three-month suspension of the contractor or subcontractor from entering into
192 future contracts with the public transit district upon the first violation;
193 (B) a six-month suspension of the contractor or subcontractor from entering into future
194 contracts with the public transit district upon the second violation;
195 (C) an action for debarment of the contractor or subcontractor in accordance with
196 Section 63G-6a-904 upon the third or subsequent violation; and
197 (D) monetary penalties which may not exceed 50% of the amount necessary to
198 purchase qualified health insurance coverage for employees and dependents of employees of
199 the contractor or subcontractor who were not offered qualified health insurance coverage
200 during the duration of the contract; and
201 (iii) a website on which the district shall post the benchmark for the qualified health
202 insurance coverage identified in Subsection (1)(c).
203 (7) (a) (i) In addition to the penalties imposed under Subsection (6)(b)(ii), a contractor
204 or subcontractor who intentionally violates the provisions of this section shall be liable to the
205 employee for health care costs that would have been covered by qualified health insurance
206 coverage.
207 (ii) An employer has an affirmative defense to a cause of action under Subsection
208 (7)(a)(i) if:
209 (A) the employer relied in good faith on a written statement of actuarial equivalency
210 provided by an:
211 (I) actuary; or
212 (II) underwriter who is responsible for developing the employer group's premium rates;
213 or
214 (B) a department or division determines that compliance with this section is not
215 required under the provisions of Subsection (3) or (4).
216 (b) An employee has a private right of action only against the employee's employer to
217 enforce the provisions of this Subsection (7).
218 (8) Any penalties imposed and collected under this section shall be deposited into the
219 Medicaid Restricted Account created in Section 26-18-402.
220 (9) The failure of a contractor or subcontractor to provide qualified health insurance
221 coverage as required by this section:
222 (a) may not be the basis for a protest or other action from a prospective bidder, offeror,
223 or contractor under Section [
224 Chapter 6a, Utah Procurement Code; and
225 (b) may not be used by the procurement entity or a prospective bidder, offeror, or
226 contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design
227 or construction.
228 Section 2. Section 19-1-206 is amended to read:
229 19-1-206. Contracting powers of department -- Health insurance coverage.
230 (1) For purposes of this section:
231 (a) "Employee" means an "employee," "worker," or "operative" as defined in Section
232 34A-2-104 who:
233 (i) works at least 30 hours per calendar week; and
234 (ii) meets employer eligibility waiting requirements for health care insurance which
235 may not exceed the first day of the calendar month following 60 days from the date of hire.
236 (b) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
237 (c) "Qualified health insurance coverage" is as defined in Section 26-40-115.
238 (d) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
239 (2) (a) Except as provided in Subsection (3), this section applies to a design or
240 construction contract entered into by or delegated to the department or a division or board of
241 the department on or after July 1, 2009, and to a prime contractor or subcontractor in
242 accordance with Subsection (2)(b).
243 (b) (i) A prime contractor is subject to this section if the prime contract is in the
244 amount of $1,500,000 or greater.
245 (ii) A subcontractor is subject to this section if a subcontract is in the amount of
246 $750,000 or greater.
247 (3) This section does not apply to contracts entered into by the department or a division
248 or board of the department if:
249 (a) the application of this section jeopardizes the receipt of federal funds;
250 (b) the contract or agreement is between:
251 (i) the department or a division or board of the department; and
252 (ii) (A) another agency of the state;
253 (B) the federal government;
254 (C) another state;
255 (D) an interstate agency;
256 (E) a political subdivision of this state; or
257 (F) a political subdivision of another state;
258 (c) the executive director determines that applying the requirements of this section to a
259 particular contract interferes with the effective response to an immediate health and safety
260 threat from the environment; or
261 (d) the contract is:
262 (i) a sole source contract; or
263 (ii) an emergency procurement.
264 (4) (a) This section does not apply to a change order as defined in Section 63G-6a-103,
265 or a modification to a contract, when the contract does not meet the initial threshold required
266 by Subsection (2).
267 (b) A person who intentionally uses change orders or contract modifications to
268 circumvent the requirements of Subsection (2) is guilty of an infraction.
269 (5) (a) A contractor subject to Subsection (2) shall demonstrate to the executive
270 director that the contractor has and will maintain an offer of qualified health insurance
271 coverage for the contractor's employees and the employees' dependents during the duration of
272 the contract.
273 (b) If a subcontractor of the contractor is subject to Subsection (2), the contractor shall
274 demonstrate to the executive director that the subcontractor has and will maintain an offer of
275 qualified health insurance coverage for the subcontractor's employees and the employees'
276 dependents during the duration of the contract.
277 (c) (i) (A) A contractor who fails to comply with Subsection (5)(a) during the duration
278 of the contract is subject to penalties in accordance with administrative rules adopted by the
279 department under Subsection (6).
280 (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
281 requirements of Subsection (5)(b).
282 (ii) (A) A subcontractor who fails to meet the requirements of Subsection (5)(b) during
283 the duration of the contract is subject to penalties in accordance with administrative rules
284 adopted by the department under Subsection (6).
285 (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
286 requirements of Subsection (5)(a).
287 (6) The department shall adopt administrative rules:
288 (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
289 (b) in coordination with:
290 (i) a public transit district in accordance with Section 17B-2a-818.5;
291 (ii) the Department of Natural Resources in accordance with Section 79-2-404;
292 (iii) the State Building Board in accordance with Section 63A-5-205;
293 (iv) the State Capitol Preservation Board in accordance with Section 63C-9-403;
294 (v) the Department of Transportation in accordance with Section 72-6-107.5; and
295 (vi) the Legislature's Administrative Rules Review Committee; and
296 (c) which establish:
297 (i) the requirements and procedures a contractor shall follow to demonstrate to the
298 public transit district compliance with this section that shall include:
299 (A) that a contractor will not have to demonstrate compliance with Subsection (5)(a) or
300 (b) more than twice in any 12-month period; and
301 (B) that the actuarially equivalent determination required for the qualified health
302 insurance coverage in Subsection (1) is met by the contractor if the contractor provides the
303 department or division with a written statement of actuarial equivalency from either:
304 (I) the Utah Insurance Department;
305 (II) an actuary selected by the contractor or the contractor's insurer; or
306 (III) an underwriter who is responsible for developing the employer group's premium
307 rates;
308 (ii) the penalties that may be imposed if a contractor or subcontractor intentionally
309 violates the provisions of this section, which may include:
310 (A) a three-month suspension of the contractor or subcontractor from entering into
311 future contracts with the state upon the first violation;
312 (B) a six-month suspension of the contractor or subcontractor from entering into future
313 contracts with the state upon the second violation;
314 (C) an action for debarment of the contractor or subcontractor in accordance with
315 Section 63G-6a-904 upon the third or subsequent violation; and
316 (D) notwithstanding Section 19-1-303, monetary penalties which may not exceed 50%
317 of the amount necessary to purchase qualified health insurance coverage for an employee and
318 the dependents of an employee of the contractor or subcontractor who was not offered qualified
319 health insurance coverage during the duration of the contract; and
320 (iii) a website on which the department shall post the benchmark for the qualified
321 health insurance coverage identified in Subsection (1)(c).
322 (7) (a) (i) In addition to the penalties imposed under Subsection (6)(c), a contractor or
323 subcontractor who intentionally violates the provisions of this section shall be liable to the
324 employee for health care costs that would have been covered by qualified health insurance
325 coverage.
326 (ii) An employer has an affirmative defense to a cause of action under Subsection
327 (7)(a)(i) if:
328 (A) the employer relied in good faith on a written statement of actuarial equivalency
329 provided by:
330 (I) an actuary; or
331 (II) an underwriter who is responsible for developing the employer group's premium
332 rates; or
333 (B) the department determines that compliance with this section is not required under
334 the provisions of Subsection (3) or (4).
335 (b) An employee has a private right of action only against the employee's employer to
336 enforce the provisions of this Subsection (7).
337 (8) Any penalties imposed and collected under this section shall be deposited into the
338 Medicaid Restricted Account created in Section 26-18-402.
339 (9) The failure of a contractor or subcontractor to provide qualified health insurance
340 coverage as required by this section:
341 (a) may not be the basis for a protest or other action from a prospective bidder, offeror,
342 or contractor under Section [
343 Chapter 6a, Utah Procurement Code; and
344 (b) may not be used by the procurement entity or a prospective bidder, offeror, or
345 contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design
346 or construction.
347 Section 3. Section 53A-1a-511 is amended to read:
348 53A-1a-511. Waivers from state board rules -- Application of statutes and rules
349 to charter schools.
350 (1) A charter school shall operate in accordance with its charter and is subject to Title
351 53A, State System of Public Education, and other state laws applicable to public schools,
352 except as otherwise provided in this part.
353 (2) (a) A charter school or any other public school or school district may apply to the
354 State Board of Education for a waiver of any state board rule that inhibits or hinders the school
355 or the school district from accomplishing its mission or educational goals set out in its strategic
356 plan or charter.
357 (b) The state board may grant the waiver, unless:
358 (i) the waiver would cause the school district or the school to be in violation of state or
359 federal law; or
360 (ii) the waiver would threaten the health, safety, or welfare of students in the district or
361 at the school.
362 (c) If the State Board of Education denies the waiver, the reason for the denial shall be
363 provided in writing to the waiver applicant.
364 (3) (a) Except as provided in Subsection (3)(b), State Board of Education rules
365 governing the following do not apply to a charter school:
366 (i) school libraries;
367 (ii) required school administrative and supervisory services; and
368 (iii) required expenditures for instructional supplies.
369 (b) A charter school shall comply with rules implementing statutes that prescribe how
370 state appropriations may be spent.
371 (4) The following provisions of Title 53A, State System of Public Education, and rules
372 adopted under those provisions, do not apply to a charter school:
373 (a) Sections 53A-1a-108 and 53A-1a-108.5, requiring the establishment of a school
374 community council and school improvement plan;
375 (b) Section 53A-3-420, requiring the use of activity disclosure statements;
376 (c) Section 53A-12-207, requiring notification of intent to dispose of textbooks;
377 (d) Section 53A-13-107, requiring annual presentations on adoption;
378 (e) Chapter 19, Part 1, Fiscal Procedures, pertaining to fiscal procedures of school
379 districts and local school boards; and
380 (f) Section 53A-14-107, requiring an independent evaluation of instructional materials.
381 (5) For the purposes of Title 63G, Chapter 6a, Utah Procurement Code, a charter
382 school is considered an educational procurement unit as defined in [
383 Section 63G-6a-103.
384 (6) Each charter school shall be subject to:
385 (a) Title 52, Chapter 4, Open and Public Meetings Act; and
386 (b) Title 63G, Chapter 2, Government Records Access and Management Act.
387 (7) A charter school is exempt from Section 51-2a-201.5, requiring accounting reports
388 of certain nonprofit corporations. A charter school is subject to the requirements of Section
389 53A-1a-507.
390 (8) (a) The State Charter School Board shall, in concert with the charter schools, study
391 existing state law and administrative rules for the purpose of determining from which laws and
392 rules charter schools should be exempt.
393 (b) (i) The State Charter School Board shall present recommendations for exemption to
394 the State Board of Education for consideration.
395 (ii) The State Board of Education shall consider the recommendations of the State
396 Charter School Board and respond within 60 days.
397 Section 4. Section 63A-5-205 is amended to read:
398 63A-5-205. Contracting powers of director -- Retainage -- Health insurance
399 coverage.
400 (1) As used in this section:
401 (a) "Capital developments" has the same meaning as provided in Section 63A-5-104.
402 (b) "Capital improvements" has the same meaning as provided in Section 63A-5-104.
403 (c) "Employee" means an "employee," "worker," or "operative" as defined in Section
404 34A-2-104 who:
405 (i) works at least 30 hours per calendar week; and
406 (ii) meets employer eligibility waiting requirements for health care insurance which
407 may not exceed the first day of the calendar month following 60 days from the date of hire.
408 (d) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
409 (e) "Qualified health insurance coverage" is as defined in Section 26-40-115.
410 (f) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
411 (2) In accordance with Title 63G, Chapter 6a, Utah Procurement Code, the director
412 may:
413 (a) subject to Subsection (3), enter into contracts for any work or professional services
414 which the division or the State Building Board may do or have done; and
415 (b) as a condition of any contract for architectural or engineering services, prohibit the
416 architect or engineer from retaining a sales or agent engineer for the necessary design work.
417 (3) (a) Except as provided in Subsection (3)(b), this Subsection (3) applies to all design
418 or construction contracts entered into by the division or the State Building Board on or after
419 July 1, 2009, and:
420 (i) applies to a prime contractor if the prime contract is in the amount of $1,500,000 or
421 greater; and
422 (ii) applies to a subcontractor if the subcontract is in the amount of $750,000 or greater.
423 (b) This Subsection (3) does not apply:
424 (i) if the application of this Subsection (3) jeopardizes the receipt of federal funds;
425 (ii) if the contract is a sole source contract;
426 (iii) if the contract is an emergency procurement; or
427 (iv) to a change order as defined in Section 63G-6a-103, or a modification to a
428 contract, when the contract does not meet the threshold required by Subsection (3)(a).
429 (c) A person who intentionally uses change orders or contract modifications to
430 circumvent the requirements of Subsection (3)(a) is guilty of an infraction.
431 (d) (i) A contractor subject to Subsection (3)(a) shall demonstrate to the director that
432 the contractor has and will maintain an offer of qualified health insurance coverage for the
433 contractor's employees and the employees' dependents.
434 (ii) If a subcontractor of the contractor is subject to Subsection (3)(a), the contractor
435 shall demonstrate to the director that the subcontractor has and will maintain an offer of
436 qualified health insurance coverage for the subcontractor's employees and the employees'
437 dependents.
438 (e) (i) (A) A contractor who fails to meet the requirements of Subsection (3)(d)(i)
439 during the duration of the contract is subject to penalties in accordance with administrative
440 rules adopted by the division under Subsection (3)(f).
441 (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
442 requirements of Subsection (3)(d)(ii).
443 (ii) (A) A subcontractor who fails to meet the requirements of Subsection (3)(d)(ii)
444 during the duration of the contract is subject to penalties in accordance with administrative
445 rules adopted by the division under Subsection (3)(f).
446 (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
447 requirements of Subsection (3)(d)(i).
448 (f) The division shall adopt administrative rules:
449 (i) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
450 (ii) in coordination with:
451 (A) the Department of Environmental Quality in accordance with Section 19-1-206;
452 (B) the Department of Natural Resources in accordance with Section 79-2-404;
453 (C) a public transit district in accordance with Section 17B-2a-818.5;
454 (D) the State Capitol Preservation Board in accordance with Section 63C-9-403;
455 (E) the Department of Transportation in accordance with Section 72-6-107.5; and
456 (F) the Legislature's Administrative Rules Review Committee; and
457 (iii) which establish:
458 (A) the requirements and procedures a contractor must follow to demonstrate to the
459 director compliance with this Subsection (3) which shall include:
460 (I) that a contractor will not have to demonstrate compliance with Subsection (3)(d)(i)
461 or (ii) more than twice in any 12-month period; and
462 (II) that the actuarially equivalent determination required for the qualified health
463 insurance coverage in Subsection (1) is met by the contractor if the contractor provides the
464 department or division with a written statement of actuarial equivalency from either:
465 (Aa) the Utah Insurance Department;
466 (Bb) an actuary selected by the contractor or the contractor's insurer; or
467 (Cc) an underwriter who is responsible for developing the employer group's premium
468 rates;
469 (B) the penalties that may be imposed if a contractor or subcontractor intentionally
470 violates the provisions of this Subsection (3), which may include:
471 (I) a three-month suspension of the contractor or subcontractor from entering into
472 future contracts with the state upon the first violation;
473 (II) a six-month suspension of the contractor or subcontractor from entering into future
474 contracts with the state upon the second violation;
475 (III) an action for debarment of the contractor or subcontractor in accordance with
476 Section 63G-6a-904 upon the third or subsequent violation; and
477 (IV) monetary penalties which may not exceed 50% of the amount necessary to
478 purchase qualified health insurance coverage for an employee and the dependents of an
479 employee of the contractor or subcontractor who was not offered qualified health insurance
480 coverage during the duration of the contract; and
481 (C) a website on which the department shall post the benchmark for the qualified
482 health insurance coverage identified in Subsection (1)(e).
483 (g) (i) In addition to the penalties imposed under Subsection (3)(f)(iii), a contractor or
484 subcontractor who intentionally violates the provisions of this section shall be liable to the
485 employee for health care costs that would have been covered by qualified health insurance
486 coverage.
487 (ii) An employer has an affirmative defense to a cause of action under Subsection
488 (3)(g)(i) if:
489 (A) the employer relied in good faith on a written statement of actuarial equivalency
490 provided by:
491 (I) an actuary; or
492 (II) an underwriter who is responsible for developing the employer group's premium
493 rates; or
494 (B) the department determines that compliance with this section is not required under
495 the provisions of Subsection (3)(b).
496 (iii) An employee has a private right of action only against the employee's employer to
497 enforce the provisions of this Subsection (3)(g).
498 (h) Any penalties imposed and collected under this section shall be deposited into the
499 Medicaid Restricted Account created by Section 26-18-402.
500 (i) The failure of a contractor or subcontractor to provide qualified health insurance
501 coverage as required by this section:
502 (i) may not be the basis for a protest or other action from a prospective bidder, offeror,
503 or contractor under Section [
504 Chapter 6a, Utah Procurement Code; and
505 (ii) may not be used by the procurement entity or a prospective bidder, offeror, or
506 contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design
507 or construction.
508 (4) The judgment of the director as to the responsibility and qualifications of a bidder
509 is conclusive, except in case of fraud or bad faith.
510 (5) The division shall make all payments to the contractor for completed work in
511 accordance with the contract and pay the interest specified in the contract on any payments that
512 are late.
513 (6) If any payment on a contract with a private contractor to do work for the division or
514 the State Building Board is retained or withheld, it shall be retained or withheld and released as
515 provided in Section 13-8-5.
516 Section 5. Section 63C-9-403 is amended to read:
517 63C-9-403. Contracting power of executive director -- Health insurance coverage.
518 (1) For purposes of this section:
519 (a) "Employee" means an "employee," "worker," or "operative" as defined in Section
520 34A-2-104 who:
521 (i) works at least 30 hours per calendar week; and
522 (ii) meets employer eligibility waiting requirements for health care insurance which
523 may not exceed the first of the calendar month following 60 days from the date of hire.
524 (b) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
525 (c) "Qualified health insurance coverage" is as defined in Section 26-40-115.
526 (d) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
527 (2) (a) Except as provided in Subsection (3), this section applies to a design or
528 construction contract entered into by the board or on behalf of the board on or after July 1,
529 2009, and to a prime contractor or a subcontractor in accordance with Subsection (2)(b).
530 (b) (i) A prime contractor is subject to this section if the prime contract is in the
531 amount of $1,500,000 or greater.
532 (ii) A subcontractor is subject to this section if a subcontract is in the amount of
533 $750,000 or greater.
534 (3) This section does not apply if:
535 (a) the application of this section jeopardizes the receipt of federal funds;
536 (b) the contract is a sole source contract; or
537 (c) the contract is an emergency procurement.
538 (4) (a) This section does not apply to a change order as defined in Section 63G-6a-103,
539 or a modification to a contract, when the contract does not meet the initial threshold required
540 by Subsection (2).
541 (b) A person who intentionally uses change orders or contract modifications to
542 circumvent the requirements of Subsection (2) is guilty of an infraction.
543 (5) (a) A contractor subject to Subsection (2) shall demonstrate to the executive
544 director that the contractor has and will maintain an offer of qualified health insurance
545 coverage for the contractor's employees and the employees' dependents during the duration of
546 the contract.
547 (b) If a subcontractor of the contractor is subject to Subsection (2)(b), the contractor
548 shall demonstrate to the executive director that the subcontractor has and will maintain an offer
549 of qualified health insurance coverage for the subcontractor's employees and the employees'
550 dependents during the duration of the contract.
551 (c) (i) (A) A contractor who fails to meet the requirements of Subsection (5)(a) during
552 the duration of the contract is subject to penalties in accordance with administrative rules
553 adopted by the division under Subsection (6).
554 (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
555 requirements of Subsection (5)(b).
556 (ii) (A) A subcontractor who fails to meet the requirements of Subsection (5)(b) during
557 the duration of the contract is subject to penalties in accordance with administrative rules
558 adopted by the department under Subsection (6).
559 (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
560 requirements of Subsection (5)(a).
561 (6) The department shall adopt administrative rules:
562 (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
563 (b) in coordination with:
564 (i) the Department of Environmental Quality in accordance with Section 19-1-206;
565 (ii) the Department of Natural Resources in accordance with Section 79-2-404;
566 (iii) the State Building Board in accordance with Section 63A-5-205;
567 (iv) a public transit district in accordance with Section 17B-2a-818.5;
568 (v) the Department of Transportation in accordance with Section 72-6-107.5; and
569 (vi) the Legislature's Administrative Rules Review Committee; and
570 (c) which establish:
571 (i) the requirements and procedures a contractor must follow to demonstrate to the
572 executive director compliance with this section which shall include:
573 (A) that a contractor will not have to demonstrate compliance with Subsection (5)(a) or
574 (b) more than twice in any 12-month period; and
575 (B) that the actuarially equivalent determination required for the qualified health
576 insurance coverage in Subsection (1) is met by the contractor if the contractor provides the
577 department or division with a written statement of actuarial equivalency from either:
578 (I) the Utah Insurance Department;
579 (II) an actuary selected by the contractor or the contractor's insurer; or
580 (III) an underwriter who is responsible for developing the employer group's premium
581 rates;
582 (ii) the penalties that may be imposed if a contractor or subcontractor intentionally
583 violates the provisions of this section, which may include:
584 (A) a three-month suspension of the contractor or subcontractor from entering into
585 future contracts with the state upon the first violation;
586 (B) a six-month suspension of the contractor or subcontractor from entering into future
587 contracts with the state upon the second violation;
588 (C) an action for debarment of the contractor or subcontractor in accordance with
589 Section 63G-6a-904 upon the third or subsequent violation; and
590 (D) monetary penalties which may not exceed 50% of the amount necessary to
591 purchase qualified health insurance coverage for employees and dependents of employees of
592 the contractor or subcontractor who were not offered qualified health insurance coverage
593 during the duration of the contract; and
594 (iii) a website on which the department shall post the benchmark for the qualified
595 health insurance coverage identified in Subsection (1)(c).
596 (7) (a) (i) In addition to the penalties imposed under Subsection (6)(c), a contractor or
597 subcontractor who intentionally violates the provisions of this section shall be liable to the
598 employee for health care costs that would have been covered by qualified health insurance
599 coverage.
600 (ii) An employer has an affirmative defense to a cause of action under Subsection
601 (7)(a)(i) if:
602 (A) the employer relied in good faith on a written statement of actuarial equivalency
603 provided by:
604 (I) an actuary; or
605 (II) an underwriter who is responsible for developing the employer group's premium
606 rates; or
607 (B) the department determines that compliance with this section is not required under
608 the provisions of Subsection (3) or (4).
609 (b) An employee has a private right of action only against the employee's employer to
610 enforce the provisions of this Subsection (7).
611 (8) Any penalties imposed and collected under this section shall be deposited into the
612 Medicaid Restricted Account created in Section 26-18-402.
613 (9) The failure of a contractor or subcontractor to provide qualified health insurance
614 coverage as required by this section:
615 (a) may not be the basis for a protest or other action from a prospective bidder, offeror,
616 or contractor under Section [
617 Chapter 6a, Utah Procurement Code; and
618 (b) may not be used by the procurement entity or a prospective bidder, offeror, or
619 contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design
620 or construction.
621 Section 6. Section 63F-1-205 is amended to read:
622 63F-1-205. Approval of acquisitions of information technology.
623 (1) (a) Except as provided in Title 63N, Chapter 13, Part 2, Government Procurement
624 Private Proposal Program, in accordance with Subsection (2), the chief information officer
625 shall approve the acquisition by an executive branch agency of:
626 (i) information technology equipment;
627 (ii) telecommunications equipment;
628 (iii) software;
629 (iv) services related to the items listed in Subsections (1)(a)(i) through (iii); and
630 (v) data acquisition.
631 (b) The chief information officer may negotiate the purchase, lease, or rental of private
632 or public information technology or telecommunication services or facilities in accordance with
633 this section.
634 (c) Where practical, efficient, and economically beneficial, the chief information
635 officer shall use existing private and public information technology or telecommunication
636 resources.
637 (d) Notwithstanding another provision of this section, an acquisition authorized by this
638 section shall comply with rules made by the applicable rulemaking authority under Title 63G,
639 Chapter 6a, Utah Procurement Code.
640 (2) Before negotiating a purchase, lease, or rental under Subsection (1) for an amount
641 that exceeds the value established by the chief information officer by rule in accordance with
642 Section 63F-1-206, the chief information officer shall:
643 (a) conduct an analysis of the needs of executive branch agencies and subscribers of
644 services and the ability of the proposed information technology or telecommunications services
645 or supplies to meet those needs; and
646 (b) for purchases, leases, or rentals not covered by an existing statewide contract,
647 [
648 General Services that:
649 (i) the analysis required in Subsection (2)(a) was completed; and
650 (ii) based on the analysis, the proposed purchase, lease, rental, or master contract of
651 services, products, or supplies is practical, efficient, and economically beneficial to the state
652 and the executive branch agency or subscriber of services.
653 (3) In approving an acquisition described in Subsections (1) and (2), the chief
654 information officer shall:
655 (a) establish by administrative rule, in accordance with Section 63F-1-206, standards
656 under which an agency must obtain approval from the chief information officer before
657 acquiring the items listed in Subsections (1) and (2);
658 (b) for those acquisitions requiring approval, determine whether the acquisition is in
659 compliance with:
660 (i) the executive branch strategic plan;
661 (ii) the applicable agency information technology plan;
662 (iii) the budget for the executive branch agency or department as adopted by the
663 Legislature;
664 (iv) Title 63G, Chapter 6a, Utah Procurement Code; and
665 (v) the information technology accessibility standards described in Section 63F-1-210;
666 and
667 (c) in accordance with Section 63F-1-207, require coordination of acquisitions between
668 two or more executive branch agencies if it is in the best interests of the state.
669 (4) (a) Each executive branch agency shall provide the chief information officer with
670 complete access to all information technology records, documents, and reports:
671 (i) at the request of the chief information officer; and
672 (ii) related to the executive branch agency's acquisition of any item listed in Subsection
673 (1).
674 (b) Beginning July 1, 2006 and in accordance with administrative rules established by
675 the department under Section 63F-1-206, no new technology projects may be initiated by an
676 executive branch agency or the department unless the technology project is described in a
677 formal project plan and the business case analysis has been approved by the chief information
678 officer and agency head. The project plan and business case analysis required by this
679 Subsection (4) shall be in the form required by the chief information officer, and shall include:
680 (i) a statement of work to be done and existing work to be modified or displaced;
681 (ii) total cost of system development and conversion effort, including system analysis
682 and programming costs, establishment of master files, testing, documentation, special
683 equipment cost and all other costs, including overhead;
684 (iii) savings or added operating costs that will result after conversion;
685 (iv) other advantages or reasons that justify the work;
686 (v) source of funding of the work, including ongoing costs;
687 (vi) consistency with budget submissions and planning components of budgets; and
688 (vii) whether the work is within the scope of projects or initiatives envisioned when the
689 current fiscal year budget was approved.
690 (5) [
691 Services shall work cooperatively to establish procedures under which the chief information
692 officer shall monitor and approve acquisitions as provided in this section.
693 [
694
695 Section 7. Section 63G-6a-103 is amended to read:
696 63G-6a-103. Definitions.
697 As used in this chapter:
698 (1) "Applicable rulemaking authority" means:
699 (a) for a legislative procurement unit, the Legislative Management Committee;
700 (b) for a judicial procurement unit, the Judicial Council;
701 (c) (i) only to the extent of the procurement authority expressly granted to the
702 procurement unit by statute:
703 (A) for the building board or the Division of Facilities Construction and Management,
704 created in Section 63A-5-201, the building board;
705 (B) for the Office of the Attorney General, the attorney general; and
706 (C) for the Department of Transportation created in Section 72-1-201, the executive
707 director of the Department of Transportation; and
708 (ii) for each other executive branch procurement unit, the board;
709 (d) for a local government procurement unit Ŝ→ [
709a (i) ←Ŝ the legislative body of the local
710 government procurement unit Ŝ→ ; or
710a (ii) an individual or body designated by the legislative body of the local government
710b procurement unit ←Ŝ ;
711 (e) for a school district or a public school, the board, except to the extent of a school
712 district's own nonadministrative rules that do not conflict with the provisions of this chapter;
713 (f) for a state institution of higher education, the State Board of Regents;
714 (g) for a public transit district, the chief executive of the public transit district;
715 (h) for a local district other than a public transit district or for a special service district:
716 (i) before January 1, 2015, the board of trustees of the local district or the governing
717 body of the special service district; or
718 (ii) on or after January 1, 2015, the board, except to the extent that the board of trustees
719 of the local district or the governing body of the special service district makes its own rules:
720 (A) with respect to a subject addressed by board rules; or
721 (B) that are in addition to board rules; or
722 (i) for any other procurement unit, the board.
723 (2) "Approved vendor" means a vendor who has been approved through the approved
724 vendor list process.
725 (3) "Approved vendor list" means a list of approved vendors established under Section
726 63G-6a-507.
727 (4) "Approved vendor list process" means the procurement process described in
728 Section 63G-6a-507.
729 [
730 response to an invitation for bids.
731 (6) "Bidding process" means the procurement process described in Part 6, Bidding.
732 (7) "Board" means the Utah State Procurement Policy Board, created in Section
733 63G-6a-202.
734 (8) "Building board" means the State Building Board, created in Section 63A-5-101.
735 [
736 that directs the contractor to suspend work or make changes, as authorized by contract, without
737 the consent of the contractor.
738 [
739 rate of delivery, period of performance, price, quantity, or other provisions of a contract, upon
740 mutual agreement of the parties to the contract.
741 [
742 under Subsection 63G-6a-302(1).
743 [
744 aspects of a procurement:
745 (a) except:
746 (i) reviewing a solicitation to verify that it is in proper form; and
747 (ii) causing the publication of a notice of a solicitation; and
748 (b) including:
749 (i) preparing any solicitation document;
750 (ii) appointing an evaluation committee;
751 (iii) conducting the evaluation process, except as provided in Subsection
752 63G-6a-707[
753 (iv) selecting and recommending the person to be awarded a contract;
754 (v) negotiating the terms and conditions of a contract, subject to the issuing
755 procurement unit's approval; and
756 (vi) [
757 (13) "Conservation district" means the same as that term is defined in Section
758 17D-3-102.
759 [
760
761 [
762
763 (14) "Construction":
764 (a) means services, including work, and supplies for a project for the construction,
765 renovation, alteration, improvement, or repair of a public facility on real property; and
766 (b) does not include services and supplies for the routine, day-to-day operation, repair,
767 or maintenance of an existing public facility.
768 [
769 (a) means a contractor who enters into a contract:
770 (i) for the management of a construction project [
771 (ii) that allows the contractor to subcontract for additional labor and materials that are
772 not included in the contractor's cost proposal submitted at the time of the procurement of the
773 contractor's services[
774 (b) [
775 only subcontract work not included in the contractor's cost proposal submitted as part of the
776 procurement of the contractor's services is to meet subcontracted portions of change orders
777 approved within the scope of the project.
778 [
779
780 (17) "Contract administration" means all functions, duties, and responsibilities
781 associated with managing, overseeing, and carrying out a contract between a procurement unit
782 and a contractor, including:
783 (a) implementing the contract;
784 (b) ensuring compliance with the contract terms and conditions by the conducting
785 procurement unit and the contractor;
786 (c) executing change orders;
787 (d) processing contract amendments;
788 (e) resolving, to the extent practicable, contract disputes;
789 (f) curing contract errors and deficiencies;
790 (g) terminating a contract;
791 (h) measuring or evaluating completed work and contractor performance;
792 (i) computing payments under the contract; and
793 (j) closing out a contract.
794 [
795 unit.
796 [
797 of:
798 (a) more than one procurement unit; or
799 (b) a procurement unit and a cooperative purchasing organization.
800 (20) "Cooperative purchasing organization" means an organization, association, or
801 alliance of purchasers established to combine purchasing power in order to obtain the best
802 value for the purchasers by engaging in procurements in accordance with Section 63G-6a-2105.
803 [
804 which the contractor is paid a percentage [
805 in addition to the contractor's actual expenses or costs.
806 [
807 is reimbursed for costs which are allowed and allocated in accordance with the contract terms
808 and the provisions of this chapter, and a fee, if any.
809 [
810 [
811 [
812 scheduled according to a specified schedule.
813 [
814 construction by the use of a single contract [
815 [
816 (a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
817 Licensing Act; or
818 (b) an individual licensed as a professional engineer or professional land surveyor
819 under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing
820 Act.
821 (27) "Design professional procurement process" means the procurement process
822 described in Part 15, Design Professional Services.
823 [
824 (a) professional services within the scope of the practice of architecture as defined in
825 Section 58-3a-102;
826 (b) professional engineering as defined in Section 58-22-102; or
827 (c) master planning and programming services.
828 [
829
830 [
831 [
832 [
833 (30) "Division" means the Division of Purchasing and General Services, created in
834 Section 63A-2-101.
835 (31) "Educational procurement unit" means:
836 (a) a school district;
837 (b) a public school, including a local school board and a charter school;
838 (c) the Utah Schools for the Deaf and Blind;
839 (d) the Utah Education and Telehealth Network; or
840 (e) an institution of higher education of the state.
841 [
842 list, schedule, or other form that:
843 (a) is regularly maintained by a manufacturer or contractor;
844 (b) is [
845 (c) states prices at which sales are currently or were last made to a significant number
846 of any category of buyers or buyers constituting the general buying public for the supplies or
847 services involved.
848 (33) "Executive branch procurement unit" means a department, division, office,
849 bureau, agency, or other organization within the state executive branch.
850 [
851 procurement item obtained under the contract, that is not subject to adjustment except to the
852 extent that:
853 (a) the contract provides, under circumstances specified in the contract, for an
854 adjustment in price that is not based on cost to the contractor; or
855 (b) an adjustment is required by law.
856 [
857 that provides for an upward or downward revision of price, precisely described in the contract,
858 that:
859 (a) is based on the consumer price index or another commercially acceptable index,
860 source, or formula; and
861 (b) is not based on a percentage of the cost to the contractor.
862 [
863 agreement to expend public funds or other assistance, for a public purpose authorized by law,
864 without acquiring a procurement item in exchange.
865 [
866 (a) [
867 made by the applicable rulemaking authority;
868 (b) [
869 (i) the director of [
870 (ii) any other person designated by the board, by rule;
871 (c) [
872 (i) the Judicial Council; or
873 (ii) any other person designated by the Judicial Council, by rule;
874 (d) [
875 (i) the legislative body of the local government procurement unit; or
876 (ii) any other person designated by the local government procurement unit;
877 (e) [
878 trustees of the local district or a designee of the board of trustees;
879 (f) [
880 service district or a designee of the governing body;
881 (g) [
882 building authority or a designee of the board of directors;
883 (h) [
884 conservation district or a designee of the board of supervisors;
885 (i) [
886 corporation or a designee of the board of directors;
887 (j) [
888 the board of the school district, or the board's designee;
889 (k) [
890 over the charter school, or the individual's or body's designee;
891 (l) [
892 the institution of higher education, or the president's designee; or
893 (m) [
894 the board of trustees.
895 (38) "Immaterial error":
896 (a) means an irregularity or abnormality that is:
897 (i) a matter of form that does not affect substance; or
898 (ii) an inconsequential variation from a requirement of a solicitation that has no, little,
899 or a trivial effect on the procurement process and that is not prejudicial to other vendors; and
900 (b) includes:
901 (i) a missing signature, missing acknowledgment of an addendum, or missing copy of a
902 professional license, bond, or insurance certificate;
903 (ii) a typographical error;
904 (iii) an error resulting from an inaccuracy or omission in the solicitation; and
905 (iv) any other error that the chief procurement officer or the head of a procurement unit
906 with independent procurement authority reasonably considers to be immaterial.
907 [
908 (a) is for an indefinite amount of procurement items to be supplied as ordered by a
909 procurement unit; and
910 (b) (i) does not require a minimum purchase amount; or
911 (ii) provides a maximum purchase limit.
912 [
913 procurement unit under Subsection 63G-6a-106(4)(a).
914 [
915
916 (a) means a document used to solicit:
917 (i) bids to provide a procurement item to a procurement unit; or
918 (ii) quotes for a price of a procurement item to be provided to a procurement unit; and
919 (b) includes all documents attached to or incorporated by reference in a document
920 described in Subsection (41)(a).
921 [
922 (a) reviews a solicitation to verify that it is in proper form;
923 (b) causes the notice of a solicitation to be published; and
924 (c) negotiates and approves the terms and conditions of a contract.
925 (43) "Judicial procurement unit" means:
926 (a) the Utah Supreme Court;
927 (b) the Utah Court of Appeals;
928 (c) the Judicial Council;
929 (d) a state judicial district; or
930 (e) an office, committee, subcommittee, or other organization within the state judicial
931 branch.
932 [
933 (a) the supplies and materials are not provided by, or through, the contractor; and
934 (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
935 profit for a specified number of labor hours or days.
936 (45) "Legislative procurement unit" means:
937 (a) the Legislature;
938 (b) the Senate;
939 (c) the House of Representatives;
940 (d) a staff office of the Legislature, the Senate, or the House of Representatives; or
941 (e) an office, committee, subcommittee, commission, or other organization within the
942 state legislative branch.
943 (46) "Local building authority" means the same as that term is defined in Section
944 17D-2-102.
945 (47) "Local district" means the same as that term is defined in Section 17B-1-102.
946 (48) "Local government procurement unit" means:
947 (a) a county or municipality, and each office or agency of the county or municipality,
948 unless the county or municipality adopts its own procurement code by ordinance;
949 (b) a county or municipality that has adopted this entire chapter by ordinance, and each
950 office or agency of that county or municipality; or
951 (c) a county or municipality that has adopted a portion of this chapter by ordinance, to
952 the extent that a term in the ordinance is used in the adopted portion of this chapter, and each
953 office or agency of that county or municipality.
954 [
955 quantity of a procurement item to more than one bidder or offeror.
956 [
957 period, including a contract that permits renewal of the contract, without competition, beyond
958 the first year of the contract.
959 [
960 (52) "Nonadopting local government procurement unit" means:
961 (a) a county or municipality that has not adopted Part 16, Controversies and Protests,
962 Part 17, Procurement Appeals Board, Part 18, Appeals to Court and Court Proceedings, and
963 Part 19, General Provisions Related to Protest or Appeal; and
964 (b) each office or agency of a county or municipality described in Subsection (52)(a).
965 [
966 a request for proposals.
967 (54) "Person" means the same as that term is defined in Section 68-3-12.5, excluding a
968 political subdivision and a government office, department, division, bureau, or other body of
969 government.
970 [
971 preference under the requirements of this chapter.
972 [
973 [
974 (a) means a procurement unit's acquisition of a procurement item through an
975 expenditure of public funds, or an agreement to expend public funds[
976
977 (b) includes all functions that pertain to the acquisition of a procurement item,
978 including:
979 [
980 [
981 [
982 [
983 [
984 (i) preparing and issuing a solicitation; and
985 (ii) (A) conducting a standard procurement process; or
986 (B) conducting a procurement process that is an exception to a standard procurement
987 process under Part 8, Exceptions to Procurement Requirements; and
988 (c) does not include a grant.
989 [
990 (58) "Procurement item" means a supply, a service, or construction.
991 [
992 (a) [
993 (i) the head of the procurement unit;
994 (ii) a designee of the head of the procurement unit; or
995 (iii) a person designated by rule made by the applicable rulemaking authority; or
996 (b) [
997 procurement authority, the chief procurement officer.
998 (60) "Procurement unit":
999 (a) means:
1000 (i) a legislative procurement unit;
1001 (ii) an executive branch procurement unit;
1002 (iii) a judicial procurement unit;
1003 (iv) an educational procurement unit;
1004 (v) a local government procurement unit;
1005 (vi) a local district;
1006 (vii) a special service district;
1007 (viii) a local building authority;
1008 (ix) a conservation district;
1009 (x) a public corporation; or
1010 (xi) a public transit district; and
1011 (b) does not include a political subdivision created under Title 11, Chapter 13,
1012 Interlocal Cooperation Act.
1013 [
1014
1015 [
1016 [
1017 [
1018 [
1019 [
1020 [
1021 [
1022 [
1023 [
1024 [
1025 [
1026 [
1027 (61) "Professional service" means labor, effort, or work that requires an elevated
1028 degree of specialized knowledge and discretion, including labor, effort, or work in the field of:
1029 (a) accounting;
1030 (b) architecture;
1031 (c) construction design and management;
1032 (d) engineering;
1033 (e) financial services;
1034 (f) information technology;
1035 (g) the law;
1036 (h) medicine;
1037 (i) psychiatry; or
1038 (j) underwriting.
1039 [
1040 (a) [
1041 procurement authority:
1042 (i) the head of the procurement unit;
1043 (ii) a designee of the head of the procurement unit; or
1044 (iii) a person designated by rule made by the applicable rulemaking authority; or
1045 (b) [
1046 the chief procurement officer or the chief procurement officer's designee.
1047 (63) "Public corporation" means the same as that term is defined in Section 63E-1-102.
1048 (64) "Public entity" means any government entity of the state or political subdivision of
1049 the state, including:
1050 (a) a procurement unit;
1051 (b) a municipality or county, regardless of whether the municipality or county has
1052 adopted this chapter or any part of this chapter; and
1053 (c) any other government entity located in the state that expends public funds.
1054 (65) "Public facility" means a building, structure, infrastructure, improvement, or other
1055 facility of a public entity.
1056 (66) "Public funds" means money, regardless of its source, including from the federal
1057 government, that is owned Ŝ→ [
1057a procurement unit ←Ŝ .
1058 (67) "Public transit district" means a public transit district organized under Title 17B,
1059 Chapter 2a, Part 8, Public Transit District Act.
1060 (68) "Qualified vendor" means a vendor who:
1061 (a) is responsible; and
1062 (b) submits a responsive statement of qualifications under Section 63G-6a-410 that
1063 meets the minimum mandatory requirements, evaluation criteria, and any applicable score
1064 thresholds set forth in the request for statement of qualifications.
1065 (69) "Real property" means land and any building, fixture, improvement, appurtenance,
1066 structure, or other development that is permanently affixed to land.
1067 [
1068 which a procurement unit requests information relating to a procurement item.
1069 [
1070
1071 proposals to provide a procurement item to a procurement unit, including all other documents
1072 that are attached to that document or incorporated in that document by reference.
1073 (72) "Request for proposals process" means the procurement process described in Part
1074 7, Request for Proposals.
1075 [
1076 used to solicit information about the qualifications of [
1077 a potential procurement, including all other documents attached to that document or
1078 incorporated in that document by reference.
1079 [
1080 (a) [
1081 requirements for certain procurement items at prices specified in the contract during the
1082 contract period; and
1083 (b) that:
1084 (i) does not require a minimum purchase amount; or
1085 (ii) provides a maximum purchase limit.
1086 [
1087 (a) meeting all the requirements of a solicitation; and
1088 (b) fully performing all the requirements of the contract resulting from the solicitation,
1089 including being financially solvent with sufficient financial resources to perform the contract.
1090 [
1091
1092 [
1093
1094 [
1095
1096
1097 [
1098
1099 (78) "Service":
1100 (a) means labor, effort, or work to produce a result that is beneficial to a procurement
1101 unit;
1102 (b) includes a professional service; and
1103 (c) does not include labor, effort, or work provided under an employment agreement or
1104 a collective bargaining agreement.
1105 (79) "Small purchase process" means the procurement process described in Section
1106 63G-6a-506.
1107 [
1108 procurement.
1109 [
1110 pursuant to a determination under Subsection 63G-6a-802[
1111 source for the procurement item.
1112 [
1113
1114
1115
1116 (83) "Solicitation response" means:
1117 (a) a bid submitted in response to an invitation for bids;
1118 (b) a proposal submitted in response to a request for proposals; or
1119 (c) a statement of qualifications submitted in response to a request for statement of
1120 qualifications.
1121 (84) "Special service district" means the same as that term is defined in Section
1122 17D-1-102.
1123 [
1124 characteristics[
1125 request for proposals, or otherwise specified or agreed to by a procurement unit, including a
1126 description of:
1127 (a) a requirement for inspecting or testing a procurement item; or
1128 (b) preparing a procurement item for delivery.
1129 [
1130
1131 (a) the bidding[
1132 (b) the request for proposals[
1133 [
1134 [
1135
1136 (c) the approved vendor list process;
1137 (d) the small purchase process; or
1138 (e) the design professional procurement process.
1139 [
1140 and in behalf of all public entities.
1141 [
1142 procurement unit in response to a request for statement of qualifications.
1143 [
1144 (a) means a person under contract with a contractor or another subcontractor to provide
1145 services or labor for design or construction[
1146 (b) [
1147 (c) [
1148 equipment, or supplies to a contractor or subcontractor.
1149 [
1150 (90) "Supply" means a good, material, technology, piece of equipment, or any other
1151 item of personal property.
1152 [
1153 bidders are identical in price.
1154 [
1155 contractor is paid:
1156 (a) the actual cost of direct labor at specified hourly rates;
1157 (b) the actual cost of materials and equipment usage; and
1158 (c) an additional amount, expressly described in the contract, to cover overhead and
1159 profit, that is not based on a percentage of the cost to the contractor.
1160 (93) "Transitional costs":
1161 (a) means the costs of changing:
1162 (i) from an existing provider of a procurement item to another provider of that
1163 procurement item; or
1164 (ii) from an existing type of procurement item to another type;
1165 (b) includes:
1166 (i) training costs;
1167 (ii) conversion costs;
1168 (iii) compatibility costs;
1169 (iv) costs associated with system downtime;
1170 (v) disruption of service costs;
1171 (vi) staff time necessary to implement the change;
1172 (vii) installation costs; and
1173 (viii) ancillary software, hardware, equipment, or construction costs; and
1174 (c) does not include:
1175 (i) the costs of preparing for or engaging in a procurement process; or
1176 (ii) contract negotiation or drafting costs.
1177 (94) "Trial use contract" means a contract for a procurement item that the procurement
1178 unit acquires for a trial use or testing to determine whether the procurement item will benefit
1179 the procurement unit.
1180 (95) "Vendor":
1181 (a) means a person who is seeking to enter into a contract with a procurement unit to
1182 provide a procurement item; and
1183 (b) includes:
1184 (i) a bidder;
1185 (ii) an offeror;
1186 (iii) an approved vendor; and
1187 (iv) a design professional.
1188 Section 8. Section 63G-6a-105 is amended to read:
1189 63G-6a-105. Application of chapter.
1190 [
1191
1192
1193
1194 [
1195
1196
1197 [
1198 (2) This chapter does not apply to a public entity that is not a procurement unit.
1199 (3) The following procurement units shall adopt ordinances or resolutions relating to
1200 the procurement of design professional services not inconsistent with the provisions of Part 15,
1201 Design Professional Services:
1202 (a) an educational procurement unit;
1203 (b) a conservation district;
1204 (c) a local building authority;
1205 (d) a local district;
1206 (e) a public corporation; or
1207 (f) a special service district.
1208 (4) Any section of this chapter, or its implementing regulations, may be adopted by:
1209 (a) a county;
1210 (b) a municipality; or
1211 (c) the Utah Housing Corporation.
1212 (5) Rules adopted under this chapter shall be consistent with the provisions of this
1213 chapter.
1214 (6) An applicable rulemaking authority or a procurement unit may not adopt rules,
1215 policies, or regulations that are inconsistent with this chapter.
1216 (7) Unless otherwise provided by statute, this chapter does not apply to [
1217 the acquisition or disposal of real property or an interest in real property.
1218 (8) Notwithstanding any provision of this chapter, a procurement unit may administer a
1219 [
1220 used to procure the procurement item.
1221 Section 9. Section 63G-6a-106 is amended to read:
1222 63G-6a-106. Procurement units with specific statutory procurement authority --
1223 Independent procurement authority.
1224 (1) A procurement unit with procurement authority under the following provisions has
1225 independent procurement authority to the extent of the applicable provisions and for the
1226 procurement items specified in the applicable provisions:
1227 (a) Title 53B, State System of Higher Education;
1228 (b) Title 63A, Chapter 5, State Building Board - Division of Facilities Construction
1229 and Management;
1230 (c) Title 67, Chapter 5, Attorney General;
1231 (d) Title 72, Transportation Code; and
1232 (e) Title 78A, Chapter 5, District Court.
1233 (2) Except as otherwise provided in Sections 63G-6a-105 and 63G-6a-107, a
1234 procurement unit shall conduct a procurement in accordance with this chapter.
1235 (3) (a) The Department of Transportation may make rules governing the procurement
1236 of highway construction or improvement.
1237 (b) The applicable rulemaking authority for a public transit district may make rules
1238 governing the procurement of a transit construction project or a transit improvement project.
1239 [
1240 (4) (a) A procurement unit listed in Subsection (4)(b) may, without the supervision,
1241 interference, oversight, control, or involvement of the division or the chief procurement officer,
1242 but in accordance with the requirements of this chapter:
1243 (i) engage in a standard procurement process;
1244 (ii) procure an item under an exception, as provided in this chapter, to the requirement
1245 to use a standard procurement process; or
1246 (iii) otherwise engage in an act authorized or required by this chapter.
1247 (b) The procurement units to which Subsection (4)(a) applies are:
1248 (i) a legislative procurement unit;
1249 (ii) a judicial procurement unit;
1250 (iii) an educational procurement unit;
1251 (iv) a local government procurement unit;
1252 (v) a conservation district;
1253 (vi) a local building authority;
1254 (vii) a local district;
1255 (viii) a public corporation;
1256 (ix) a special service district;
1257 (x) a public transit district; and
1258 (xi) a procurement unit referred to in Subsection (1), to the extent authorized in
1259 Subsection (1).
1260 (c) A procurement unit with independent procurement authority shall comply with the
1261 requirements of this chapter.
1262 (d) Notwithstanding Subsection (4)(a), a procurement unit with independent
1263 procurement authority may agree in writing with the division to extend the authority of the
1264 division or the chief procurement officer to the procurement unit, as provided in the agreement.
1265 [
1266
1267
1268 [
1269 [
1270 [
1271 [
1272 (e) With respect to a procurement or contract over which the head of a procurement
1273 unit with independent procurement authority has authority, the head of the procurement unit
1274 with independent procurement authority may:
1275 (i) manage and supervise the procurement to ensure to the extent practicable that
1276 taxpayers receive the best value;
1277 (ii) prepare and issue standard specifications for procurement items;
1278 (iii) review contracts, coordinate contract compliance, conduct contract audits, and
1279 approve change orders;
1280 (iv) delegate duties and authority to an employee of the procurement unit, as the head
1281 of the procurement unit with independent procurement authority considers appropriate;
1282 (v) for the head of an executive branch procurement unit with independent
1283 procurement authority, coordinate with the Department of Technology Services, created in
1284 Section 63F-1-103, with respect to the procurement unit's procurement of information
1285 technology services;
1286 (vi) correct, amend, or cancel a procurement at any stage of the procurement process if
1287 the procurement is out of compliance with this chapter or a rule adopted by the applicable
1288 rulemaking authority;
1289 (vii) after consultation with, as applicable, the attorney general's office or the
1290 procurement unit's legal counsel, correct, amend, or cancel a contract at any time during the
1291 term of the contract if:
1292 (A) the contract is out of compliance with this chapter or a board rule; and
1293 (B) the head of the procurement unit with independent procurement authority
1294 determines that correcting, amending, or canceling the contract is in the best interest of the
1295 procurement unit; and
1296 (viii) attempt to resolve a contract dispute in coordination with the legal counsel of the
1297 procurement unit with independent procurement authority.
1298 (f) The head of a procurement unit with independent procurement authority serves as
1299 the protest officer for a protest involving the procurement unit.
1300 [
1301 with independent procurement authority, the head of the procurement unit determines that the
1302 contract is out of compliance with this chapter or applicable rules, the head of the procurement
1303 unit may correct or amend the contract to bring it into compliance or cancel the contract:
1304 (i) if the head of the procurement unit determines that correcting, amending, or
1305 canceling the contract is in the best interest of the procurement unit; and
1306 (ii) after consulting with legal counsel.
1307 (5) (a) The attorney general may, in accordance with the provisions of this chapter, but
1308 without involvement by the division or the chief procurement officer:
1309 (i) retain outside counsel, subject to Section 67-5-33 if the attorney general retains
1310 outside counsel under a contingent fee contract, as defined in that section; or
1311 (ii) procure litigation support services, including retaining an expert witness.
1312 (b) A procurement unit with independent procurement authority that is not represented
1313 by the attorney general's office may, in accordance with the provisions of this chapter, but
1314 without involvement by the division or the chief procurement officer:
1315 (i) retain outside counsel; or
1316 (ii) procure litigation support services, including retaining an expert witness.
1317 (6) The state auditor's office may, in accordance with the provisions of this chapter, but
1318 without involvement by the division or the chief procurement officer, procure audit services.
1319 (7) The state treasurer may, in accordance with the provisions of this chapter, but
1320 without involvement by the division or the chief procurement officer, procure:
1321 (a) deposit services; and
1322 (b) services related to issuing bonds.
1323 Section 10. Section 63G-6a-106.5 is enacted to read:
1324 63G-6a-106.5. Policy for legislative procurement units.
1325 The Legislative Management Committee shall adopt a policy establishing requirements
1326 applicable to a legislative procurement unit.
1327 Section 11. Section 63G-6a-107 is amended to read:
1328 63G-6a-107. Exemptions from chapter -- Compliance with other provisions.
1329 (1) Except for Part 24, Unlawful Conduct and Penalties, [
1330 [
1331 (a) funds administered under the Percent-for-Art Program of the Utah Percent-for-Art
1332 Act;
1333 (b) a grant;
1334 (c) a contract between procurement units;
1335 (d) medical supplies or medical equipment, including service agreements for medical
1336 equipment, obtained [
1337
1338
1339 (i) the consortium uses a competitive procurement process; and
1340 (ii) the chief administrative officer of the hospital makes a written finding that the
1341 prices for purchasing medical supplies and medical equipment through the consortium are
1342 competitive with market prices;
1343 (e) the purchase of firefighting supplies or equipment by the Division of Forestry, Fire,
1344 and State Lands, created in Section 65A-1-4, through the federal General Services
1345 Administration or the National Fire Cache system;
1346 (f) [
1347 (g) activities related to the management of investments by a public entity granted
1348 investment authority by law.
1349 [
1350
1351 [
1352 procurement involves the expenditure of federal or state assistance, federal contract funds,
1353 local matching funds, or federal financial participation funds, the procurement unit shall
1354 comply with mandatory applicable federal or state law and regulations not reflected in this
1355 chapter.
1356 [
1357 of construction proceeds and release of construction proceeds as provided in Section 13-8-5.
1358 (4) This chapter does not apply to a procurement unit's hiring a mediator, arbitrator, or
1359 arbitration panel member to participate in the procurement unit's dispute resolution efforts.
1360 Section 12. Section 63G-6a-109 is amended to read:
1361 63G-6a-109. Issuing procurement unit and conducting procurement unit.
1362 (1) [
1363 by an executive branch procurement unit:
1364 [
1365 [
1366 is responsible to ensure that the procurement is conducted in compliance with this chapter.
1367 [
1368
1369 (2) With respect to a procurement by any other procurement unit, the procurement unit
1370 is both the issuing procurement unit and the conducting procurement unit.
1371 (3) A conducting procurement unit is responsible for contract administration.
1372 Section 13. Section 63G-6a-110, which is renumbered from Section 63G-6a-402 is
1373 renumbered and amended to read:
1374 [
1375 Procurement Code and applicable rules -- Rulemaking authority -- Reporting.
1376 (1) Except as otherwise provided in Section 63G-6a-107, [
1377
1378 procurement unit may not obtain a procurement item, unless:
1379 (a) if the procurement unit is the division or a procurement unit with independent
1380 procurement authority, the procurement unit:
1381 (i) uses:
1382 (A) a standard procurement process; or
1383 (B) an exception to a standard procurement process, described in Part 8, Exceptions to
1384 Procurement Requirements; and
1385 (ii) complies with:
1386 (A) the requirements of this chapter; and
1387 (B) the rules made pursuant to this chapter by the applicable rulemaking authority;
1388 (b) if the procurement unit is a county, a municipality, or the Utah Housing
1389 Corporation, the procurement unit complies with:
1390 (i) the requirements of this chapter that are adopted by the procurement unit; and
1391 (ii) all other procurement requirements that the procurement unit is required to comply
1392 with; or
1393 (c) if the procurement unit is not a procurement unit described in Subsection (1)(a) or
1394 (b), the procurement unit:
1395 (i) obtains the procurement item under the direction and approval of the division,
1396 unless otherwise provided by a rule made by the board;
1397 (ii) uses a standard procurement process; and
1398 (iii) complies with:
1399 (A) the requirements of this chapter; and
1400 (B) the rules made pursuant to this chapter by the applicable rulemaking authority.
1401 (2) Subject to Subsection (3), the applicable rulemaking authority shall make rules
1402 relating to the management and control of procurements and procurement procedures by a
1403 procurement unit.
1404 [
1405
1406
1407 [
1408 (3) Building board rules governing procurement of construction, design professional
1409 services, and leases apply to the procurement of construction, design professional services, and
1410 leases of real property by the Division of Facilities Construction and Management.
1411 [
1412
1413
1414 (4) An individual or body that makes rules as required or authorized in this chapter
1415 shall make the rules:
1416 (a) in accordance with Chapter 3, Utah Administrative Rulemaking Act, if the
1417 individual or body is subject to Chapter 3, Utah Administrative Rulemaking Act; or
1418 (b) in accordance with the established process for making rules or their equivalent, if
1419 the individual or body is not subject to Chapter 3, Utah Administrative Rulemaking Act.
1420 (5) The [
1421 of each year to a legislative interim committee, designated by the Legislative Management
1422 Committee created under Section 36-12-6, on the establishment, implementation, and
1423 enforcement of the rules made by the [
1424 (6) The rules of the applicable rulemaking authority for the executive branch
1425 procurement unit shall require, for each contract and request for proposals, the inclusion of a
1426 clause that requires the issuing procurement unit, for the duration of the contract, to make
1427 available contact information of the winning contractor to the Department of Workforce
1428 Services in accordance with Section 35A-2-203. This requirement does not preclude a
1429 contractor from advertising job openings in other forums throughout the state.
1430 Section 14. Section 63G-6a-111, which is renumbered from Section 63G-6a-407 is
1431 renumbered and amended to read:
1432 [
1433 (1) All specifications shall seek to promote the overall economy and best use for the
1434 purposes intended and encourage competition in satisfying the needs of the procurement unit,
1435 and may not be unduly restrictive.
1436 (2) The requirements of this part regarding the purposes and nonrestrictiveness of
1437 specifications shall apply to all specifications, including those prepared by architects,
1438 engineers, designers, and draftsmen for public contracts.
1439 Section 15. Section 63G-6a-112, which is renumbered from Section 63G-6a-406 is
1440 renumbered and amended to read:
1441 [
1442 (1) The division or a procurement unit with independent procurement authority that
1443 issues a solicitation required to be published in accordance with this section, shall provide
1444 public notice that includes:
1445 (a) the name of the conducting procurement unit;
1446 (b) the name of the procurement unit acquiring the procurement item;
1447 (c) information on how to contact the issuing procurement unit;
1448 (d) the date of the opening and closing of the solicitation;
1449 (e) information on how to obtain a copy of the procurement documents;
1450 (f) a general description of the procurement items that will be obtained through the
1451 standard procurement process or [
1452 (g) for a notice of a [
1453 (i) contact information and other information relating to contesting or obtaining
1454 additional information relating to the [
1455 (ii) the earliest date that the procurement unit may make the [
1456 (2) Except as provided in Subsection (4), the issuing procurement unit shall publish the
1457 notice described in Subsection (1):
1458 (a) at least seven days before the day of the deadline for submission of a bid or other
1459 response; and
1460 (b) (i) in a newspaper of general circulation in the state;
1461 (ii) in a newspaper of local circulation in the area:
1462 (A) directly impacted by the procurement; or
1463 (B) over which the procurement unit has jurisdiction;
1464 (iii) on the main website for the issuing procurement unit or the procurement unit
1465 acquiring the procurement item; or
1466 (iv) on a state website that is owned, managed by, or provided under contract with, the
1467 division for posting a public procurement notice.
1468 (3) Except as provided in Subsection (4), for a [
1469 63G-6a-802 for which notice is required to be published in accordance with this section, the
1470 issuing procurement unit shall publish the notice described in Subsection (1):
1471 (a) at least seven days before the acquisition of the [
1472 (b) (i) in a newspaper of general circulation in the state;
1473 (ii) in a newspaper of local circulation in the area:
1474 (A) directly impacted by the procurement; or
1475 (B) over which the procurement unit has jurisdiction;
1476 (iii) on the main website for the procurement unit acquiring the procurement item; or
1477 (iv) on a state website that is owned by, managed by, or provided under contract with,
1478 the division for posting a procurement notice.
1479 (4) An issuing procurement unit may reduce the seven-day period described in
1480 Subsection (2) or (3), if the procurement officer or the procurement officer's designee signs a
1481 written statement that:
1482 (a) states that a shorter time is needed; and
1483 (b) determines that competition from multiple sources may be obtained within the
1484 shorter period of time.
1485 (5) (a) An issuing procurement unit shall make a copy of the solicitation documents
1486 available for public inspection at the main office of the issuing procurement unit or on the
1487 website described in Subsection (2)(b) until the award of the contract or the cancellation of the
1488 procurement.
1489 (b) A procurement unit issuing a [
1490 shall make a copy of information related to the [
1491 inspection at the main office of the procurement unit or on the website described in Subsection
1492 (3)(b) until the award of the contract or the cancellation of the procurement.
1493 (c) A procurement unit shall maintain all records in accordance with Part 20, Records.
1494 (6) A procurement unit that issues a request for statement of qualifications as part of an
1495 approved vendor list process that results in the establishment of an open-ended vendor list, as
1496 defined in Section 63G-6a-507, shall keep the request for statement of qualifications posted on
1497 a website described in Subsection (2)(b)(iii) or (iv) during the entire period of the open-ended
1498 vendor list.
1499 Section 16. Section 63G-6a-113 is enacted to read:
1500 63G-6a-113. Contract price may be based on established terms.
1501 A procurement unit acquiring a procurement item may establish the price of the
1502 procurement item based on:
1503 (1) a price list, rate schedule, or price catalog:
1504 (a) submitted by a vendor and accepted by the procurement unit; or
1505 (b) mandated by the procurement unit or a federal agency; or
1506 (2) a federal regulation for a health and human services program.
1507 Section 17. Section 63G-6a-114 is enacted to read:
1508 63G-6a-114. Correcting an immaterial error in a solicitation response.
1509 (1) The chief procurement officer or the head of a procurement unit with independent
1510 procurement authority:
1511 (a) may allow a vendor to correct an immaterial error in a responsive solicitation
1512 response as provided in this section; and
1513 (b) may not allow a vendor to:
1514 (i) correct a deficiency, inaccuracy, or mistake in a responsive solicitation response that
1515 is not an immaterial error;
1516 (ii) correct an incomplete submission of documents that the solicitation required to be
1517 submitted with the solicitation response;
1518 (iii) correct a failure to submit a timely solicitation response;
1519 (iv) substitute or alter a required form or other document specified in the solicitation;
1520 (v) remedy a cause for a vendor being considered to be not responsible or a solicitation
1521 response not responsive; or
1522 (vi) correct a defect or inadequacy resulting in a determination that a vendor's
1523 solicitation response does not meet the mandatory minimum requirements, evaluation criteria,
1524 or applicable score thresholds established in the solicitation.
1525 (2) (a) The chief procurement officer or the head of a procurement unit with
1526 independent procurement authority shall establish a deadline by which a vendor is required to
1527 submit a correction under this section.
1528 (b) The chief procurement officer or the head of a procurement unit with independent
1529 procurement authority may not allow a vendor to correct an immaterial error in a solicitation
1530 response if the vendor submits the correction after the deadline established under Subsection
1531 (2)(a).
1532 (3) If the chief procurement officer or the head of a procurement unit with independent
1533 procurement authority allows a vendor to correct an immaterial error in a solicitation response,
1534 the chief procurement officer or head shall prepare and sign a written document supporting the
1535 reason for allowing the correction.
1536 Section 18. Section 63G-6a-115 is enacted to read:
1537 63G-6a-115. Clarifying information in a solicitation response.
1538 (1) A procurement unit may at any time make a written request to a vendor to clarify
1539 information contained in a responsive solicitation response.
1540 (2) A procurement unit may allow a vendor to respond to a request under Subsection
1541 (1):
1542 (a) in writing; or
1543 (b) by submitting a printed document.
1544 (3) (a) A procurement unit that requests a vendor to clarify information contained in a
1545 responsive solicitation response under this section shall establish a deadline by which the
1546 vendor is required to submit the clarifying information.
1547 (b) A procurement unit may not allow a vendor to submit clarifying information after
1548 the deadline established under Subsection (3)(a).
1549 (4) A vendor's response to a request under this section:
1550 (a) may only explain, illustrate, or interpret the contents of the vendor's original
1551 solicitation response;
1552 (b) may not be used to address criteria or specifications not contained in the vendor's
1553 original solicitation response; and
1554 (c) may not be used to:
1555 (i) correct a deficiency, inaccuracy, or mistake in a solicitation response that is not an
1556 immaterial error;
1557 (ii) correct an incomplete submission of documents that the solicitation required to be
1558 submitted with the solicitation response;
1559 (iii) correct a failure to submit a timely solicitation response;
1560 (iv) substitute or alter a required form or other document specified in the solicitation;
1561 (v) remedy a cause for a vendor being considered to be not responsible or a solicitation
1562 response not responsive; or
1563 (vi) correct a defect or inadequacy resulting in a determination that a vendor does not
1564 meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
1565 established in the solicitation.
1566 Section 19. Section 63G-6a-203 is amended to read:
1567 63G-6a-203. Powers and duties of board.
1568 (1) In addition to making rules in accordance with Section [
1569 and the other provisions of this chapter, the board shall consider and decide matters of policy
1570 within the provisions of this chapter, including those referred to it by the chief procurement
1571 officer.
1572 (2) (a) The board may:
1573 (i) audit and monitor the implementation of its rules and the requirements of this
1574 chapter;
1575 (ii) upon the request of a procurement unit with an applicable rulemaking authority
1576 other than the board, review the procurement unit's proposed rules to ensure that they are not
1577 inconsistent with the provisions of this chapter or rules made by the board; and
1578 (iii) approve the use of innovative procurement processes.
1579 (b) Except as provided in Section 63G-6a-1702, the board may not exercise authority
1580 over:
1581 (i) the award or administration of any particular contract; or
1582 (ii) any dispute, claim, or litigation pertaining to any particular contract.
1583 (3) Except as otherwise expressly provided in this chapter, the board does not have
1584 authority over a matter involving a procurement unit with independent procurement authority.
1585 Section 20. Section 63G-6a-303 is repealed and reenacted to read:
1586 63G-6a-303. Duties and authority of chief procurement officer.
1587 (1) The chief procurement officer:
1588 (a) is the director of the division;
1589 (b) serves as the central procurement officer of the state;
1590 (c) serves as a voting member of the board; and
1591 (d) serves as the protest officer for a protest relating to a procurement of an executive
1592 branch procurement unit without independent procurement authority or a state cooperative
1593 contract procurement, unless the chief procurement officer designates another to serve as
1594 protest officer, as authorized in this chapter.
1595 (2) Except as otherwise provided in this chapter, the chief procurement officer shall:
1596 (a) develop procurement policies and procedures supporting ethical procurement
1597 practices, fair and open competition among vendors, and transparency within the state's
1598 procurement process;
1599 (b) administer the state's cooperative purchasing program, including state cooperative
1600 contracts and associated administrative fees;
1601 (c) enter into an agreement with a public entity for services provided by the division, if
1602 the agreement is in the best interest of the state;
1603 (d) ensure the division's compliance with any applicable law, rule, or policy, including
1604 a law, rule, or policy applicable to the division's role as an issuing procurement unit or
1605 conducting procurement unit, or as the state's central procurement organization;
1606 (e) manage the division's electronic procurement system;
1607 (f) oversee the recruitment, training, career development, certification requirements,
1608 and performance evaluation of the division's procurement personnel;
1609 (g) make procurement training available to procurement units and persons who do
1610 business with procurement units;
1611 (h) provide exemplary customer service and continually improve the division's
1612 procurement operations; and
1613 (i) exercise all other authority, fulfill all other duties and responsibilities, and perform
1614 all other functions authorized under this chapter.
1615 (3) With respect to a procurement or contract over which the chief procurement officer
1616 has authority under this chapter, the chief procurement officer, except as otherwise provided in
1617 this chapter:
1618 (a) shall:
1619 (i) manage and supervise a procurement to ensure to the extent practicable that
1620 taxpayers receive the best value;
1621 (ii) prepare and issue standard specifications for procurement items;
1622 (iii) review contracts, coordinate contract compliance, conduct contract audits, and
1623 approve change orders;
1624 (iv) in accordance with Section 63F-1-205, coordinate with the Department of
1625 Technology Services, created in Section 63F-1-103, with respect to the procurement of
1626 information technology services by an executive branch procurement unit;
1627 (v) correct, amend, or cancel a procurement at any stage of the procurement process if
1628 the procurement is out of compliance with this chapter or a board rule;
1629 (vi) after consultation with the attorney general's office, correct, amend, or cancel a
1630 contract at any time during the term of the contract if:
1631 (A) the contract is out of compliance with this chapter or a board rule; and
1632 (B) the chief procurement officer determines that correcting, amending, or canceling
1633 the contract is in the best interest of the state; and
1634 (vii) make a reasonable attempt to resolve a contract dispute, in coordination with the
1635 attorney general's office; and
1636 (b) may:
1637 (i) delegate limited purchasing authority to a state agency, with appropriate oversight
1638 and control to ensure compliance with this chapter;
1639 (ii) delegate duties and authority to an employee of the division, as the chief
1640 procurement officer considers appropriate;
1641 (iii) negotiate and settle contract overcharges, undercharges, and claims, in accordance
1642 with the law and after consultation with the attorney general's office;
1643 (iv) authorize a procurement unit to make a procurement pursuant to a regional
1644 solicitation, as defined in Subsection 63G-6a-2105(2), even if the procurement item is also
1645 offered under a state cooperative contract, if the chief procurement officer determines that the
1646 procurement pursuant to a regional solicitation is in the best interest of the acquiring
1647 procurement unit; and
1648 (v) remove an individual from the procurement process or contract administration for:
1649 (A) having a conflict of interest or the appearance of a conflict of interest with a person
1650 responding to a solicitation or with a contractor;
1651 (B) having a bias or the appearance of bias for or against a person responding to a
1652 solicitation or for or against a contractor;
1653 (C) making an inconsistent or unexplainable score for a solicitation response;
1654 (D) having inappropriate contact or communication with a person responding to a
1655 solicitation;
1656 (E) socializing inappropriately with a person responding to a solicitation or with a
1657 contractor;
1658 (F) engaging in any other action or having any other association that causes the chief
1659 procurement officer to conclude that the individual cannot fairly evaluate a solicitation
1660 response or administer a contract; or
1661 (G) any other violation of a law, rule, or policy.
1662 (4) The chief procurement officer may not delegate to an individual outside the
1663 division the chief procurement officer's authority over a procurement described in Subsection
1664 (3)(a)(iv).
1665 (5) The chief procurement officer has final authority to determine whether an executive
1666 branch procurement unit's anticipated expenditure of public funds, anticipated agreement to
1667 expend public funds, or provision of a benefit constitutes a procurement that is subject to this
1668 chapter.
1669 (6) Except as otherwise provided in this chapter, the chief procurement officer shall
1670 review, monitor, and audit the procurement activities and delegated procurement authority of
1671 an executive branch procurement unit without independent procurement authority to ensure
1672 compliance with this chapter, rules made by the applicable rulemaking authority, and division
1673 policies.
1674 Section 21. Section 63G-6a-401 is amended to read:
1675
1676 63G-6a-401. Title.
1677 This part is known as [
1678 Procedures."
1679 Section 22. Section 63G-6a-409, which is renumbered from Section 63G-6a-502 is
1680 renumbered and amended to read:
1681 [
1682 (1) The purpose of a request for information is to:
1683 (a) obtain information, comments, or suggestions from potential bidders or offerors
1684 before issuing an invitation for bids or request for proposals;
1685 (b) determine whether to issue an invitation for bids or a request for proposals; and
1686 (c) generate interest in a potential invitation for bids or [
1687 (2) A request for information may be useful in order to:
1688 (a) prepare to issue an invitation for bids or request for proposals for an unfamiliar or
1689 complex procurement;
1690 (b) determine the market availability of a procurement item; or
1691 (c) determine best practices, industry standards, performance standards, product
1692 specifications, and innovations relating to a procurement item.
1693 (3) (a) A request for information is not a procurement process and may not be used to:
1694 (i) solicit cost, pricing, or rate information;
1695 (ii) negotiate fees;
1696 (iii) make a purchase; or
1697 (iv) enter into a contract.
1698 (b) To make a purchase or enter into a contract, a procurement unit is required to:
1699 (i) use a standard procurement process; or
1700 (ii) comply with an exception to the requirement to use a standard procurement
1701 process, as described in Part 8, Exceptions to Procurement Requirements.
1702 (4) A response to a request for information is not an offer and may not be accepted to
1703 form a binding contract.
1704 (5) A request for information may seek a wide range of information, including:
1705 (a) availability of a procurement item;
1706 (b) delivery schedules;
1707 (c) industry standards and practices;
1708 (d) product specifications;
1709 (e) training;
1710 (f) new technologies;
1711 (g) capabilities of potential providers of a procurement item; and
1712 (h) alternate solutions.
1713 (6) A record containing information submitted to or by a governmental entity in
1714 response to a request for information is a protected record under Section 63G-2-305.
1715 Section 23. Section 63G-6a-410 is enacted to read:
1716 63G-6a-410. Request for statement of qualifications -- Process.
1717 (1) (a) A procurement unit may use the process described in this section:
1718 (i) as one of the stages of a multiple-stage:
1719 (A) bidding process;
1720 (B) request for proposals process; or
1721 (C) design professional procurement process; and
1722 (ii) to identify qualified vendors to participate in other stages of the multiple-stage
1723 procurement process.
1724 (b) A procurement unit shall use the process described in this section as part of the
1725 approved vendor list process, if the procurement unit intends to establish an approved vendor
1726 list.
1727 (2) A procurement unit may not:
1728 (a) award a contract based solely on the process described in this section; or
1729 (b) solicit costs, pricing, or rates or negotiate fees through the process described in this
1730 section.
1731 (3) The process of identifying qualified vendors in a multiple-stage procurement
1732 process or of establishing an approved vendor list under Section 63G-6a-507 is initiated by a
1733 procurement unit issuing a request for statement of qualifications.
1734 (4) A request for statement of qualifications in a multiple-stage procurement process
1735 shall include:
1736 (a) a statement indicating that participation in other stages of the multiple-stage
1737 procurement process will be limited to qualified vendors;
1738 (b) the minimum mandatory requirements, evaluation criteria, and applicable score
1739 thresholds that will be used to identify qualified vendors, including, as applicable:
1740 (i) experience and work history;
1741 (ii) management and staff requirements or standards;
1742 (iii) licenses, certifications, and other qualifications;
1743 (iv) performance ratings or references;
1744 (v) financial stability; and
1745 (vi) other information pertaining to vendor qualifications that the chief procurement
1746 officer or the head of a procurement unit with independent procurement authority considers
1747 relevant or important; and
1748 (c) the deadline by which a vendor is required to submit a statement of qualifications.
1749 (5) A request for statement of qualifications in an approved vendor list process under
1750 Section 63G-6a-507 shall include:
1751 (a) a general description of, as applicable:
1752 (i) the procurement item that the procurement unit seeks to acquire;
1753 (ii) the type of project or scope or category of work that will be the subject of a
1754 procurement by the procurement unit;
1755 (iii) the procurement process the procurement unit will use to acquire the procurement
1756 item; and
1757 (iv) the type of vendor the procurement unit seeks to provide the procurement item;
1758 (b) the minimum mandatory requirements, evaluation criteria, and applicable score
1759 thresholds that vendors are required to meet to be included on the approved vendor list;
1760 (c) a statement indicating that the approved vendor list will include only responsible
1761 vendors that:
1762 (i) submit a responsive statement of qualifications; and
1763 (ii) meet the minimum mandatory requirements, evaluation criteria, and applicable
1764 score thresholds described in the request for statement of qualifications;
1765 (d) a statement indicating that only vendors on the approved vendor list will be able to
1766 participate in the procurements identified in the request for statement of qualifications;
1767 (e) a statement indicating whether the procurement unit will use a performance rating
1768 system for evaluating the performance of vendors on the approved vendor list, including
1769 whether a vendor on the approved vendor list may be disqualified and removed from the list;
1770 (f) (i) a statement indicating whether the procurement unit uses a closed-ended
1771 approved vendor list, as defined in Section 63G-6a-507, or an open-ended approved vendor
1772 list, as defined in Section 63G-6a-507; and
1773 (ii) (A) if the procurement unit uses a closed-ended approved vendor list, the deadline
1774 by which a vendor is required to submit a statement of qualifications and a specified period of
1775 time after which the approved vendor list will expire; or
1776 (B) if the procurement unit uses an open-ended approved vendor list, the deadline by
1777 which a vendor is required to submit a statement of qualifications to be considered for the
1778 initial approved vendor list, a schedule indicating when a vendor not on the initial approved
1779 vendor list may submit a statement of qualifications to be considered to be added to the
1780 approved vendor list, and the specified period of time after which a vendor is required to
1781 submit a new statement of qualifications for evaluation before the vendor's status as an
1782 approved vendor on the approved vendor list may be renewed; and
1783 (g) a description of any other criteria or requirements specific to the procurement item
1784 or scope of work that is the subject of the procurement.
1785 (6) A procurement unit issuing a request for statement of qualifications shall publish
1786 the request as provided in Section 63G-6a-112.
1787 (7) After the deadline for submitting a statement of qualifications, the chief
1788 procurement officer or the head of a procurement unit with independent procurement authority
1789 may Ŝ→ allow a vendor to ←Ŝ correct an immaterial error in a statement of qualifications, as
1789a provided in Section
1790 63G-6a-114.
1791 (8) (a) A conducting procurement unit may reject a statement of qualifications if the
1792 conducting procurement unit determines that:
1793 (i) the vendor who submitted the statement of qualifications:
1794 (A) is not responsible;
1795 (B) is in violation of a provision of this chapter;
1796 (C) has engaged in unethical conduct; or
1797 (D) receives a performance rating below the satisfactory performance threshold
1798 specified in the request for statement of qualifications;
1799 (ii) there has been a change in the vendor's circumstances after the vendor submits a
1800 statement of qualifications that, if the change had been known at the time the statement of
1801 qualifications was evaluated, would have caused the statement of qualifications not to have
1802 received a qualifying score; or
1803 (iii) the statement of qualifications:
1804 (A) is not responsive; or
1805 (B) does not meet the mandatory minimum requirements, evaluation criteria, or
1806 applicable score thresholds stated in the request for statement of qualifications.
1807 (b) A procurement unit that rejects a statement of qualifications under Subsection
1808 (8)(a) shall:
1809 (i) make a written finding, stating the reasons for the rejection; and
1810 (ii) provide a copy of the written finding to the vendor that submitted the rejected
1811 statement of qualifications.
1812 (9) (a) (i) After the issuance of a request for statement of qualifications, the conducting
1813 procurement unit shall appoint an evaluation committee consisting of at least three individuals
1814 with at least a general familiarity with or basic understanding of:
1815 (A) the technical requirements relating to the type of procurement item that is the
1816 subject of the request for statement of qualifications; or
1817 (B) the need that the procurement item is intended to address.
1818 (ii) The conducting procurement unit shall ensure that each member of the evaluation
1819 committee and each individual participating in the evaluation committee process:
1820 (A) does not have a conflict of interest with any vendor that submits a statement of
1821 qualifications;
1822 (B) can fairly evaluate each statement of qualifications;
1823 (C) does not contact or communicate with a vendor concerning the evaluation process
1824 or procurement outside the official evaluation committee process; and
1825 (D) conducts or participates in the evaluation in a manner that ensures a fair and
1826 competitive process and avoids the appearance of impropriety.
1827 (b) A conducting procurement unit may authorize an evaluation committee to receive
1828 assistance:
1829 (i) from an expert or consultant who:
1830 (A) is not a member of the evaluation committee; and
1831 (B) does not participate in the evaluation scoring; and
1832 (ii) to better understand a technical issue involved in the procurement.
1833 (c) An evaluation committee appointed under this Subsection (9):
1834 (i) shall evaluate and score statements of qualifications submitted in response to a
1835 request for statement of qualifications using the minimum mandatory requirements, evaluation
1836 criteria, and applicable score thresholds set forth in the request for statement of qualifications;
1837 (ii) may not evaluate or score a statement of qualifications using criteria not included in
1838 the request for statement of qualifications; and
1839 (iii) may, with the approval of the head of the conducting procurement unit, enter into
1840 discussions or conduct interviews with or attend presentations by vendors, for the purpose of
1841 clarifying information contained in statements of qualifications.
1842 (d) In a discussion, interview, or presentation under Subsection (9)(c)(iii), a vendor:
1843 (i) may only explain, illustrate, or interpret the contents of the vendor's original
1844 statement of qualifications; and
1845 (ii) may not:
1846 (A) address criteria or specifications not contained in the vendor's original statement of
1847 qualifications;
1848 (B) correct a deficiency, inaccuracy, or mistake in a statement of qualifications that is
1849 not an immaterial error;
1850 (C) correct an incomplete submission of documents that the request for statement of
1851 qualifications required to be submitted with the statement of qualifications;
1852 (D) correct a failure to submit a timely statement of qualifications;
1853 (E) substitute or alter a required form or other document specified in the statement of
1854 qualifications;
1855 (F) remedy a cause for Ŝ→ [
1855a statement
1856 of qualifications not responsive; or
1857 (G) correct a defect or inadequacy resulting in a determination that a vendor does not
1858 meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
1859 established in the statement of qualifications.
1860 (e) After the evaluation committee completes its evaluation and scoring of the
1861 statements of qualifications, the evaluation committee shall submit the statements of
1862 qualifications and evaluation scores to the head of the procurement unit for review and final
1863 determination of:
1864 (i) qualified vendors, if the request for statement of qualifications process is used as
1865 one of the stages of a multiple-stage process; or
1866 (ii) vendors to be included on an approved vendor list, if the request for statement of
1867 qualifications process is used as part of the approved vendor list process.
1868 (f) The issuing procurement unit shall review the evaluation committee's scores and
1869 correct any errors, scoring inconsistencies, and reported noncompliance with this chapter.
1870 (g) (i) The deliberations of an evaluation committee under this Subsection (9) may be
1871 held in private.
1872 (ii) If the evaluation committee is a public body, as defined in Section 52-4-103, the
1873 evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
1874 deliberations.
1875 (10) A procurement unit may at any time request a vendor to clarify information
1876 contained in a statement of qualifications, as provided in Section 63G-6a-115.
1877 (11) A vendor may voluntarily withdraw a statement of qualifications at any time
1878 before a contract is awarded with respect to which the statement of qualifications was
1879 submitted.
1880 (12) If only one vendor meets the minimum qualifications, evaluation criteria, and
1881 applicable score thresholds set forth in the request for statement of qualifications that the
1882 procurement unit is using as part of an approved vendor list process, the conducting
1883 procurement unit:
1884 (a) shall cancel the request for statement of qualifications; and
1885 (b) may not establish an approved vendor list based on the canceled request for
1886 statement of qualifications or on statements of qualifications submitted in response to the
1887 request for statement of qualifications.
1888 (13) If a conducting procurement unit cancels a request for statement of qualifications,
1889 the conducting procurement unit shall make available for public inspection a written
1890 justification for the cancellation.
1891 (14) After receiving and reviewing the statements of qualifications and evaluation
1892 scores submitted by the evaluation committee under Subsection (9)(d), the head of the
1893 procurement unit using the request for statement of qualifications process under this section as
1894 one of the stages of a multiple-stage procurement process shall identify those vendors meeting
1895 the minimum mandatory requirements, evaluation criteria, and applicable score thresholds as
1896 qualified vendors who are allowed to participate in the remaining stages of the multiple-stage
1897 procurement process.
1898 (15) The applicable rulemaking authority may make rules pertaining to the request for
1899 statement of qualifications and the process described in this section.
1900 Section 24. Section 63G-6a-501 is amended to read:
1901
1902 63G-6a-501. Title.
1903 This part is known as [
1904 Processes."
1905 Section 25. Section 63G-6a-506, which is renumbered from Section 63G-6a-408 is
1906 renumbered and amended to read:
1907 [
1908 (1) As used in this section:
1909 (a) "Annual cumulative threshold" means the maximum total annual amount,
1910 established by the applicable rulemaking authority under Subsection (2)[
1911 procurement unit may expend to obtain procurement items from the same source under this
1912 section.
1913 (b) "Individual procurement threshold" means the maximum amount, established by
1914 the applicable rulemaking authority under Subsection (2)[
1914a procurement
1915 unit may purchase a procurement item under this section.
1916 (c) "Single procurement aggregate threshold" means the maximum total amount,
1917 established by the applicable rulemaking authority under Subsection (2)[
1917a a
1918 procurement unit may expend to obtain multiple procurement items from one source at one
1919 time under this section.
1920 (2) (a) The applicable rulemaking authority may make rules governing small purchases
1921 of any procurement item, including construction, job order contracting, design professional
1922 services, other professional services, information technology, and goods.
1923 (b) Rules under Subsection (2)(a) may include provisions:
1924 (i) establishing expenditure thresholds, including:
1925 (A) an annual cumulative threshold;
1926 (B) an individual procurement threshold; and
1927 (C) a single procurement aggregate threshold;
1928 (ii) establishing procurement requirements relating to the thresholds described in
1929 Subsection (2)(b)(i); and
1930 (iii) providing for the use of electronic, telephone, or written quotes.
1931 (3) Expenditures made under this section by a procurement unit may not exceed a
1932 threshold established by the applicable rulemaking authority, unless the chief procurement
1933 officer or the head of a procurement unit with independent procurement authority gives written
1934 authorization to exceed the threshold that includes the reasons for exceeding the threshold.
1935 (4) Except as provided in Subsection (5), an executive branch procurement unit may
1936 not obtain a procurement item through a small purchase standard procurement process if the
1937 procurement item may be obtained through a state cooperative contract or a contract awarded
1938 by the chief procurement officer under Subsection 63G-6a-2105(1).
1939 (5) Subsection (4) does not apply if:
1940 (a) the procurement item is obtained for an unanticipated, urgent [
1941 emergency condition, including:
1942 (i) an item needed to avoid stopping a public construction project;
1943 (ii) an immediate repair to a facility or equipment; or
1944 (iii) another emergency condition; or
1945 (b) the chief procurement officer or the head of a procurement unit that is an executive
1946 branch procurement unit with independent procurement authority:
1947 (i) determines in writing that it is in the best interest of the procurement unit to obtain
1948 an individual procurement item outside of the state contract, comparing:
1949 (A) the contract terms and conditions applicable to the procurement item under the
1950 state contract with the contract terms and conditions applicable to the procurement item if the
1951 procurement item is obtained outside of the state contract;
1952 (B) the maintenance and service applicable to the procurement item under the state
1953 contract with the maintenance and service applicable to the procurement item if the
1954 procurement item is obtained outside of the state contract;
1955 (C) the warranties applicable to the procurement item under the state contract with the
1956 warranties applicable to the procurement item if the procurement item is obtained outside of
1957 the state contract;
1958 (D) the quality of the procurement item under the state contract with the quality of the
1959 procurement item if the procurement item is obtained outside of the state contract; and
1960 (E) the cost of the procurement item under the state contract with the cost of the
1961 procurement item if the procurement item is obtained outside of the state contract;
1962 (ii) for a procurement item that, if defective in its manufacture, installation, or
1963 performance, may result in serious physical injury, death, or substantial property damage,
1964 determines in writing that the terms and conditions, relating to liability for injury, death, or
1965 property damage, available from the source other than the contractor who holds the state
1966 contract, are similar to, or better than, the terms and conditions available under the state
1967 contract; and
1968 (iii) grants an exception, in writing, to the requirement described in Subsection (4).
1969 (6) Except as otherwise expressly provided in this section, a procurement unit:
1970 (a) may not use the small purchase standard procurement process described in this
1971 section for ongoing, continuous, and regularly scheduled procurements that exceed the annual
1972 cumulative threshold; and
1973 (b) shall make its ongoing, continuous, and regularly scheduled procurements that
1974 exceed the annual cumulative threshold through a contract awarded through another standard
1975 procurement process described in this chapter or an applicable exception to another standard
1976 procurement process, described in Part 8, Exceptions to Standard Procurement [
1977 Process.
1978 (7) This section does not prohibit regularly scheduled payments for a procurement item
1979 obtained under another provision of this chapter.
1980 (8) (a) It is unlawful for a person to intentionally or knowingly divide a procurement
1981 into [
1982 (i) qualify as a small purchase, if, before dividing the procurement, it would not have
1983 qualified as a small purchase; or
1984 (ii) meet a threshold established by rule made by the applicable rulemaking authority,
1985 if, before dividing the procurement, it would not have met the threshold.
1986 (b) A person who engages in the conduct made unlawful under Subsection (8)(a) is
1987 guilty of:
1988 (i) a second degree felony, if the value of the procurement before being divided is
1989 $1,000,000 or more;
1990 (ii) a third degree felony, if the value of the procurement before being divided is
1991 $250,000 or more but less than $1,000,000;
1992 (iii) a class A misdemeanor, if the value of the procurement before being divided is
1993 $100,000 or more but less than $250,000; or
1994 (iv) a class B misdemeanor, if the value of the procurement before being divided is less
1995 than $100,000.
1996 (9) A division of a procurement that is prohibited under Subsection (8) includes doing
1997 any of the following with the intent or knowledge described in Subsection (8):
1998 (a) making two or more separate purchases;
1999 (b) dividing an invoice or purchase order into two or more invoices or purchase orders;
2000 or
2001 (c) making smaller purchases over a period of time.
2002 [
2003
2004 [
2005 may conduct an audit of an executive branch procurement unit to verify compliance with the
2006 requirements of this section.
2007 [
2008 January 1, 2014, unless the chief procurement officer certifies that the person responsible for
2009 procurements in the procurement unit has satisfactorily completed training on this section and
2010 the rules made under this section.
2011 Section 26. Section 63G-6a-507 is enacted to read:
2012 63G-6a-507. Approved vendor list procurement process.
2013 (1) As used in this section:
2014 (a) "Closed-ended approved vendor list" means an approved vendor list that is subject
2015 to:
2016 (i) a short period of time, specified by the procurement unit, during which vendors may
2017 be added to the list; and
2018 (ii) a specified period of time after which the list will expire.
2019 (b) "Open-ended approved vendor list" means an approved vendor list that is subject
2020 to:
2021 (i) an indeterminate period of time during which vendors may be added to the list;
2022 (ii) the addition of vendors to the list throughout the term of the list; and
2023 (iii) a specified period of time after which a vendor on the list is required to submit the
2024 vendor's qualifications for evaluation before the vendor may be renewed as an approved
2025 vendor.
2026 (2) A procurement unit may not establish an approved vendor list unless the
2027 procurement unit has first completed the statement of qualifications process described in
2028 Section 63G-6a-410.
2029 (3) (a) A procurement unit may establish an approved vendor list for:
2030 (i) a specific, fully defined procurement item; or
2031 (ii) a future procurement item that is not specifically and fully defined, if the request
2032 for statement of qualifications contains a general description of:
2033 (A) the procurement item; and
2034 (B) the type of vendor that the procurement unit seeks to provide the procurement item.
2035 (b) A procurement unit may not award a contract to a vendor on an approved vendor
2036 list for a procurement item that is outside the scope of the general description of the
2037 procurement item contained in the request for statement of qualifications.
2038 (4) After receiving the statements of qualifications and evaluation scores submitted by
2039 the evaluation committee under Subsection 63G-6a-410(9)(d), the head of the conducting
2040 procurement unit using the request for statement of qualifications process under Section
2041 63G-6a-410 as part of an approved vendor list process shall:
2042 (a) include on an approved vendor list those vendors meeting the minimum mandatory
2043 requirements, evaluation criteria, and applicable score thresholds; and
2044 (b) reject any vendor not meeting the minimum mandatory requirements, evaluation
2045 criteria, and applicable score thresholds as ineligible for inclusion on the approved vendor list.
2046 (5) (a) A procurement unit shall include approved vendors on a closed-ended approved
2047 vendor list or an open-ended approved vendor list.
2048 (b) (i) A closed-ended approved vendor list shall expire no later than 18 months after
2049 the publication of the closed-ended approved vendor list.
2050 (ii) A procurement unit shall require a vendor on an open-ended approved vendor list,
2051 in order to remain on the approved vendor list, to submit an updated statement of qualifications
2052 for evaluation no later than 18 months after the vendor was added to the list as an approved
2053 vendor.
2054 (6) A procurement unit may:
2055 (a) (i) using a bidding process, request for proposals process, small purchase process,
2056 or design professional procurement process, award a contract to a vendor on an approved
2057 vendor list for any procurement item or type of procurement item specified by the procurement
2058 unit in the request for statement of qualifications, including procurement items that the
2059 procurement unit intends to acquire in a series of future procurements described in the request
2060 for statement of qualifications; and
2061 (ii) limit participation in a bidding process, request for proposals process, small
2062 purchase process, or design professional procurement process to vendors on an approved
2063 vendor list; or
2064 (b) award a contract to a vendor on an approved vendor list at a price established as
2065 provided in Section 63G-6a-113.
2066 (7) After establishing an approved vendor list as provided in this section, the
2067 conducting procurement unit shall, before using the approved vendor list, submit the approved
2068 vendor list to the issuing procurement unit for publication by the issuing procurement unit.
2069 (8) A conducting procurement unit administering an open-ended approved vendor list
2070 shall:
2071 (a) require a vendor seeking inclusion on the approved vendor list to submit a
2072 statement of qualifications that complies with all requirements applicable at the time of the
2073 initial request for statement of qualifications;
2074 (b) if modifying the requirements for inclusion on the approved vendor list, apply any
2075 new or additional requirement to all vendors equally, whether a vendor is seeking inclusion on
2076 the approved vendor list for the first time or is already included on the approved vendor list;
2077 and
2078 (c) keep the request for statement of qualifications posted on a website as required
2079 under Subsection 63G-6a-112(6).
2080 (9) The applicable rulemaking authority shall make rules pertaining to an approved
2081 vendor list process, including:
2082 (a) procedures to ensure that all vendors on an approved vendor list have a fair and
2083 equitable opportunity to compete for a contract for a procurement item; and
2084 (b) requirements for using an approved vendor list with the small purchase process.
2085 Section 27. Section 63G-6a-603 is amended to read:
2086 63G-6a-603. Invitation for bids -- Requirements -- Publication.
2087 (1) The bidding standard procurement process begins when the issuing procurement
2088 unit issues an invitation for bids.
2089 (2) An invitation for bids shall:
2090 (a) state the period of time during which bids will be accepted;
2091 (b) describe the manner in which a bid shall be submitted;
2092 (c) state the place where a bid shall be submitted; and
2093 (d) include, or incorporate by reference:
2094 (i) a description of the procurement items sought;
2095 (ii) the objective criteria that will be used to evaluate the bids; and
2096 (iii) the required contractual terms and conditions.
2097 (3) An issuing procurement unit shall publish an invitation for bids in accordance with
2098 the requirements of Section [
2099 Section 28. Section 63G-6a-604 is amended to read:
2100 63G-6a-604. Bid opening and acceptance.
2101 (1) Bids shall be opened:
2102 (a) publicly, except as provided in Section 63G-6a-611;
2103 (b) in the presence of one or more witnesses, unless an electronic bid opening process
2104 is used where bidders may see the opening of the bid electronically; and
2105 (c) at the time and place indicated in the invitation for bids.
2106 (2) Bids shall be accepted unconditionally, without alteration or correction, except as
2107 otherwise authorized by this chapter.
2108 (3) (a) The procurement officer shall reject a bid [
2109 the bid is submitted by a bidder who is not responsible.
2110 (b) A bid that is not responsive includes a bid that:
2111 (i) is conditional;
2112 (ii) attempts to modify the bid requirements;
2113 (iii) contains additional terms or conditions; or
2114 (iv) fails to conform with the requirements or specifications of the invitation for bids.
2115 (c) A bid that is submitted by a bidder who is not responsible includes a bid where the
2116 procurement officer reasonably concludes that the bidder or an employee, agent, or
2117 subcontractor of the bidder, at any tier, is unable to satisfactorily fulfill the bid requirements.
2118 (4) An issuing procurement unit may not accept a bid after the time for submission of a
2119 bid has expired.
2120 (5) The procurement officer shall:
2121 (a) record the name of each bidder and the amount of each bid; and
2122 (b) after the bid is awarded, make the information described in Subsection (5)(a)
2123 available for public disclosure.
2124 Section 29. Section 63G-6a-605 is repealed and reenacted to read:
2125 63G-6a-605. Correction or clarification of bids.
2126 (1) The chief procurement officer or the head of a procurement unit with independent
2127 procurement authority may:
2128 (a) allow a vendor to correct an immaterial error in a bid, as provided in Section
2129 63G-6a-114; and
2130 (b) request a vendor to clarify information contained in a bid, as provided in Section
2131 63G-6a-115.
2132 (2) (a) Notwithstanding Subsection (1), a vendor may not change the total bid price
2133 after the bid opening and before a contract is awarded.
2134 (b) Subsection (2)(a) does not apply to a change in the contract price during contract
2135 administration, as allowed under this chapter.
2136 Section 30. Section 63G-6a-606 is amended to read:
2137 63G-6a-606. Evaluation of bids -- Award -- Cancellation -- Rejecting a bid.
2138 (1) A procurement unit that conducts a procurement using a bidding standard
2139 procurement process shall evaluate each bid using the objective criteria described in the
2140 invitation for bids, which may include:
2141 (a) experience;
2142 (b) performance ratings;
2143 (c) inspection;
2144 (d) testing;
2145 (e) quality;
2146 (f) workmanship;
2147 (g) time and manner of delivery;
2148 (h) references;
2149 (i) financial stability;
2150 (j) cost;
2151 (k) suitability for a particular purpose;
2152 (l) the contractor's work site safety program, including any requirement that the
2153 contractor imposes on subcontractors for a work site safety program; or
2154 (m) other objective criteria specified in the invitation for bids.
2155 (2) Criteria not described in the invitation for bids may not be used to evaluate a bid.
2156 (3) The conducting procurement unit shall:
2157 (a) award the contract as soon as practicable to:
2158 (i) the [
2159 bid that meets the objective criteria described in the invitation for bids; or
2160 (ii) if, in accordance with Subsection (4), the procurement officer or the head of the
2161 conducting procurement unit [
2162 (3)(a)(i), the [
2163 responsive bid that meets the objective criteria described in the invitation for bids; or
2164 (b) cancel the invitation for bids without awarding a contract.
2165 (4) In accordance with Subsection (5), the procurement officer or the head of the
2166 conducting procurement unit may [
2167 (a) a violation of this chapter by the bidder who submitted the bid;
2168 (b) a violation of a requirement of the invitation for bids;
2169 (c) unlawful or unethical conduct by the bidder who submitted the bid; or
2170 (d) a change in a bidder's circumstance that, had the change been known at the time the
2171 bid was submitted, would have caused the [
2172
2173 be rejected.
2174 (5) A procurement officer or head of a conducting procurement unit who [
2175
2176 (a) make a written finding, stating the reasons for [
2177 (b) provide a copy of the written finding to the [
2178 rejected bid.
2179 (6) If a conducting procurement unit cancels an invitation for bids without awarding a
2180 contract, the conducting procurement unit shall make available for public inspection a written
2181 justification for the cancellation.
2182 Section 31. Section 63G-6a-609 is amended to read:
2183 63G-6a-609. Multiple stage bidding process.
2184 (1) The invitation for bids for a multiple stage bidding process shall:
2185 (a) describe the requirements for, and purpose of, each stage of the process;
2186 (b) indicate whether the procurement unit intends to award:
2187 (i) a single contract; or
2188 (ii) multiple contracts for a series of upcoming procurements; and
2189 (c) state that:
2190 (i) the first stage is for prequalification only;
2191 (ii) a bidder may not submit any pricing information in the first stage of the process;
2192 and
2193 (iii) bids in the second stage will only be accepted from a person who prequalifies in
2194 the first stage.
2195 (2) During the first stage, the conducting procurement unit:
2196 (a) shall prequalify bidders to participate in subsequent stages, in accordance with
2197 Section [
2198 (b) shall prohibit the submission of pricing information until the final stage; and
2199 (c) may, before beginning the second stage, request additional information to clarify
2200 the qualifications of the bidders who submit timely responses.
2201 (3) Contracts may only be awarded for a procurement item described in stage one of
2202 the invitation for bids.
2203 (4) The conducting procurement unit may use as many stages as it determines to be
2204 appropriate.
2205 (5) Except as otherwise expressly provided in this section, a procurement unit
2206 conducting a multiple stage bidding process under this section shall ensure compliance with
2207 this part.
2208 (6) The applicable rulemaking authority may make rules governing the use of a
2209 multiple stage process described in this section.
2210 Section 32. Section 63G-6a-611 is amended to read:
2211 63G-6a-611. Invitation for bids for reverse auction -- Requirements -- Publication
2212 of invitation.
2213 (1) The reverse auction bidding process begins when the issuing procurement unit
2214 issues an invitation for bids to prequalify bidders to participate in the reverse auction.
2215 (2) The invitation for bids shall:
2216 (a) state the period of time during which bids will be accepted;
2217 (b) state that the bid will be conducted by reverse auction;
2218 (c) describe the procurement items sought;
2219 (d) describe the minimum requirements to become prequalified;
2220 (e) state the required contractual terms and conditions; and
2221 (f) describe the procedure that the conducting procurement unit will follow in the
2222 reverse auction.
2223 (3) In order to participate in a reverse auction, a bidder shall agree to:
2224 (a) the specifications, and contractual terms and conditions, of the procurement; and
2225 (b) be trained in, and abide by, the procedure that the division or the procurement unit
2226 with independent procurement authority will follow in conducting the reverse auction.
2227 (4) The division or a procurement unit with independent procurement authority shall
2228 publish an invitation for bids for a reverse auction in accordance with the requirements of
2229 Section [
2230 Section 33. Section 63G-6a-703 is amended to read:
2231 63G-6a-703. Request for proposals -- Requirements -- Publication of request.
2232 (1) The request for proposals standard procurement process begins when the division
2233 or a procurement unit with independent procurement authority issues a request for proposals.
2234 (2) A request for proposals shall:
2235 (a) state the period of time during which a proposal will be accepted;
2236 (b) describe the manner in which a proposal shall be submitted;
2237 (c) state the place where a proposal shall be submitted;
2238 (d) include, or incorporate by reference:
2239 (i) a description of the procurement items sought;
2240 (ii) a description of the subjective and objective criteria that will be used to evaluate
2241 the proposal; and
2242 (iii) the standard contractual terms and conditions required by the authorized
2243 purchasing entity;
2244 (e) state the relative weight that will be given to each score for the criteria described in
2245 Subsection (2)(d)(ii), including cost;
2246 (f) state the formula that will be used to determine the score awarded for the cost of
2247 each proposal;
2248 (g) if the request for proposals will be conducted in multiple stages, as described in
2249 Section 63G-6a-710, include a description of the stages and the criteria and scoring that will be
2250 used to screen offerors at each stage; and
2251 [
2252
2253
2254
2255 (h) state that best and final offers may be allowed, as provided in Section
2256 63G-6a-707.5, from responsible offerors who submit responsive proposals that meet minimum
2257 qualifications, evaluation criteria, or applicable score thresholds identified in the request for
2258 proposals.
2259 (3) The division or a procurement unit with independent procurement authority shall
2260 publish a request for proposals in accordance with the requirements of Section [
2261 63G-6a-112.
2262 Section 34. Section 63G-6a-706 is repealed and reenacted to read:
2263 63G-6a-706. Correction or clarification of proposal.
2264 (1) The chief procurement officer or the head of a procurement unit with independent
2265 procurement authority may:
2266 (a) allow a vendor to correct an immaterial error in a proposal, as provided in Section
2267 63G-6a-114; and
2268 (b) request a vendor to clarify information contained in a proposal, as provided in
2269 Section 63G-6a-115.
2270 (2) (a) Notwithstanding Subsection (1) and except as provided in Section
2271 63G-6a-707.5, after the deadline for submitting a cost proposal and before a contract is
2272 awarded, a vendor may not change the total amount of a cost proposal.
2273 (b) Subsection (2)(a) does not apply to a change in the contract price during contract
2274 administration, as allowed under this chapter.
2275 Section 35. Section 63G-6a-707 is amended to read:
2276 63G-6a-707. Evaluation of proposals -- Evaluation committee.
2277 (1) To determine which proposal provides the best value to the procurement unit, the
2278 evaluation committee shall evaluate each responsive and responsible proposal that has not been
2279 disqualified from consideration under the provisions of this chapter, using the criteria described
2280 in the request for proposals, which may include:
2281 (a) experience;
2282 (b) performance ratings;
2283 (c) inspection;
2284 (d) testing;
2285 (e) quality;
2286 (f) workmanship;
2287 (g) time, manner, or schedule of delivery;
2288 (h) references;
2289 (i) financial solvency;
2290 (j) suitability for a particular purpose;
2291 (k) management plans;
2292 (l) the presence and quality of a work site safety program, including any requirement
2293 that the offeror imposes on subcontractors for a work site safety program;
2294 (m) cost; or
2295 (n) other subjective or objective criteria specified in the request for proposals.
2296 (2) Criteria not described in the request for proposals may not be used to evaluate a
2297 proposal.
2298 (3) The conducting procurement unit shall:
2299 (a) appoint an evaluation committee consisting of at least three individuals with at least
2300 a general familiarity with or basic understanding of:
2301 (i) the technical requirements relating to the type of procurement item that is the
2302 subject of the procurement; or
2303 (ii) the need that the procurement item is intended to address; and
2304 (b) ensure that the evaluation committee and each [
2305
2306 (i) does not have a conflict of interest with any of the offerors;
2307 (ii) can fairly evaluate each proposal;
2308 (iii) does not contact or communicate with an offeror concerning the procurement
2309 outside the official evaluation committee process; and
2310 (iv) conducts or participates in the evaluation in a manner that ensures a fair and
2311 competitive process and avoids the appearance of impropriety.
2312 (4) A conducting procurement unit may authorize an evaluation committee to receive
2313 assistance:
2314 (a) from an expert or consultant who:
2315 (i) is not a member of the evaluation committee; and
2316 (ii) does not participate in the evaluation scoring; and
2317 (b) to better understand a technical issue involved in the procurement.
2318 [
2319 conducting procurement unit, enter into discussions or conduct interviews with, or attend
2320 presentations by, the offerors, for the purpose of clarifying information contained in proposals.
2321 (b) In a discussion, interview, or presentation under Subsection (5)(a), an offeror:
2322 (i) may only explain, illustrate, or interpret the contents of the offeror's original
2323 proposal; and
2324 (ii) may not:
2325 (A) address criteria or specifications not contained in the offeror's original proposal;
2326 (B) correct a deficiency, inaccuracy, or mistake in a proposal that is not an immaterial
2327 error;
2328 (C) correct an incomplete submission of documents that the solicitation required to be
2329 submitted with the proposal;
2330 (D) correct a failure to submit a timely proposal;
2331 (E) substitute or alter a required form or other document specified in the solicitation;
2332 (F) remedy a cause for an offeror being considered to be not responsible or a proposal
2333 not responsive; or
2334 (G) correct a defect or inadequacy resulting in a determination that an offeror does not
2335 meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
2336 established in the solicitation.
2337 [
2337a (7)(b) relating to access to management fee information, and except as provided in
2337b Subsection ←Ŝ (9), each
2338 member of the evaluation committee is prohibited from knowing, or having access to, any
2339 information relating to the cost, or the scoring of the cost, of a proposal until after the
2340 evaluation committee submits its final recommended scores on all other criteria to the issuing
2341 procurement unit.
2342 (b) The issuing procurement unit shall:
2343 (i) if applicable, assign an individual who is not a member of the evaluation committee
2344 to calculate scores for cost based on the applicable scoring formula, weighting, and other
2345 scoring procedures contained in the request for proposals;
2346 (ii) review the evaluation committee's scores and correct any errors, scoring
2347 inconsistencies, and reported noncompliance with this chapter;
2348 (iii) add the scores calculated for cost, if applicable, to the evaluation committee's final
2349 recommended scores on criteria other than cost to derive the total combined score for each
2350 responsive and responsible proposal; and
2351 (iv) provide to the evaluation committee the total combined score calculated for each
2352 responsive and responsible proposal, including any applicable cost formula, weighting, and
2353 scoring procedures used to calculate the total combined scores.
2354 (c) The evaluation committee may not:
2355 (i) change its final recommended scores described in Subsection [
2356 evaluation committee has submitted those scores to the issuing procurement unit; or
2357 (ii) change cost scores calculated by the issuing procurement unit.
2358 [
2359 following fees of the construction manager/general contractor:
2360 (i) preconstruction phase services;
2361 (ii) monthly supervision fees for the construction phase; and
2362 (iii) overhead and profit for the construction phase.
2363 (b) When selecting a construction manager/general contractor for a construction
2364 project, the evaluation committee:
2365 (i) may score a construction manager/general contractor based upon criteria contained
2366 in the solicitation, including qualifications, performance ratings, references, management plan,
2367 certifications, and other project specific criteria described in the solicitation;
2368 (ii) may, as described in the solicitation, weight and score the management fee as a
2369 fixed rate or as a fixed percentage of the estimated contract value;
2370 (iii) may, at any time after the opening of the responses to the request for proposals,
2371 have access to, and consider, the management fee proposed by the offerors; and
2372 (iv) except as provided in Subsection [
2373 other information relating to the cost of construction submitted by the offerors, until after the
2374 evaluation committee submits its final recommended scores on all other criteria to the issuing
2375 procurement unit.
2376 [
2377 (b) If the evaluation committee is a public body, as defined in Section 52-4-103, the
2378 evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
2379 deliberations.
2380 [
2381 (6) Ŝ→ or (7)(b)(iv), as applicable, ←Ŝ if the head of the issuing procurement unit or a person
2381a designated by rule made by the
2382 applicable rulemaking authority:
2383 (a) signs a written statement:
2384 (i) indicating that, due to the nature of the proposal or other circumstances, it is in the
2385 best interest of the procurement unit to waive compliance with Subsection [
2385a (7)(b)(iv), as the case may be ←Ŝ ; and
2386 (ii) describing the nature of the proposal and the other circumstances relied upon to
2387 waive compliance with Subsection [
2388 (b) makes the written statement available to the public, upon request.
2389 Section 36. Section 63G-6a-707.5 is amended to read:
2390 63G-6a-707.5. Best and final offers.
2391 (1) At any time during the evaluation process, the evaluation committee, with the
2392 approval of the director or the head of the issuing procurement unit, may:
2393 (a) request best and final offers from responsible [
2394 responsive [
2395 applicable score thresholds identified in the request for proposals, if:
2396 (i) no single proposal addresses all the specifications stated in the request for
2397 proposals;
2398 (ii) all or a significant number of the proposals are ambiguous on a material point and
2399 the evaluation committee requires further clarification in order to conduct a fair evaluation of
2400 proposals;
2401 (iii) the evaluation committee needs additional information from all offerors to
2402 complete the evaluation of proposals;
2403 (iv) the differences between proposals in one or more material aspects are too slight to
2404 allow the evaluation committee to distinguish between proposals;
2405 (v) all cost proposals are too high or over budget; or
2406 (vi) another reason exists supporting a request for best and final offers, as provided in
2407 rules established by the applicable rulemaking authority; and
2408 (b) evaluate those best and final offers.
2409 (2) In requesting and evaluating best and final offers under Subsection (1), the
2410 evaluation committee shall:
2411 (a) ensure that each offeror receives fair and equal treatment with respect to the other
2412 offerors;
2413 (b) establish a schedule and procedures for conducting discussions;
2414 (c) ensure that information in each proposal and information gathered during
2415 discussions is not shared with other offerors until the contract is awarded;
2416 (d) ensure that auction tactics are not used in the discussion process, including
2417 discussing and comparing the costs and features of other proposals; and
2418 (e) set a common date and time for the submission of best and final offers.
2419 (3) In a best and final offer, an offeror:
2420 (a) may address only the issues described in the request for best and final offers; and
2421 (b) may not correct a material error or deficiency in the offeror's proposal or address
2422 any other issue not described in the request for best and final offers.
2423 [
2424 timely best and final offer, the offer submitted by the offeror before the conduct of discussions
2425 shall be treated as the offeror's best and final offer.
2426 (5) An applicable rulemaking authority shall make rules governing best and final offers
2427 under this section.
2428 Section 37. Section 63G-6a-708 is amended to read:
2429 63G-6a-708. Justification statement -- Cost-benefit analysis.
2430 (1) (a) In determining which proposal provides the best value to the procurement unit,
2431 the evaluation committee and the conducting procurement unit shall prepare a written
2432 justification statement that:
2433 (i) explains the score assigned to each evaluation category;
2434 (ii) explains how the proposal with the highest total combined score provides the best
2435 value to the procurement unit in comparison to the other proposals;
2436 (iii) if applicable, includes the cost-benefit analysis described in Subsection (2) and
2437 how the cost-benefit analysis relates to the best value to the procurement unit; and
2438 (iv) if applicable, includes the written determination described in Subsection (5).
2439 (b) An explanation under Subsection (1)(a)(i) need not address each criterion within
2440 each category.
2441 (2) If, in determining the best value to the procurement unit, the evaluation committee
2442 awards the highest score, including the score for cost, to a proposal other than the lowest cost
2443 proposal, and the difference between the cost of the highest scored proposal and the lowest cost
2444 proposal exceeds the greater of $10,000 or 5% of the lowest cost proposal, the evaluation
2445 committee and the conducting procurement unit shall prepare an informal written cost-benefit
2446 analysis that:
2447 (a) explains, in general terms, the advantage to the procurement unit of awarding the
2448 contract to the higher cost offeror; and
2449 (b) except as provided in Subsection (5):
2450 (i) includes the estimated added financial value to the procurement unit of each
2451 criterion that justifies awarding the contract to the higher cost offeror; and
2452 (ii) demonstrates that the value of the advantage to the procurement unit of awarding
2453 the contract to the higher cost offeror exceeds the value of the difference between the cost of
2454 the higher cost proposal and the cost of the lower cost proposals.
2455 (3) If the informal cost-benefit analysis described in Subsection (2) does not justify
2456 awarding the contract to the offeror that received the highest score, the issuing procurement
2457 unit:
2458 (a) may not award the contract to the offeror that received the highest score; and
2459 (b) may award the contract to the offeror that received the next highest score, unless:
2460 (i) an informal cost-benefit analysis is required, because the difference between the
2461 cost proposed by the offeror that received the next highest score and the lowest cost proposal
2462 exceeds the greater of $10,000 or 5% of the lowest cost proposal; and
2463 (ii) the informal cost-benefit analysis does not justify award of the contract to the
2464 offeror that received the next highest score.
2465 (4) If the informal cost-benefit analysis described in Subsection (2) does not justify
2466 award of the contract to the offeror, described in Subsection (3), that received the next highest
2467 score, the issuing procurement unit:
2468 (a) may not award the contract to the offeror that received the next highest score; and
2469 (b) shall continue with the process described in Subsection (3) for each offeror that
2470 received the next highest score, until the issuing procurement unit:
2471 (i) awards the contract in accordance with the provisions of this section; or
2472 (ii) cancels the request for proposals.
2473 (5) (a) The evaluation committee, with the issuing procurement unit's approval, may
2474 waive, in whole or in part, a requirement under Subsection (2)(b) if the evaluation committee
2475 determines in writing that assigning a financial value to a particular procurement item or
2476 evaluation criterion is not practicable.
2477 (b) A written determination under Subsection (5)(a):
2478 (i) shall explain:
2479 (A) why it is not practicable to assign a financial value to the procurement item or
2480 evaluation criterion; and
2481 (B) in nonfinancial terms, why awarding the contract to the higher cost offeror
2482 provides the best value to the procurement unit; and
2483 (ii) may be included as part of the justification statement.
2484 (6) (a) An issuing procurement unit is not required to make the cost-benefit analysis
2485 described in this section for a contract with a construction manager/general contractor if the
2486 contract is awarded based solely on the qualifications of the construction manager/general
2487 contractor and the management fee described in Subsection 63G-6a-707[
2488 (b) The applicable rulemaking authority shall make rules that establish procedures and
2489 criteria for awarding a contract described in Subsection (6)(a) to ensure that:
2490 (i) a competitive process is maintained; and
2491 (ii) the contract awarded is in the best interest of the procurement unit.
2492 Section 38. Section 63G-6a-709 is amended to read:
2493 63G-6a-709. Award of contract -- Cancellation -- Rejection of proposal.
2494 (1) After the completion of the evaluation and scoring of proposals and the justification
2495 statement, including any required cost-benefit analysis, the evaluation committee shall submit
2496 the proposals, evaluation scores, and justification statement to the head of the procurement unit
2497 or designee for review and final determination of a contract award.
2498 (2) After reviewing the proposals, evaluation scores, and justification statement,
2499 including any required cost-benefit analysis, the head of the issuing procurement unit [
2500
2501 (a) (i) award the contract as soon as practicable to[
2502 responsible offeror with the responsive proposal receiving the highest total score; or
2503 [
2504
2505
2506 (ii) (A) if the head of the issuing procurement unit disqualifies an offeror under
2507 Subsection (3) who would otherwise have been awarded a contract, award the contract to the
2508 responsible offeror with the responsive proposal receiving the next highest total score; and
2509 (B) if the head of the issuing procurement unit disqualifies an offeror under Subsection
2510 (3) who would otherwise have been awarded a contract under Subsection (2)(a)(ii)(A), repeat
2511 the process described in Subsection (2)(a)(ii)(A) as many times as necessary until a contract is
2512 awarded to a responsible offeror who is not disqualified; or
2513 (b) cancel the request for proposals without awarding a contract.
2514 [
2515
2516 [
2517 [
2518 [
2519 [
2520 [
2521
2522 (3) The head of an issuing procurement unit may reject a proposal if:
2523 (a) the offeror who submitted the proposal:
2524 (i) is not responsible;
2525 (ii) is in violation of a provision of this chapter;
2526 (iii) has engaged in unethical conduct; or
2527 (iv) fails to sign a contract within:
2528 (A) 90 days after the contract award, if no time is specified in the solicitation; or
2529 (B) a time authorized in writing by the head of the issuing procurement unit;
2530 (b) there is a change in the offeror's circumstances that, if the change had been known
2531 at the time the offeror's proposal was evaluated, would have caused the proposal not to have
2532 received the highest score; or
2533 (c) the proposal:
2534 (i) is not responsive; or
2535 (ii) does not meet the mandatory minimum requirements, evaluation criteria, or
2536 applicable score thresholds stated in the solicitation.
2537 (4) A [
2538
2539 (a) make a written finding, stating the reasons for [
2540 (b) provide a copy of the written finding to the [
2541 rejected.
2542 (5) If an issuing procurement unit cancels a request for proposals without awarding a
2543 contract, the issuing procurement unit shall make available for public inspection a written
2544 justification for the cancellation.
2545 Section 39. Section 63G-6a-802 is amended to read:
2546
2547 63G-6a-802. Award of contract without engaging in a standard procurement
2548 process -- Notice -- Duty to negotiate contract terms in best interest of procurement unit.
2549 [
2550 [
2551
2552 [
2553 [
2554 [
2555 [
2556 [
2557 [
2558 [
2559 [
2560 [
2561 [
2562 [
2563 [
2564 [
2565
2566
2567 [
2568 unit with independent procurement authority may award a contract for a procurement item
2569 without [
2570 officer[
2571
2572 authority determines in writing that:
2573 (a) there is only one source for the procurement item;
2574 [
2575
2576 [
2577
2578 [
2579
2580 [
2581
2582 [
2583 [
2584 (b) (i) transitional costs are a significant consideration in selecting a procurement item;
2585 and
2586 (ii) the results of a cost-benefit analysis demonstrate that transitional costs are
2587 unreasonable or cost-prohibitive, and that the award of a contract without engaging in a
2588 standard procurement process is in the best interest of the procurement unit; or
2589 (c) the award of a contract is under circumstances, described in rules adopted by the
2590 applicable rulemaking authority, that make awarding the contract through a standard
2591 procurement process impractical and not in the best interest of the procurement unit.
2592 (2) Transitional costs associated with a trial use or testing of a procurement item under
2593 a trial use contract may not be included in a consideration of transitional costs under
2594 Subsection (1)(b).
2595 [
2596 shall make rules regarding the publication of notice for a [
2597 section that, at a minimum, require publication of notice of [
2598 accordance with Section [
2599 $50,000.
2600 (b) Publication of notice under Section [
2601 (i) the procurement of public utility services pursuant to a sole source contract; or
2602 (ii) other [
2603 for which an applicable rule provides that notice is not required.
2604 [
2605 unit with independent procurement authority who awards a [
2606
2607 ensure that the terms of the contract, including price and delivery, are in the best interest of the
2608 procurement unit.
2609 [
2610
2611
2612 [
2613 [
2614
2615 [
2616
2617 [
2618
2619
2620 [
2621
2622 [
2623 [
2624 [
2625 [
2626 [
2627
2628 [
2629 [
2630
2631 [
2632 [
2633 [
2634 [
2635 [
2636 [
2637 [
2638
2639 [
2640
2641
2642 [
2643
2644 [
2645 [
2646
2647 [
2648 [
2649
2650 [
2651
2652 [
2653
2654 Section 40. Section 63G-6a-802.3 is enacted to read:
2655 63G-6a-802.3. Trial use contracts.
2656 (1) A procurement unit may award a trial use contract without engaging in a standard
2657 procurement process if the contract is:
2658 (a) awarded for a procurement item that is not already available to the procurement unit
2659 under an existing contract;
2660 (b) restricted to the procurement of a procurement item in the minimum quantity and
2661 for the minimum period of time necessary to test the procurement item;
2662 (c) the only trial use contract for that procurement unit for the same procurement item;
2663 and
2664 (d) not used to circumvent the purposes and policies of this chapter as set forth in
2665 Section 63G-6a-102.
2666 (2) The period of trial use or testing of a procurement item under a trial use contract
2667 may not exceed 18 months, unless the procurement officer provides a written exception
2668 documenting the reason for a longer period.
2669 (3) A trial use contract shall:
2670 (a) state that the contract is strictly for the trial use or testing of a procurement item;
2671 (b) state that the contract terminates upon completion of the trial use or testing period;
2672 (c) state that the procurement unit is not obligated to purchase or enter into a contract
2673 for the procurement item, regardless of the trial use or testing result;
2674 (d) state that any purchase of the procurement item that is the subject of the trial use
2675 contract will be made in accordance with this chapter; and
2676 (e) include, as applicable:
2677 (i) test schedules;
2678 (ii) deadlines and a termination date;
2679 (iii) measures that will be used to evaluate the performance of the procurement item;
2680 (iv) any fees and associated expenses or an explanation of the circumstances
2681 warranting a waiver of those fees and expenses;
2682 (v) the obligations of the procurement unit and vendor;
2683 (vi) provisions regarding the ownership of the procurement item during and after the
2684 trial use or testing period;
2685 (vii) an explanation of the grounds upon which the contract may be terminated;
2686 (viii) a provision relating to any required bond or security deposit; and
2687 (ix) other requirements unique to the procurement item for trial use or testing.
2688 (4) Publication of notice under Section 63G-6a-112 is not required for a trial use
2689 contract.
2690 (5) The applicable rulemaking authority may make rules pertaining to a trial use
2691 contract.
2692 Section 41. Section 63G-6a-802.7 is enacted to read:
2693 63G-6a-802.7. Extension of a contract without engaging in a standard
2694 procurement process.
2695 The chief procurement officer or the head of a procurement unit with independent
2696 procurement authority may extend an existing contract without engaging in a standard
2697 procurement process:
2698 (1) for a period of time not to exceed 120 days, if:
2699 (a) an extension of the contract is necessary to:
2700 (i) avoid a lapse in a critical government service; or
2701 (ii) to mitigate a circumstance that is likely to have a negative impact on public health,
2702 safety, welfare, or property; and
2703 (b) (i) (A) the procurement unit is engaged in a standard procurement process for a
2704 procurement item that is the subject of the contract being extended; and
2705 (B) the standard procurement process is delayed due to an unintentional error;
2706 (ii) a change in an industry standard requires one or more significant changes to
2707 specifications for the procurement item; or
2708 (iii) an extension is necessary:
2709 (A) to prevent the loss of federal funds;
2710 (B) to mitigate the effects of a delay of a state or federal appropriation;
2711 (C) to enable the procurement unit to continue to receive a procurement item during a
2712 delay in the implementation of a contract awarded pursuant to a procurement that has already
2713 been conducted; or
2714 (D) to enable the procurement unit to continue to receive a procurement item during a
2715 period of time during which negotiations with a vendor under a new contract for the
2716 procurement item are being conducted;
2717 (2) for the period of a protest, appeal, or court action, if the protest, appeal, or court
2718 action is the reason for delaying the award of a new contract; or
2719 (3) for a period of time exceeding 120 days, if the attorney general or the procurement
2720 unit's attorney determines in writing that the contract extension does not violate Ŝ→ [
2720a
2721 state or federal antitrust laws Ŝ→ and is consistent with the purpose of ensuring the fair and
2721a equitable treatment of all persons who deal with the procurement system ←Ŝ .
2722 Section 42. Section 63G-6a-803 is amended to read:
2723 63G-6a-803. Emergency procurement.
2724 (1) Notwithstanding any other provision of this chapter, [
2725 officer or the [
2726 independent procurement authority may authorize a procurement unit to engage in an
2727 emergency procurement without using a standard procurement process [
2728
2729 (a) avoid a lapse in a critical government service;
2730 (b) mitigate a circumstance that is likely to have a negative impact on public health,
2731 safety, welfare, or property; or
2732 (c) protect the legal interests of a public entity.
2733 (2) A procurement [
2734 under Subsection (1) shall:
2735 [
2736
2737 [
2738 practicable while:
2739 (i) avoiding a lapse in a critical government service;
2740 (ii) avoiding harm, or a risk of harm, to the public health, safety, welfare, or
2741 property[
2742 (iii) protecting the legal interests of a public entity; and
2743 (b) after the emergency has abated, prepare a written document explaining the
2744 emergency condition that necessitated the emergency procurement under Subsection (1).
2745 Section 43. Section 63G-6a-806 is amended to read:
2746 63G-6a-806. Exception for public transit district contracting with a county or
2747 municipality.
2748 A public transit district, organized under Title 17B, Chapter 2a, Part 8, Public Transit
2749 District Act, may, without going through a standard procurement process or [
2750 exception to a standard procurement process described in [
2751
2752 (1) contract with a county or municipality to receive money from the county or
2753 municipality; and
2754 (2) use the money described in Subsection (1) to fund a transportation project or a
2755 transit-related program in accordance with rules made by the applicable rulemaking authority.
2756 Section 44. Section 63G-6a-1206 is amended to read:
2757 63G-6a-1206. Rules and regulations to determine allowable incurred costs --
2758 Required information.
2759 (1) (a) The applicable rulemaking authority may, by rule, establish the cost principles
2760 to be included in a cost-reimbursement contract to determine incurred costs for the purpose of
2761 calculating a reimbursement.
2762 (b) The cost principles established by rule under Subsection (1)(a) may be modified, by
2763 contract, if the procurement officer or the head of the issuing procurement unit approves the
2764 modification.
2765 (2) Except as provided in Subsection (5), a person who seeks to be, or is, a party in a
2766 cost-based contract with a procurement unit shall:
2767 (a) submit cost or pricing data relating to determining the cost or pricing amount; and
2768 (b) certify that, to the best of the contractor's knowledge and belief, the cost or pricing
2769 data submitted is accurate and complete as of the date specified by the procurement unit.
2770 (3) The procurement officer shall ensure that the date specified under Subsection (2)(b)
2771 is before:
2772 (a) the pricing of any contract awarded by a standard procurement process or pursuant
2773 to a sole source procurement, if the total contract price is expected to exceed an amount
2774 established by rule made by the applicable rulemaking authority; or
2775 (b) the pricing of any change order that is expected to exceed an amount established by
2776 rule made by the applicable rulemaking authority.
2777 (4) A contract or change order that requires a certification described in Subsection (2)
2778 shall include a provision that the price to the procurement unit, including profit or fee, shall be
2779 adjusted to exclude any significant sums by which the procurement unit finds that the price was
2780 increased because the contractor provided cost or pricing data that was inaccurate, incomplete,
2781 or not current as of the date specified by the procurement officer.
2782 (5) A procurement unit is not required to comply with Subsection (2) if:
2783 (a) the contract price is based on adequate price competition;
2784 (b) the contract price is based on established catalogue prices or market prices;
2785 (c) the contract price is set by law or rule; or
2786 (d) the procurement states, in writing:
2787 (i) that, in accordance with rules made by the applicable rulemaking authority, the
2788 requirements of Subsection (2) may be waived; and
2789 (ii) the reasons for the waiver.
2790 [
2791
2792
2793 [
2794 [
2795
2796 [
2797 [
2798
2799
2800 [
2801
2802
2803 [
2804
2805
2806 Section 45. Section 63G-6a-1206.3 is enacted to read:
2807 63G-6a-1206.3. Auditing of books.
2808 (1) A procurement officer or an audit entity under contract with the procurement unit
2809 may audit the books and records of a contractor or subcontractor.
2810 (2) An audit under Subsection (1):
2811 (a) is limited to the books and records that relate to the applicable contract or
2812 subcontract; and
2813 (b) may occur only at a reasonable time and place.
2814 (3) A contractor shall maintain all books and records relating to a contract for six years
2815 after the day on which the contractor receives the final payment under the contract, or until all
2816 audits initiated under this section within the six-year period have been completed, whichever is
2817 later.
2818 (4) A subcontractor shall maintain all books and records relating to a subcontract for
2819 six years after the day on which the subcontractor receives the final payment under the
2820 subcontract, or until all audits initiated under this section within the six-year period have been
2821 completed, whichever is later.
2822 Section 46. Section 63G-6a-1206.5 is amended to read:
2823 63G-6a-1206.5. Change in contract price.
2824 A contractor may:
2825 (1) increase the contract price only in accordance with the terms of the contract[
2826 (2) lower the contract price at any time during the time a contract is in effect.
2827 Section 47. Section 63G-6a-1502 is amended to read:
2828 63G-6a-1502. Requirements regarding procurement of design professional
2829 services.
2830 (1) A procurement unit seeking to procure design professional services shall:
2831 (a) publicly announce all requirements for those services through a request for
2832 statement of qualifications, as provided in this part; and
2833 (b) negotiate contracts for design professional services:
2834 (i) on the basis of demonstrated competence and qualification for the type of services
2835 required; and
2836 (ii) at fair and reasonable prices.
2837 (2) A procurement unit shall procure design professional services as provided in this
2838 part, except as otherwise provided in Sections [
2839 63G-6a-506, 63G-6a-802, and 63G-6a-803.
2840 (3) This part does not affect the authority of, and does not apply to procedures
2841 undertaken by, a procurement unit to obtain the services of architects or engineers in the
2842 capacity of employees of the procurement unit.
2843 Section 48. Section 63G-6a-1503.5 is amended to read:
2844 63G-6a-1503.5. Evaluation of statements of qualifications.
2845 (1) An evaluation committee appointed under Section 63G-6a-1503 shall evaluate and
2846 score each responsive [
2847 [
2848 the request for statement of qualifications.
2849 (2) Criteria not described in the request for statement of qualifications may not be used
2850 to evaluate a statement of qualifications.
2851 (3) An evaluation committee may enter into discussions or conduct interviews with, or
2852 attend presentations by, the design professionals whose statements of qualifications are under
2853 consideration.
2854 (4) An evaluation committee shall rank the top three highest scoring design
2855 professionals, in order of their scores, for the purpose of entering into fee negotiations as
2856 provided in Section 63G-6a-1505.
2857 (5) If fewer than three responsible design professionals submit statements of
2858 qualifications [
2859 procurement officer or head of a procurement unit with independent procurement authority
2860 shall issue a written determination explaining why it is in the best interest of the procurement
2861 unit to continue the fee negotiation and the contracting process with less than three design
2862 professionals.
2863 (6) (a) The deliberations of an evaluation committee may be held in private.
2864 (b) If the evaluation committee is a public body, as defined in Section 52-4-103, the
2865 evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
2866 deliberations.
2867 Section 49. Section 63G-6a-1601 is amended to read:
2868
2869 63G-6a-1601. Title.
2870 This part is known as "[
2871 Section 50. Section 63G-6a-1601.5 is enacted to read:
2872 63G-6a-1601.5. Definitions.
2873 As used in this part:
2874 (1) "Constructive knowledge":
2875 (a) means knowledge or information that a protestor would have if the protestor had
2876 exercised reasonable care or diligence, regardless of whether the protestor actually has the
2877 knowledge or information; and
2878 (b) includes knowledge of:
2879 (i) applicable provisions of this chapter and other law and administrative rule;
2880 (ii) instructions, criteria, deadlines, and requirements contained in the solicitation or in
2881 other documents made available to persons interested in the solicitation or provided in a
2882 mandatory pre-solicitation meeting;
2883 (iii) relevant facts and evidence supporting the protest or leading the protestor to
2884 contend that the protestor has been aggrieved in connection with a procurement;
2885 (iv) communications or actions, pertaining to the procurement, of all persons within the
2886 protestor's organization or under the supervision of the protestor; and
2887 (v) any other applicable information discoverable by the exercise of reasonable care or
2888 diligence.
2889 (2) "Protestor" means a person who files a protest under this part.
2890 (3) "Standing" means to have suffered an injury or harm or to be about to suffer
2891 imminent injury or harm, if:
2892 (a) the cause of the injury or harm is:
2893 (i) an infringement of the protestor's own right and not the right of another person who
2894 is not a party to the procurement;
2895 (ii) reasonably connected to the procurement unit's conduct; and
2896 (iii) the sole reason the protestor is not considered, or is no longer considered, for an
2897 award of a contract under the procurement that is the subject of the protest;
2898 (b) a decision on the protest in favor of the protestor:
2899 (i) is likely to redress the injury or harm; and
2900 (ii) would give the protestor a reasonable likelihood of being awarded a contract; and
2901 (c) the protestor has the legal authority to file the protest on behalf of the actual or
2902 prospective bidder or offeror or prospective contractor involved in the procurement that is the
2903 subject of the protest.
2904 Section 51. Section 63G-6a-1602 is amended to read:
2905 63G-6a-1602. Protest -- Time for filing -- Authority to resolve protest.
2906 (1) [
2907
2908 (a) has standing; and
2909 (b) is aggrieved in connection with a procurement[
2910 [
2911 [
2912 [
2913
2914 [
2915 [
2916
2917
2918
2919 [
2920
2921
2922 [
2923 [
2924
2925
2926
2927 [
2928
2929
2930 [
2931
2932 (2) A protest may not be filed after:
2933 (a) (i) (A) the opening of bids, for a protest relating to a procurement under a bidding
2934 process; or
2935 (B) the deadline for submitting responses to the solicitation, for a protest relating to
2936 another standard procurement process; or
2937 (ii) the closing of the procurement stage that is the subject of the protest:
2938 (A) if the protest relates to a multiple-stage procurement; and
2939 (B) notwithstanding Subsections (2)(a)(i)(A) and (B); or
2940 (b) the day that is seven days after the day on which the person knows or first has
2941 constructive knowledge of the facts giving rise to the protest, if:
2942 (i) the protestor did not know and did not have constructive knowledge of the facts
2943 giving rise to the protest before:
2944 (A) the opening of bids, for a protest relating to a procurement under a bidding process;
2945 (B) the deadline for submitting responses to the solicitation, for a protest relating to
2946 another standard procurement process; or
2947 (C) the closing of the procurement stage that is the subject of the protest, if the protest
2948 relates to a multiple-stage procurement; or
2949 (ii) the protest relates to a procurement process not described in Subsection (2)(a).
2950 (3) (a) A protestor shall include in a protest:
2951 [
2952
2953 [
2954 evidence:
2955 (A) leading the protestor to claim that the protestor has been aggrieved in connection
2956 with a procurement and providing the grounds for the protestor's protest; and
2957 (B) supporting the protestor's claim of standing.
2958 (b) A protest may not be considered unless it contains facts and evidence that, if true,
2959 would establish:
2960 (i) a violation of this chapter or other applicable law or rule;
2961 (ii) the procurement unit's failure to follow a provision of a solicitation;
2962 (iii) an error made by an evaluation committee or conducting procurement unit;
2963 (iv) a bias exercised by an evaluation committee or an individual committee member,
2964 excluding a bias that is a preference arising during the evaluation process because of how well
2965 a solicitation response meets criteria in the solicitation;
2966 (v) a failure to correctly apply or calculate a scoring criterion; or
2967 (vi) that specifications in a solicitation are unduly restrictive or unduly anticompetitive.
2968 (4) A protest may not be based on Ŝ→ :
2968a (a) the rejection of a solicitation response due to a protestor's failure to attend or
2968b participate in a mandatory conference, meeting, or site visit held before the deadline for
2968c submitting a solicitation response; or
2968d (b) ←Ŝ a vague or unsubstantiated allegation.
2969 (5) A protest may not include a request for:
2970 (a) an explanation of the rationale or scoring of evaluation committee members;
2971 (b) the disclosure of a protected record or protected information in addition to the
2972 information provided under the disclosure provisions of this chapter; or
2973 (c) other information, documents, or explanations not explicitly provided for in this
2974 chapter.
2975 [
2976 time prescribed in Subsection [
2977 (a) protest to the protest officer a solicitation or award of a contract; or
2978 (b) file an action or appeal challenging a solicitation or award of a contract before an
2979 appeals panel, a court, or any other forum.
2980 [
2981 officer or the head of a procurement unit may enter into a settlement agreement to resolve a
2982 protest.
2983 Section 52. Section 63G-6a-1603 is amended to read:
2984 63G-6a-1603. Protest officer responsibilities and authority -- Proceedings on
2985 protest -- Effect of decision.
2986 (1) After a protest is filed, the protest officer shall determine whether the protest is
2987 timely filed and complies fully with the requirements of Section 63G-6a-1602.
2988 (2) If the protest officer determines that the protest is not timely filed or that the protest
2989 does not fully comply with Section 63G-6a-1602, the protest officer shall dismiss the protest.
2990 (3) If the protest officer determines that the protest is timely filed and complies fully
2991 with Section 63G-6a-1602, the protest officer shall:
2992 (a) dismiss the protest if the protest officer determines that the protest alleges facts that,
2993 if true, do not provide an adequate basis for the protest;
2994 (b) uphold the protest without holding a hearing if the protest officer determines that
2995 the undisputed facts of the protest indicate that the protest should be upheld; or
2996 (c) hold a hearing on the protest if there is a genuine issue of material fact that needs to
2997 be resolved in order to determine whether the protest should be upheld.
2998 (4) (a) If a hearing is held on a protest, the protest officer may:
2999 (i) subpoena witnesses and compel their attendance at the protest hearing;
3000 (ii) subpoena documents for production at the protest hearing;
3001 (iii) obtain additional factual information; and
3002 (iv) obtain testimony from experts, the person filing the protest, representatives of the
3003 procurement unit, or others to assist the protest officer to make a decision on the protest.
3004 (b) The Rules of Evidence do not apply to a protest hearing.
3005 (c) The applicable rulemaking authority shall make rules relating to intervention in a
3006 protest, including designating:
3007 (i) who may intervene; and
3008 (ii) the time and manner of intervention.
3009 (d) A protest officer shall:
3010 (i) record each hearing held on a protest under this section;
3011 (ii) regardless of whether a hearing on a protest is held under this section, preserve all
3012 records and other evidence relied upon in reaching the protest officer's written decision until
3013 the decision, and any appeal of the decision, becomes final; and
3014 (iii) submit to the procurement policy board chair a copy of the protest officer's written
3015 decision and all records and other evidence relied upon in reaching the decision, within seven
3016 days after receiving:
3017 (A) notice that an appeal of the protest officer's decision has been filed under Section
3018 63G-6a-1702; or
3019 (B) a request from the chair of the procurement policy board.
3020 (e) A protest officer's holding a hearing, considering a protest, or issuing a written
3021 decision under this section does not affect a person's right to later question or challenge the
3022 protest officer's jurisdiction to hold the hearing, consider the protest, or issue the decision.
3023 (5) (a) The deliberations of a protest officer may be held in private.
3024 (b) If the protest officer is a public body, as defined in Section 52-4-103, the protest
3025 officer shall comply with Section 52-4-205 in closing a meeting for its deliberations.
3026 (6) (a) A protest officer, or the protest officer's designee, shall promptly issue a written
3027 decision regarding any protest, unless the protest is settled by mutual agreement.
3028 (b) The decision shall:
3029 (i) state the reasons for the action taken;
3030 (ii) inform the protestor of the right to judicial or administrative review as provided in
3031 this chapter; and
3032 (iii) indicate the amount of the security deposit or bond required under Section
3033 63G-6a-1703.
3034 (c) A person who issues a decision under Subsection (6)(a) shall mail, email, or
3035 otherwise immediately furnish a copy of the decision to the protestor.
3036 (7) A decision described in this section is effective until stayed or reversed on appeal,
3037 except to the extent provided in Section 63G-6a-1903.
3038 (8) (a) A decision described in Subsection (6)(a) that is issued in relation to a
3039 procurement unit other than a legislative procurement unit, a judicial procurement unit, a
3040 nonadopting local government procurement unit, or a public transit district is final and
3041 conclusive unless the protestor files an appeal under Section 63G-6a-1702.
3042 (b) A decision described in Subsection (6)(a) that is issued in relation to a legislative
3043 procurement unit, a judicial procurement unit, a nonadopting local government procurement
3044 unit, or a public transit district is final and conclusive unless the protestor files an appeal under
3045 Section 63G-6a-1802.
3046 (9) If the protest officer does not issue the written decision regarding a protest [
3047
3048
3049 be agreed upon by the parties, the protester[
3050 as if an adverse decision had been received.
3051 (10) A determination under this section by the protest officer regarding an issue of fact
3052 may not be overturned on appeal unless the decision is arbitrary and capricious or clearly
3053 erroneous.
3054 Section 53. Section 63G-6a-1702 is amended to read:
3055 63G-6a-1702. Appeal to Utah State Procurement Policy Board -- Appointment of
3056 procurement appeals panel -- Proceedings.
3057 (1) This part applies to all procurement units other than:
3058 (a) a legislative procurement unit;
3059 (b) a judicial procurement unit;
3060 (c) a nonadopting local government procurement unit; or
3061 (d) a public transit district.
3062 (2) (a) Subject to Section 63G-6a-1703, a party to a protest involving a procurement
3063 unit other than a procurement unit listed in Subsection (1)(a), (b), (c), or (d) may appeal the
3064 protest decision to the board by filing a written notice of appeal with the chair of the board
3065 within seven days after:
3066 (i) the day on which the written decision described in Section 63G-6a-1603 is:
3067 (A) personally served on the party or the party's representative; or
3068 (B) emailed or mailed to the address or email address [
3069 under Subsection 63G-6a-1602[
3070 (ii) the day on which the 30-day period described in Subsection 63G-6a-1603(9) ends,
3071 if a written decision is not issued before the end of the 30-day period.
3072 (b) A person appealing a debarment or suspension of a procurement unit other than a
3073 procurement unit listed in Subsection (1)(a), (b), (c), or (d) shall file a written notice of appeal
3074 with the chair of the board no later than seven days after the debarment or suspension.
3075 (c) A notice of appeal under Subsection (2)(a) or (b) shall:
3076 (i) include the address of record and email address of record of the party filing the
3077 notice of appeal; and
3078 (ii) be accompanied by a copy of any written protest decision or debarment or
3079 suspension order.
3080 (3) A person may not base an appeal of a protest under this section on a ground not
3081 specified in the person's protest under Section 63G-6a-1602.
3082 (4) A person may not appeal from a protest described in Section 63G-6a-1602, unless:
3083 (a) a decision on the protest has been issued; or
3084 (b) a decision is not issued and the 30-day period described in Subsection
3085 63G-6a-1603(9), or a longer period agreed to by the parties, has passed.
3086 (5) The chair of the board or a designee of the chair who is not employed by the
3087 procurement unit responsible for the solicitation, contract award, or other action complained of:
3088 (a) shall, within seven days after the day on which the chair receives a timely written
3089 notice of appeal under Subsection (2), and if all the requirements of Subsection (2) and Section
3090 63G-6a-1703 have been met, appoint:
3091 (i) a procurement appeals panel to hear and decide the appeal, consisting of at least
3092 three individuals, each of whom is:
3093 (A) a member of the board; or
3094 (B) a designee of a member appointed under Subsection (5)(a)(i)(A), if the designee is
3095 approved by the chair; and
3096 (ii) one of the members of the procurement appeals panel to be the chair of the panel;
3097 (b) may:
3098 (i) appoint the same procurement appeals panel to hear more than one appeal; or
3099 (ii) appoint a separate procurement appeals panel for each appeal;
3100 (c) may not appoint a person to a procurement appeals panel if the person is employed
3101 by the procurement unit responsible for the solicitation, contract award, or other action
3102 complained of; and
3103 (d) shall, at the time the procurement appeals panel is appointed, provide appeals panel
3104 members with a copy of the protest officer's written decision and all other records and other
3105 evidence that the protest officer relied on in reaching the decision.
3106 (6) A procurement appeals panel described in Subsection (5) shall:
3107 (a) consist of an odd number of members;
3108 (b) conduct an informal proceeding on the appeal within 60 days after the day on which
3109 the procurement appeals panel is appointed:
3110 (i) unless all parties stipulate to a later date; and
3111 (ii) subject to Subsection (8);
3112 (c) at least seven days before the proceeding, mail, email, or hand-deliver a written
3113 notice of the proceeding to the parties to the appeal; and
3114 (d) within seven days after the day on which the proceeding ends:
3115 (i) issue a written decision on the appeal; and
3116 (ii) mail, email, or hand-deliver the written decision on the appeal to the parties to the
3117 appeal and to the protest officer.
3118 (7) (a) The deliberations of a procurement appeals panel may be held in private.
3119 (b) If the procurement appeals panel is a public body, as defined in Section 52-4-103,
3120 the procurement appeals panel shall comply with Section 52-4-205 in closing a meeting for its
3121 deliberations.
3122 (8) A procurement appeals panel may continue a procurement appeals proceeding
3123 beyond the 60-day period described in Subsection (6)(b) if the procurement appeals panel
3124 determines that the continuance is in the interests of justice.
3125 (9) A procurement appeals panel:
3126 (a) shall, subject to Subsection (9)(c), consider the appeal based solely on:
3127 (i) the protest decision;
3128 (ii) the record considered by the person who issued the protest decision; and
3129 (iii) if a protest hearing was held, the record of the protest hearing;
3130 (b) may not take additional evidence;
3131 (c) notwithstanding Subsection (9)(b), may, during an informal hearing, ask questions
3132 and receive responses regarding the appeal, the protest decision, or the record in order to assist
3133 the panel to understand the appeal, the protest decision, and the record; and
3134 (d) shall uphold the decision of the protest officer, unless the decision is arbitrary and
3135 capricious or clearly erroneous.
3136 (10) If a procurement appeals panel determines that the decision of the protest officer is
3137 arbitrary and capricious or clearly erroneous, the procurement appeals panel:
3138 (a) shall remand the matter to the protest officer, to cure the problem or render a new
3139 decision;
3140 (b) may recommend action that the protest officer should take; and
3141 (c) may not order that:
3142 (i) a contract be awarded to a certain person;
3143 (ii) a contract or solicitation be cancelled; or
3144 (iii) any other action be taken other than the action described in Subsection (10)(a).
3145 (11) The board shall make rules relating to the conduct of an appeals proceeding,
3146 including rules that provide for:
3147 (a) expedited proceedings; and
3148 (b) electronic participation in the proceedings by panel members and participants.
3149 (12) The Rules of Evidence do not apply to an appeals proceeding.
3150 Section 54. Section 63G-6a-1703 is amended to read:
3151 63G-6a-1703. Requirement to pay a security deposit or post a bond -- Exceptions
3152 -- Amount -- Forfeiture of security deposit or bond.
3153 (1) [
3154 notice of appeal under Section 63G-6a-1702 shall, before the expiration of the time provided
3155 under Subsection 63G-6a-1702(2) for filing a notice of appeal, pay a security deposit or post a
3156 bond with the office of the protest officer.
3157 (2) The amount of a security deposit or bond required under Subsection (1) is:
3158 (a) for an appeal relating to an invitation for bids or request for proposals and except as
3159 provided in Subsection (2)(b)(ii):
3160 (i) $20,000, if the total contract value is under $500,000;
3161 (ii) $25,000, if the total contract value is $500,000 or more but less than $1,000,000;
3162 (iii) $50,000, if the total contract value is $1,000,000 or more but less than $2,000,000;
3163 (iv) $95,000, if the total contract value is $2,000,000 or more but less than $4,000,000;
3164 (v) $180,000, if the total contract value is $4,000,000 or more but less than $8,000,000;
3165 (vi) $320,000, if the total contract value is $8,000,000 or more but less than
3166 $16,000,000;
3167 (vii) $600,000, if the total contract value is $16,000,000 or more but less than
3168 $32,000,000;
3169 (viii) $1,100,000, if the total contract value is $32,000,000 or more but less than
3170 $64,000,000;
3171 (ix) $1,900,000, if the total contract value is $64,000,000 or more but less than
3172 $128,000,000;
3173 (x) $3,500,000, if the total contract value is $128,000,000 or more but less than
3174 $256,000,000;
3175 (xi) $6,400,000, if the total contract value is $256,000,000 or more but less than
3176 $512,000,000; and
3177 (xii) $10,200,000, if the total contract value is $512,000,000 or more; or
3178 (b) $20,000, for an appeal:
3179 (i) relating to any type of procurement process other than an invitation for bids or
3180 request for proposals;
3181 (ii) relating to an invitation for bids or request for proposals, if the estimated total
3182 contract value cannot be determined; or
3183 (iii) of a debarment or suspension.
3184 (3) (a) For an appeal relating to an invitation for bids, the estimated total contract value
3185 shall be based on:
3186 (i) the lowest responsible and responsive bid amount for the entire term of the contract,
3187 excluding any renewal period, if the bid opening has occurred;
3188 (ii) the total budget for the procurement item for the entire term of the contract,
3189 excluding any renewal period, if bids are based on unit or rate pricing; or
3190 (iii) if the contract is being rebid, the historical usage and amount spent on the contract
3191 over the life of the contract.
3192 (b) For an appeal relating to a request for proposals, the estimated total contract value
3193 shall be based on:
3194 (i) the lowest cost proposed in a response to a request for proposals, considering the
3195 entire term of the contract, excluding any renewal period, if the opening of proposals has
3196 occurred;
3197 (ii) the total budget for the procurement item over the entire term of the contract,
3198 excluding any renewal period, if opened cost proposals are based on unit or rate pricing; or
3199 (iii) if the contract is being reissued, the historical usage and amount spent on the
3200 contract over the life of the contract that is being reissued.
3201 (4) The protest officer shall:
3202 (a) retain the security deposit or bond until the protest and any appeal of the protest
3203 decision is final;
3204 (b) as it relates to a security deposit:
3205 (i) deposit the security deposit into an interest-bearing account; and
3206 (ii) after any appeal of the protest decision becomes final, return the security deposit
3207 and the interest it accrues to the person who paid the security deposit, unless the security
3208 deposit is forfeited to the general fund of the procurement unit under Subsection (5); and
3209 (c) as it relates to a bond:
3210 (i) retain the bond until the protest and any appeal of the protest decision becomes
3211 final; and
3212 (ii) after the protest and any appeal of the protest decision becomes final, return the
3213 bond to the person who posted the bond, unless the bond is forfeited to the general fund of the
3214 procurement unit under Subsection (5).
3215 (5) A security deposit that is paid, or a bond that is posted, under this section shall
3216 forfeit to the general fund of the procurement unit if:
3217 (a) the person who paid the security deposit or posted the bond fails to ultimately
3218 prevail on appeal; and
3219 (b) the procurement appeals panel finds that the protest or appeal is frivolous or that its
3220 primary purpose is to harass or cause a delay.
3221 Section 55. Section 63G-6a-1903 is amended to read:
3222 63G-6a-1903. Effect of timely protest or appeal.
3223 A procurement unit, other than a legislative procurement unit, a judicial procurement
3224 unit, a nonadopting local government procurement unit, or a public transit district, may not
3225 proceed further with a solicitation or with the award of a contract:
3226 (1) during the pendency of a timely:
3227 (a) protest under [
3228 (b) appeal of a protest under Section 63G-6a-1702; or
3229 (c) appeal of a procurement appeals panel decision under Section 63G-6a-1802; and
3230 (2) until:
3231 (a) all administrative and judicial remedies are exhausted;
3232 (b) for a protest under Section 63G-6a-1602 or an appeal under Section 63G-6a-1702:
3233 (i) the chief procurement officer, after consultation with the attorney general's office
3234 and the head of the using agency, makes a written determination that award of the contract
3235 without delay is in the best interest of the procurement unit or the state;
3236 (ii) the head of a procurement unit with independent procurement authority, after
3237 consultation with the procurement unit's attorney, makes a written determination that award of
3238 the contract without delay is in the best interest of the procurement unit or the state; or
3239 (iii) for a procurement unit that is not represented by the attorney general's office, the
3240 procurement unit, after consulting with the attorney for the procurement unit, makes a written
3241 determination that award of the contract without delay is in the best interest of the procurement
3242 unit or the state; or
3243 (c) for an appeal under Section 63G-6a-1802, or an appeal to a higher court than
3244 district court:
3245 (i) the chief procurement officer, after consultation with the attorney general's office
3246 and the head of the using agency, makes a written determination that award of the contract
3247 without delay is in the best interest of the procurement unit or the state;
3248 (ii) the head of a procurement unit with independent procurement authority, after
3249 consultation with the procurement unit's attorney, makes a written determination that award of
3250 the contract without delay is in the best interest of the procurement unit or the state; or
3251 (iii) for a procurement unit that is not represented by the attorney general's office, the
3252 procurement unit, after consulting with the attorney for the procurement unit, makes a written
3253 determination that award of the contract without delay is necessary to protect the best interest
3254 of the procurement unit or the state.
3255 Section 56. Section 63G-6a-2002 is amended to read:
3256 63G-6a-2002. Records -- Retention.
3257 (1) All procurement records shall be retained and disposed of in accordance with Title
3258 63G, Chapter 2, Government Records Access and Management Act.
3259 (2) Written determinations required by this chapter shall be retained in the appropriate
3260 official contract file of:
3261 (a) the division;
3262 (b) the procurement unit with independent procurement authority; or
3263 (c) for a legislative procurement unit or a judicial procurement unit, the person
3264 designated by rule made by the applicable rulemaking authority.
3265 (3) A procurement unit shall keep, and make available to the public, upon request,
3266 written records of procurements for which an expenditure of $50 or more is made, for the
3267 longer of:
3268 (a) [
3269 (b) the time otherwise required by law; or
3270 (c) the time period provided by rule made by the applicable rulemaking authority.
3271 (4) The written record described in Subsection (3) shall include:
3272 (a) the name of the provider from whom the procurement was made;
3273 (b) a description of the procurement item;
3274 (c) the date of the procurement; and
3275 (d) the expenditure made for the procurement.
3276 Section 57. Section 63G-6a-2003 is amended to read:
3277 63G-6a-2003. Records of contracts made -- Audits -- Contract requirements.
3278 The chief procurement officer, the procurement officer, or the head of a procurement
3279 unit with independent procurement authority shall maintain a record of all contracts made
3280 under Section [
3281 Title 63G, Chapter 2, Government Records Access and Management Act. The record shall
3282 contain each contractor's name, the amount and type of each contract, and a listing of the
3283 procurement items to which the contract relates.
3284 Section 58. Section 63G-6a-2105 is amended to read:
3285 63G-6a-2105. Cooperative procurements -- Contracts with federal government --
3286 Regional solicitations.
3287 (1) The chief procurement officer may, in accordance with the requirements of this
3288 chapter, enter into a cooperative procurement, and a contract that is awarded as a result of a
3289 cooperative procurement, with:
3290 (a) another state;
3291 (b) a cooperative purchasing organization; or
3292 (c) a public entity inside or outside the state.
3293 (2) A public entity, nonprofit organization, or, as permitted under federal law, an
3294 agency of the federal government, may obtain a procurement item from a state cooperative
3295 contract or a contract awarded by the chief procurement officer under Subsection (1), without
3296 signing a participating addendum if the solicitation issued by the chief procurement officer to
3297 obtain the contract includes a statement indicating that the resulting contract will be issued for
3298 the benefit of public entities and, as applicable, nonprofit organizations and agencies of the
3299 federal government.
3300 (3) Except as provided in Section [
3301 in this chapter, an executive branch procurement unit may not obtain a procurement item from
3302 a source other than a state cooperative contract or a contract awarded by the chief procurement
3303 officer under Subsection (1), if the procurement item is available under a state cooperative
3304 contract or a contract awarded by the chief procurement officer under Subsection (1).
3305 (4) A Utah procurement unit may:
3306 (a) contract with the federal government without going through a standard procurement
3307 process or an exception to a standard procurement process, described in Part 8, Exceptions to
3308 Procurement Requirements, if the procurement item obtained under the contract is provided:
3309 (i) directly by the federal government and not by a person contracting with the federal
3310 government; or
3311 (ii) by a person under contract with the federal government that obtained the contract in
3312 a manner that substantially complies with the provisions of this chapter;
3313 (b) participate in, sponsor, conduct, or administer a cooperative procurement with
3314 another Utah procurement unit or another public entity in Utah, if:
3315 (i) each party unit involved in the cooperative procurement enters into an agreement
3316 describing the rights and duties of each party;
3317 (ii) the procurement is conducted, and the contract awarded, in accordance with the
3318 requirements of this chapter;
3319 (iii) the solicitation:
3320 (A) clearly indicates that the procurement is a cooperative procurement; and
3321 (B) identifies each party that may purchase under the resulting contract; and
3322 (iv) each party involved in the cooperative procurement signs a participating addendum
3323 describing its rights and obligations in relation to the resulting contract; or
3324 (c) purchase under, or otherwise participate in, an agreement or contract of a
3325 cooperative purchasing organization, if:
3326 (i) each party involved in the cooperative procurement enters into an agreement
3327 describing the rights and duties of each party;
3328 (ii) the procurement was conducted in accordance with the requirements of this
3329 chapter;
3330 (iii) the solicitation:
3331 (A) clearly indicates that the procurement is a cooperative procurement; and
3332 (B) identifies each party that may purchase under the resulting contract; and
3333 (iv) each party involved in the cooperative procurement signs a participating addendum
3334 describing its rights and obligations in relation to the resulting contract.
3335 (5) A procurement unit may not obtain a procurement item under a contract that results
3336 from a cooperative procurement described in Subsection (4), [
3337 (a) is [
3338 (b) [
3339 section.
3340 (6) A procurement unit, other than a legislative procurement unit or a judicial
3341 procurement unit, may not obtain a procurement item under a contract held by the United
3342 States General Services Administration, unless, based upon documentation provided by the
3343 procurement unit, the Director of the State Division of Purchasing and General Services
3344 determines in writing that the United States General Services Administration procured the
3345 contract in a manner that substantially complies with the provisions of this chapter.
3346 (7) (a) As used in this Subsection (7), "regional solicitation" means a solicitation issued
3347 by the chief procurement officer for the procurement of a procurement item within a specified
3348 geographical region of the state.
3349 (b) In addition to any other duty or authority under this section, the chief procurement
3350 officer shall:
3351 (i) after considering board recommendations, develop a plan for issuing regional
3352 solicitations;
3353 (ii) present the plan to the Government Operations Interim Committee by September 1,
3354 2014; and
3355 (iii) after developing a plan, issue regional solicitations for procurement items in
3356 accordance with the plan and this chapter.
3357 (c) A plan under Subsection (7)(b) shall:
3358 (i) define the proposed regional boundaries for regional solicitations;
3359 (ii) specify the types of procurement items for which a regional solicitation may be
3360 issued; and
3361 (iii) identify the regional solicitations that the chief procurement officer plans to issue.
3362 (d) A regional solicitation shall require that a person responding to the solicitation offer
3363 similar warranties and submit to similar obligations as are standard under other state
3364 cooperative contracts.
3365 (e) [
3366 is available under a state cooperative contract may not be provided under a contract pursuant to
3367 a regional solicitation until after the expiration of the state cooperative contract.
3368 Section 59. Section 63G-6a-2404 is amended to read:
3369 63G-6a-2404. Unlawful conduct -- Exceptions -- Classification of offenses.
3370 (1) (a) It is unlawful for a person who has or is seeking a contract with or a grant from
3371 a public entity knowingly to give, or offer, promise, or pledge to give, a gratuity or kickback to:
3372 (i) the public entity;
3373 (ii) a procurement professional or contract administration professional; or
3374 (iii) an individual who the person knows is a family member of an individual described
3375 in Subsection (1)(a)(ii).
3376 (b) It is not unlawful for a public agency to give, offer, promise, or pledge to give a
3377 contribution to another public agency.
3378 (c) A person is not guilty of unlawful conduct under Subsection (1)(a) for:
3379 (i) giving or offering, promising, or pledging to give a contribution to a public entity,
3380 unless done with the intent to induce the public entity, in exchange, to:
3381 (A) award a contract or grant;
3382 (B) make a procurement decision; or
3383 (C) take an action relating to the administration of a contract or grant; or
3384 (ii) giving or offering, promising, or pledging to give something of value to an
3385 organization to which a procurement professional or contract administration professional
3386 belongs, unless done with the intent to induce a public entity, in exchange, to:
3387 (A) award a contract or grant;
3388 (B) make a procurement decision; or
3389 (C) take an action relating to the administration of a contract or grant.
3390 (2) (a) It is unlawful for a procurement professional or contract administration
3391 professional, or a family member of either, knowingly to receive or accept, offer or agree to
3392 receive or accept, or ask for a promise or pledge of, a gratuity or kickback from a person who
3393 has or is seeking a contract with or a grant from a public entity.
3394 (b) An individual is not guilty of unlawful conduct under Subsection (2)(a) for
3395 receiving or accepting, offering or agreeing to receive or accept, or asking for a promise or
3396 pledge of a contribution on behalf of a public entity, unless done with the intent that the public
3397 entity, in exchange:
3398 (i) award a contract or grant;
3399 (ii) make a procurement decision; or
3400 (iii) take an action relating to the administration of a contract or grant.
3401 (3) Notwithstanding Subsections (1) and (2), it is not unlawful for a person to give or
3402 receive, offer to give or receive, or promise or pledge to give or ask for a promise or pledge of,
3403 a hospitality gift, if:
3404 (a) the total value of the hospitality gift is less than $10; and
3405 (b) the aggregate value of all hospitality gifts from the person to the recipient in a
3406 calendar year is less than $50.
3407 (4) A person who engages in the conduct made unlawful under Subsection (1) or (2) is
3408 guilty of:
3409 (a) a second degree felony, if the total value of the gratuity or kickback is $1,000 or
3410 more;
3411 (b) a third degree felony, if the total value of the gratuity or kickback is $250 or more
3412 but less than $1,000;
3413 (c) a class A misdemeanor, if the total value of the gratuity or kickback is $100 or more
3414 but less than $250; and
3415 (d) a class B misdemeanor, if the total value of the gratuity or kickback is less than
3416 $100.
3417 (5) The criminal sanctions described in Subsection (4) do not preclude the imposition
3418 of other penalties for conduct made unlawful under this part, in accordance with other
3419 applicable law, including:
3420 (a) dismissal from employment or other disciplinary action;
3421 (b) for an elected officer listed in Section 77-6-1, removal from office as provided in
3422 Title 77, Chapter 6, Removal by Judicial Proceedings;
3423 (c) requiring the public officer or employee to return the value of the unlawful gratuity
3424 or kickback; and
3425 (d) any other civil penalty provided by law.
3426 Section 60. Section 63G-6a-2407 is amended to read:
3427 63G-6a-2407. Duty to report unlawful conduct.
3428 [
3429
3430
3431 (1) As used in this section, "unlawful conduct" means:
3432 (a) conduct made unlawful under this part; or
3433 (b) conduct, including bid rigging, improperly steering a contract to a favored vendor,
3434 exercising undue influence on an individual involved in the procurement process, or
3435 participating in collusion or other anticompetitive practices, made unlawful under other
3436 applicable law.
3437 (2) (a) A procurement professional with actual knowledge that a person has engaged in
3438 unlawful conduct shall report the person's unlawful conduct to:
3439 (i) the state auditor; or
3440 (ii) the attorney general or other appropriate prosecuting attorney.
3441 (b) An individual not subject to the requirement of Subsection (2)(a) who has actual
3442 knowledge that a person has engaged in unlawful conduct may report the person's unlawful
3443 conduct to:
3444 (i) the state auditor; or
3445 (ii) the attorney general or other appropriate prosecuting attorney.
3446 [
3447 Subsection [
3448 in Subsection 63G-6a-2404(5).
3449 Section 61. Section 63G-10-403 is amended to read:
3450 63G-10-403. Department of Transportation bid or request for proposals protest
3451 settlement agreement approval and review.
3452 (1) As used in this section:
3453 (a) "Department" means the Department of Transportation created in Section 72-1-201.
3454 (b) "Settlement agreement" includes stipulations, consent decrees, settlement
3455 agreements, or other legally binding documents or representations resolving a dispute between
3456 the department and another party when the department is required to pay money or required to
3457 take legally binding action.
3458 (2) The department shall obtain the approval of the Transportation Commission or the
3459 governor or review by the Legislative Management Committee of a settlement agreement that
3460 involves a bid or request for proposal protest in accordance with this section.
3461 (3) A settlement agreement that is being settled by the department as part of a bid or
3462 request for proposal protest, in accordance with Subsection 63G-6a-1602[
3463 cost government entities more than $100,000 to implement shall be presented to the
3464 Transportation Commission for approval or rejection.
3465 (4) A settlement agreement that is being settled by the department as part of a bid or
3466 request for proposal protest, in accordance with Subsection 63G-6a-1602[
3467 cost government entities more than $500,000 to implement shall be presented:
3468 (a) to the Transportation Commission for approval or rejection; and
3469 (b) to the governor for approval or rejection.
3470 (5) (a) A settlement agreement that is being settled by the department as part of a bid or
3471 request for proposal protest, in accordance with Subsection 63G-6a-1602[
3472 cost government entities more than $1,000,000 to implement shall be presented:
3473 (i) to the Transportation Commission for approval or rejection;
3474 (ii) to the governor for approval or rejection; and
3475 (iii) if the settlement agreement is approved by the Transportation Commission and the
3476 governor, to the Legislative Management Committee.
3477 (b) The Legislative Management Committee may recommend approval or rejection of
3478 the settlement agreement.
3479 (6) (a) The department may not enter into a settlement agreement that resolves a bid or
3480 request for proposal protest, in accordance with Subsection 63G-6a-1602[
3481 cost government entities more than $100,000 to implement until the Transportation
3482 Commission has approved the agreement.
3483 (b) The department may not enter into a settlement agreement that resolves a bid or
3484 request for proposal protest, in accordance with Subsection 63G-6a-1602[
3485 cost government entities more than $500,000 to implement until the Transportation
3486 Commission and the governor have approved the agreement.
3487 (c) The department may not enter into a settlement agreement that resolves a bid or
3488 request for proposal protest, in accordance with Subsection 63G-6a-1602[
3489 cost government entities more than $1,000,000 to implement until:
3490 (i) the Transportation Commission has approved the agreement;
3491 (ii) the governor has approved the agreement; and
3492 (iii) the Legislative Management Committee has reviewed the agreement.
3493 Section 62. Section 72-6-107.5 is amended to read:
3494 72-6-107.5. Construction of improvements of highway -- Contracts -- Health
3495 insurance coverage.
3496 (1) For purposes of this section:
3497 (a) "Employee" means an "employee," "worker," or "operative" as defined in Section
3498 34A-2-104 who:
3499 (i) works at least 30 hours per calendar week; and
3500 (ii) meets employer eligibility waiting requirements for health care insurance which
3501 may not exceed the first day of the calendar month following 60 days from the date of hire.
3502 (b) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
3503 (c) "Qualified health insurance coverage" is as defined in Section 26-40-115.
3504 (d) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
3505 (2) (a) Except as provided in Subsection (3), this section applies to contracts entered
3506 into by the department on or after July 1, 2009, for construction or design of highways and to a
3507 prime contractor or to a subcontractor in accordance with Subsection (2)(b).
3508 (b) (i) A prime contractor is subject to this section if the prime contract is in the
3509 amount of $1,500,000 or greater.
3510 (ii) A subcontractor is subject to this section if a subcontract is in the amount of
3511 $750,000 or greater.
3512 (3) This section does not apply if:
3513 (a) the application of this section jeopardizes the receipt of federal funds;
3514 (b) the contract is a sole source contract; or
3515 (c) the contract is an emergency procurement.
3516 (4) (a) This section does not apply to a change order as defined in Section 63G-6a-103,
3517 or a modification to a contract, when the contract does not meet the initial threshold required
3518 by Subsection (2).
3519 (b) A person who intentionally uses change orders or contract modifications to
3520 circumvent the requirements of Subsection (2) is guilty of an infraction.
3521 (5) (a) A contractor subject to Subsection (2) shall demonstrate to the department that
3522 the contractor has and will maintain an offer of qualified health insurance coverage for the
3523 contractor's employees and the employees' dependents during the duration of the contract.
3524 (b) If a subcontractor of the contractor is subject to Subsection (2), the contractor shall
3525 demonstrate to the department that the subcontractor has and will maintain an offer of qualified
3526 health insurance coverage for the subcontractor's employees and the employees' dependents
3527 during the duration of the contract.
3528 (c) (i) (A) A contractor who fails to meet the requirements of Subsection (5)(a) during
3529 the duration of the contract is subject to penalties in accordance with administrative rules
3530 adopted by the department under Subsection (6).
3531 (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
3532 requirements of Subsection (5)(b).
3533 (ii) (A) A subcontractor who fails to meet the requirements of Subsection (5)(b) during
3534 the duration of the contract is subject to penalties in accordance with administrative rules
3535 adopted by the department under Subsection (6).
3536 (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
3537 requirements of Subsection (5)(a).
3538 (6) The department shall adopt administrative rules:
3539 (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
3540 (b) in coordination with:
3541 (i) the Department of Environmental Quality in accordance with Section 19-1-206;
3542 (ii) the Department of Natural Resources in accordance with Section 79-2-404;
3543 (iii) the State Building Board in accordance with Section 63A-5-205;
3544 (iv) the State Capitol Preservation Board in accordance with Section 63C-9-403;
3545 (v) a public transit district in accordance with Section 17B-2a-818.5; and
3546 (vi) the Legislature's Administrative Rules Review Committee; and
3547 (c) which establish:
3548 (i) the requirements and procedures a contractor must follow to demonstrate to the
3549 department compliance with this section which shall include:
3550 (A) that a contractor will not have to demonstrate compliance with Subsection (5)(a) or
3551 (b) more than twice in any 12-month period; and
3552 (B) that the actuarially equivalent determination required for qualified health insurance
3553 coverage in Subsection (1) is met by the contractor if the contractor provides the department or
3554 division with a written statement of actuarial equivalency from either:
3555 (I) the Utah Insurance Department;
3556 (II) an actuary selected by the contractor or the contractor's insurer; or
3557 (III) an underwriter who is responsible for developing the employer group's premium
3558 rates;
3559 (ii) the penalties that may be imposed if a contractor or subcontractor intentionally
3560 violates the provisions of this section, which may include:
3561 (A) a three-month suspension of the contractor or subcontractor from entering into
3562 future contracts with the state upon the first violation;
3563 (B) a six-month suspension of the contractor or subcontractor from entering into future
3564 contracts with the state upon the second violation;
3565 (C) an action for debarment of the contractor or subcontractor in accordance with
3566 Section 63G-6a-904 upon the third or subsequent violation; and
3567 (D) monetary penalties which may not exceed 50% of the amount necessary to
3568 purchase qualified health insurance coverage for an employee and a dependent of the employee
3569 of the contractor or subcontractor who was not offered qualified health insurance coverage
3570 during the duration of the contract; and
3571 (iii) a website on which the department shall post the benchmark for the qualified
3572 health insurance coverage identified in Subsection (1)(c).
3573 (7) (a) (i) In addition to the penalties imposed under Subsection (6), a contractor or
3574 subcontractor who intentionally violates the provisions of this section shall be liable to the
3575 employee for health care costs that would have been covered by qualified health insurance
3576 coverage.
3577 (ii) An employer has an affirmative defense to a cause of action under Subsection
3578 (7)(a)(i) if:
3579 (A) the employer relied in good faith on a written statement of actuarial equivalency
3580 provided by:
3581 (I) an actuary; or
3582 (II) an underwriter who is responsible for developing the employer group's premium
3583 rates; or
3584 (B) the department determines that compliance with this section is not required under
3585 the provisions of Subsection (3) or (4).
3586 (b) An employee has a private right of action only against the employee's employer to
3587 enforce the provisions of this Subsection (7).
3588 (8) Any penalties imposed and collected under this section shall be deposited into the
3589 Medicaid Restricted Account created in Section 26-18-402.
3590 (9) The failure of a contractor or subcontractor to provide qualified health insurance
3591 coverage as required by this section:
3592 (a) may not be the basis for a protest or other action from a prospective bidder, offeror,
3593 or contractor under Section [
3594 Chapter 6a, Utah Procurement Code; and
3595 (b) may not be used by the procurement entity or a prospective bidder, offeror, or
3596 contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design
3597 or construction.
3598 Section 63. Section 79-2-404 is amended to read:
3599 79-2-404. Contracting powers of department -- Health insurance coverage.
3600 (1) For purposes of this section:
3601 (a) "Employee" means an "employee," "worker," or "operative" as defined in Section
3602 34A-2-104 who:
3603 (i) works at least 30 hours per calendar week; and
3604 (ii) meets employer eligibility waiting requirements for health care insurance which
3605 may not exceed the first day of the calendar month following 60 days from the date of hire.
3606 (b) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
3607 (c) "Qualified health insurance coverage" is as defined in Section 26-40-115.
3608 (d) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
3609 (2) (a) Except as provided in Subsection (3), this section applies a design or
3610 construction contract entered into by, or delegated to, the department or a division, board, or
3611 council of the department on or after July 1, 2009, and to a prime contractor or to a
3612 subcontractor in accordance with Subsection (2)(b).
3613 (b) (i) A prime contractor is subject to this section if the prime contract is in the
3614 amount of $1,500,000 or greater.
3615 (ii) A subcontractor is subject to this section if a subcontract is in the amount of
3616 $750,000 or greater.
3617 (3) This section does not apply to contracts entered into by the department or a
3618 division, board, or council of the department if:
3619 (a) the application of this section jeopardizes the receipt of federal funds;
3620 (b) the contract or agreement is between:
3621 (i) the department or a division, board, or council of the department; and
3622 (ii) (A) another agency of the state;
3623 (B) the federal government;
3624 (C) another state;
3625 (D) an interstate agency;
3626 (E) a political subdivision of this state; or
3627 (F) a political subdivision of another state; or
3628 (c) the contract or agreement is:
3629 (i) for the purpose of disbursing grants or loans authorized by statute;
3630 (ii) a sole source contract; or
3631 (iii) an emergency procurement.
3632 (4) (a) This section does not apply to a change order as defined in Section 63G-6a-103,
3633 or a modification to a contract, when the contract does not meet the initial threshold required
3634 by Subsection (2).
3635 (b) A person who intentionally uses change orders or contract modifications to
3636 circumvent the requirements of Subsection (2) is guilty of an infraction.
3637 (5) (a) A contractor subject to Subsection (2)(b)(i) shall demonstrate to the department
3638 that the contractor has and will maintain an offer of qualified health insurance coverage for the
3639 contractor's employees and the employees' dependents during the duration of the contract.
3640 (b) If a subcontractor of the contractor is subject to Subsection (2)(b)(ii), the contractor
3641 shall demonstrate to the department that the subcontractor has and will maintain an offer of
3642 qualified health insurance coverage for the subcontractor's employees and the employees'
3643 dependents during the duration of the contract.
3644 (c) (i) (A) A contractor who fails to meet the requirements of Subsection (5)(a) during
3645 the duration of the contract is subject to penalties in accordance with administrative rules
3646 adopted by the department under Subsection (6).
3647 (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
3648 requirements of Subsection (5)(b).
3649 (ii) (A) A subcontractor who fails to meet the requirements of Subsection (5)(b) during
3650 the duration of the contract is subject to penalties in accordance with administrative rules
3651 adopted by the department under Subsection (6).
3652 (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
3653 requirements of Subsection (5)(a).
3654 (6) The department shall adopt administrative rules:
3655 (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
3656 (b) in coordination with:
3657 (i) the Department of Environmental Quality in accordance with Section 19-1-206;
3658 (ii) a public transit district in accordance with Section 17B-2a-818.5;
3659 (iii) the State Building Board in accordance with Section 63A-5-205;
3660 (iv) the State Capitol Preservation Board in accordance with Section 63C-9-403;
3661 (v) the Department of Transportation in accordance with Section 72-6-107.5; and
3662 (vi) the Legislature's Administrative Rules Review Committee; and
3663 (c) which establish:
3664 (i) the requirements and procedures a contractor must follow to demonstrate
3665 compliance with this section to the department which shall include:
3666 (A) that a contractor will not have to demonstrate compliance with Subsection (5)(a) or
3667 (b) more than twice in any 12-month period; and
3668 (B) that the actuarially equivalent determination required for qualified health insurance
3669 coverage in Subsection (1) is met by the contractor if the contractor provides the department or
3670 division with a written statement of actuarial equivalency from either:
3671 (I) the Utah Insurance Department;
3672 (II) an actuary selected by the contractor or the contractor's insurer; or
3673 (III) an underwriter who is responsible for developing the employer group's premium
3674 rates;
3675 (ii) the penalties that may be imposed if a contractor or subcontractor intentionally
3676 violates the provisions of this section, which may include:
3677 (A) a three-month suspension of the contractor or subcontractor from entering into
3678 future contracts with the state upon the first violation;
3679 (B) a six-month suspension of the contractor or subcontractor from entering into future
3680 contracts with the state upon the second violation;
3681 (C) an action for debarment of the contractor or subcontractor in accordance with
3682 Section 63G-6a-904 upon the third or subsequent violation; and
3683 (D) monetary penalties which may not exceed 50% of the amount necessary to
3684 purchase qualified health insurance coverage for an employee and a dependent of an employee
3685 of the contractor or subcontractor who was not offered qualified health insurance coverage
3686 during the duration of the contract; and
3687 (iii) a website on which the department shall post the benchmark for the qualified
3688 health insurance coverage identified in Subsection (1)(c).
3689 (7) (a) (i) In addition to the penalties imposed under Subsection (6), a contractor or
3690 subcontractor who intentionally violates the provisions of this section shall be liable to the
3691 employee for health care costs that would have been covered by qualified health insurance
3692 coverage.
3693 (ii) An employer has an affirmative defense to a cause of action under Subsection
3694 (7)(a)(i) if:
3695 (A) the employer relied in good faith on a written statement of actuarial equivalency
3696 provided by:
3697 (I) an actuary; or
3698 (II) an underwriter who is responsible for developing the employer group's premium
3699 rates; or
3700 (B) the department determines that compliance with this section is not required under
3701 the provisions of Subsection (3) or (4).
3702 (b) An employee has a private right of action only against the employee's employer to
3703 enforce the provisions of this Subsection (7).
3704 (8) Any penalties imposed and collected under this section shall be deposited into the
3705 Medicaid Restricted Account created in Section 26-18-402.
3706 (9) The failure of a contractor or subcontractor to provide qualified health insurance
3707 coverage as required by this section:
3708 (a) may not be the basis for a protest or other action from a prospective bidder, offeror,
3709 or contractor under Section [
3710 Chapter 6a, Utah Procurement Code; and
3711 (b) may not be used by the procurement entity or a prospective bidder, offeror, or
3712 contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design
3713 or construction.
3714 Section 64. Repealer.
3715 This bill repeals:
3716 Section 63G-6a-104, Definitions relating to governmental bodies.
3717 Section 63G-6a-403, Prequalification of potential vendors.
3718 Section 63G-6a-404, Approved vendor list.
3719 Section 63G-6a-503, Request for information and response nonbinding.
3720 Section 63G-6a-504, Contents of request for information.
3721 Section 63G-6a-505, Protected information.
3722 Section 65. Effective date.
3723 If approved by two-thirds of all the members elected to each house, this bill takes effect
3724 upon approval by the governor, or the day following the constitutional time limit of Utah
3725 Constitution, Article VII, Section 8, without the governor's signature, or in the case of a veto,
3726 the date of veto override.
3727 Section 66. Coordinating S.B. 184 with S.B. 135 -- Merging technical and
3728 substantive amendments.
3729 If this S.B. 184 and S.B. 135, Administrative Law Judge Amendments, both pass and
3730 become law, it is the intent of the Legislature that the Office of Legislative Research and
3731 General Counsel shall prepare the Utah Code database for publication by:
3732 (1) modifying Subsection 63G-6a-103(2), as enacted in S.B. 135, to read:
3733 "(2) "Administrative law judge service" means service provided by an administrative
3734 law judge.";
3735 (2) modifying Subsection 63G-6a-103(41)(m), as enacted in S.B. 135, to read:
3736 "(m) administrative law judge service.";
3737 (3) inserting a newly enacted Section 63G-6a-116 to read:
3738 "63G-6a-116. Procurement of administrative law judge service.
3739 (1) A procurement unit shall use a standard procurement process under this chapter for
3740 the procurement of administrative law judge service.
3741 (2) Within 30 days after the day on which a conducting procurement unit awards a
3742 contract for administrative law judge service, the conducting procurement unit shall give
3743 written notice to the Department of Human Resource Management that states:
3744 (a) that the conducting procurement unit awarded a contract for administrative law
3745 judge service;
3746 (b) the name of the conducting procurement unit; and
3747 (c) the expected term of the contract.";
3748 (4) modifying language in Subsection 63G-6a-408(2)(c), as enacted in S.B. 135, by
3749 replacing the word "services" in the two places it appears with the word "service" and replacing
3750 "Section 63G-6a-409" with "Subsection 63G-6a-707(3)(a)";
3751 (5) not enacting Section 63G-6a-409 from S.B. 135;
3752 (6) modifying Subsection 63G-6a-410(9)(a), as enacted in this bill, to read:
3753 "(9) (a) (i) After the issuance of a request for statement of qualifications, the
3754 conducting procurement unit shall appoint an evaluation committee consisting of membership
3755 as provided in Subsection (9)(a)(ii) or (iii), as applicable.
3756 (ii) An evaluation committee for a procurement of administrative law judge service
3757 shall consist of:
3758 (A) the head of the conducting procurement unit, or the head's designee;
3759 (B) the head of an executive branch procurement unit other than the conducting
3760 procurement unit, appointed by the executive director of the Department of Human Resource
3761 Management, or the head's designee; and
3762 (C) the executive director of the Department of Human Resource Management, or the
3763 executive director's designee.
3764 (iii) An evaluation committee for each other procurement shall consist of at least three
3765 individuals with at least a general familiarity with or basic understanding of:
3766 (A) the technical requirements relating to the type of procurement item that is the
3767 subject of the request for statement of qualifications; or
3768 (B) the need that the procurement item is intended to address.
3769 (iv) The conducting procurement unit shall ensure that each member of the evaluation
3770 committee under Subsection (9)(a)(iii) and each individual participating in the evaluation
3771 committee process:
3772 (A) does not have a conflict of interest with any vendor that submits a statement of
3773 qualifications;
3774 (B) can fairly evaluate each statement of qualifications;
3775 (C) does not contact or communicate with a vendor concerning the evaluation process
3776 or procurement outside the official evaluation committee process; and
3777 (D) conducts or participates in the evaluation in a manner that ensures a fair and
3778 competitive process and avoids the appearance of impropriety."; and
3779 (7) modifying Subsection 63G-6a-707(3) to read:
3780 "(3) [
3781 committee shall consist of:
3782 (i) the head of the conducting procurement unit, or the head's designee;
3783 (ii) the head of an executive branch procurement unit other than the conducting
3784 procurement unit, appointed by the executive director of the Department of Human Resource
3785 Management, or the head's designee; and
3786 (iii) the executive director of the Department of Human Resource Management, or the
3787 executive director's designee.
3788 (b) For every other procurement requiring an evaluation by an evaluation committee,
3789 the conducting procurement unit shall:
3790 [
3791 least a general familiarity with or basic understanding of:
3792 (A) the technical requirements relating to the type of procurement item that is the
3793 subject of the procurement; or
3794 (B) the need that the procurement item is intended to address; and
3795 [
3796
3797 [
3798 [
3799 [
3800 outside the official evaluation committee process; and
3801 [
3802 competitive process and avoids the appearance of impropriety.".