1     
PROCUREMENT CODE MODIFICATIONS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Scott K. Jenkins

5     
House Sponsor: Gage Froerer

6     

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
22     response and 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-2407, as enacted by Laws of Utah 2014, Chapter 196
82          63G-10-403, as last amended by Laws of Utah 2015, Chapter 258
83          72-6-107.5, as last amended by Laws of Utah 2014, Chapter 425
84          79-2-404, as last amended by Laws of Utah 2014, Chapter 425
85     ENACTS:

86          63G-6a-106.5, Utah Code Annotated 1953
87          63G-6a-113, Utah Code Annotated 1953
88          63G-6a-114, Utah Code Annotated 1953
89          63G-6a-115, Utah Code Annotated 1953
90          63G-6a-410, Utah Code Annotated 1953
91          63G-6a-507, Utah Code Annotated 1953
92          63G-6a-802.3, Utah Code Annotated 1953
93          63G-6a-802.7, Utah Code Annotated 1953
94          63G-6a-1206.3, Utah Code Annotated 1953
95          63G-6a-1601.5, Utah Code Annotated 1953
96     REPEALS AND REENACTS:
97          63G-6a-303, as last amended by Laws of Utah 2015, Chapters 218, 258, and 283
98          63G-6a-605, as last amended by Laws of Utah 2013, Chapter 445
99          63G-6a-706, as enacted by Laws of Utah 2012, Chapter 347
100     RENUMBERS AND AMENDS:
101          63G-6a-110, (Renumbered from 63G-6a-402, as last amended by Laws of Utah 2015,
102     Chapter 218)
103          63G-6a-111, (Renumbered from 63G-6a-407, as last amended by Laws of Utah 2013,
104     Chapter 445)
105          63G-6a-112, (Renumbered from 63G-6a-406, as last amended by Laws of Utah 2014,
106     Chapter 196)
107          63G-6a-409, (Renumbered from 63G-6a-502, as enacted by Laws of Utah 2012,
108     Chapter 347)
109          63G-6a-506, (Renumbered from 63G-6a-408, as last amended by Laws of Utah 2015,
110     Chapter 218)
111     REPEALS:
112          63G-6a-104, as last amended by Laws of Utah 2015, Chapter 218
113          63G-6a-403, as last amended by Laws of Utah 2015, Chapter 97

114          63G-6a-404, as last amended by Laws of Utah 2014, Chapter 196
115          63G-6a-503, as last amended by Laws of Utah 2013, Chapter 445
116          63G-6a-504, as enacted by Laws of Utah 2012, Chapter 347
117          63G-6a-505, as enacted by Laws of Utah 2013, Chapter 445
118     Utah Code Sections Affected by Coordination Clause:
119          63G-6a-103, as last amended by Laws of Utah 2015, Chapters 218 and 464
120          63G-6a-116, Utah Code Annotated 1953
121     

122     Be it enacted by the Legislature of the state of Utah:
123          Section 1. Section 17B-2a-818.5 is amended to read:
124          17B-2a-818.5. Contracting powers of public transit districts -- Health insurance
125     coverage.
126          (1) For purposes of this section:
127          (a) "Employee" means an "employee," "worker," or "operative" as defined in Section
128     34A-2-104 who:
129          (i) works at least 30 hours per calendar week; and
130          (ii) meets employer eligibility waiting requirements for health care insurance which
131     may not exceed the first day of the calendar month following 60 days from the date of hire.
132          (b) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
133          (c) "Qualified health insurance coverage" is as defined in Section 26-40-115.
134          (d) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
135          (2) (a) Except as provided in Subsection (3), this section applies to a design or
136     construction contract entered into by the public transit district on or after July 1, 2009, and to a
137     prime contractor or to a subcontractor in accordance with Subsection (2)(b).
138          (b) (i) A prime contractor is subject to this section if the prime contract is in the
139     amount of $1,500,000 or greater.
140          (ii) A subcontractor is subject to this section if a subcontract is in the amount of
141     $750,000 or greater.

142          (3) This section does not apply if:
143          (a) the application of this section jeopardizes the receipt of federal funds;
144          (b) the contract is a sole source contract; or
145          (c) the contract is an emergency procurement.
146          (4) (a) This section does not apply to a change order as defined in Section 63G-6a-103,
147     or a modification to a contract, when the contract does not meet the initial threshold required
148     by Subsection (2).
149          (b) A person who intentionally uses change orders or contract modifications to
150     circumvent the requirements of Subsection (2) is guilty of an infraction.
151          (5) (a) A contractor subject to Subsection (2) shall demonstrate to the public transit
152     district that the contractor has and will maintain an offer of qualified health insurance coverage
153     for the contractor's employees and the employee's dependents during the duration of the
154     contract.
155          (b) If a subcontractor of the contractor is subject to Subsection (2)(b), the contractor
156     shall demonstrate to the public transit district that the subcontractor has and will maintain an
157     offer of qualified health insurance coverage for the subcontractor's employees and the
158     employee's dependents during the duration of the contract.
159          (c) (i) (A) A contractor who fails to meet the requirements of Subsection (5)(a) during
160     the duration of the contract is subject to penalties in accordance with an ordinance adopted by
161     the public transit district under Subsection (6).
162          (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
163     requirements of Subsection (5)(b).
164          (ii) (A) A subcontractor who fails to meet the requirements of Subsection (5)(b) during
165     the duration of the contract is subject to penalties in accordance with an ordinance adopted by
166     the public transit district under Subsection (6).
167          (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
168     requirements of Subsection (5)(a).
169          (6) The public transit district shall adopt ordinances:

170          (a) in coordination with:
171          (i) the Department of Environmental Quality in accordance with Section 19-1-206;
172          (ii) the Department of Natural Resources in accordance with Section 79-2-404;
173          (iii) the State Building Board in accordance with Section 63A-5-205;
174          (iv) the State Capitol Preservation Board in accordance with Section 63C-9-403; and
175          (v) the Department of Transportation in accordance with Section 72-6-107.5; and
176          (b) which establish:
177          (i) the requirements and procedures a contractor shall follow to demonstrate to the
178     public transit district compliance with this section which shall include:
179          (A) that a contractor will not have to demonstrate compliance with Subsection (5)(a) or
180     (b) more than twice in any 12-month period; and
181          (B) that the actuarially equivalent determination required for the qualified health
182     insurance coverage in Subsection (1) is met by the contractor if the contractor provides the
183     department or division with a written statement of actuarial equivalency from either:
184          (I) the Utah Insurance Department;
185          (II) an actuary selected by the contractor or the contractor's insurer; or
186          (III) an underwriter who is responsible for developing the employer group's premium
187     rates;
188          (ii) the penalties that may be imposed if a contractor or subcontractor intentionally
189     violates the provisions of this section, which may include:
190          (A) a three-month suspension of the contractor or subcontractor from entering into
191     future contracts with the public transit district upon the first violation;
192          (B) a six-month suspension of the contractor or subcontractor from entering into future
193     contracts with the public transit district upon the second violation;
194          (C) an action for debarment of the contractor or subcontractor in accordance with
195     Section 63G-6a-904 upon the third or subsequent violation; and
196          (D) monetary penalties which may not exceed 50% of the amount necessary to
197     purchase qualified health insurance coverage for employees and dependents of employees of

198     the contractor or subcontractor who were not offered qualified health insurance coverage
199     during the duration of the contract; and
200          (iii) a website on which the district shall post the benchmark for the qualified health
201     insurance coverage identified in Subsection (1)(c).
202          (7) (a) (i) In addition to the penalties imposed under Subsection (6)(b)(ii), a contractor
203     or subcontractor who intentionally violates the provisions of this section shall be liable to the
204     employee for health care costs that would have been covered by qualified health insurance
205     coverage.
206          (ii) An employer has an affirmative defense to a cause of action under Subsection
207     (7)(a)(i) if:
208          (A) the employer relied in good faith on a written statement of actuarial equivalency
209     provided by an:
210          (I) actuary; or
211          (II) underwriter who is responsible for developing the employer group's premium rates;
212     or
213          (B) a department or division determines that compliance with this section is not
214     required under the provisions of Subsection (3) or (4).
215          (b) An employee has a private right of action only against the employee's employer to
216     enforce the provisions of this Subsection (7).
217          (8) Any penalties imposed and collected under this section shall be deposited into the
218     Medicaid Restricted Account created in Section 26-18-402.
219          (9) The failure of a contractor or subcontractor to provide qualified health insurance
220     coverage as required by this section:
221          (a) may not be the basis for a protest or other action from a prospective bidder, offeror,
222     or contractor under Section [63G-6a-1603] 63G-6a-1602 or any other provision in Title 63G,
223     Chapter 6a, Utah Procurement Code; and
224          (b) may not be used by the procurement entity or a prospective bidder, offeror, or
225     contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design

226     or construction.
227          Section 2. Section 19-1-206 is amended to read:
228          19-1-206. Contracting powers of department -- Health insurance coverage.
229          (1) For purposes of this section:
230          (a) "Employee" means an "employee," "worker," or "operative" as defined in Section
231     34A-2-104 who:
232          (i) works at least 30 hours per calendar week; and
233          (ii) meets employer eligibility waiting requirements for health care insurance which
234     may not exceed the first day of the calendar month following 60 days from the date of hire.
235          (b) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
236          (c) "Qualified health insurance coverage" is as defined in Section 26-40-115.
237          (d) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
238          (2) (a) Except as provided in Subsection (3), this section applies to a design or
239     construction contract entered into by or delegated to the department or a division or board of
240     the department on or after July 1, 2009, and to a prime contractor or subcontractor in
241     accordance with Subsection (2)(b).
242          (b) (i) A prime contractor is subject to this section if the prime contract is in the
243     amount of $1,500,000 or greater.
244          (ii) A subcontractor is subject to this section if a subcontract is in the amount of
245     $750,000 or greater.
246          (3) This section does not apply to contracts entered into by the department or a division
247     or board of the department if:
248          (a) the application of this section jeopardizes the receipt of federal funds;
249          (b) the contract or agreement is between:
250          (i) the department or a division or board of the department; and
251          (ii) (A) another agency of the state;
252          (B) the federal government;
253          (C) another state;

254          (D) an interstate agency;
255          (E) a political subdivision of this state; or
256          (F) a political subdivision of another state;
257          (c) the executive director determines that applying the requirements of this section to a
258     particular contract interferes with the effective response to an immediate health and safety
259     threat from the environment; or
260          (d) the contract is:
261          (i) a sole source contract; or
262          (ii) an emergency procurement.
263          (4) (a) This section does not apply to a change order as defined in Section 63G-6a-103,
264     or a modification to a contract, when the contract does not meet the initial threshold required
265     by Subsection (2).
266          (b) A person who intentionally uses change orders or contract modifications to
267     circumvent the requirements of Subsection (2) is guilty of an infraction.
268          (5) (a) A contractor subject to Subsection (2) shall demonstrate to the executive
269     director that the contractor has and will maintain an offer of qualified health insurance
270     coverage for the contractor's employees and the employees' dependents during the duration of
271     the contract.
272          (b) If a subcontractor of the contractor is subject to Subsection (2), the contractor shall
273     demonstrate to the executive director that the subcontractor has and will maintain an offer of
274     qualified health insurance coverage for the subcontractor's employees and the employees'
275     dependents during the duration of the contract.
276          (c) (i) (A) A contractor who fails to comply with Subsection (5)(a) during the duration
277     of the contract is subject to penalties in accordance with administrative rules adopted by the
278     department under Subsection (6).
279          (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
280     requirements of Subsection (5)(b).
281          (ii) (A) A subcontractor who fails to meet the requirements of Subsection (5)(b) during

282     the duration of the contract is subject to penalties in accordance with administrative rules
283     adopted by the department under Subsection (6).
284          (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
285     requirements of Subsection (5)(a).
286          (6) The department shall adopt administrative rules:
287          (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
288          (b) in coordination with:
289          (i) a public transit district in accordance with Section 17B-2a-818.5;
290          (ii) the Department of Natural Resources in accordance with Section 79-2-404;
291          (iii) the State Building Board in accordance with Section 63A-5-205;
292          (iv) the State Capitol Preservation Board in accordance with Section 63C-9-403;
293          (v) the Department of Transportation in accordance with Section 72-6-107.5; and
294          (vi) the Legislature's Administrative Rules Review Committee; and
295          (c) which establish:
296          (i) the requirements and procedures a contractor shall follow to demonstrate to the
297     public transit district compliance with this section that shall include:
298          (A) that a contractor will not have to demonstrate compliance with Subsection (5)(a) or
299     (b) more than twice in any 12-month period; and
300          (B) that the actuarially equivalent determination required for the qualified health
301     insurance coverage in Subsection (1) is met by the contractor if the contractor provides the
302     department or division with a written statement of actuarial equivalency from either:
303          (I) the Utah Insurance Department;
304          (II) an actuary selected by the contractor or the contractor's insurer; or
305          (III) an underwriter who is responsible for developing the employer group's premium
306     rates;
307          (ii) the penalties that may be imposed if a contractor or subcontractor intentionally
308     violates the provisions of this section, which may include:
309          (A) a three-month suspension of the contractor or subcontractor from entering into

310     future contracts with the state upon the first violation;
311          (B) a six-month suspension of the contractor or subcontractor from entering into future
312     contracts with the state upon the second violation;
313          (C) an action for debarment of the contractor or subcontractor in accordance with
314     Section 63G-6a-904 upon the third or subsequent violation; and
315          (D) notwithstanding Section 19-1-303, monetary penalties which may not exceed 50%
316     of the amount necessary to purchase qualified health insurance coverage for an employee and
317     the dependents of an employee of the contractor or subcontractor who was not offered qualified
318     health insurance coverage during the duration of the contract; and
319          (iii) a website on which the department shall post the benchmark for the qualified
320     health insurance coverage identified in Subsection (1)(c).
321          (7) (a) (i) In addition to the penalties imposed under Subsection (6)(c), a contractor or
322     subcontractor who intentionally violates the provisions of this section shall be liable to the
323     employee for health care costs that would have been covered by qualified health insurance
324     coverage.
325          (ii) An employer has an affirmative defense to a cause of action under Subsection
326     (7)(a)(i) if:
327          (A) the employer relied in good faith on a written statement of actuarial equivalency
328     provided by:
329          (I) an actuary; or
330          (II) an underwriter who is responsible for developing the employer group's premium
331     rates; or
332          (B) the department determines that compliance with this section is not required under
333     the provisions of Subsection (3) or (4).
334          (b) An employee has a private right of action only against the employee's employer to
335     enforce the provisions of this Subsection (7).
336          (8) Any penalties imposed and collected under this section shall be deposited into the
337     Medicaid Restricted Account created in Section 26-18-402.

338          (9) The failure of a contractor or subcontractor to provide qualified health insurance
339     coverage as required by this section:
340          (a) may not be the basis for a protest or other action from a prospective bidder, offeror,
341     or contractor under Section [63G-6a-1603] 63G-6a-1602 or any other provision in Title 63G,
342     Chapter 6a, Utah Procurement Code; and
343          (b) may not be used by the procurement entity or a prospective bidder, offeror, or
344     contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design
345     or construction.
346          Section 3. Section 53A-1a-511 is amended to read:
347          53A-1a-511. Waivers from state board rules -- Application of statutes and rules
348     to charter schools.
349          (1) A charter school shall operate in accordance with its charter and is subject to Title
350     53A, State System of Public Education, and other state laws applicable to public schools,
351     except as otherwise provided in this part.
352          (2) (a) A charter school or any other public school or school district may apply to the
353     State Board of Education for a waiver of any state board rule that inhibits or hinders the school
354     or the school district from accomplishing its mission or educational goals set out in its strategic
355     plan or charter.
356          (b) The state board may grant the waiver, unless:
357          (i) the waiver would cause the school district or the school to be in violation of state or
358     federal law; or
359          (ii) the waiver would threaten the health, safety, or welfare of students in the district or
360     at the school.
361          (c) If the State Board of Education denies the waiver, the reason for the denial shall be
362     provided in writing to the waiver applicant.
363          (3) (a) Except as provided in Subsection (3)(b), State Board of Education rules
364     governing the following do not apply to a charter school:
365          (i) school libraries;

366          (ii) required school administrative and supervisory services; and
367          (iii) required expenditures for instructional supplies.
368          (b) A charter school shall comply with rules implementing statutes that prescribe how
369     state appropriations may be spent.
370          (4) The following provisions of Title 53A, State System of Public Education, and rules
371     adopted under those provisions, do not apply to a charter school:
372          (a) Sections 53A-1a-108 and 53A-1a-108.5, requiring the establishment of a school
373     community council and school improvement plan;
374          (b) Section 53A-3-420, requiring the use of activity disclosure statements;
375          (c) Section 53A-12-207, requiring notification of intent to dispose of textbooks;
376          (d) Section 53A-13-107, requiring annual presentations on adoption;
377          (e) Chapter 19, Part 1, Fiscal Procedures, pertaining to fiscal procedures of school
378     districts and local school boards; and
379          (f) Section 53A-14-107, requiring an independent evaluation of instructional materials.
380          (5) For the purposes of Title 63G, Chapter 6a, Utah Procurement Code, a charter
381     school is considered an educational procurement unit as defined in [Subsection 63G-6a-104(7)]
382     Section 63G-6a-103.
383          (6) Each charter school shall be subject to:
384          (a) Title 52, Chapter 4, Open and Public Meetings Act; and
385          (b) Title 63G, Chapter 2, Government Records Access and Management Act.
386          (7) A charter school is exempt from Section 51-2a-201.5, requiring accounting reports
387     of certain nonprofit corporations. A charter school is subject to the requirements of Section
388     53A-1a-507.
389          (8) (a) The State Charter School Board shall, in concert with the charter schools, study
390     existing state law and administrative rules for the purpose of determining from which laws and
391     rules charter schools should be exempt.
392          (b) (i) The State Charter School Board shall present recommendations for exemption to
393     the State Board of Education for consideration.

394          (ii) The State Board of Education shall consider the recommendations of the State
395     Charter School Board and respond within 60 days.
396          Section 4. Section 63A-5-205 is amended to read:
397          63A-5-205. Contracting powers of director -- Retainage -- Health insurance
398     coverage.
399          (1) As used in this section:
400          (a) "Capital developments" has the same meaning as provided in Section 63A-5-104.
401          (b) "Capital improvements" has the same meaning as provided in Section 63A-5-104.
402          (c) "Employee" means an "employee," "worker," or "operative" as defined in Section
403     34A-2-104 who:
404          (i) works at least 30 hours per calendar week; and
405          (ii) meets employer eligibility waiting requirements for health care insurance which
406     may not exceed the first day of the calendar month following 60 days from the date of hire.
407          (d) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
408          (e) "Qualified health insurance coverage" is as defined in Section 26-40-115.
409          (f) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
410          (2) In accordance with Title 63G, Chapter 6a, Utah Procurement Code, the director
411     may:
412          (a) subject to Subsection (3), enter into contracts for any work or professional services
413     which the division or the State Building Board may do or have done; and
414          (b) as a condition of any contract for architectural or engineering services, prohibit the
415     architect or engineer from retaining a sales or agent engineer for the necessary design work.
416          (3) (a) Except as provided in Subsection (3)(b), this Subsection (3) applies to all design
417     or construction contracts entered into by the division or the State Building Board on or after
418     July 1, 2009, and:
419          (i) applies to a prime contractor if the prime contract is in the amount of $1,500,000 or
420     greater; and
421          (ii) applies to a subcontractor if the subcontract is in the amount of $750,000 or greater.

422          (b) This Subsection (3) does not apply:
423          (i) if the application of this Subsection (3) jeopardizes the receipt of federal funds;
424          (ii) if the contract is a sole source contract;
425          (iii) if the contract is an emergency procurement; or
426          (iv) to a change order as defined in Section 63G-6a-103, or a modification to a
427     contract, when the contract does not meet the threshold required by Subsection (3)(a).
428          (c) A person who intentionally uses change orders or contract modifications to
429     circumvent the requirements of Subsection (3)(a) is guilty of an infraction.
430          (d) (i) A contractor subject to Subsection (3)(a) shall demonstrate to the director that
431     the contractor has and will maintain an offer of qualified health insurance coverage for the
432     contractor's employees and the employees' dependents.
433          (ii) If a subcontractor of the contractor is subject to Subsection (3)(a), the contractor
434     shall demonstrate to the director that the subcontractor has and will maintain an offer of
435     qualified health insurance coverage for the subcontractor's employees and the employees'
436     dependents.
437          (e) (i) (A) A contractor who fails to meet the requirements of Subsection (3)(d)(i)
438     during the duration of the contract is subject to penalties in accordance with administrative
439     rules adopted by the division under Subsection (3)(f).
440          (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
441     requirements of Subsection (3)(d)(ii).
442          (ii) (A) A subcontractor who fails to meet the requirements of Subsection (3)(d)(ii)
443     during the duration of the contract is subject to penalties in accordance with administrative
444     rules adopted by the division under Subsection (3)(f).
445          (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
446     requirements of Subsection (3)(d)(i).
447          (f) The division shall adopt administrative rules:
448          (i) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
449          (ii) in coordination with:

450          (A) the Department of Environmental Quality in accordance with Section 19-1-206;
451          (B) the Department of Natural Resources in accordance with Section 79-2-404;
452          (C) a public transit district in accordance with Section 17B-2a-818.5;
453          (D) the State Capitol Preservation Board in accordance with Section 63C-9-403;
454          (E) the Department of Transportation in accordance with Section 72-6-107.5; and
455          (F) the Legislature's Administrative Rules Review Committee; and
456          (iii) which establish:
457          (A) the requirements and procedures a contractor must follow to demonstrate to the
458     director compliance with this Subsection (3) which shall include:
459          (I) that a contractor will not have to demonstrate compliance with Subsection (3)(d)(i)
460     or (ii) more than twice in any 12-month period; and
461          (II) that the actuarially equivalent determination required for the qualified health
462     insurance coverage in Subsection (1) is met by the contractor if the contractor provides the
463     department or division with a written statement of actuarial equivalency from either:
464          (Aa) the Utah Insurance Department;
465          (Bb) an actuary selected by the contractor or the contractor's insurer; or
466          (Cc) an underwriter who is responsible for developing the employer group's premium
467     rates;
468          (B) the penalties that may be imposed if a contractor or subcontractor intentionally
469     violates the provisions of this Subsection (3), which may include:
470          (I) a three-month suspension of the contractor or subcontractor from entering into
471     future contracts with the state upon the first violation;
472          (II) a six-month suspension of the contractor or subcontractor from entering into future
473     contracts with the state upon the second violation;
474          (III) an action for debarment of the contractor or subcontractor in accordance with
475     Section 63G-6a-904 upon the third or subsequent violation; and
476          (IV) monetary penalties which may not exceed 50% of the amount necessary to
477     purchase qualified health insurance coverage for an employee and the dependents of an

478     employee of the contractor or subcontractor who was not offered qualified health insurance
479     coverage during the duration of the contract; and
480          (C) a website on which the department shall post the benchmark for the qualified
481     health insurance coverage identified in Subsection (1)(e).
482          (g) (i) In addition to the penalties imposed under Subsection (3)(f)(iii), a contractor or
483     subcontractor who intentionally violates the provisions of this section shall be liable to the
484     employee for health care costs that would have been covered by qualified health insurance
485     coverage.
486          (ii) An employer has an affirmative defense to a cause of action under Subsection
487     (3)(g)(i) if:
488          (A) the employer relied in good faith on a written statement of actuarial equivalency
489     provided by:
490          (I) an actuary; or
491          (II) an underwriter who is responsible for developing the employer group's premium
492     rates; or
493          (B) the department determines that compliance with this section is not required under
494     the provisions of Subsection (3)(b).
495          (iii) An employee has a private right of action only against the employee's employer to
496     enforce the provisions of this Subsection (3)(g).
497          (h) Any penalties imposed and collected under this section shall be deposited into the
498     Medicaid Restricted Account created by Section 26-18-402.
499          (i) The failure of a contractor or subcontractor to provide qualified health insurance
500     coverage as required by this section:
501          (i) may not be the basis for a protest or other action from a prospective bidder, offeror,
502     or contractor under Section [63G-6a-1603] 63G-6a-1602 or any other provision in Title 63G,
503     Chapter 6a, Utah Procurement Code; and
504          (ii) may not be used by the procurement entity or a prospective bidder, offeror, or
505     contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design

506     or construction.
507          (4) The judgment of the director as to the responsibility and qualifications of a bidder
508     is conclusive, except in case of fraud or bad faith.
509          (5) The division shall make all payments to the contractor for completed work in
510     accordance with the contract and pay the interest specified in the contract on any payments that
511     are late.
512          (6) If any payment on a contract with a private contractor to do work for the division or
513     the State Building Board is retained or withheld, it shall be retained or withheld and released as
514     provided in Section 13-8-5.
515          Section 5. Section 63C-9-403 is amended to read:
516          63C-9-403. Contracting power of executive director -- Health insurance coverage.
517          (1) For purposes of this section:
518          (a) "Employee" means an "employee," "worker," or "operative" as defined in Section
519     34A-2-104 who:
520          (i) works at least 30 hours per calendar week; and
521          (ii) meets employer eligibility waiting requirements for health care insurance which
522     may not exceed the first of the calendar month following 60 days from the date of hire.
523          (b) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
524          (c) "Qualified health insurance coverage" is as defined in Section 26-40-115.
525          (d) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
526          (2) (a) Except as provided in Subsection (3), this section applies to a design or
527     construction contract entered into by the board or on behalf of the board on or after July 1,
528     2009, and to a prime contractor or a subcontractor in accordance with Subsection (2)(b).
529          (b) (i) A prime contractor is subject to this section if the prime contract is in the
530     amount of $1,500,000 or greater.
531          (ii) A subcontractor is subject to this section if a subcontract is in the amount of
532     $750,000 or greater.
533          (3) This section does not apply if:

534          (a) the application of this section jeopardizes the receipt of federal funds;
535          (b) the contract is a sole source contract; or
536          (c) the contract is an emergency procurement.
537          (4) (a) This section does not apply to a change order as defined in Section 63G-6a-103,
538     or a modification to a contract, when the contract does not meet the initial threshold required
539     by Subsection (2).
540          (b) A person who intentionally uses change orders or contract modifications to
541     circumvent the requirements of Subsection (2) is guilty of an infraction.
542          (5) (a) A contractor subject to Subsection (2) shall demonstrate to the executive
543     director that the contractor has and will maintain an offer of qualified health insurance
544     coverage for the contractor's employees and the employees' dependents during the duration of
545     the contract.
546          (b) If a subcontractor of the contractor is subject to Subsection (2)(b), the contractor
547     shall demonstrate to the executive director that the subcontractor has and will maintain an offer
548     of qualified health insurance coverage for the subcontractor's employees and the employees'
549     dependents during the duration of the contract.
550          (c) (i) (A) A contractor who fails to meet the requirements of Subsection (5)(a) during
551     the duration of the contract is subject to penalties in accordance with administrative rules
552     adopted by the division under Subsection (6).
553          (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
554     requirements of Subsection (5)(b).
555          (ii) (A) A subcontractor who fails to meet the requirements of Subsection (5)(b) during
556     the duration of the contract is subject to penalties in accordance with administrative rules
557     adopted by the department under Subsection (6).
558          (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
559     requirements of Subsection (5)(a).
560          (6) The department shall adopt administrative rules:
561          (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;

562          (b) in coordination with:
563          (i) the Department of Environmental Quality in accordance with Section 19-1-206;
564          (ii) the Department of Natural Resources in accordance with Section 79-2-404;
565          (iii) the State Building Board in accordance with Section 63A-5-205;
566          (iv) a public transit district in accordance with Section 17B-2a-818.5;
567          (v) the Department of Transportation in accordance with Section 72-6-107.5; and
568          (vi) the Legislature's Administrative Rules Review Committee; and
569          (c) which establish:
570          (i) the requirements and procedures a contractor must follow to demonstrate to the
571     executive director compliance with this section which shall include:
572          (A) that a contractor will not have to demonstrate compliance with Subsection (5)(a) or
573     (b) more than twice in any 12-month period; and
574          (B) that the actuarially equivalent determination required for the qualified health
575     insurance coverage in Subsection (1) is met by the contractor if the contractor provides the
576     department or division with a written statement of actuarial equivalency from either:
577          (I) the Utah Insurance Department;
578          (II) an actuary selected by the contractor or the contractor's insurer; or
579          (III) an underwriter who is responsible for developing the employer group's premium
580     rates;
581          (ii) the penalties that may be imposed if a contractor or subcontractor intentionally
582     violates the provisions of this section, which may include:
583          (A) a three-month suspension of the contractor or subcontractor from entering into
584     future contracts with the state upon the first violation;
585          (B) a six-month suspension of the contractor or subcontractor from entering into future
586     contracts with the state upon the second violation;
587          (C) an action for debarment of the contractor or subcontractor in accordance with
588     Section 63G-6a-904 upon the third or subsequent violation; and
589          (D) monetary penalties which may not exceed 50% of the amount necessary to

590     purchase qualified health insurance coverage for employees and dependents of employees of
591     the contractor or subcontractor who were not offered qualified health insurance coverage
592     during the duration of the contract; and
593          (iii) a website on which the department shall post the benchmark for the qualified
594     health insurance coverage identified in Subsection (1)(c).
595          (7) (a) (i) In addition to the penalties imposed under Subsection (6)(c), a contractor or
596     subcontractor who intentionally violates the provisions of this section shall be liable to the
597     employee for health care costs that would have been covered by qualified health insurance
598     coverage.
599          (ii) An employer has an affirmative defense to a cause of action under Subsection
600     (7)(a)(i) if:
601          (A) the employer relied in good faith on a written statement of actuarial equivalency
602     provided by:
603          (I) an actuary; or
604          (II) an underwriter who is responsible for developing the employer group's premium
605     rates; or
606          (B) the department determines that compliance with this section is not required under
607     the provisions of Subsection (3) or (4).
608          (b) An employee has a private right of action only against the employee's employer to
609     enforce the provisions of this Subsection (7).
610          (8) Any penalties imposed and collected under this section shall be deposited into the
611     Medicaid Restricted Account created in Section 26-18-402.
612          (9) The failure of a contractor or subcontractor to provide qualified health insurance
613     coverage as required by this section:
614          (a) may not be the basis for a protest or other action from a prospective bidder, offeror,
615     or contractor under Section [63G-6a-1603] 63G-6a-1602 or any other provision in Title 63G,
616     Chapter 6a, Utah Procurement Code; and
617          (b) may not be used by the procurement entity or a prospective bidder, offeror, or

618     contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design
619     or construction.
620          Section 6. Section 63F-1-205 is amended to read:
621          63F-1-205. Approval of acquisitions of information technology.
622          (1) (a) Except as provided in Title 63N, Chapter 13, Part 2, Government Procurement
623     Private Proposal Program, in accordance with Subsection (2), the chief information officer
624     shall approve the acquisition by an executive branch agency of:
625          (i) information technology equipment;
626          (ii) telecommunications equipment;
627          (iii) software;
628          (iv) services related to the items listed in Subsections (1)(a)(i) through (iii); and
629          (v) data acquisition.
630          (b) The chief information officer may negotiate the purchase, lease, or rental of private
631     or public information technology or telecommunication services or facilities in accordance with
632     this section.
633          (c) Where practical, efficient, and economically beneficial, the chief information
634     officer shall use existing private and public information technology or telecommunication
635     resources.
636          (d) Notwithstanding another provision of this section, an acquisition authorized by this
637     section shall comply with rules made by the applicable rulemaking authority under Title 63G,
638     Chapter 6a, Utah Procurement Code.
639          (2) Before negotiating a purchase, lease, or rental under Subsection (1) for an amount
640     that exceeds the value established by the chief information officer by rule in accordance with
641     Section 63F-1-206, the chief information officer shall:
642          (a) conduct an analysis of the needs of executive branch agencies and subscribers of
643     services and the ability of the proposed information technology or telecommunications services
644     or supplies to meet those needs; and
645          (b) for purchases, leases, or rentals not covered by an existing statewide contract,

646     [provide] certify in writing to the chief procurement officer in the Division of Purchasing and
647     General Services that:
648          (i) the analysis required in Subsection (2)(a) was completed; and
649          (ii) based on the analysis, the proposed purchase, lease, rental, or master contract of
650     services, products, or supplies is practical, efficient, and economically beneficial to the state
651     and the executive branch agency or subscriber of services.
652          (3) In approving an acquisition described in Subsections (1) and (2), the chief
653     information officer shall:
654          (a) establish by administrative rule, in accordance with Section 63F-1-206, standards
655     under which an agency must obtain approval from the chief information officer before
656     acquiring the items listed in Subsections (1) and (2);
657          (b) for those acquisitions requiring approval, determine whether the acquisition is in
658     compliance with:
659          (i) the executive branch strategic plan;
660          (ii) the applicable agency information technology plan;
661          (iii) the budget for the executive branch agency or department as adopted by the
662     Legislature;
663          (iv) Title 63G, Chapter 6a, Utah Procurement Code; and
664          (v) the information technology accessibility standards described in Section 63F-1-210;
665     and
666          (c) in accordance with Section 63F-1-207, require coordination of acquisitions between
667     two or more executive branch agencies if it is in the best interests of the state.
668          (4) (a) Each executive branch agency shall provide the chief information officer with
669     complete access to all information technology records, documents, and reports:
670          (i) at the request of the chief information officer; and
671          (ii) related to the executive branch agency's acquisition of any item listed in Subsection
672     (1).
673          (b) Beginning July 1, 2006 and in accordance with administrative rules established by

674     the department under Section 63F-1-206, no new technology projects may be initiated by an
675     executive branch agency or the department unless the technology project is described in a
676     formal project plan and the business case analysis has been approved by the chief information
677     officer and agency head. The project plan and business case analysis required by this
678     Subsection (4) shall be in the form required by the chief information officer, and shall include:
679          (i) a statement of work to be done and existing work to be modified or displaced;
680          (ii) total cost of system development and conversion effort, including system analysis
681     and programming costs, establishment of master files, testing, documentation, special
682     equipment cost and all other costs, including overhead;
683          (iii) savings or added operating costs that will result after conversion;
684          (iv) other advantages or reasons that justify the work;
685          (v) source of funding of the work, including ongoing costs;
686          (vi) consistency with budget submissions and planning components of budgets; and
687          (vii) whether the work is within the scope of projects or initiatives envisioned when the
688     current fiscal year budget was approved.
689          (5) [(a)] The chief information officer and the Division of Purchasing and General
690     Services shall work cooperatively to establish procedures under which the chief information
691     officer shall monitor and approve acquisitions as provided in this section.
692          [(b) The procedures established under this section shall include at least the written
693     certification required by Subsection 63G-6a-303(1)(e).]
694          Section 7. Section 63G-6a-103 is amended to read:
695          63G-6a-103. Definitions.
696          As used in this chapter:
697          (1) "Applicable rulemaking authority" means:
698          (a) for a legislative procurement unit, the Legislative Management Committee;
699          (b) for a judicial procurement unit, the Judicial Council;
700          (c) (i) only to the extent of the procurement authority expressly granted to the
701     procurement unit by statute:

702          (A) for the building board or the Division of Facilities Construction and Management,
703     created in Section 63A-5-201, the building board;
704          (B) for the Office of the Attorney General, the attorney general; and
705          (C) for the Department of Transportation created in Section 72-1-201, the executive
706     director of the Department of Transportation; and
707          (ii) for each other executive branch procurement unit, the board;
708          (d) for a local government procurement unit:
709          (i) the legislative body of the local government procurement unit; or
710          (ii) an individual or body designated by the legislative body of the local government
711     procurement unit;
712          (e) for a school district or a public school, the board, except to the extent of a school
713     district's own nonadministrative rules that do not conflict with the provisions of this chapter;
714          (f) for a state institution of higher education, the State Board of Regents;
715          (g) for a public transit district, the chief executive of the public transit district;
716          (h) for a local district other than a public transit district or for a special service district:
717          (i) before January 1, 2015, the board of trustees of the local district or the governing
718     body of the special service district; or
719          (ii) on or after January 1, 2015, the board, except to the extent that the board of trustees
720     of the local district or the governing body of the special service district makes its own rules:
721          (A) with respect to a subject addressed by board rules; or
722          (B) that are in addition to board rules; or
723          (i) for any other procurement unit, the board.
724          (2) "Approved vendor" means a vendor who has been approved through the approved
725     vendor list process.
726          (3) "Approved vendor list" means a list of approved vendors established under Section
727     63G-6a-507.
728          (4) "Approved vendor list process" means the procurement process described in
729     Section 63G-6a-507.

730          [(1)] (5) "Bidder" means a person who [responds] submits a bid or price quote in
731     response to an invitation for bids.
732          (6) "Bidding process" means the procurement process described in Part 6, Bidding.
733          (7) "Board" means the Utah State Procurement Policy Board, created in Section
734     63G-6a-202.
735          (8) "Building board" means the State Building Board, created in Section 63A-5-101.
736          [(2)] (9) "Change directive" means a written order signed by the procurement officer
737     that directs the contractor to suspend work or make changes, as authorized by contract, without
738     the consent of the contractor.
739          [(3)] (10) "Change order" means a written alteration in specifications, delivery point,
740     rate of delivery, period of performance, price, quantity, or other provisions of a contract, upon
741     mutual agreement of the parties to the contract.
742          [(4)] (11) "Chief procurement officer" means the chief procurement officer appointed
743     under Subsection 63G-6a-302(1).
744          [(5)] (12) "Conducting procurement unit" means a procurement unit that conducts all
745     aspects of a procurement:
746          (a) except:
747          (i) reviewing a solicitation to verify that it is in proper form; and
748          (ii) causing the publication of a notice of a solicitation; and
749          (b) including:
750          (i) preparing any solicitation document;
751          (ii) appointing an evaluation committee;
752          (iii) conducting the evaluation process, except as provided in Subsection
753     63G-6a-707[(5)](6)(b) relating to scores calculated for costs of proposals;
754          (iv) selecting and recommending the person to be awarded a contract;
755          (v) negotiating the terms and conditions of a contract, subject to the issuing
756     procurement unit's approval; and
757          (vi) [administering a] contract administration.

758          (13) "Conservation district" means the same as that term is defined in Section
759     17D-3-102.
760          [(6) (a) "Construction" means the process of building, renovating, altering, improving,
761     or repairing a public building or public work.]
762          [(b) "Construction" does not include the routine operation, routine repair, or routine
763     maintenance of an existing structure, building, or real property.]
764          (14) "Construction":
765          (a) means services, including work, and supplies for a project for the construction,
766     renovation, alteration, improvement, or repair of a public facility on real property; and
767          (b) does not include services and supplies for the routine, day-to-day operation, repair,
768     or maintenance of an existing public facility.
769          [(7) (a)] (15) "Construction manager/general contractor":
770          (a) means a contractor who enters into a contract:
771          (i) for the management of a construction project [when the contract]; and
772          (ii) that allows the contractor to subcontract for additional labor and materials that are
773     not included in the contractor's cost proposal submitted at the time of the procurement of the
774     contractor's services[.]; and
775          (b) ["Construction manager/general contractor"] does not include a contractor whose
776     only subcontract work not included in the contractor's cost proposal submitted as part of the
777     procurement of the contractor's services is to meet subcontracted portions of change orders
778     approved within the scope of the project.
779          [(8)] (16) "Contract" means an agreement for [the] a procurement [or disposal of a
780     procurement item].
781          (17) "Contract administration" means all functions, duties, and responsibilities
782     associated with managing, overseeing, and carrying out a contract between a procurement unit
783     and a contractor, including:
784          (a) implementing the contract;
785          (b) ensuring compliance with the contract terms and conditions by the conducting

786     procurement unit and the contractor;
787          (c) executing change orders;
788          (d) processing contract amendments;
789          (e) resolving, to the extent practicable, contract disputes;
790          (f) curing contract errors and deficiencies;
791          (g) terminating a contract;
792          (h) measuring or evaluating completed work and contractor performance;
793          (i) computing payments under the contract; and
794          (j) closing out a contract.
795          [(9)] (18) "Contractor" means a person who is awarded a contract with a procurement
796     unit.
797          [(10)] (19) "Cooperative procurement" means procurement conducted by, or on behalf
798     of:
799          (a) more than one procurement unit; or
800          (b) a procurement unit and a cooperative purchasing organization.
801          (20) "Cooperative purchasing organization" means an organization, association, or
802     alliance of purchasers established to combine purchasing power in order to obtain the best
803     value for the purchasers by engaging in procurements in accordance with Section 63G-6a-2105.
804          [(11)] (21) "Cost-plus-a-percentage-of-cost contract" means a contract [where] under
805     which the contractor is paid a percentage [over and above] of the total actual expenses or costs
806     in addition to the contractor's actual expenses or costs.
807          [(12)] (22) "Cost-reimbursement contract" means a contract under which a contractor
808     is reimbursed for costs which are allowed and allocated in accordance with the contract terms
809     and the provisions of this chapter, and a fee, if any.
810          [(13)] (23) "Days" means calendar days, unless expressly provided otherwise.
811          [(14)] (24) "Definite quantity contract" means a fixed price contract that provides for
812     [the supply of] a specified amount of [goods] supplies over a specified period, with deliveries
813     scheduled according to a specified schedule.

814          [(15)] (25) "Design-build" means the procurement of design professional services and
815     construction by the use of a single contract [with the design-build provider].
816          [(16)] (26) "Design professional" means:
817          (a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
818     Licensing Act; or
819          (b) an individual licensed as a professional engineer or professional land surveyor
820     under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing
821     Act.
822          (27) "Design professional procurement process" means the procurement process
823     described in Part 15, Design Professional Services.
824          [(17)] (28) "Design professional services" means:
825          (a) professional services within the scope of the practice of architecture as defined in
826     Section 58-3a-102;
827          (b) professional engineering as defined in Section 58-22-102; or
828          (c) master planning and programming services.
829          [(18) "Directed procurement" means a procurement of a procurement item in which the
830     source of the funds used to procure the procurement item:]
831          [(a) directs from whom the procurement item is to be procured; or]
832          [(b) imposes requirements on how the procurement is to be administered.]
833          [(19)] (29) "Director" means the director of the division.
834          (30) "Division" means the Division of Purchasing and General Services, created in
835     Section 63A-2-101.
836          (31) "Educational procurement unit" means:
837          (a) a school district;
838          (b) a public school, including a local school board and a charter school;
839          (c) the Utah Schools for the Deaf and Blind;
840          (d) the Utah Education and Telehealth Network; or
841          (e) an institution of higher education of the state.

842          [(20)] (32) "Established catalogue price" means the price included in a catalogue, price
843     list, schedule, or other form that:
844          (a) is regularly maintained by a manufacturer or contractor;
845          (b) is [either] published or otherwise available for inspection by customers; and
846          (c) states prices at which sales are currently or were last made to a significant number
847     of any category of buyers or buyers constituting the general buying public for the supplies or
848     services involved.
849          (33) "Executive branch procurement unit" means a department, division, office,
850     bureau, agency, or other organization within the state executive branch.
851          [(21)] (34) "Fixed price contract" means a contract that provides a price, for each
852     procurement item obtained under the contract, that is not subject to adjustment except to the
853     extent that:
854          (a) the contract provides, under circumstances specified in the contract, for an
855     adjustment in price that is not based on cost to the contractor; or
856          (b) an adjustment is required by law.
857          [(22)] (35) "Fixed price contract with price adjustment" means a fixed price contract
858     that provides for an upward or downward revision of price, precisely described in the contract,
859     that:
860          (a) is based on the consumer price index or another commercially acceptable index,
861     source, or formula; and
862          (b) is not based on a percentage of the cost to the contractor.
863          [(23)] (36) "Grant" means an expenditure of public funds or other assistance, or an
864     agreement to expend public funds or other assistance, for a public purpose authorized by law,
865     without acquiring a procurement item in exchange.
866          [(24)] (37) "Head of a procurement unit" means:
867          (a) [as it relates to] for a legislative procurement unit, any person designated by rule
868     made by the applicable rulemaking authority;
869          (b) [as it relates to] for an executive branch procurement unit:

870          (i) the director of [a] the division; or
871          (ii) any other person designated by the board, by rule;
872          (c) [as it relates to] for a judicial procurement unit:
873          (i) the Judicial Council; or
874          (ii) any other person designated by the Judicial Council, by rule;
875          (d) [as it relates to] for a local government procurement unit:
876          (i) the legislative body of the local government procurement unit; or
877          (ii) any other person designated by the local government procurement unit;
878          (e) [as it relates to] for a local district other than a public transit district, the board of
879     trustees of the local district or a designee of the board of trustees;
880          (f) [as it relates to] for a special service district, the governing body of the special
881     service district or a designee of the governing body;
882          (g) [as it relates to] for a local building authority, the board of directors of the local
883     building authority or a designee of the board of directors;
884          (h) [as it relates to] for a conservation district, the board of supervisors of the
885     conservation district or a designee of the board of supervisors;
886          (i) [as it relates to] for a public corporation, the board of directors of the public
887     corporation or a designee of the board of directors;
888          (j) [as it relates to] for a school district or any school or entity within a school district,
889     the board of the school district, or the board's designee;
890          (k) [as it relates to] for a charter school, the individual or body with executive authority
891     over the charter school, or the individual's or body's designee;
892          (l) [as it relates to] for an institution of higher education of the state, the president of
893     the institution of higher education, or the president's designee; or
894          (m) [as it relates to] for a public transit district, the board of trustees or a designee of
895     the board of trustees.
896          (38) "Immaterial error":
897          (a) means an irregularity or abnormality that is:

898          (i) a matter of form that does not affect substance; or
899          (ii) an inconsequential variation from a requirement of a solicitation that has no, little,
900     or a trivial effect on the procurement process and that is not prejudicial to other vendors; and
901          (b) includes:
902          (i) a missing signature, missing acknowledgment of an addendum, or missing copy of a
903     professional license, bond, or insurance certificate;
904          (ii) a typographical error;
905          (iii) an error resulting from an inaccuracy or omission in the solicitation; and
906          (iv) any other error that the chief procurement officer or the head of a procurement unit
907     with independent procurement authority reasonably considers to be immaterial.
908          [(25)] (39) "Indefinite quantity contract" means a fixed price contract that:
909          (a) is for an indefinite amount of procurement items to be supplied as ordered by a
910     procurement unit; and
911          (b) (i) does not require a minimum purchase amount; or
912          (ii) provides a maximum purchase limit.
913          [(26)] (40) "Independent procurement authority" means authority granted to a
914     procurement unit under Subsection 63G-6a-106(4)(a).
915          [(27)] (41) "Invitation for bids" [includes all documents, including documents that are
916     attached or incorporated by reference, used for soliciting]:
917          (a) means a document used to solicit:
918          (i) bids to provide a procurement item to a procurement unit; or
919          (ii) quotes for a price of a procurement item to be provided to a procurement unit; and
920          (b) includes all documents attached to or incorporated by reference in a document
921     described in Subsection (41)(a).
922          [(28)] (42) "Issuing procurement unit" means a procurement unit that:
923          (a) reviews a solicitation to verify that it is in proper form;
924          (b) causes the notice of a solicitation to be published; and
925          (c) negotiates and approves the terms and conditions of a contract.

926          (43) "Judicial procurement unit" means:
927          (a) the Utah Supreme Court;
928          (b) the Utah Court of Appeals;
929          (c) the Judicial Council;
930          (d) a state judicial district; or
931          (e) an office, committee, subcommittee, or other organization within the state judicial
932     branch.
933          [(29)] (44) "Labor hour contract" is a contract [where] under which:
934          (a) the supplies and materials are not provided by, or through, the contractor; and
935          (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
936     profit for a specified number of labor hours or days.
937          (45) "Legislative procurement unit" means:
938          (a) the Legislature;
939          (b) the Senate;
940          (c) the House of Representatives;
941          (d) a staff office of the Legislature, the Senate, or the House of Representatives; or
942          (e) an office, committee, subcommittee, commission, or other organization within the
943     state legislative branch.
944          (46) "Local building authority" means the same as that term is defined in Section
945     17D-2-102.
946          (47) "Local district" means the same as that term is defined in Section 17B-1-102.
947          (48) "Local government procurement unit" means:
948          (a) a county or municipality, and each office or agency of the county or municipality,
949     unless the county or municipality adopts its own procurement code by ordinance;
950          (b) a county or municipality that has adopted this entire chapter by ordinance, and each
951     office or agency of that county or municipality; or
952          (c) a county or municipality that has adopted a portion of this chapter by ordinance, to
953     the extent that a term in the ordinance is used in the adopted portion of this chapter, and each

954     office or agency of that county or municipality.
955          [(30)] (49) "Multiple award contracts" means the award of a contract for an indefinite
956     quantity of a procurement item to more than one bidder or offeror.
957          [(31)] (50) "Multiyear contract" means a contract that extends beyond a one-year
958     period, including a contract that permits renewal of the contract, without competition, beyond
959     the first year of the contract.
960          [(32)] (51) "Municipality" means a city or a town.
961          (52) "Nonadopting local government procurement unit" means:
962          (a) a county or municipality that has not adopted Part 16, Protests, Part 17,
963     Procurement Appeals Board, Part 18, Appeals to Court and Court Proceedings, and Part 19,
964     General Provisions Related to Protest or Appeal; and
965          (b) each office or agency of a county or municipality described in Subsection (52)(a).
966          [(33)] (53) "Offeror" means a person who [responds] submits a proposal in response to
967     a request for proposals.
968          (54) "Person" means the same as that term is defined in Section 68-3-12.5, excluding a
969     political subdivision and a government office, department, division, bureau, or other body of
970     government.
971          [(34)] (55) "Preferred bidder" means a bidder that is entitled to receive a reciprocal
972     preference under the requirements of this chapter.
973          [(35)] (56) "Procure" means to acquire a procurement item through a procurement.
974          [(36)] (57) "Procurement":
975          (a) means a procurement unit's acquisition of a procurement item through an
976     expenditure of public funds, or an agreement to expend public funds[, in exchange for a
977     procurement item];
978          (b) includes all functions that pertain to the acquisition of a procurement item,
979     including:
980          [(i) the description of requirements;]
981          [(ii) the selection process;]

982          [(iii) solicitation of sources;]
983          [(iv) the preparation for soliciting a procurement item; and]
984          [(v) the award of a contract; and]
985          (i) preparing and issuing a solicitation; and
986          (ii) (A) conducting a standard procurement process; or
987          (B) conducting a procurement process that is an exception to a standard procurement
988     process under Part 8, Exceptions to Standard Procurement Process; and
989          (c) does not include a grant.
990          [(37) "Procurement item" means a supply, a service, construction, or technology.]
991          (58) "Procurement item" means a supply, a service, or construction.
992          [(38)] (59) "Procurement officer" means:
993          (a) [as it relates to] for a procurement unit with independent procurement authority:
994          (i) the head of the procurement unit;
995          (ii) a designee of the head of the procurement unit; or
996          (iii) a person designated by rule made by the applicable rulemaking authority; or
997          (b) [as it relates to] for the division or a procurement unit without independent
998     procurement authority, the chief procurement officer.
999          (60) "Procurement unit":
1000          (a) means:
1001          (i) a legislative procurement unit;
1002          (ii) an executive branch procurement unit;
1003          (iii) a judicial procurement unit;
1004          (iv) an educational procurement unit;
1005          (v) a local government procurement unit;
1006          (vi) a local district;
1007          (vii) a special service district;
1008          (viii) a local building authority;
1009          (ix) a conservation district;

1010          (x) a public corporation; or
1011          (xi) a public transit district; and
1012          (b) does not include a political subdivision created under Title 11, Chapter 13,
1013     Interlocal Cooperation Act.
1014          [(39) "Professional service" means a service that requires a high degree of specialized
1015     knowledge and discretion in the performance of the service, including:]
1016          [(a) legal services;]
1017          [(b) consultation services;]
1018          [(c) architectural services;]
1019          [(d) engineering;]
1020          [(e) design;]
1021          [(f) underwriting;]
1022          [(g) bond counsel;]
1023          [(h) financial advice;]
1024          [(i) construction management;]
1025          [(j) medical services;]
1026          [(k) psychiatric services; or]
1027          [(l) counseling services.]
1028          (61) "Professional service" means labor, effort, or work that requires an elevated
1029     degree of specialized knowledge and discretion, including labor, effort, or work in the field of:
1030          (a) accounting;
1031          (b) architecture;
1032          (c) construction design and management;
1033          (d) engineering;
1034          (e) financial services;
1035          (f) information technology;
1036          (g) the law;
1037          (h) medicine;

1038          (i) psychiatry; or
1039          (j) underwriting.
1040          [(40)] (62) "Protest officer" means:
1041          (a) [as it relates to] for the division or a procurement unit with independent
1042     procurement authority:
1043          (i) the head of the procurement unit;
1044          (ii) a designee of the head of the procurement unit; or
1045          (iii) a person designated by rule made by the applicable rulemaking authority; or
1046          (b) [as it relates to] for a procurement unit without independent procurement authority,
1047     the chief procurement officer or the chief procurement officer's designee.
1048          (63) "Public corporation" means the same as that term is defined in Section 63E-1-102.
1049          (64) "Public entity" means any government entity of the state or political subdivision of
1050     the state, including:
1051          (a) a procurement unit;
1052          (b) a municipality or county, regardless of whether the municipality or county has
1053     adopted this chapter or any part of this chapter; and
1054          (c) any other government entity located in the state that expends public funds.
1055          (65) "Public facility" means a building, structure, infrastructure, improvement, or other
1056     facility of a public entity.
1057          (66) "Public funds" means money, regardless of its source, including from the federal
1058     government, that is owned or held by a procurement unit.
1059          (67) "Public transit district" means a public transit district organized under Title 17B,
1060     Chapter 2a, Part 8, Public Transit District Act.
1061          (68) "Qualified vendor" means a vendor who:
1062          (a) is responsible; and
1063          (b) submits a responsive statement of qualifications under Section 63G-6a-410 that
1064     meets the minimum mandatory requirements, evaluation criteria, and any applicable score
1065     thresholds set forth in the request for statement of qualifications.

1066          (69) "Real property" means land and any building, fixture, improvement, appurtenance,
1067     structure, or other development that is permanently affixed to land.
1068          [(41)] (70) "Request for information" means a nonbinding process [where] through
1069     which a procurement unit requests information relating to a procurement item.
1070          [(42)] (71) "Request for proposals" [includes all documents, including documents that
1071     are attached or incorporated by reference, used for soliciting] means a document used to solicit
1072     proposals to provide a procurement item to a procurement unit, including all other documents
1073     that are attached to that document or incorporated in that document by reference.
1074          (72) "Request for proposals process" means the procurement process described in Part
1075     7, Request for Proposals.
1076          [(43)] (73) "Request for statement of qualifications" means [all documents] a document
1077     used to solicit information about the qualifications of [the] a person interested in responding to
1078     a potential procurement, including all other documents attached to that document or
1079     incorporated in that document by reference.
1080          [(44)] (74) "Requirements contract" means a contract:
1081          (a) [where] under which a contractor agrees to provide a procurement unit's entire
1082     requirements for certain procurement items at prices specified in the contract during the
1083     contract period; and
1084          (b) that:
1085          (i) does not require a minimum purchase amount; or
1086          (ii) provides a maximum purchase limit.
1087          [(45)] (75) "Responsible" means being capable, in all respects, of:
1088          (a) meeting all the requirements of a solicitation; and
1089          (b) fully performing all the requirements of the contract resulting from the solicitation,
1090     including being financially solvent with sufficient financial resources to perform the contract.
1091          [(46)] (76) "Responsive" means conforming in all material respects to the [invitation
1092     for bids or request for proposals] requirements of a solicitation.
1093          [(47)] (77) "Sealed" means manually or electronically [sealed and submitted bids or

1094     proposals] secured to prevent disclosure.
1095          [(48) (a) "Services" means the furnishing of labor, time, or effort by a contractor, not
1096     involving the delivery of a specific end product other than a report that is incidental to the
1097     required performance.]
1098          [(b) "Services" does not include an employment agreement or a collective bargaining
1099     agreement.]
1100          (78) "Service":
1101          (a) means labor, effort, or work to produce a result that is beneficial to a procurement
1102     unit;
1103          (b) includes a professional service; and
1104          (c) does not include labor, effort, or work provided under an employment agreement or
1105     a collective bargaining agreement.
1106          (79) "Small purchase process" means the procurement process described in Section
1107     63G-6a-506.
1108          [(49)] (80) "Sole source contract" means a contract resulting from a sole source
1109     procurement.
1110          [(50)] (81) "Sole source procurement" means a procurement without competition
1111     pursuant to a determination under Subsection 63G-6a-802[(2)](1)(a) that there is only one
1112     source for the procurement item.
1113          [(51)] (82) "Solicitation" means an invitation for bids, request for proposals, [notice of
1114     a sole source procurement,] request for statement of qualifications, or request for information[,
1115     or any document used to obtain bids, proposals, pricing, qualifications, or information for the
1116     purpose of entering into a procurement contract].
1117          (83) "Solicitation response" means:
1118          (a) a bid submitted in response to an invitation for bids;
1119          (b) a proposal submitted in response to a request for proposals; or
1120          (c) a statement of qualifications submitted in response to a request for statement of
1121     qualifications.

1122          (84) "Special service district" means the same as that term is defined in Section
1123     17D-1-102.
1124          [(52)] (85) "Specification" means any description of the physical or functional
1125     characteristics[,] or of the nature of a procurement item included in an invitation for bids or a
1126     request for proposals, or otherwise specified or agreed to by a procurement unit, including a
1127     description of:
1128          (a) a requirement for inspecting or testing a procurement item; or
1129          (b) preparing a procurement item for delivery.
1130          [(53)] (86) "Standard procurement process" means [one of the following methods of
1131     obtaining a procurement item]:
1132          (a) the bidding[, as described in Part 6, Bidding] process;
1133          (b) the request for proposals[, as described in Part 7, Request for Proposals] process;
1134     [or]
1135          [(c) small purchases, in accordance with the requirements established under Section
1136     63G-6a-408.]
1137          (c) the approved vendor list process;
1138          (d) the small purchase process; or
1139          (e) the design professional procurement process.
1140          [(54)] (87) "State cooperative contract" means a contract awarded by the division for
1141     and in behalf of all public entities.
1142          [(55)] (88) "Statement of qualifications" means a written statement submitted to a
1143     procurement unit in response to a request for statement of qualifications.
1144          [(56) (a)] (89) "Subcontractor":
1145          (a) means a person under contract with a contractor or another subcontractor to provide
1146     services or labor for design or construction[.];
1147          (b) ["Subcontractor"] includes a trade contractor or specialty contractor[.]; and
1148          (c) ["Subcontractor"] does not include a supplier who provides only materials,
1149     equipment, or supplies to a contractor or subcontractor.

1150          [(57) "Supplies" means all property, including equipment, materials, and printing.]
1151          (90) "Supply" means a good, material, technology, piece of equipment, or any other
1152     item of personal property.
1153          [(58)] (91) "Tie bid" means that the lowest responsive [and] bids of responsible [bids]
1154     bidders are identical in price.
1155          [(59)] (92) "Time and materials contract" means a contract [where] under which the
1156     contractor is paid:
1157          (a) the actual cost of direct labor at specified hourly rates;
1158          (b) the actual cost of materials and equipment usage; and
1159          (c) an additional amount, expressly described in the contract, to cover overhead and
1160     profit, that is not based on a percentage of the cost to the contractor.
1161          (93) "Transitional costs":
1162          (a) means the costs of changing:
1163          (i) from an existing provider of a procurement item to another provider of that
1164     procurement item; or
1165          (ii) from an existing type of procurement item to another type;
1166          (b) includes:
1167          (i) training costs;
1168          (ii) conversion costs;
1169          (iii) compatibility costs;
1170          (iv) costs associated with system downtime;
1171          (v) disruption of service costs;
1172          (vi) staff time necessary to implement the change;
1173          (vii) installation costs; and
1174          (viii) ancillary software, hardware, equipment, or construction costs; and
1175          (c) does not include:
1176          (i) the costs of preparing for or engaging in a procurement process; or
1177          (ii) contract negotiation or drafting costs.

1178          (94) "Trial use contract" means a contract for a procurement item that the procurement
1179     unit acquires for a trial use or testing to determine whether the procurement item will benefit
1180     the procurement unit.
1181          (95) "Vendor":
1182          (a) means a person who is seeking to enter into a contract with a procurement unit to
1183     provide a procurement item; and
1184          (b) includes:
1185          (i) a bidder;
1186          (ii) an offeror;
1187          (iii) an approved vendor; and
1188          (iv) a design professional.
1189          Section 8. Section 63G-6a-105 is amended to read:
1190          63G-6a-105. Application of chapter -- Ordinances or resolutions relating to
1191     procurement of design professional services -- Rules.
1192          [(1) The provisions of this chapter that are enacted on May 1, 2013, apply only to a
1193     procurement advertised, or begun on or after May 1, 2013, unless the parties agree to have the
1194     provisions apply with respect to a procurement that was advertised or begun before May 1,
1195     2013, but is not completed before May 1, 2013.]
1196          [(2) (a)] (1) Except as provided in Section 63G-6a-107, this chapter [shall apply to
1197     every expenditure of public funds irrespective of the source of the funds, including federal
1198     assistance, by any procurement unit, under any contract] applies to every procurement.
1199          [(b) The provisions of this chapter do]
1200          (2) This chapter does not apply to a public entity that is not a procurement unit.
1201          (3) The following procurement units shall adopt ordinances or resolutions relating to
1202     the procurement of design professional services not inconsistent with the provisions of Part 15,
1203     Design Professional Services:
1204          (a) an educational procurement unit;
1205          (b) a conservation district;

1206          (c) a local building authority;
1207          (d) a local district;
1208          (e) a public corporation; or
1209          (f) a special service district.
1210          (4) Any section of this chapter, or its implementing regulations, may be adopted by:
1211          (a) a county;
1212          (b) a municipality; or
1213          (c) the Utah Housing Corporation.
1214          (5) Rules adopted under this chapter shall be consistent with the provisions of this
1215     chapter.
1216          (6) An applicable rulemaking authority or a procurement unit may not adopt rules,
1217     policies, or regulations that are inconsistent with this chapter.
1218          (7) Unless otherwise provided by statute, this chapter does not apply to [procurement]
1219     the acquisition or disposal of real property or an interest in real property.
1220          (8) Notwithstanding any provision of this chapter, a procurement unit may administer a
1221     [direct] procurement in accordance with the requirements imposed by the source of the funds
1222     used to procure the procurement item.
1223          Section 9. Section 63G-6a-106 is amended to read:
1224          63G-6a-106. Procurement units with specific statutory procurement authority --
1225     Independent procurement authority -- Authority of head of a procurement unit with
1226     independent procurement authority.
1227          (1) A procurement unit with procurement authority under the following provisions has
1228     independent procurement authority to the extent of the applicable provisions and for the
1229     procurement items specified in the applicable provisions:
1230          (a) Title 53B, State System of Higher Education;
1231          (b) Title 63A, Chapter 5, State Building Board - Division of Facilities Construction
1232     and Management;
1233          (c) Title 67, Chapter 5, Attorney General;

1234          (d) Title 72, Transportation Code; and
1235          (e) Title 78A, Chapter 5, District Court.
1236          (2) Except as otherwise provided in Sections 63G-6a-105 and 63G-6a-107, a
1237     procurement unit shall conduct a procurement in accordance with this chapter.
1238          (3) (a) The Department of Transportation may make rules governing the procurement
1239     of highway construction or improvement.
1240          (b) The applicable rulemaking authority for a public transit district may make rules
1241     governing the procurement of a transit construction project or a transit improvement project.
1242          [(c) This Subsection (3) supersedes Subsections (1) and (2).]
1243          (4) (a) A procurement unit listed in Subsection (4)(b) may, without the supervision,
1244     interference, oversight, control, or involvement of the division or the chief procurement officer,
1245     but in accordance with the requirements of this chapter:
1246          (i) engage in a standard procurement process;
1247          (ii) procure an item under an exception, as provided in this chapter, to the requirement
1248     to use a standard procurement process; or
1249          (iii) otherwise engage in an act authorized or required by this chapter.
1250          (b) The procurement units to which Subsection (4)(a) applies are:
1251          (i) a legislative procurement unit;
1252          (ii) a judicial procurement unit;
1253          (iii) an educational procurement unit;
1254          (iv) a local government procurement unit;
1255          (v) a conservation district;
1256          (vi) a local building authority;
1257          (vii) a local district;
1258          (viii) a public corporation;
1259          (ix) a special service district;
1260          (x) a public transit district; and
1261          (xi) a procurement unit referred to in Subsection (1), to the extent authorized in

1262     Subsection (1).
1263          (c) A procurement unit with independent procurement authority shall comply with the
1264     requirements of this chapter.
1265          (d) Notwithstanding Subsection (4)(a), a procurement unit with independent
1266     procurement authority may agree in writing with the division to extend the authority of the
1267     division or the chief procurement officer to the procurement unit, as provided in the agreement.
1268          [(e) At any stage of the procurement process, a head of a procurement unit with
1269     independent procurement authority who determines that a procurement over which the
1270     procurement unit has authority is out of compliance with this chapter or applicable rules may:]
1271          [(i) correct or amend the procurement to bring it into compliance; or]
1272          [(ii) cancel the procurement, if the head of the procurement unit determines that it is:]
1273          [(A) not feasible to bring the procurement into compliance; or]
1274          [(B) in the best interest of the procurement unit to cancel the procurement.]
1275          (e) With respect to a procurement or contract over which the head of a procurement
1276     unit with independent procurement authority has authority, the head of the procurement unit
1277     with independent procurement authority may:
1278          (i) manage and supervise the procurement to ensure to the extent practicable that
1279     taxpayers receive the best value;
1280          (ii) prepare and issue standard specifications for procurement items;
1281          (iii) review contracts, coordinate contract compliance, conduct contract audits, and
1282     approve change orders;
1283          (iv) delegate duties and authority to an employee of the procurement unit, as the head
1284     of the procurement unit with independent procurement authority considers appropriate;
1285          (v) for the head of an executive branch procurement unit with independent
1286     procurement authority, coordinate with the Department of Technology Services, created in
1287     Section 63F-1-103, with respect to the procurement unit's procurement of information
1288     technology services;
1289          (vi) correct, amend, or cancel a procurement at any stage of the procurement process if

1290     the procurement is out of compliance with this chapter or a rule adopted by the applicable
1291     rulemaking authority;
1292          (vii) after consultation with, as applicable, the attorney general's office or the
1293     procurement unit's legal counsel, correct, amend, or cancel a contract at any time during the
1294     term of the contract if:
1295          (A) the contract is out of compliance with this chapter or a board rule; and
1296          (B) the head of the procurement unit with independent procurement authority
1297     determines that correcting, amending, or canceling the contract is in the best interest of the
1298     procurement unit; and
1299          (viii) attempt to resolve a contract dispute in coordination with the legal counsel of the
1300     procurement unit with independent procurement authority.
1301          (f) The head of a procurement unit with independent procurement authority serves as
1302     the protest officer for a protest involving the procurement unit.
1303          [(f)] (g) If, at any time during the term of a contract awarded by a procurement unit
1304     with independent procurement authority, the head of the procurement unit determines that the
1305     contract is out of compliance with this chapter or applicable rules, the head of the procurement
1306     unit may correct or amend the contract to bring it into compliance or cancel the contract:
1307          (i) if the head of the procurement unit determines that correcting, amending, or
1308     canceling the contract is in the best interest of the procurement unit; and
1309          (ii) after consulting with legal counsel.
1310          (5) (a) The attorney general may, in accordance with the provisions of this chapter, but
1311     without involvement by the division or the chief procurement officer:
1312          (i) retain outside counsel, subject to Section 67-5-33 if the attorney general retains
1313     outside counsel under a contingent fee contract, as defined in that section; or
1314          (ii) procure litigation support services, including retaining an expert witness.
1315          (b) A procurement unit with independent procurement authority that is not represented
1316     by the attorney general's office may, in accordance with the provisions of this chapter, but
1317     without involvement by the division or the chief procurement officer:

1318          (i) retain outside counsel; or
1319          (ii) procure litigation support services, including retaining an expert witness.
1320          (6) The state auditor's office may, in accordance with the provisions of this chapter, but
1321     without involvement by the division or the chief procurement officer, procure audit services.
1322          (7) The state treasurer may, in accordance with the provisions of this chapter, but
1323     without involvement by the division or the chief procurement officer, procure:
1324          (a) deposit services; and
1325          (b) services related to issuing bonds.
1326          Section 10. Section 63G-6a-106.5 is enacted to read:
1327          63G-6a-106.5. Policy for legislative procurement units.
1328          The Legislative Management Committee shall adopt a policy establishing requirements
1329     applicable to a legislative procurement unit.
1330          Section 11. Section 63G-6a-107 is amended to read:
1331          63G-6a-107. Exemptions from chapter -- Compliance with other provisions.
1332          (1) Except for Part 24, Unlawful Conduct and Penalties, [the provisions of] this chapter
1333     [do] does not apply to:
1334          (a) funds administered under the Percent-for-Art Program of the Utah Percent-for-Art
1335     Act;
1336          (b) a grant;
1337          (c) a contract between procurement units;
1338          (d) medical supplies or medical equipment, including service agreements for medical
1339     equipment, obtained [through a purchasing consortium by the Utah State Hospital, the Utah
1340     State Developmental Center,] by the University of Utah Hospital[, or any other hospital owned
1341     by the state or a political subdivision of the state,] through a purchasing consortium if:
1342          (i) the consortium uses a competitive procurement process; and
1343          (ii) the chief administrative officer of the hospital makes a written finding that the
1344     prices for purchasing medical supplies and medical equipment through the consortium are
1345     competitive with market prices;

1346          (e) the purchase of firefighting supplies or equipment by the Division of Forestry, Fire,
1347     and State Lands, created in Section 65A-1-4, through the federal General Services
1348     Administration or the National Fire Cache system;
1349          (f) [goods] supplies purchased for resale to the public; or
1350          (g) activities related to the management of investments by a public entity granted
1351     investment authority by law.
1352          [(2) This chapter does not prevent a procurement unit from complying with the terms
1353     and conditions of any grant, gift, or bequest that is otherwise consistent with law.]
1354          [(3)] (2) Notwithstanding any conflicting provision of this chapter, [when] if a
1355     procurement involves the expenditure of federal or state assistance, federal contract funds,
1356     local matching funds, or federal financial participation funds, the procurement unit shall
1357     comply with mandatory applicable federal or state law and regulations not reflected in this
1358     chapter.
1359          [(4)] (3) This chapter does not supersede the requirements for retention or withholding
1360     of construction proceeds and release of construction proceeds as provided in Section 13-8-5.
1361          (4) This chapter does not apply to a procurement unit's hiring a mediator, arbitrator, or
1362     arbitration panel member to participate in the procurement unit's dispute resolution efforts.
1363          Section 12. Section 63G-6a-109 is amended to read:
1364          63G-6a-109. Issuing procurement unit and conducting procurement unit.
1365          (1) [(a) Except as provided in Subsection (1)(b), with] With respect to a procurement
1366     by an executive branch procurement unit:
1367          [(i)] (a) the division is the issuing procurement unit; and
1368          [(ii)] (b) the executive branch procurement unit is the conducting procurement unit and
1369     is responsible to ensure that the procurement is conducted in compliance with this chapter.
1370          [(b) An executive branch procurement unit administering a directed procurement is
1371     both the issuing procurement unit and the conducting procurement unit.]
1372          (2) With respect to a procurement by any other procurement unit, the procurement unit
1373     is both the issuing procurement unit and the conducting procurement unit.

1374          (3) A conducting procurement unit is responsible for contract administration.
1375          Section 13. Section 63G-6a-110, which is renumbered from Section 63G-6a-402 is
1376     renumbered and amended to read:
1377          [63G-6a-402].      63G-6a-110. Procurement unit required to comply with Utah
1378     Procurement Code and applicable rules -- Rulemaking authority -- Reporting.
1379          (1) Except as otherwise provided in Section 63G-6a-107, [Section 63G-6a-403, Part 8,
1380     Exceptions to Procurement Requirements, or elsewhere in this chapter,] a procurement unit
1381     may not obtain a procurement item, unless:
1382          (a) if the procurement unit is the division or a procurement unit with independent
1383     procurement authority, the procurement unit:
1384          (i) uses:
1385          (A) a standard procurement process; or
1386          (B) an exception to a standard procurement process, described in Part 8, Exceptions to
1387     Procurement Requirements; and
1388          (ii) complies with:
1389          (A) the requirements of this chapter; and
1390          (B) the rules made pursuant to this chapter by the applicable rulemaking authority;
1391          (b) if the procurement unit is a county, a municipality, or the Utah Housing
1392     Corporation, the procurement unit complies with:
1393          (i) the requirements of this chapter that are adopted by the procurement unit; and
1394          (ii) all other procurement requirements that the procurement unit is required to comply
1395     with; or
1396          (c) if the procurement unit is not a procurement unit described in Subsection (1)(a) or
1397     (b), the procurement unit:
1398          (i) obtains the procurement item under the direction and approval of the division,
1399     unless otherwise provided by a rule made by the board;
1400          (ii) uses a standard procurement process; and
1401          (iii) complies with:

1402          (A) the requirements of this chapter; and
1403          (B) the rules made pursuant to this chapter by the applicable rulemaking authority.
1404          (2) Subject to Subsection (3), the applicable rulemaking authority shall make rules
1405     relating to the management and control of procurements and procurement procedures by a
1406     procurement unit.
1407          [(3) (a) Rules made under Subsection (2) shall ensure compliance with the federal
1408     contract prohibition provisions of the Sudan Accountability and Divestment Act of 2007 (Pub.
1409     L. No. 110-174) that prohibit contracting with a person doing business in Sudan.]
1410          [(b) The State Building Board]
1411          (3) Building board rules governing procurement of construction, design professional
1412     services, and leases apply to the procurement of construction, design professional services, and
1413     leases of real property by the Division of Facilities Construction and Management.
1414          [(4) An applicable rulemaking authority that is subject to Title 63G, Chapter 3, Utah
1415     Administrative Rulemaking Act, shall make the rules described in this chapter in accordance
1416     with the provisions of Title 63G, Chapter 3, Utah Administrative Rulemaking Act.]
1417          (4) An individual or body that makes rules as required or authorized in this chapter
1418     shall make the rules:
1419          (a) in accordance with Chapter 3, Utah Administrative Rulemaking Act, if the
1420     individual or body is subject to Chapter 3, Utah Administrative Rulemaking Act; or
1421          (b) in accordance with the established process for making rules or their equivalent, if
1422     the individual or body is not subject to Chapter 3, Utah Administrative Rulemaking Act.
1423          (5) The [State Building Board] building board shall make a report on or before July 1
1424     of each year to a legislative interim committee, designated by the Legislative Management
1425     Committee created under Section 36-12-6, on the establishment, implementation, and
1426     enforcement of the rules made by the [State Building Board] building board under this chapter.
1427          (6) The rules of the applicable rulemaking authority for the executive branch
1428     procurement unit shall require, for each contract and request for proposals, the inclusion of a
1429     clause that requires the issuing procurement unit, for the duration of the contract, to make

1430     available contact information of the winning contractor to the Department of Workforce
1431     Services in accordance with Section 35A-2-203. This requirement does not preclude a
1432     contractor from advertising job openings in other forums throughout the state.
1433          Section 14. Section 63G-6a-111, which is renumbered from Section 63G-6a-407 is
1434     renumbered and amended to read:
1435          [63G-6a-407].      63G-6a-111. Purpose of specifications.
1436          (1) All specifications shall seek to promote the overall economy and best use for the
1437     purposes intended and encourage competition in satisfying the needs of the procurement unit,
1438     and may not be unduly restrictive.
1439          (2) The requirements of this part regarding the purposes and nonrestrictiveness of
1440     specifications shall apply to all specifications, including those prepared by architects,
1441     engineers, designers, and draftsmen for public contracts.
1442          Section 15. Section 63G-6a-112, which is renumbered from Section 63G-6a-406 is
1443     renumbered and amended to read:
1444          [63G-6a-406].      63G-6a-112. Required public notice.
1445          (1) The division or a procurement unit with independent procurement authority that
1446     issues a solicitation required to be published in accordance with this section, shall provide
1447     public notice that includes:
1448          (a) the name of the conducting procurement unit;
1449          (b) the name of the procurement unit acquiring the procurement item;
1450          (c) information on how to contact the issuing procurement unit;
1451          (d) the date of the opening and closing of the solicitation;
1452          (e) information on how to obtain a copy of the procurement documents;
1453          (f) a general description of the procurement items that will be obtained through the
1454     standard procurement process or [sole source] procurement under Section 63G-6a-802; and
1455          (g) for a notice of a [sole source] procurement under Section 63G-6a-802:
1456          (i) contact information and other information relating to contesting or obtaining
1457     additional information relating to the [sole source] procurement; and

1458          (ii) the earliest date that the procurement unit may make the [sole source] procurement.
1459          (2) Except as provided in Subsection (4), the issuing procurement unit shall publish the
1460     notice described in Subsection (1):
1461          (a) at least seven days before the day of the deadline for submission of a bid or other
1462     response; and
1463          (b) (i) in a newspaper of general circulation in the state;
1464          (ii) in a newspaper of local circulation in the area:
1465          (A) directly impacted by the procurement; or
1466          (B) over which the procurement unit has jurisdiction;
1467          (iii) on the main website for the issuing procurement unit or the procurement unit
1468     acquiring the procurement item; or
1469          (iv) on a state website that is owned, managed by, or provided under contract with, the
1470     division for posting a public procurement notice.
1471          (3) Except as provided in Subsection (4), for a [sole source] procurement under Section
1472     63G-6a-802 for which notice is required to be published in accordance with this section, the
1473     issuing procurement unit shall publish the notice described in Subsection (1):
1474          (a) at least seven days before the acquisition of the [sole source] procurement item; and
1475          (b) (i) in a newspaper of general circulation in the state;
1476          (ii) in a newspaper of local circulation in the area:
1477          (A) directly impacted by the procurement; or
1478          (B) over which the procurement unit has jurisdiction;
1479          (iii) on the main website for the procurement unit acquiring the procurement item; or
1480          (iv) on a state website that is owned by, managed by, or provided under contract with,
1481     the division for posting a procurement notice.
1482          (4) An issuing procurement unit may reduce the seven-day period described in
1483     Subsection (2) or (3), if the procurement officer or the procurement officer's designee signs a
1484     written statement that:
1485          (a) states that a shorter time is needed; and

1486          (b) determines that competition from multiple sources may be obtained within the
1487     shorter period of time.
1488          (5) (a) An issuing procurement unit shall make a copy of the solicitation documents
1489     available for public inspection at the main office of the issuing procurement unit or on the
1490     website described in Subsection (2)(b) until the award of the contract or the cancellation of the
1491     procurement.
1492          (b) A procurement unit issuing a [sole source] procurement under Section 63G-6a-802
1493     shall make a copy of information related to the [sole source] procurement available for public
1494     inspection at the main office of the procurement unit or on the website described in Subsection
1495     (3)(b) until the award of the contract or the cancellation of the procurement.
1496          (c) A procurement unit shall maintain all records in accordance with Part 20, Records.
1497          (6) A procurement unit that issues a request for statement of qualifications as part of an
1498     approved vendor list process that results in the establishment of an open-ended vendor list, as
1499     defined in Section 63G-6a-507, shall keep the request for statement of qualifications posted on
1500     a website described in Subsection (2)(b)(iii) or (iv) during the entire period of the open-ended
1501     vendor list.
1502          Section 16. Section 63G-6a-113 is enacted to read:
1503          63G-6a-113. Price based on established terms.
1504          A procurement unit acquiring a procurement item may establish the price of the
1505     procurement item based on:
1506          (1) a price list, rate schedule, or price catalog:
1507          (a) submitted by a vendor and accepted by the procurement unit; or
1508          (b) mandated by the procurement unit or a federal agency; or
1509          (2) a federal regulation for a health and human services program.
1510          Section 17. Section 63G-6a-114 is enacted to read:
1511          63G-6a-114. Correcting an immaterial error in a solicitation response.
1512          (1) The chief procurement officer or the head of a procurement unit with independent
1513     procurement authority:

1514          (a) may allow a vendor to correct an immaterial error in a responsive solicitation
1515     response as provided in this section; and
1516          (b) may not allow a vendor to:
1517          (i) correct a deficiency, inaccuracy, or mistake in a responsive solicitation response that
1518     is not an immaterial error;
1519          (ii) correct an incomplete submission of documents that the solicitation required to be
1520     submitted with the solicitation response;
1521          (iii) correct a failure to submit a timely solicitation response;
1522          (iv) substitute or alter a required form or other document specified in the solicitation;
1523          (v) remedy a cause for a vendor being considered to be not responsible or a solicitation
1524     response not responsive; or
1525          (vi) correct a defect or inadequacy resulting in a determination that a vendor's
1526     solicitation response does not meet the mandatory minimum requirements, evaluation criteria,
1527     or applicable score thresholds established in the solicitation.
1528          (2) (a) The chief procurement officer or the head of a procurement unit with
1529     independent procurement authority shall establish a deadline by which a vendor is required to
1530     submit a correction under this section.
1531          (b) The chief procurement officer or the head of a procurement unit with independent
1532     procurement authority may not allow a vendor to correct an immaterial error in a solicitation
1533     response if the vendor submits the correction after the deadline established under Subsection
1534     (2)(a).
1535          (3) If the chief procurement officer or the head of a procurement unit with independent
1536     procurement authority allows a vendor to correct an immaterial error in a solicitation response,
1537     the chief procurement officer or head shall prepare and sign a written document supporting the
1538     reason for allowing the correction.
1539          Section 18. Section 63G-6a-115 is enacted to read:
1540          63G-6a-115. Clarifying information in a solicitation response.
1541          (1) A procurement unit may at any time make a written request to a vendor to clarify

1542     information contained in a responsive solicitation response.
1543          (2) A procurement unit may allow a vendor to respond to a request under Subsection
1544     (1):
1545          (a) in writing; or
1546          (b) by submitting a printed document.
1547          (3) (a) A procurement unit that requests a vendor to clarify information contained in a
1548     responsive solicitation response under this section shall establish a deadline by which the
1549     vendor is required to submit the clarifying information.
1550          (b) A procurement unit may not allow a vendor to submit clarifying information after
1551     the deadline established under Subsection (3)(a).
1552          (4) A vendor's response to a request under this section:
1553          (a) may only explain, illustrate, or interpret the contents of the vendor's original
1554     solicitation response;
1555          (b) may not be used to address criteria or specifications not contained in the vendor's
1556     original solicitation response; and
1557          (c) may not be used to:
1558          (i) correct a deficiency, inaccuracy, or mistake in a solicitation response that is not an
1559     immaterial error;
1560          (ii) correct an incomplete submission of documents that the solicitation required to be
1561     submitted with the solicitation response;
1562          (iii) correct a failure to submit a timely solicitation response;
1563          (iv) substitute or alter a required form or other document specified in the solicitation;
1564          (v) remedy a cause for a vendor being considered to be not responsible or a solicitation
1565     response not responsive; or
1566          (vi) correct a defect or inadequacy resulting in a determination that a vendor does not
1567     meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
1568     established in the solicitation.
1569          Section 19. Section 63G-6a-203 is amended to read:

1570          63G-6a-203. Powers and duties of board.
1571          (1) In addition to making rules in accordance with Section [63G-6a-402] 63G-6a-110
1572     and the other provisions of this chapter, the board shall consider and decide matters of policy
1573     within the provisions of this chapter, including those referred to it by the chief procurement
1574     officer.
1575          (2) (a) The board may:
1576          (i) audit and monitor the implementation of its rules and the requirements of this
1577     chapter;
1578          (ii) upon the request of a procurement unit with an applicable rulemaking authority
1579     other than the board, review the procurement unit's proposed rules to ensure that they are not
1580     inconsistent with the provisions of this chapter or rules made by the board; and
1581          (iii) approve the use of innovative procurement processes.
1582          (b) Except as provided in Section 63G-6a-1702, the board may not exercise authority
1583     over:
1584          (i) the award or administration of any particular contract; or
1585          (ii) any dispute, claim, or litigation pertaining to any particular contract.
1586          (3) Except as otherwise expressly provided in this chapter, the board does not have
1587     authority over a matter involving a procurement unit with independent procurement authority.
1588          Section 20. Section 63G-6a-303 is repealed and reenacted to read:
1589          63G-6a-303. Duties and authority of chief procurement officer.
1590          (1) The chief procurement officer:
1591          (a) is the director of the division;
1592          (b) serves as the central procurement officer of the state;
1593          (c) serves as a voting member of the board; and
1594          (d) serves as the protest officer for a protest relating to a procurement of an executive
1595     branch procurement unit without independent procurement authority or a state cooperative
1596     contract procurement, unless the chief procurement officer designates another to serve as
1597     protest officer, as authorized in this chapter.

1598          (2) Except as otherwise provided in this chapter, the chief procurement officer shall:
1599          (a) develop procurement policies and procedures supporting ethical procurement
1600     practices, fair and open competition among vendors, and transparency within the state's
1601     procurement process;
1602          (b) administer the state's cooperative purchasing program, including state cooperative
1603     contracts and associated administrative fees;
1604          (c) enter into an agreement with a public entity for services provided by the division, if
1605     the agreement is in the best interest of the state;
1606          (d) ensure the division's compliance with any applicable law, rule, or policy, including
1607     a law, rule, or policy applicable to the division's role as an issuing procurement unit or
1608     conducting procurement unit, or as the state's central procurement organization;
1609          (e) manage the division's electronic procurement system;
1610          (f) oversee the recruitment, training, career development, certification requirements,
1611     and performance evaluation of the division's procurement personnel;
1612          (g) make procurement training available to procurement units and persons who do
1613     business with procurement units;
1614          (h) provide exemplary customer service and continually improve the division's
1615     procurement operations; and
1616          (i) exercise all other authority, fulfill all other duties and responsibilities, and perform
1617     all other functions authorized under this chapter.
1618          (3) With respect to a procurement or contract over which the chief procurement officer
1619     has authority under this chapter, the chief procurement officer, except as otherwise provided in
1620     this chapter:
1621          (a) shall:
1622          (i) manage and supervise a procurement to ensure to the extent practicable that
1623     taxpayers receive the best value;
1624          (ii) prepare and issue standard specifications for procurement items;
1625          (iii) review contracts, coordinate contract compliance, conduct contract audits, and

1626     approve change orders;
1627          (iv) in accordance with Section 63F-1-205, coordinate with the Department of
1628     Technology Services, created in Section 63F-1-103, with respect to the procurement of
1629     information technology services by an executive branch procurement unit;
1630          (v) correct, amend, or cancel a procurement at any stage of the procurement process if
1631     the procurement is out of compliance with this chapter or a board rule;
1632          (vi) after consultation with the attorney general's office, correct, amend, or cancel a
1633     contract at any time during the term of the contract if:
1634          (A) the contract is out of compliance with this chapter or a board rule; and
1635          (B) the chief procurement officer determines that correcting, amending, or canceling
1636     the contract is in the best interest of the state; and
1637          (vii) make a reasonable attempt to resolve a contract dispute, in coordination with the
1638     attorney general's office; and
1639          (b) may:
1640          (i) delegate limited purchasing authority to a state agency, with appropriate oversight
1641     and control to ensure compliance with this chapter;
1642          (ii) delegate duties and authority to an employee of the division, as the chief
1643     procurement officer considers appropriate;
1644          (iii) negotiate and settle contract overcharges, undercharges, and claims, in accordance
1645     with the law and after consultation with the attorney general's office;
1646          (iv) authorize a procurement unit to make a procurement pursuant to a regional
1647     solicitation, as defined in Subsection 63G-6a-2105(2), even if the procurement item is also
1648     offered under a state cooperative contract, if the chief procurement officer determines that the
1649     procurement pursuant to a regional solicitation is in the best interest of the acquiring
1650     procurement unit; and
1651          (v) remove an individual from the procurement process or contract administration for:
1652          (A) having a conflict of interest or the appearance of a conflict of interest with a person
1653     responding to a solicitation or with a contractor;

1654          (B) having a bias or the appearance of bias for or against a person responding to a
1655     solicitation or for or against a contractor;
1656          (C) making an inconsistent or unexplainable score for a solicitation response;
1657          (D) having inappropriate contact or communication with a person responding to a
1658     solicitation;
1659          (E) socializing inappropriately with a person responding to a solicitation or with a
1660     contractor;
1661          (F) engaging in any other action or having any other association that causes the chief
1662     procurement officer to conclude that the individual cannot fairly evaluate a solicitation
1663     response or administer a contract; or
1664          (G) any other violation of a law, rule, or policy.
1665          (4) The chief procurement officer may not delegate to an individual outside the
1666     division the chief procurement officer's authority over a procurement described in Subsection
1667     (3)(a)(iv).
1668          (5) The chief procurement officer has final authority to determine whether an executive
1669     branch procurement unit's anticipated expenditure of public funds, anticipated agreement to
1670     expend public funds, or provision of a benefit constitutes a procurement that is subject to this
1671     chapter.
1672          (6) Except as otherwise provided in this chapter, the chief procurement officer shall
1673     review, monitor, and audit the procurement activities and delegated procurement authority of
1674     an executive branch procurement unit without independent procurement authority to ensure
1675     compliance with this chapter, rules made by the applicable rulemaking authority, and division
1676     policies.
1677          Section 21. Section 63G-6a-401 is amended to read:
1678     
Part 4. Supplemental Procurement Procedures

1679          63G-6a-401. Title.
1680          This part is known as ["General Procurement Provisions."] "Supplemental Procurement
1681     Procedures."

1682          Section 22. Section 63G-6a-409, which is renumbered from Section 63G-6a-502 is
1683     renumbered and amended to read:
1684          [63G-6a-502].      63G-6a-409. Request for information.
1685          (1) The purpose of a request for information is to:
1686          (a) obtain information, comments, or suggestions from potential bidders or offerors
1687     before issuing an invitation for bids or request for proposals;
1688          (b) determine whether to issue an invitation for bids or a request for proposals; and
1689          (c) generate interest in a potential invitation for bids or [a] request for proposals.
1690          (2) A request for information may be useful in order to:
1691          (a) prepare to issue an invitation for bids or request for proposals for an unfamiliar or
1692     complex procurement;
1693          (b) determine the market availability of a procurement item; or
1694          (c) determine best practices, industry standards, performance standards, product
1695     specifications, and innovations relating to a procurement item.
1696          (3) (a) A request for information is not a procurement process and may not be used to:
1697          (i) solicit cost, pricing, or rate information;
1698          (ii) negotiate fees;
1699          (iii) make a purchase; or
1700          (iv) enter into a contract.
1701          (b) To make a purchase or enter into a contract, a procurement unit is required to:
1702          (i) use a standard procurement process; or
1703          (ii) comply with an exception to the requirement to use a standard procurement
1704     process, as described in Part 8, Exceptions to Standard Procurement Process.
1705          (4) A response to a request for information is not an offer and may not be accepted to
1706     form a binding contract.
1707          (5) A request for information may seek a wide range of information, including:
1708          (a) availability of a procurement item;
1709          (b) delivery schedules;

1710          (c) industry standards and practices;
1711          (d) product specifications;
1712          (e) training;
1713          (f) new technologies;
1714          (g) capabilities of potential providers of a procurement item; and
1715          (h) alternate solutions.
1716          (6) A record containing information submitted to or by a governmental entity in
1717     response to a request for information is a protected record under Section 63G-2-305.
1718          Section 23. Section 63G-6a-410 is enacted to read:
1719          63G-6a-410. Request for statement of qualifications -- Process.
1720          (1) (a) A procurement unit may use the process described in this section:
1721          (i) as one of the stages of a multiple-stage:
1722          (A) bidding process;
1723          (B) request for proposals process; or
1724          (C) design professional procurement process; and
1725          (ii) to identify qualified vendors to participate in other stages of the multiple-stage
1726     procurement process.
1727          (b) A procurement unit shall use the process described in this section as part of the
1728     approved vendor list process, if the procurement unit intends to establish an approved vendor
1729     list.
1730          (2) A procurement unit may not:
1731          (a) award a contract based solely on the process described in this section; or
1732          (b) solicit costs, pricing, or rates or negotiate fees through the process described in this
1733     section.
1734          (3) The process of identifying qualified vendors in a multiple-stage procurement
1735     process or of establishing an approved vendor list under Section 63G-6a-507 is initiated by a
1736     procurement unit issuing a request for statement of qualifications.
1737          (4) A request for statement of qualifications in a multiple-stage procurement process

1738     shall include:
1739          (a) a statement indicating that participation in other stages of the multiple-stage
1740     procurement process will be limited to qualified vendors;
1741          (b) the minimum mandatory requirements, evaluation criteria, and applicable score
1742     thresholds that will be used to identify qualified vendors, including, as applicable:
1743          (i) experience and work history;
1744          (ii) management and staff requirements or standards;
1745          (iii) licenses, certifications, and other qualifications;
1746          (iv) performance ratings or references;
1747          (v) financial stability; and
1748          (vi) other information pertaining to vendor qualifications that the chief procurement
1749     officer or the head of a procurement unit with independent procurement authority considers
1750     relevant or important; and
1751          (c) the deadline by which a vendor is required to submit a statement of qualifications.
1752          (5) A request for statement of qualifications in an approved vendor list process under
1753     Section 63G-6a-507 shall include:
1754          (a) a general description of, as applicable:
1755          (i) the procurement item that the procurement unit seeks to acquire;
1756          (ii) the type of project or scope or category of work that will be the subject of a
1757     procurement by the procurement unit;
1758          (iii) the procurement process the procurement unit will use to acquire the procurement
1759     item; and
1760          (iv) the type of vendor the procurement unit seeks to provide the procurement item;
1761          (b) the minimum mandatory requirements, evaluation criteria, and applicable score
1762     thresholds that vendors are required to meet to be included on the approved vendor list;
1763          (c) a statement indicating that the approved vendor list will include only responsible
1764     vendors that:
1765          (i) submit a responsive statement of qualifications; and

1766          (ii) meet the minimum mandatory requirements, evaluation criteria, and applicable
1767     score thresholds described in the request for statement of qualifications;
1768          (d) a statement indicating that only vendors on the approved vendor list will be able to
1769     participate in the procurements identified in the request for statement of qualifications;
1770          (e) a statement indicating whether the procurement unit will use a performance rating
1771     system for evaluating the performance of vendors on the approved vendor list, including
1772     whether a vendor on the approved vendor list may be disqualified and removed from the list;
1773          (f) (i) a statement indicating whether the procurement unit uses a closed-ended
1774     approved vendor list, as defined in Section 63G-6a-507, or an open-ended approved vendor
1775     list, as defined in Section 63G-6a-507; and
1776          (ii) (A) if the procurement unit uses a closed-ended approved vendor list, the deadline
1777     by which a vendor is required to submit a statement of qualifications and a specified period of
1778     time after which the approved vendor list will expire; or
1779          (B) if the procurement unit uses an open-ended approved vendor list, the deadline by
1780     which a vendor is required to submit a statement of qualifications to be considered for the
1781     initial approved vendor list, a schedule indicating when a vendor not on the initial approved
1782     vendor list may submit a statement of qualifications to be considered to be added to the
1783     approved vendor list, and the specified period of time after which a vendor is required to
1784     submit a new statement of qualifications for evaluation before the vendor's status as an
1785     approved vendor on the approved vendor list may be renewed; and
1786          (g) a description of any other criteria or requirements specific to the procurement item
1787     or scope of work that is the subject of the procurement.
1788          (6) A procurement unit issuing a request for statement of qualifications shall publish
1789     the request as provided in Section 63G-6a-112.
1790          (7) After the deadline for submitting a statement of qualifications, the chief
1791     procurement officer or the head of a procurement unit with independent procurement authority
1792     may allow a vendor to correct an immaterial error in a statement of qualifications, as provided
1793     in Section 63G-6a-114.

1794          (8) (a) A conducting procurement unit may reject a statement of qualifications if the
1795     conducting procurement unit determines that:
1796          (i) the vendor who submitted the statement of qualifications:
1797          (A) is not responsible;
1798          (B) is in violation of a provision of this chapter;
1799          (C) has engaged in unethical conduct; or
1800          (D) receives a performance rating below the satisfactory performance threshold
1801     specified in the request for statement of qualifications;
1802          (ii) there has been a change in the vendor's circumstances after the vendor submits a
1803     statement of qualifications that, if the change had been known at the time the statement of
1804     qualifications was evaluated, would have caused the statement of qualifications not to have
1805     received a qualifying score; or
1806          (iii) the statement of qualifications:
1807          (A) is not responsive; or
1808          (B) does not meet the mandatory minimum requirements, evaluation criteria, or
1809     applicable score thresholds stated in the request for statement of qualifications.
1810          (b) A procurement unit that rejects a statement of qualifications under Subsection
1811     (8)(a) shall:
1812          (i) make a written finding, stating the reasons for the rejection; and
1813          (ii) provide a copy of the written finding to the vendor that submitted the rejected
1814     statement of qualifications.
1815          (9) (a) (i) After the issuance of a request for statement of qualifications, the conducting
1816     procurement unit shall appoint an evaluation committee consisting of at least three individuals
1817     with at least a general familiarity with or basic understanding of:
1818          (A) the technical requirements relating to the type of procurement item that is the
1819     subject of the request for statement of qualifications; or
1820          (B) the need that the procurement item is intended to address.
1821          (ii) The conducting procurement unit shall ensure that each member of the evaluation

1822     committee and each individual participating in the evaluation committee process:
1823          (A) does not have a conflict of interest with any vendor that submits a statement of
1824     qualifications;
1825          (B) can fairly evaluate each statement of qualifications;
1826          (C) does not contact or communicate with a vendor concerning the evaluation process
1827     or procurement outside the official evaluation committee process; and
1828          (D) conducts or participates in the evaluation in a manner that ensures a fair and
1829     competitive process and avoids the appearance of impropriety.
1830          (b) A conducting procurement unit may authorize an evaluation committee to receive
1831     assistance:
1832          (i) from an expert or consultant who:
1833          (A) is not a member of the evaluation committee; and
1834          (B) does not participate in the evaluation scoring; and
1835          (ii) to better understand a technical issue involved in the procurement.
1836          (c) An evaluation committee appointed under this Subsection (9):
1837          (i) shall evaluate and score statements of qualifications submitted in response to a
1838     request for statement of qualifications using the minimum mandatory requirements, evaluation
1839     criteria, and applicable score thresholds set forth in the request for statement of qualifications;
1840          (ii) may not evaluate or score a statement of qualifications using criteria not included in
1841     the request for statement of qualifications; and
1842          (iii) may, with the approval of the head of the conducting procurement unit, enter into
1843     discussions or conduct interviews with or attend presentations by vendors, for the purpose of
1844     clarifying information contained in statements of qualifications.
1845          (d) In a discussion, interview, or presentation under Subsection (9)(c)(iii), a vendor:
1846          (i) may only explain, illustrate, or interpret the contents of the vendor's original
1847     statement of qualifications; and
1848          (ii) may not:
1849          (A) address criteria or specifications not contained in the vendor's original statement of

1850     qualifications;
1851          (B) correct a deficiency, inaccuracy, or mistake in a statement of qualifications that is
1852     not an immaterial error;
1853          (C) correct an incomplete submission of documents that the request for statement of
1854     qualifications required to be submitted with the statement of qualifications;
1855          (D) correct a failure to submit a timely statement of qualifications;
1856          (E) substitute or alter a required form or other document specified in the statement of
1857     qualifications;
1858          (F) remedy a cause for a vendor being considered to be not responsible or a statement
1859     of qualifications not responsive; or
1860          (G) correct a defect or inadequacy resulting in a determination that a vendor does not
1861     meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
1862     established in the statement of qualifications.
1863          (e) After the evaluation committee completes its evaluation and scoring of the
1864     statements of qualifications, the evaluation committee shall submit the statements of
1865     qualifications and evaluation scores to the head of the procurement unit for review and final
1866     determination of:
1867          (i) qualified vendors, if the request for statement of qualifications process is used as
1868     one of the stages of a multiple-stage process; or
1869          (ii) vendors to be included on an approved vendor list, if the request for statement of
1870     qualifications process is used as part of the approved vendor list process.
1871          (f) The issuing procurement unit shall review the evaluation committee's scores and
1872     correct any errors, scoring inconsistencies, and reported noncompliance with this chapter.
1873          (g) (i) The deliberations of an evaluation committee under this Subsection (9) may be
1874     held in private.
1875          (ii) If the evaluation committee is a public body, as defined in Section 52-4-103, the
1876     evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
1877     deliberations.

1878          (10) A procurement unit may at any time request a vendor to clarify information
1879     contained in a statement of qualifications, as provided in Section 63G-6a-115.
1880          (11) A vendor may voluntarily withdraw a statement of qualifications at any time
1881     before a contract is awarded with respect to which the statement of qualifications was
1882     submitted.
1883          (12) If only one vendor meets the minimum qualifications, evaluation criteria, and
1884     applicable score thresholds set forth in the request for statement of qualifications that the
1885     procurement unit is using as part of an approved vendor list process, the conducting
1886     procurement unit:
1887          (a) shall cancel the request for statement of qualifications; and
1888          (b) may not establish an approved vendor list based on the canceled request for
1889     statement of qualifications or on statements of qualifications submitted in response to the
1890     request for statement of qualifications.
1891          (13) If a conducting procurement unit cancels a request for statement of qualifications,
1892     the conducting procurement unit shall make available for public inspection a written
1893     justification for the cancellation.
1894          (14) After receiving and reviewing the statements of qualifications and evaluation
1895     scores submitted by the evaluation committee under Subsection (9)(d), the head of the
1896     procurement unit using the request for statement of qualifications process under this section as
1897     one of the stages of a multiple-stage procurement process shall identify those vendors meeting
1898     the minimum mandatory requirements, evaluation criteria, and applicable score thresholds as
1899     qualified vendors who are allowed to participate in the remaining stages of the multiple-stage
1900     procurement process.
1901          (15) The applicable rulemaking authority may make rules pertaining to the request for
1902     statement of qualifications and the process described in this section.
1903          Section 24. Section 63G-6a-501 is amended to read:
1904     
Part 5. Other Standard Procurement Processes

1905          63G-6a-501. Title.

1906          This part is known as ["Request for Information."] "Other Standard Procurement
1907     Processes."
1908          Section 25. Section 63G-6a-506, which is renumbered from Section 63G-6a-408 is
1909     renumbered and amended to read:
1910          [63G-6a-408].      63G-6a-506. Small purchases.
1911          (1) As used in this section:
1912          (a) "Annual cumulative threshold" means the maximum total annual amount,
1913     established by the applicable rulemaking authority under Subsection (2)[(a)(i)], that a
1914     procurement unit may expend to obtain procurement items from the same source under this
1915     section.
1916          (b) "Individual procurement threshold" means the maximum amount, established by
1917     the applicable rulemaking authority under Subsection (2)[(a)(ii)], for which a procurement unit
1918     may purchase a procurement item under this section.
1919          (c) "Single procurement aggregate threshold" means the maximum total amount,
1920     established by the applicable rulemaking authority under Subsection (2)[(a)(iii)], that a
1921     procurement unit may expend to obtain multiple procurement items from one source at one
1922     time under this section.
1923          (2) (a) The applicable rulemaking authority may make rules governing small purchases
1924     of any procurement item, including construction, job order contracting, design professional
1925     services, other professional services, information technology, and goods.
1926          (b) Rules under Subsection (2)(a) may include provisions:
1927          (i) establishing expenditure thresholds, including:
1928          (A) an annual cumulative threshold;
1929          (B) an individual procurement threshold; and
1930          (C) a single procurement aggregate threshold;
1931          (ii) establishing procurement requirements relating to the thresholds described in
1932     Subsection (2)(b)(i); and
1933          (iii) providing for the use of electronic, telephone, or written quotes.

1934          (3) Expenditures made under this section by a procurement unit may not exceed a
1935     threshold established by the applicable rulemaking authority, unless the chief procurement
1936     officer or the head of a procurement unit with independent procurement authority gives written
1937     authorization to exceed the threshold that includes the reasons for exceeding the threshold.
1938          (4) Except as provided in Subsection (5), an executive branch procurement unit may
1939     not obtain a procurement item through a small purchase standard procurement process if the
1940     procurement item may be obtained through a state cooperative contract or a contract awarded
1941     by the chief procurement officer under Subsection 63G-6a-2105(1).
1942          (5) Subsection (4) does not apply if:
1943          (a) the procurement item is obtained for an unanticipated, urgent [or unanticipated], or
1944     emergency condition, including:
1945          (i) an item needed to avoid stopping a public construction project;
1946          (ii) an immediate repair to a facility or equipment; or
1947          (iii) another emergency condition; or
1948          (b) the chief procurement officer or the head of a procurement unit that is an executive
1949     branch procurement unit with independent procurement authority:
1950          (i) determines in writing that it is in the best interest of the procurement unit to obtain
1951     an individual procurement item outside of the state contract, comparing:
1952          (A) the contract terms and conditions applicable to the procurement item under the
1953     state contract with the contract terms and conditions applicable to the procurement item if the
1954     procurement item is obtained outside of the state contract;
1955          (B) the maintenance and service applicable to the procurement item under the state
1956     contract with the maintenance and service applicable to the procurement item if the
1957     procurement item is obtained outside of the state contract;
1958          (C) the warranties applicable to the procurement item under the state contract with the
1959     warranties applicable to the procurement item if the procurement item is obtained outside of
1960     the state contract;
1961          (D) the quality of the procurement item under the state contract with the quality of the

1962     procurement item if the procurement item is obtained outside of the state contract; and
1963          (E) the cost of the procurement item under the state contract with the cost of the
1964     procurement item if the procurement item is obtained outside of the state contract;
1965          (ii) for a procurement item that, if defective in its manufacture, installation, or
1966     performance, may result in serious physical injury, death, or substantial property damage,
1967     determines in writing that the terms and conditions, relating to liability for injury, death, or
1968     property damage, available from the source other than the contractor who holds the state
1969     contract, are similar to, or better than, the terms and conditions available under the state
1970     contract; and
1971          (iii) grants an exception, in writing, to the requirement described in Subsection (4).
1972          (6) Except as otherwise expressly provided in this section, a procurement unit:
1973          (a) may not use the small purchase standard procurement process described in this
1974     section for ongoing, continuous, and regularly scheduled procurements that exceed the annual
1975     cumulative threshold; and
1976          (b) shall make its ongoing, continuous, and regularly scheduled procurements that
1977     exceed the annual cumulative threshold through a contract awarded through another standard
1978     procurement process described in this chapter or an applicable exception to another standard
1979     procurement process, described in Part 8, Exceptions to Standard Procurement [Requirements]
1980     Process.
1981          (7) This section does not prohibit regularly scheduled payments for a procurement item
1982     obtained under another provision of this chapter.
1983          (8) (a) It is unlawful for a person to intentionally or knowingly divide a procurement
1984     into [one or more] smaller procurements with the intent to make a procurement:
1985          (i) qualify as a small purchase, if, before dividing the procurement, it would not have
1986     qualified as a small purchase; or
1987          (ii) meet a threshold established by rule made by the applicable rulemaking authority,
1988     if, before dividing the procurement, it would not have met the threshold.
1989          (b) A person who engages in the conduct made unlawful under Subsection (8)(a) is

1990     guilty of:
1991          (i) a second degree felony, if the value of the procurement before being divided is
1992     $1,000,000 or more;
1993          (ii) a third degree felony, if the value of the procurement before being divided is
1994     $250,000 or more but less than $1,000,000;
1995          (iii) a class A misdemeanor, if the value of the procurement before being divided is
1996     $100,000 or more but less than $250,000; or
1997          (iv) a class B misdemeanor, if the value of the procurement before being divided is less
1998     than $100,000.
1999          (9) A division of a procurement that is prohibited under Subsection (8) includes doing
2000     any of the following with the intent or knowledge described in Subsection (8):
2001          (a) making two or more separate purchases;
2002          (b) dividing an invoice or purchase order into two or more invoices or purchase orders;
2003     or
2004          (c) making smaller purchases over a period of time.
2005          [(10) A person who violates Subsection (8) is subject to the criminal penalties
2006     described in Section 63G-6a-2405.]
2007          [(11)] (10) The Division of Finance within the Department of Administrative Services
2008     may conduct an audit of an executive branch procurement unit to verify compliance with the
2009     requirements of this section.
2010          [(12)] (11) An executive branch procurement unit may not make a small purchase after
2011     January 1, 2014, unless the chief procurement officer certifies that the person responsible for
2012     procurements in the procurement unit has satisfactorily completed training on this section and
2013     the rules made under this section.
2014          Section 26. Section 63G-6a-507 is enacted to read:
2015          63G-6a-507. Approved vendor list procurement process.
2016          (1) As used in this section:
2017          (a) "Closed-ended approved vendor list" means an approved vendor list that is subject

2018     to:
2019          (i) a short period of time, specified by the procurement unit, during which vendors may
2020     be added to the list; and
2021          (ii) a specified period of time after which the list will expire.
2022          (b) "Open-ended approved vendor list" means an approved vendor list that is subject
2023     to:
2024          (i) an indeterminate period of time during which vendors may be added to the list;
2025          (ii) the addition of vendors to the list throughout the term of the list; and
2026          (iii) a specified period of time after which a vendor on the list is required to submit the
2027     vendor's qualifications for evaluation before the vendor may be renewed as an approved
2028     vendor.
2029          (2) A procurement unit may not establish an approved vendor list unless the
2030     procurement unit has first completed the statement of qualifications process described in
2031     Section 63G-6a-410.
2032          (3) (a) A procurement unit may establish an approved vendor list for:
2033          (i) a specific, fully defined procurement item; or
2034          (ii) a future procurement item that is not specifically and fully defined, if the request
2035     for statement of qualifications contains a general description of:
2036          (A) the procurement item; and
2037          (B) the type of vendor that the procurement unit seeks to provide the procurement item.
2038          (b) A procurement unit may not award a contract to a vendor on an approved vendor
2039     list for a procurement item that is outside the scope of the general description of the
2040     procurement item contained in the request for statement of qualifications.
2041          (4) After receiving the statements of qualifications and evaluation scores submitted by
2042     the evaluation committee under Subsection 63G-6a-410(9)(d), the head of the conducting
2043     procurement unit using the request for statement of qualifications process under Section
2044     63G-6a-410 as part of an approved vendor list process shall:
2045          (a) include on an approved vendor list those vendors meeting the minimum mandatory

2046     requirements, evaluation criteria, and applicable score thresholds; and
2047          (b) reject any vendor not meeting the minimum mandatory requirements, evaluation
2048     criteria, and applicable score thresholds as ineligible for inclusion on the approved vendor list.
2049          (5) (a) A procurement unit shall include approved vendors on a closed-ended approved
2050     vendor list or an open-ended approved vendor list.
2051          (b) (i) A closed-ended approved vendor list shall expire no later than 18 months after
2052     the publication of the closed-ended approved vendor list.
2053          (ii) A procurement unit shall require a vendor on an open-ended approved vendor list,
2054     in order to remain on the approved vendor list, to submit an updated statement of qualifications
2055     for evaluation no later than 18 months after the vendor was added to the list as an approved
2056     vendor.
2057          (6) A procurement unit may:
2058          (a) (i) using a bidding process, request for proposals process, small purchase process,
2059     or design professional procurement process, award a contract to a vendor on an approved

2060     vendor list for any procurement item or type of procurement item specified by the procurement
2061     unit in the request for statement of qualifications, including procurement items that the
2062     procurement unit intends to acquire in a series of future procurements described in the request
2063     for statement of qualifications; and
2064          (ii) limit participation in a bidding process, request for proposals process, small
2065     purchase process, or design professional procurement process to vendors on an approved
2066     vendor list; or
2067          (b) award a contract to a vendor on an approved vendor list at a price established as
2068     provided in Section 63G-6a-113.
2069          (7) After establishing an approved vendor list as provided in this section, the
2070     conducting procurement unit shall, before using the approved vendor list, submit the approved
2071     vendor list to the issuing procurement unit for publication by the issuing procurement unit.
2072          (8) A conducting procurement unit administering an open-ended approved vendor list
2073     shall:

2074          (a) require a vendor seeking inclusion on the approved vendor list to submit a
2075     statement of qualifications that complies with all requirements applicable at the time of the
2076     initial request for statement of qualifications;
2077          (b) if modifying the requirements for inclusion on the approved vendor list, apply any
2078     new or additional requirement to all vendors equally, whether a vendor is seeking inclusion on
2079     the approved vendor list for the first time or is already included on the approved vendor list;
2080     and
2081          (c) keep the request for statement of qualifications posted on a website as required
2082     under Subsection 63G-6a-112(6).
2083          (9) The applicable rulemaking authority shall make rules pertaining to an approved
2084     vendor list process, including:
2085          (a) procedures to ensure that all vendors on an approved vendor list have a fair and
2086     equitable opportunity to compete for a contract for a procurement item; and
2087          (b) requirements for using an approved vendor list with the small purchase process.
2088          Section 27. Section 63G-6a-603 is amended to read:
2089          63G-6a-603. Invitation for bids -- Requirements -- Publication.
2090          (1) The bidding standard procurement process begins when the issuing procurement
2091     unit issues an invitation for bids.
2092          (2) An invitation for bids shall:
2093          (a) state the period of time during which bids will be accepted;
2094          (b) describe the manner in which a bid shall be submitted;
2095          (c) state the place where a bid shall be submitted; and
2096          (d) include, or incorporate by reference:
2097          (i) a description of the procurement items sought;
2098          (ii) the objective criteria that will be used to evaluate the bids; and
2099          (iii) the required contractual terms and conditions.
2100          (3) An issuing procurement unit shall publish an invitation for bids in accordance with
2101     the requirements of Section [63G-6a-406] 63G-6a-112.

2102          Section 28. Section 63G-6a-604 is amended to read:
2103          63G-6a-604. Bid opening and acceptance.
2104          (1) Bids shall be opened:
2105          (a) publicly, except as provided in Section 63G-6a-611;
2106          (b) in the presence of one or more witnesses, unless an electronic bid opening process
2107     is used where bidders may see the opening of the bid electronically; and
2108          (c) at the time and place indicated in the invitation for bids.
2109          (2) Bids shall be accepted unconditionally, without alteration or correction, except as
2110     otherwise authorized by this chapter.
2111          (3) (a) The procurement officer shall reject a bid [that] if the bid is not responsive or
2112     the bid is submitted by a bidder who is not responsible.
2113          (b) A bid that is not responsive includes a bid that:
2114          (i) is conditional;
2115          (ii) attempts to modify the bid requirements;
2116          (iii) contains additional terms or conditions; or
2117          (iv) fails to conform with the requirements or specifications of the invitation for bids.
2118          (c) A bid that is submitted by a bidder who is not responsible includes a bid where the
2119     procurement officer reasonably concludes that the bidder or an employee, agent, or
2120     subcontractor of the bidder, at any tier, is unable to satisfactorily fulfill the bid requirements.
2121          (4) An issuing procurement unit may not accept a bid after the time for submission of a
2122     bid has expired.
2123          (5) The procurement officer shall:
2124          (a) record the name of each bidder and the amount of each bid; and
2125          (b) after the bid is awarded, make the information described in Subsection (5)(a)
2126     available for public disclosure.
2127          Section 29. Section 63G-6a-605 is repealed and reenacted to read:
2128          63G-6a-605. Correction or clarification of bids.
2129          (1) The chief procurement officer or the head of a procurement unit with independent

2130     procurement authority may:
2131          (a) allow a vendor to correct an immaterial error in a bid, as provided in Section
2132     63G-6a-114; and
2133          (b) request a vendor to clarify information contained in a bid, as provided in Section
2134     63G-6a-115.
2135          (2) (a) Notwithstanding Subsection (1), a vendor may not change the total bid price
2136     after the bid opening and before a contract is awarded.
2137          (b) Subsection (2)(a) does not apply to a change in the contract price during contract
2138     administration, as allowed under this chapter.
2139          Section 30. Section 63G-6a-606 is amended to read:
2140          63G-6a-606. Evaluation of bids -- Award -- Cancellation -- Rejecting a bid.
2141          (1) A procurement unit that conducts a procurement using a bidding standard
2142     procurement process shall evaluate each bid using the objective criteria described in the
2143     invitation for bids, which may include:
2144          (a) experience;
2145          (b) performance ratings;
2146          (c) inspection;
2147          (d) testing;
2148          (e) quality;
2149          (f) workmanship;
2150          (g) time and manner of delivery;
2151          (h) references;
2152          (i) financial stability;
2153          (j) cost;
2154          (k) suitability for a particular purpose;
2155          (l) the contractor's work site safety program, including any requirement that the
2156     contractor imposes on subcontractors for a work site safety program; or
2157          (m) other objective criteria specified in the invitation for bids.

2158          (2) Criteria not described in the invitation for bids may not be used to evaluate a bid.
2159          (3) The conducting procurement unit shall:
2160          (a) award the contract as soon as practicable to:
2161          (i) the [lowest responsive and] responsible bidder who submits the lowest responsive
2162     bid that meets the objective criteria described in the invitation for bids; or
2163          (ii) if, in accordance with Subsection (4), the procurement officer or the head of the
2164     conducting procurement unit [disqualifies the bidder] rejects a bid described in Subsection
2165     (3)(a)(i), the [next lowest responsive and] responsible bidder who submits the next lowest
2166     responsive bid that meets the objective criteria described in the invitation for bids; or
2167          (b) cancel the invitation for bids without awarding a contract.
2168          (4) In accordance with Subsection (5), the procurement officer or the head of the
2169     conducting procurement unit may [disqualify a bidder] reject a bid for:
2170          (a) a violation of this chapter by the bidder who submitted the bid;
2171          (b) a violation of a requirement of the invitation for bids;
2172          (c) unlawful or unethical conduct by the bidder who submitted the bid; or
2173          (d) a change in a bidder's circumstance that, had the change been known at the time the
2174     bid was submitted, would have caused the [bidder to not be the lowest responsive and
2175     responsible bidder who meets the objective criteria described in the invitation for bids] bid to
2176     be rejected.
2177          (5) A procurement officer or head of a conducting procurement unit who [disqualifies a
2178     bidder] rejects a bid under Subsection (4) shall:
2179          (a) make a written finding, stating the reasons for [disqualification] the rejection; and
2180          (b) provide a copy of the written finding to the [disqualified] bidder who submitted the
2181     rejected bid.
2182          (6) If a conducting procurement unit cancels an invitation for bids without awarding a
2183     contract, the conducting procurement unit shall make available for public inspection a written
2184     justification for the cancellation.
2185          Section 31. Section 63G-6a-609 is amended to read:

2186          63G-6a-609. Multiple stage bidding process.
2187          (1) The invitation for bids for a multiple stage bidding process shall:
2188          (a) describe the requirements for, and purpose of, each stage of the process;
2189          (b) indicate whether the procurement unit intends to award:
2190          (i) a single contract; or
2191          (ii) multiple contracts for a series of upcoming procurements; and
2192          (c) state that:
2193          (i) the first stage is for prequalification only;
2194          (ii) a bidder may not submit any pricing information in the first stage of the process;
2195     and
2196          (iii) bids in the second stage will only be accepted from a person who prequalifies in
2197     the first stage.
2198          (2) During the first stage, the conducting procurement unit:
2199          (a) shall prequalify bidders to participate in subsequent stages, in accordance with
2200     Section [63G-6a-403] 63G-6a-410;
2201          (b) shall prohibit the submission of pricing information until the final stage; and
2202          (c) may, before beginning the second stage, request additional information to clarify
2203     the qualifications of the bidders who submit timely responses.
2204          (3) Contracts may only be awarded for a procurement item described in stage one of
2205     the invitation for bids.
2206          (4) The conducting procurement unit may use as many stages as it determines to be
2207     appropriate.
2208          (5) Except as otherwise expressly provided in this section, a procurement unit
2209     conducting a multiple stage bidding process under this section shall ensure compliance with
2210     this part.
2211          (6) The applicable rulemaking authority may make rules governing the use of a
2212     multiple stage process described in this section.
2213          Section 32. Section 63G-6a-611 is amended to read:

2214          63G-6a-611. Invitation for bids for reverse auction -- Requirements -- Publication
2215     of invitation.
2216          (1) The reverse auction bidding process begins when the issuing procurement unit
2217     issues an invitation for bids to prequalify bidders to participate in the reverse auction.
2218          (2) The invitation for bids shall:
2219          (a) state the period of time during which bids will be accepted;
2220          (b) state that the bid will be conducted by reverse auction;
2221          (c) describe the procurement items sought;
2222          (d) describe the minimum requirements to become prequalified;
2223          (e) state the required contractual terms and conditions; and
2224          (f) describe the procedure that the conducting procurement unit will follow in the
2225     reverse auction.
2226          (3) In order to participate in a reverse auction, a bidder shall agree to:
2227          (a) the specifications, and contractual terms and conditions, of the procurement; and
2228          (b) be trained in, and abide by, the procedure that the division or the procurement unit
2229     with independent procurement authority will follow in conducting the reverse auction.
2230          (4) The division or a procurement unit with independent procurement authority shall
2231     publish an invitation for bids for a reverse auction in accordance with the requirements of
2232     Section [63G-6a-406] 63G-6a-112.
2233          Section 33. Section 63G-6a-703 is amended to read:
2234          63G-6a-703. Request for proposals -- Requirements -- Publication of request.
2235          (1) The request for proposals standard procurement process begins when the division
2236     or a procurement unit with independent procurement authority issues a request for proposals.
2237          (2) A request for proposals shall:
2238          (a) state the period of time during which a proposal will be accepted;
2239          (b) describe the manner in which a proposal shall be submitted;
2240          (c) state the place where a proposal shall be submitted;
2241          (d) include, or incorporate by reference:

2242          (i) a description of the procurement items sought;
2243          (ii) a description of the subjective and objective criteria that will be used to evaluate
2244     the proposal; and
2245          (iii) the standard contractual terms and conditions required by the authorized
2246     purchasing entity;
2247          (e) state the relative weight that will be given to each score for the criteria described in
2248     Subsection (2)(d)(ii), including cost;
2249          (f) state the formula that will be used to determine the score awarded for the cost of
2250     each proposal;
2251          (g) if the request for proposals will be conducted in multiple stages, as described in
2252     Section 63G-6a-710, include a description of the stages and the criteria and scoring that will be
2253     used to screen offerors at each stage; and
2254          [(h) state that discussions may be conducted with offerors who submit proposals
2255     determined to be reasonably susceptible of being selected for award, followed by an
2256     opportunity to make best and final offers, but that proposals may be accepted without
2257     discussions.]
2258          (h) state that best and final offers may be allowed, as provided in Section
2259     63G-6a-707.5, from responsible offerors who submit responsive proposals that meet minimum
2260     qualifications, evaluation criteria, or applicable score thresholds identified in the request for
2261     proposals.
2262          (3) The division or a procurement unit with independent procurement authority shall
2263     publish a request for proposals in accordance with the requirements of Section [63G-6a-406]
2264     63G-6a-112.
2265          Section 34. Section 63G-6a-706 is repealed and reenacted to read:
2266          63G-6a-706. Correction or clarification of proposal.
2267          (1) The chief procurement officer or the head of a procurement unit with independent
2268     procurement authority may:
2269          (a) allow a vendor to correct an immaterial error in a proposal, as provided in Section

2270     63G-6a-114; and
2271          (b) request a vendor to clarify information contained in a proposal, as provided in
2272     Section 63G-6a-115.
2273          (2) (a) Notwithstanding Subsection (1) and except as provided in Section
2274     63G-6a-707.5, after the deadline for submitting a cost proposal and before a contract is
2275     awarded, a vendor may not change the total amount of a cost proposal.
2276          (b) Subsection (2)(a) does not apply to a change in the contract price during contract
2277     administration, as allowed under this chapter.
2278          Section 35. Section 63G-6a-707 is amended to read:
2279          63G-6a-707. Evaluation of proposals -- Evaluation committee.
2280          (1) To determine which proposal provides the best value to the procurement unit, the
2281     evaluation committee shall evaluate each responsive and responsible proposal that has not been
2282     disqualified from consideration under the provisions of this chapter, using the criteria described
2283     in the request for proposals, which may include:
2284          (a) experience;
2285          (b) performance ratings;
2286          (c) inspection;
2287          (d) testing;
2288          (e) quality;
2289          (f) workmanship;
2290          (g) time, manner, or schedule of delivery;
2291          (h) references;
2292          (i) financial solvency;
2293          (j) suitability for a particular purpose;
2294          (k) management plans;
2295          (l) the presence and quality of a work site safety program, including any requirement
2296     that the offeror imposes on subcontractors for a work site safety program;
2297          (m) cost; or

2298          (n) other subjective or objective criteria specified in the request for proposals.
2299          (2) Criteria not described in the request for proposals may not be used to evaluate a
2300     proposal.
2301          (3) The conducting procurement unit shall:
2302          (a) appoint an evaluation committee consisting of at least three individuals with at least
2303     a general familiarity with or basic understanding of:
2304          (i) the technical requirements relating to the type of procurement item that is the
2305     subject of the procurement; or
2306          (ii) the need that the procurement item is intended to address; and
2307          (b) ensure that the evaluation committee and each [member of the evaluation
2308     committee] individual participating in the evaluation committee process:
2309          (i) does not have a conflict of interest with any of the offerors;
2310          (ii) can fairly evaluate each proposal;
2311          (iii) does not contact or communicate with an offeror concerning the procurement
2312     outside the official evaluation committee process; and
2313          (iv) conducts or participates in the evaluation in a manner that ensures a fair and
2314     competitive process and avoids the appearance of impropriety.
2315          (4) A conducting procurement unit may authorize an evaluation committee to receive
2316     assistance:
2317          (a) from an expert or consultant who:
2318          (i) is not a member of the evaluation committee; and
2319          (ii) does not participate in the evaluation scoring; and
2320          (b) to better understand a technical issue involved in the procurement.
2321          [(4) The] (5) (a) An evaluation committee may, with the approval of the head of the
2322     conducting procurement unit, enter into discussions or conduct interviews with, or attend
2323     presentations by, the offerors, for the purpose of clarifying information contained in proposals.
2324          (b) In a discussion, interview, or presentation under Subsection (5)(a), an offeror:
2325          (i) may only explain, illustrate, or interpret the contents of the offeror's original

2326     proposal; and
2327          (ii) may not:
2328          (A) address criteria or specifications not contained in the offeror's original proposal;
2329          (B) correct a deficiency, inaccuracy, or mistake in a proposal that is not an immaterial
2330     error;
2331          (C) correct an incomplete submission of documents that the solicitation required to be
2332     submitted with the proposal;
2333          (D) correct a failure to submit a timely proposal;
2334          (E) substitute or alter a required form or other document specified in the solicitation;
2335          (F) remedy a cause for an offeror being considered to be not responsible or a proposal
2336     not responsive; or
2337          (G) correct a defect or inadequacy resulting in a determination that an offeror does not
2338     meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
2339     established in the solicitation.
2340          [(5)] (6) (a) Except as provided in [Subsections (5)(b) and (8)] Subsection (7)(b)
2341     relating to access to management fee information, and except as provided in Subsection (9),
2342     each member of the evaluation committee is prohibited from knowing, or having access to, any
2343     information relating to the cost, or the scoring of the cost, of a proposal until after the
2344     evaluation committee submits its final recommended scores on all other criteria to the issuing
2345     procurement unit.
2346          (b) The issuing procurement unit shall:
2347          (i) if applicable, assign an individual who is not a member of the evaluation committee
2348     to calculate scores for cost based on the applicable scoring formula, weighting, and other
2349     scoring procedures contained in the request for proposals;
2350          (ii) review the evaluation committee's scores and correct any errors, scoring
2351     inconsistencies, and reported noncompliance with this chapter;
2352          (iii) add the scores calculated for cost, if applicable, to the evaluation committee's final
2353     recommended scores on criteria other than cost to derive the total combined score for each

2354     responsive and responsible proposal; and
2355          (iv) provide to the evaluation committee the total combined score calculated for each
2356     responsive and responsible proposal, including any applicable cost formula, weighting, and
2357     scoring procedures used to calculate the total combined scores.
2358          (c) The evaluation committee may not:
2359          (i) change its final recommended scores described in Subsection [(5)] (6)(a) after the
2360     evaluation committee has submitted those scores to the issuing procurement unit; or
2361          (ii) change cost scores calculated by the issuing procurement unit.
2362          [(6)] (7) (a) As used in this Subsection [(6)] (7), "management fee" includes only the
2363     following fees of the construction manager/general contractor:
2364          (i) preconstruction phase services;
2365          (ii) monthly supervision fees for the construction phase; and
2366          (iii) overhead and profit for the construction phase.
2367          (b) When selecting a construction manager/general contractor for a construction
2368     project, the evaluation committee:
2369          (i) may score a construction manager/general contractor based upon criteria contained
2370     in the solicitation, including qualifications, performance ratings, references, management plan,
2371     certifications, and other project specific criteria described in the solicitation;
2372          (ii) may, as described in the solicitation, weight and score the management fee as a
2373     fixed rate or as a fixed percentage of the estimated contract value;
2374          (iii) may, at any time after the opening of the responses to the request for proposals,
2375     have access to, and consider, the management fee proposed by the offerors; and
2376          (iv) except as provided in Subsection [(8)] (9), may not know or have access to any
2377     other information relating to the cost of construction submitted by the offerors, until after the
2378     evaluation committee submits its final recommended scores on all other criteria to the issuing
2379     procurement unit.
2380          [(7)] (8) (a) The deliberations of an evaluation committee may be held in private.
2381          (b) If the evaluation committee is a public body, as defined in Section 52-4-103, the

2382     evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
2383     deliberations.
2384          [(8)] (9) An issuing procurement unit is not required to comply with Subsection [(5)]
2385     (6) or (7)(b)(iv), as applicable, if the head of the issuing procurement unit or a person
2386     designated by rule made by the applicable rulemaking authority:
2387          (a) signs a written statement:
2388          (i) indicating that, due to the nature of the proposal or other circumstances, it is in the
2389     best interest of the procurement unit to waive compliance with Subsection [(5)] (6) or
2390     (7)(b)(iv), as the case may be; and
2391          (ii) describing the nature of the proposal and the other circumstances relied upon to
2392     waive compliance with Subsection [(5)] (6) or (7)(b)(iv); and
2393          (b) makes the written statement available to the public, upon request.
2394          Section 36. Section 63G-6a-707.5 is amended to read:
2395          63G-6a-707.5. Best and final offers.
2396          (1) At any time during the evaluation process, the evaluation committee, with the
2397     approval of the director or the head of the issuing procurement unit, may:
2398          (a) request best and final offers from responsible [and] offerors who have submitted
2399     responsive [offerors] proposals that meet the minimum qualifications, evaluation criteria, or
2400     applicable score thresholds identified in the request for proposals, if:
2401          (i) no single proposal addresses all the specifications stated in the request for
2402     proposals;
2403          (ii) all or a significant number of the proposals are ambiguous on a material point and
2404     the evaluation committee requires further clarification in order to conduct a fair evaluation of
2405     proposals;
2406          (iii) the evaluation committee needs additional information from all offerors to
2407     complete the evaluation of proposals;
2408          (iv) the differences between proposals in one or more material aspects are too slight to
2409     allow the evaluation committee to distinguish between proposals;

2410          (v) all cost proposals are too high or over budget; or
2411          (vi) another reason exists supporting a request for best and final offers, as provided in
2412     rules established by the applicable rulemaking authority; and
2413          (b) evaluate those best and final offers.
2414          (2) In requesting and evaluating best and final offers under Subsection (1), the
2415     evaluation committee shall:
2416          (a) ensure that each offeror receives fair and equal treatment with respect to the other
2417     offerors;
2418          (b) establish a schedule and procedures for conducting discussions;
2419          (c) ensure that information in each proposal and information gathered during
2420     discussions is not shared with other offerors until the contract is awarded;
2421          (d) ensure that auction tactics are not used in the discussion process, including
2422     discussing and comparing the costs and features of other proposals; and
2423          (e) set a common date and time for the submission of best and final offers.
2424          (3) In a best and final offer, an offeror:
2425          (a) may address only the issues described in the request for best and final offers; and
2426          (b) may not correct a material error or deficiency in the offeror's proposal or address
2427     any other issue not described in the request for best and final offers.
2428          [(3)] (4) If an offeror chooses not to participate in a discussion or does not make a
2429     timely best and final offer, the offer submitted by the offeror before the conduct of discussions
2430     shall be treated as the offeror's best and final offer.
2431          (5) An applicable rulemaking authority shall make rules governing best and final offers
2432     under this section.
2433          Section 37. Section 63G-6a-708 is amended to read:
2434          63G-6a-708. Justification statement -- Cost-benefit analysis.
2435          (1) (a) In determining which proposal provides the best value to the procurement unit,
2436     the evaluation committee and the conducting procurement unit shall prepare a written
2437     justification statement that:

2438          (i) explains the score assigned to each evaluation category;
2439          (ii) explains how the proposal with the highest total combined score provides the best
2440     value to the procurement unit in comparison to the other proposals;
2441          (iii) if applicable, includes the cost-benefit analysis described in Subsection (2) and
2442     how the cost-benefit analysis relates to the best value to the procurement unit; and
2443          (iv) if applicable, includes the written determination described in Subsection (5).
2444          (b) An explanation under Subsection (1)(a)(i) need not address each criterion within
2445     each category.
2446          (2) If, in determining the best value to the procurement unit, the evaluation committee
2447     awards the highest score, including the score for cost, to a proposal other than the lowest cost
2448     proposal, and the difference between the cost of the highest scored proposal and the lowest cost
2449     proposal exceeds the greater of $10,000 or 5% of the lowest cost proposal, the evaluation
2450     committee and the conducting procurement unit shall prepare an informal written cost-benefit
2451     analysis that:
2452          (a) explains, in general terms, the advantage to the procurement unit of awarding the
2453     contract to the higher cost offeror; and
2454          (b) except as provided in Subsection (5):
2455          (i) includes the estimated added financial value to the procurement unit of each
2456     criterion that justifies awarding the contract to the higher cost offeror; and
2457          (ii) demonstrates that the value of the advantage to the procurement unit of awarding
2458     the contract to the higher cost offeror exceeds the value of the difference between the cost of
2459     the higher cost proposal and the cost of the lower cost proposals.
2460          (3) If the informal cost-benefit analysis described in Subsection (2) does not justify
2461     awarding the contract to the offeror that received the highest score, the issuing procurement
2462     unit:
2463          (a) may not award the contract to the offeror that received the highest score; and
2464          (b) may award the contract to the offeror that received the next highest score, unless:
2465          (i) an informal cost-benefit analysis is required, because the difference between the

2466     cost proposed by the offeror that received the next highest score and the lowest cost proposal
2467     exceeds the greater of $10,000 or 5% of the lowest cost proposal; and
2468          (ii) the informal cost-benefit analysis does not justify award of the contract to the
2469     offeror that received the next highest score.
2470          (4) If the informal cost-benefit analysis described in Subsection (2) does not justify
2471     award of the contract to the offeror, described in Subsection (3), that received the next highest
2472     score, the issuing procurement unit:
2473          (a) may not award the contract to the offeror that received the next highest score; and
2474          (b) shall continue with the process described in Subsection (3) for each offeror that
2475     received the next highest score, until the issuing procurement unit:
2476          (i) awards the contract in accordance with the provisions of this section; or
2477          (ii) cancels the request for proposals.
2478          (5) (a) The evaluation committee, with the issuing procurement unit's approval, may
2479     waive, in whole or in part, a requirement under Subsection (2)(b) if the evaluation committee
2480     determines in writing that assigning a financial value to a particular procurement item or
2481     evaluation criterion is not practicable.
2482          (b) A written determination under Subsection (5)(a):
2483          (i) shall explain:
2484          (A) why it is not practicable to assign a financial value to the procurement item or
2485     evaluation criterion; and
2486          (B) in nonfinancial terms, why awarding the contract to the higher cost offeror
2487     provides the best value to the procurement unit; and
2488          (ii) may be included as part of the justification statement.
2489          (6) (a) An issuing procurement unit is not required to make the cost-benefit analysis
2490     described in this section for a contract with a construction manager/general contractor if the
2491     contract is awarded based solely on the qualifications of the construction manager/general
2492     contractor and the management fee described in Subsection 63G-6a-707[(6)](7).
2493          (b) The applicable rulemaking authority shall make rules that establish procedures and

2494     criteria for awarding a contract described in Subsection (6)(a) to ensure that:
2495          (i) a competitive process is maintained; and
2496          (ii) the contract awarded is in the best interest of the procurement unit.
2497          Section 38. Section 63G-6a-709 is amended to read:
2498          63G-6a-709. Award of contract -- Cancellation -- Rejection of proposal.
2499          (1) After the completion of the evaluation and scoring of proposals and the justification
2500     statement, including any required cost-benefit analysis, the evaluation committee shall submit
2501     the proposals, evaluation scores, and justification statement to the head of the procurement unit
2502     or designee for review and final determination of a contract award.
2503          (2) After reviewing the proposals, evaluation scores, and justification statement,
2504     including any required cost-benefit analysis, the head of the issuing procurement unit [or
2505     designee] shall:
2506          (a) (i) award the contract as soon as practicable to[: (i)] the [responsive and]
2507     responsible offeror with the responsive proposal receiving the highest total score; or
2508          [(ii) if, in accordance with Subsection (3), the procurement officer or the head of the
2509     issuing procurement unit disqualifies the offeror described in Subsection (2)(a)(i), the
2510     responsive and responsible offeror with the next highest total score; or]
2511          (ii) (A) if the head of the issuing procurement unit disqualifies an offeror under
2512     Subsection (3) who would otherwise have been awarded a contract, award the contract to the
2513     responsible offeror with the responsive proposal receiving the next highest total score; and
2514          (B) if the head of the issuing procurement unit disqualifies an offeror under Subsection
2515     (3) who would otherwise have been awarded a contract under Subsection (2)(a)(ii)(A), repeat
2516     the process described in Subsection (2)(a)(ii)(A) as many times as necessary until a contract is
2517     awarded to a responsible offeror who is not disqualified; or
2518          (b) cancel the request for proposals without awarding a contract.
2519          [(3) In accordance with Subsection (4), the procurement officer or the head of the
2520     issuing procurement unit may disqualify an offeror for:]
2521          [(a) a violation of this chapter;]

2522          [(b) not being responsive or responsible;]
2523          [(c) a violation of a requirement of the request for proposals;]
2524          [(d) unlawful or unethical conduct; or]
2525          [(e) a change in circumstance that, had the change been known at the time the proposal
2526     was submitted, would have caused the proposal to not have the highest score.]
2527          (3) The head of an issuing procurement unit may reject a proposal if:
2528          (a) the offeror who submitted the proposal:
2529          (i) is not responsible;
2530          (ii) is in violation of a provision of this chapter;
2531          (iii) has engaged in unethical conduct; or
2532          (iv) fails to sign a contract within:
2533          (A) 90 days after the contract award, if no time is specified in the solicitation; or
2534          (B) a time authorized in writing by the head of the issuing procurement unit;
2535          (b) there is a change in the offeror's circumstances that, if the change had been known
2536     at the time the offeror's proposal was evaluated, would have caused the proposal not to have
2537     received the highest score; or
2538          (c) the proposal:
2539          (i) is not responsive; or
2540          (ii) does not meet the mandatory minimum requirements, evaluation criteria, or
2541     applicable score thresholds stated in the solicitation.
2542          (4) A [procurement officer or] head of an issuing procurement unit who [disqualifies
2543     an offeror] rejects a proposal under Subsection (3) shall:
2544          (a) make a written finding, stating the reasons for [disqualification] the rejection; and
2545          (b) provide a copy of the written finding to the [disqualified] offeror whose proposal is
2546     rejected.
2547          (5) If an issuing procurement unit cancels a request for proposals without awarding a
2548     contract, the issuing procurement unit shall make available for public inspection a written
2549     justification for the cancellation.

2550          Section 39. Section 63G-6a-802 is amended to read:
2551     
Part 8. Exceptions to Standard Procurement Process

2552          63G-6a-802. Award of contract without engaging in a standard procurement
2553     process -- Notice -- Duty to negotiate contract terms in best interest of procurement unit.
2554          [(1) As used in this section:]
2555          [(a) "Transitional costs" mean the costs of changing from an existing provider of, or
2556     type of, a procurement item to another provider of, or type of, procurement item.]
2557          [(b) "Transitional costs" include:]
2558          [(i) training costs;]
2559          [(ii) conversion costs;]
2560          [(iii) compatibility costs;]
2561          [(iv) system downtime;]
2562          [(v) disruption of service;]
2563          [(vi) staff time necessary to put the transition into effect;]
2564          [(vii) installation costs; and]
2565          [(viii) ancillary software, hardware, equipment, or construction costs.]
2566          [(c) "Transitional costs" do not include:]
2567          [(i) the costs of preparing for or engaging in a procurement process; or]
2568          [(ii) contract negotiation or contract drafting costs.]
2569          [(d) "Trial use contract" means a contract between a procurement unit and a vendor for
2570     a procurement item that the procurement unit acquires for trial use or testing to determine
2571     whether the procurement item will benefit the procurement unit.]
2572          [(2) The division or] (1) The chief procurement officer or the head of a procurement
2573     unit with independent procurement authority may award a contract for a procurement item
2574     without [competition] engaging in a standard procurement process if the chief procurement
2575     officer[,] or the head of the procurement unit[, or a designee of either who is senior to the
2576     procurement officer or the head of the procurement unit,] with independent procurement
2577     authority determines in writing that:

2578          (a) there is only one source for the procurement item;
2579          [(b) the award to a specific supplier, service provider, or contractor is a condition of a
2580     donation that will fund the full cost of the supply, service, or construction item; or]
2581          [(c) the procurement item is needed for trial use or testing to determine whether the
2582     procurement item will benefit the procurement unit.]
2583          [(3) Circumstances under which there is only one source for a procurement item may
2584     include:]
2585          [(a) where the most important consideration in obtaining a procurement item is the
2586     compatibility of equipment, technology, software, accessories, replacement parts, or service;]
2587          [(b) where transitional costs are unreasonable or cost prohibitive; or]
2588          [(c) procurement of public utility services.]
2589          (b) (i) transitional costs are a significant consideration in selecting a procurement item;
2590     and
2591          (ii) the results of a cost-benefit analysis demonstrate that transitional costs are
2592     unreasonable or cost-prohibitive, and that the award of a contract without engaging in a
2593     standard procurement process is in the best interest of the procurement unit; or
2594          (c) the award of a contract is under circumstances, described in rules adopted by the
2595     applicable rulemaking authority, that make awarding the contract through a standard
2596     procurement process impractical and not in the best interest of the procurement unit.
2597          (2) Transitional costs associated with a trial use or testing of a procurement item under
2598     a trial use contract may not be included in a consideration of transitional costs under
2599     Subsection (1)(b).
2600          [(4)] (3) (a) Subject to Subsection [(4)] (3)(b), the applicable rulemaking authority
2601     shall make rules regarding the publication of notice for a [sole source] procurement under this
2602     section that, at a minimum, require publication of notice of [a sole source] the procurement, in
2603     accordance with Section [63G-6a-406] 63G-6a-112, if the cost of the procurement exceeds
2604     $50,000.
2605          (b) Publication of notice under Section [63G-6a-406] 63G-6a-112 is not required for:

2606          (i) the procurement of public utility services pursuant to a sole source contract; or
2607          (ii) other [sole source procurements provided by rule] procurements under this section
2608     for which an applicable rule provides that notice is not required.
2609          [(5) The division or] (4) The chief procurement officer or the head of a procurement
2610     unit with independent procurement authority who awards a [sole source contract on behalf of
2611     another procurement unit] contract under this section shall negotiate with the contractor to
2612     ensure that the terms of the contract, including price and delivery, are in the best interest of the
2613     procurement unit.
2614          [(6) (a) The period of trial use or testing of a procurement item under a trial use
2615     contract may not exceed 18 months, unless the procurement officer provides a written
2616     exception documenting the reason for a longer period.]
2617          [(b) A trial use contract shall:]
2618          [(i) state that the purpose of the contract is strictly for the purpose of the trial use or
2619     testing of a procurement item;]
2620          [(ii) state that the contract terminates upon completion of the trial use or testing
2621     period;]
2622          [(iii) state that, after the trial use or testing period, the procurement unit is not obligated
2623     to purchase or enter into a contract for the procurement item, regardless of the trial use or
2624     testing result;]
2625          [(iv) state that any purchase of the procurement item beyond the terms of the trial use
2626     contract will be made in accordance with this chapter; and]
2627          [(v) include, as applicable:]
2628          [(A) test schedules;]
2629          [(B) deadlines and a termination date;]
2630          [(C) measures that will be used to evaluate the performance of the procurement item;]
2631          [(D) any fees and associated expenses or an explanation of the circumstances
2632     warranting a waiver of those fees and expenses;]
2633          [(E) the obligations of the procurement unit and vendor;]

2634          [(F) provisions regarding the ownership of the procurement item during and after the
2635     trial use or testing period;]
2636          [(G) an explanation of the grounds upon which the contract may be terminated;]
2637          [(H) a limitation of liability;]
2638          [(I) a consequential damage waiver provision;]
2639          [(J) a statement regarding the confidentiality or nondisclosure of information;]
2640          [(K) a provision relating to any required bond or security deposit; and]
2641          [(L) other requirements unique to the procurement item for trial use or testing.]
2642          [(c) Publication of notice under Section 63G-6a-406 is not required for a procurement
2643     pursuant to a trial use contract.]
2644          [(7) The division or a procurement unit with independent procurement authority may
2645     extend a contract for a reasonable period of time without engaging in a standard procurement
2646     process, if:]
2647          [(a) the award of a new contract for the procurement item is delayed due to a protest or
2648     appeal;]
2649          [(b) the standard procurement process is delayed due to unintentional error;]
2650          [(c) changes in industry standards require significant changes to specifications for the
2651     procurement item;]
2652          [(d) the extension is necessary to prevent the loss of federal funds;]
2653          [(e) the extension is necessary to address a circumstance where the appropriation of
2654     state or federal funds has been delayed;]
2655          [(f) the extension covers the period of time during which contract negotiations with a
2656     new provider are being conducted; or]
2657          [(g) the extension is necessary to avoid a lapse in critical governmental services that
2658     may negatively impact public health, safety, or welfare.]
2659          Section 40. Section 63G-6a-802.3 is enacted to read:
2660          63G-6a-802.3. Trial use contracts.
2661          (1) A procurement unit may award a trial use contract without engaging in a standard

2662     procurement process if the contract is:
2663          (a) awarded for a procurement item that is not already available to the procurement unit
2664     under an existing contract;
2665          (b) restricted to the procurement of a procurement item in the minimum quantity and
2666     for the minimum period of time necessary to test the procurement item;
2667          (c) the only trial use contract for that procurement unit for the same procurement item;
2668     and
2669          (d) not used to circumvent the purposes and policies of this chapter as set forth in
2670     Section 63G-6a-102.
2671          (2) The period of trial use or testing of a procurement item under a trial use contract
2672     may not exceed 18 months, unless the procurement officer provides a written exception
2673     documenting the reason for a longer period.
2674          (3) A trial use contract shall:
2675          (a) state that the contract is strictly for the trial use or testing of a procurement item;
2676          (b) state that the contract terminates upon completion of the trial use or testing period;
2677          (c) state that the procurement unit is not obligated to purchase or enter into a contract
2678     for the procurement item, regardless of the trial use or testing result;
2679          (d) state that any purchase of the procurement item that is the subject of the trial use
2680     contract will be made in accordance with this chapter; and
2681          (e) include, as applicable:
2682          (i) test schedules;
2683          (ii) deadlines and a termination date;
2684          (iii) measures that will be used to evaluate the performance of the procurement item;
2685          (iv) any fees and associated expenses or an explanation of the circumstances
2686     warranting a waiver of those fees and expenses;
2687          (v) the obligations of the procurement unit and vendor;
2688          (vi) provisions regarding the ownership of the procurement item during and after the
2689     trial use or testing period;

2690          (vii) an explanation of the grounds upon which the contract may be terminated;
2691          (viii) a provision relating to any required bond or security deposit; and
2692          (ix) other requirements unique to the procurement item for trial use or testing.
2693          (4) Publication of notice under Section 63G-6a-112 is not required for a trial use
2694     contract.
2695          (5) The applicable rulemaking authority may make rules pertaining to a trial use
2696     contract.
2697          Section 41. Section 63G-6a-802.7 is enacted to read:
2698          63G-6a-802.7. Extension of a contract without engaging in a standard
2699     procurement process.
2700          The chief procurement officer or the head of a procurement unit with independent
2701     procurement authority may extend an existing contract without engaging in a standard
2702     procurement process:
2703          (1) for a period of time not to exceed 120 days, if:
2704          (a) an extension of the contract is necessary to:
2705          (i) avoid a lapse in a critical government service; or
2706          (ii) to mitigate a circumstance that is likely to have a negative impact on public health,
2707     safety, welfare, or property; and
2708          (b) (i) (A) the procurement unit is engaged in a standard procurement process for a
2709     procurement item that is the subject of the contract being extended; and
2710          (B) the standard procurement process is delayed due to an unintentional error;
2711          (ii) a change in an industry standard requires one or more significant changes to
2712     specifications for the procurement item; or
2713          (iii) an extension is necessary:
2714          (A) to prevent the loss of federal funds;
2715          (B) to mitigate the effects of a delay of a state or federal appropriation;
2716          (C) to enable the procurement unit to continue to receive a procurement item during a
2717     delay in the implementation of a contract awarded pursuant to a procurement that has already

2718     been conducted; or
2719          (D) to enable the procurement unit to continue to receive a procurement item during a
2720     period of time during which negotiations with a vendor under a new contract for the
2721     procurement item are being conducted;
2722          (2) for the period of a protest, appeal, or court action, if the protest, appeal, or court
2723     action is the reason for delaying the award of a new contract; or
2724          (3) for a period of time exceeding 120 days, if the attorney general or the procurement
2725     unit's attorney determines in writing that the contract extension does not violate state or federal
2726     antitrust laws and is consistent with the purpose of ensuring the fair and equitable treatment of
2727     all persons who deal with the procurement system.
2728          Section 42. Section 63G-6a-803 is amended to read:
2729          63G-6a-803. Emergency procurement.
2730          (1) Notwithstanding any other provision of this chapter, [a] the chief procurement
2731     officer or the [procurement officer's designee may authorize] head of a procurement unit with
2732     independent procurement authority may authorize a procurement unit to engage in an
2733     emergency procurement without using a standard procurement process [when an emergency
2734     condition exists] if the procurement is necessary to:
2735          (a) avoid a lapse in a critical government service;
2736          (b) mitigate a circumstance that is likely to have a negative impact on public health,
2737     safety, welfare, or property; or
2738          (c) protect the legal interests of a public entity.
2739          (2) A procurement [officer who authorizes] unit conducting an emergency procurement
2740     under Subsection (1) shall:
2741          [(a) make the authorization in writing, stating the emergency condition upon which the
2742     emergency procurement is made; and]
2743          [(b)] (a) ensure that the procurement is made with as much competition as reasonably
2744     practicable while:
2745          (i) avoiding a lapse in a critical government service;

2746          (ii) avoiding harm, or a risk of harm, to the public health, safety, welfare, or
2747     property[.]; or
2748          (iii) protecting the legal interests of a public entity; and
2749          (b) after the emergency has abated, prepare a written document explaining the
2750     emergency condition that necessitated the emergency procurement under Subsection (1).
2751          Section 43. Section 63G-6a-806 is amended to read:
2752          63G-6a-806. Exception for public transit district contracting with a county or
2753     municipality.
2754          A public transit district, organized under Title 17B, Chapter 2a, Part 8, Public Transit
2755     District Act, may, without going through a standard procurement process or [an] another
2756     exception to a standard procurement process described in [Part 8, Exception to Procurement
2757     Requirements] this part:
2758          (1) contract with a county or municipality to receive money from the county or
2759     municipality; and
2760          (2) use the money described in Subsection (1) to fund a transportation project or a
2761     transit-related program in accordance with rules made by the applicable rulemaking authority.
2762          Section 44. Section 63G-6a-1206 is amended to read:
2763          63G-6a-1206. Rules and regulations to determine allowable incurred costs --
2764     Required information.
2765          (1) (a) The applicable rulemaking authority may, by rule, establish the cost principles
2766     to be included in a cost-reimbursement contract to determine incurred costs for the purpose of
2767     calculating a reimbursement.
2768          (b) The cost principles established by rule under Subsection (1)(a) may be modified, by
2769     contract, if the procurement officer or the head of the issuing procurement unit approves the
2770     modification.
2771          (2) Except as provided in Subsection (5), a person who seeks to be, or is, a party in a
2772     cost-based contract with a procurement unit shall:
2773          (a) submit cost or pricing data relating to determining the cost or pricing amount; and

2774          (b) certify that, to the best of the contractor's knowledge and belief, the cost or pricing
2775     data submitted is accurate and complete as of the date specified by the procurement unit.
2776          (3) The procurement officer shall ensure that the date specified under Subsection (2)(b)
2777     is before:
2778          (a) the pricing of any contract awarded by a standard procurement process or pursuant
2779     to a sole source procurement, if the total contract price is expected to exceed an amount
2780     established by rule made by the applicable rulemaking authority; or
2781          (b) the pricing of any change order that is expected to exceed an amount established by
2782     rule made by the applicable rulemaking authority.
2783          (4) A contract or change order that requires a certification described in Subsection (2)
2784     shall include a provision that the price to the procurement unit, including profit or fee, shall be
2785     adjusted to exclude any significant sums by which the procurement unit finds that the price was
2786     increased because the contractor provided cost or pricing data that was inaccurate, incomplete,
2787     or not current as of the date specified by the procurement officer.
2788          (5) A procurement unit is not required to comply with Subsection (2) if:
2789          (a) the contract price is based on adequate price competition;
2790          (b) the contract price is based on established catalogue prices or market prices;
2791          (c) the contract price is set by law or rule; or
2792          (d) the procurement states, in writing:
2793          (i) that, in accordance with rules made by the applicable rulemaking authority, the
2794     requirements of Subsection (2) may be waived; and
2795          (ii) the reasons for the waiver.
2796          [(6) The procurement officer or audit entity under contract with the procurement unit
2797     may, at reasonable times and places, only to the extent that the books and records relate to the
2798     applicable cost or pricing data, audit the books and records of:]
2799          [(a) a person who has submitted cost or pricing data pursuant to this section; or]
2800          [(b) a contractor or subcontractor under a contract or subcontract other than a firm
2801     fixed price contract.]

2802          [(7) Unless a shorter time is provided for by contract:]
2803          [(a) a person described in Subsection (6)(a) shall maintain the books and records
2804     described in Subsection (6) for three years after the day on which the fiscal year in which final
2805     payment is made under the contract ends;]
2806          [(b) a contractor shall maintain the books and records described in Subsection (6) for
2807     three years after the day on which the fiscal year in which final payment under the prime
2808     contract ends; and]
2809          [(c) a subcontractor shall maintain the books and records described in Subsection (6)
2810     for three years after the day on which the fiscal year in which final payment is made under the
2811     subcontract ends.]
2812          Section 45. Section 63G-6a-1206.3 is enacted to read:
2813          63G-6a-1206.3. Auditing of books of contractor or subcontractor.
2814          (1) A procurement officer or an audit entity under contract with the procurement unit
2815     may audit the books and records of a contractor or subcontractor.
2816          (2) An audit under Subsection (1):
2817          (a) is limited to the books and records that relate to the applicable contract or
2818     subcontract; and
2819          (b) may occur only at a reasonable time and place.
2820          (3) A contractor shall maintain all books and records relating to a contract for six years
2821     after the day on which the contractor receives the final payment under the contract, or until all
2822     audits initiated under this section within the six-year period have been completed, whichever is
2823     later.
2824          (4) A subcontractor shall maintain all books and records relating to a subcontract for
2825     six years after the day on which the subcontractor receives the final payment under the
2826     subcontract, or until all audits initiated under this section within the six-year period have been
2827     completed, whichever is later.
2828          Section 46. Section 63G-6a-1206.5 is amended to read:
2829          63G-6a-1206.5. Change in contract price.

2830          A contractor may:
2831          (1) increase the contract price only in accordance with the terms of the contract[.]; and
2832          (2) lower the contract price at any time during the time a contract is in effect.
2833          Section 47. Section 63G-6a-1502 is amended to read:
2834          63G-6a-1502. Requirements regarding procurement of design professional
2835     services.
2836          (1) A procurement unit seeking to procure design professional services shall:
2837          (a) publicly announce all requirements for those services through a request for
2838     statement of qualifications, as provided in this part; and
2839          (b) negotiate contracts for design professional services:
2840          (i) on the basis of demonstrated competence and qualification for the type of services
2841     required; and
2842          (ii) at fair and reasonable prices.
2843          (2) A procurement unit shall procure design professional services as provided in this
2844     part, except as otherwise provided in Sections [63G-6a-403, 63G-6a-404, 63G-6a-408,]
2845     63G-6a-506, 63G-6a-802, and 63G-6a-803.
2846          (3) This part does not affect the authority of, and does not apply to procedures
2847     undertaken by, a procurement unit to obtain the services of architects or engineers in the
2848     capacity of employees of the procurement unit.
2849          Section 48. Section 63G-6a-1503.5 is amended to read:
2850          63G-6a-1503.5. Evaluation of statements of qualifications.
2851          (1) An evaluation committee appointed under Section 63G-6a-1503 shall evaluate and
2852     score each responsive [and responsible] statement of qualifications that has not been
2853     [disqualified] eliminated from consideration under this chapter, using the criteria described in
2854     the request for statement of qualifications.
2855          (2) Criteria not described in the request for statement of qualifications may not be used
2856     to evaluate a statement of qualifications.
2857          (3) An evaluation committee may enter into discussions or conduct interviews with, or

2858     attend presentations by, the design professionals whose statements of qualifications are under
2859     consideration.
2860          (4) An evaluation committee shall rank the top three highest scoring design
2861     professionals, in order of their scores, for the purpose of entering into fee negotiations as
2862     provided in Section 63G-6a-1505.
2863          (5) If fewer than three responsible design professionals submit statements of
2864     qualifications [or] that are determined to be responsive [and responsible], the chief
2865     procurement officer or head of a procurement unit with independent procurement authority
2866     shall issue a written determination explaining why it is in the best interest of the procurement
2867     unit to continue the fee negotiation and the contracting process with less than three design
2868     professionals.
2869          (6) (a) The deliberations of an evaluation committee may be held in private.
2870          (b) If the evaluation committee is a public body, as defined in Section 52-4-103, the
2871     evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
2872     deliberations.
2873          Section 49. Section 63G-6a-1601 is amended to read:
2874     
Part 16. Protests

2875          63G-6a-1601. Title.
2876          This part is known as "[Controversies and] Protests."
2877          Section 50. Section 63G-6a-1601.5 is enacted to read:
2878          63G-6a-1601.5. Definitions.
2879          As used in this part:
2880          (1) "Constructive knowledge":
2881          (a) means knowledge or information that a protestor would have if the protestor had
2882     exercised reasonable care or diligence, regardless of whether the protestor actually has the
2883     knowledge or information; and
2884          (b) includes knowledge of:
2885          (i) applicable provisions of this chapter and other law and administrative rule;

2886          (ii) instructions, criteria, deadlines, and requirements contained in the solicitation or in
2887     other documents made available to persons interested in the solicitation or provided in a
2888     mandatory pre-solicitation meeting;
2889          (iii) relevant facts and evidence supporting the protest or leading the protestor to
2890     contend that the protestor has been aggrieved in connection with a procurement;
2891          (iv) communications or actions, pertaining to the procurement, of all persons within the
2892     protestor's organization or under the supervision of the protestor; and
2893          (v) any other applicable information discoverable by the exercise of reasonable care or
2894     diligence.
2895          (2) "Protestor" means a person who files a protest under this part.
2896          (3) "Standing" means to have suffered an injury or harm or to be about to suffer
2897     imminent injury or harm, if:
2898          (a) the cause of the injury or harm is:
2899          (i) an infringement of the protestor's own right and not the right of another person who
2900     is not a party to the procurement;
2901          (ii) reasonably connected to the procurement unit's conduct; and
2902          (iii) the sole reason the protestor is not considered, or is no longer considered, for an
2903     award of a contract under the procurement that is the subject of the protest;
2904          (b) a decision on the protest in favor of the protestor:
2905          (i) is likely to redress the injury or harm; and
2906          (ii) would give the protestor a reasonable likelihood of being awarded a contract; and
2907          (c) the protestor has the legal authority to file the protest on behalf of the actual or
2908     prospective bidder or offeror or prospective contractor involved in the procurement that is the
2909     subject of the protest.
2910          Section 51. Section 63G-6a-1602 is amended to read:
2911          63G-6a-1602. Protest -- Time for filing -- Basis of protest -- Authority to resolve
2912     protest.
2913          (1) [(a)] A protest may be filed with the protest officer by[: (i) an actual or prospective

2914     bidder or offeror] a person who:
2915          (a) has standing; and
2916          (b) is aggrieved in connection with a procurement[;] or an award of a contract.
2917          [(ii) a prospective contractor who]
2918           [is aggrieved in connection with an award of a contract.]
2919          [(b) (i) A protest under Subsection (1)(a) relating to an invitation for bids or a request
2920     for proposals shall be filed:]
2921          [(A) before the opening of bids or the closing date for proposals; or]
2922          [(B) if the person filing the protest did not know and should not have known of the
2923     facts giving rise to the protest before the bid opening or the closing date for proposals, within
2924     seven days after the day on which the person knows or should have known of the facts giving
2925     rise to the protest.]
2926          [(ii) A protest under Subsection (1)(a) relating to a form of procurement not described
2927     in Subsection (1)(b)(i) but involving a deadline established for the submission of a price or
2928     response shall be filed:]
2929          [(A) before the deadline for the submission of a price or response; or]
2930          [(B) if the person filing the protest did not know and reasonably should not have
2931     known of the facts giving rise to the protest before the deadline for the submission of a price or
2932     response, within seven days after the day on which the person knows or reasonably should have
2933     known of the facts giving rise to the protest.]
2934          [(iii) A protest under Subsection (1)(a) relating to a form of procurement not described
2935     in Subsection (1)(b)(i) or (ii) shall be filed within seven days after the day on which the person
2936     filing the protest knows or should have known of the facts giving rise to the protest.]
2937          [(2) A person who files a protest under this section shall include in the filing
2938     document:]
2939          (2) A protest may not be filed after:
2940          (a) (i) (A) the opening of bids, for a protest relating to a procurement under a bidding
2941     process; or

2942          (B) the deadline for submitting responses to the solicitation, for a protest relating to
2943     another standard procurement process; or
2944          (ii) the closing of the procurement stage that is the subject of the protest:
2945          (A) if the protest relates to a multiple-stage procurement; and
2946          (B) notwithstanding Subsections (2)(a)(i)(A) and (B); or
2947          (b) the day that is seven days after the day on which the person knows or first has
2948     constructive knowledge of the facts giving rise to the protest, if:
2949          (i) the protestor did not know and did not have constructive knowledge of the facts
2950     giving rise to the protest before:
2951          (A) the opening of bids, for a protest relating to a procurement under a bidding process;
2952          (B) the deadline for submitting responses to the solicitation, for a protest relating to
2953     another standard procurement process; or
2954          (C) the closing of the procurement stage that is the subject of the protest, if the protest
2955     relates to a multiple-stage procurement; or
2956          (ii) the protest relates to a procurement process not described in Subsection (2)(a).
2957          (3) (a) A protestor shall include in a protest:
2958          [(a)] (i) the [person's] protestor's mailing address [of record] and email address [of
2959     record]; and
2960          [(b)] (ii) a concise statement of the [grounds upon which the protest is made.] facts and
2961     evidence:
2962          (A) leading the protestor to claim that the protestor has been aggrieved in connection
2963     with a procurement and providing the grounds for the protestor's protest; and
2964          (B) supporting the protestor's claim of standing.
2965          (b) A protest may not be considered unless it contains facts and evidence that, if true,
2966     would establish:
2967          (i) a violation of this chapter or other applicable law or rule;
2968          (ii) the procurement unit's failure to follow a provision of a solicitation;
2969          (iii) an error made by an evaluation committee or conducting procurement unit;

2970          (iv) a bias exercised by an evaluation committee or an individual committee member,
2971     excluding a bias that is a preference arising during the evaluation process because of how well
2972     a solicitation response meets criteria in the solicitation;
2973          (v) a failure to correctly apply or calculate a scoring criterion; or
2974          (vi) that specifications in a solicitation are unduly restrictive or unduly anticompetitive.
2975          (4) A protest may not be based on:
2976          (a) the rejection of a solicitation response due to a protestor's failure to attend or
2977     participate in a mandatory conference, meeting, or site visit held before the deadline for
2978     submitting a solicitation response; or
2979          (b) a vague or unsubstantiated allegation.
2980          (5) A protest may not include a request for:
2981          (a) an explanation of the rationale or scoring of evaluation committee members;
2982          (b) the disclosure of a protected record or protected information in addition to the
2983     information provided under the disclosure provisions of this chapter; or
2984          (c) other information, documents, or explanations not explicitly provided for in this
2985     chapter.
2986          [(3)] (6) A person [described in Subsection (1)] who fails to file a protest within the
2987     time prescribed in Subsection [(1)(b)] (2) may not:
2988          (a) protest to the protest officer a solicitation or award of a contract; or
2989          (b) file an action or appeal challenging a solicitation or award of a contract before an
2990     appeals panel, a court, or any other forum.
2991          [(4)] (7) Subject to the applicable requirements of Section 63G-10-403, a protest
2992     officer or the head of a procurement unit may enter into a settlement agreement to resolve a
2993     protest.
2994          Section 52. Section 63G-6a-1603 is amended to read:
2995          63G-6a-1603. Protest officer responsibilities and authority -- Proceedings on
2996     protest -- Effect of decision.
2997          (1) After a protest is filed, the protest officer shall determine whether the protest is

2998     timely filed and complies fully with the requirements of Section 63G-6a-1602.
2999          (2) If the protest officer determines that the protest is not timely filed or that the protest
3000     does not fully comply with Section 63G-6a-1602, the protest officer shall dismiss the protest.
3001          (3) If the protest officer determines that the protest is timely filed and complies fully
3002     with Section 63G-6a-1602, the protest officer shall:
3003          (a) dismiss the protest if the protest officer determines that the protest alleges facts that,
3004     if true, do not provide an adequate basis for the protest;
3005          (b) uphold the protest without holding a hearing if the protest officer determines that
3006     the undisputed facts of the protest indicate that the protest should be upheld; or
3007          (c) hold a hearing on the protest if there is a genuine issue of material fact that needs to
3008     be resolved in order to determine whether the protest should be upheld.
3009          (4) (a) If a hearing is held on a protest, the protest officer may:
3010          (i) subpoena witnesses and compel their attendance at the protest hearing;
3011          (ii) subpoena documents for production at the protest hearing;
3012          (iii) obtain additional factual information; and
3013          (iv) obtain testimony from experts, the person filing the protest, representatives of the
3014     procurement unit, or others to assist the protest officer to make a decision on the protest.
3015          (b) The Rules of Evidence do not apply to a protest hearing.
3016          (c) The applicable rulemaking authority shall make rules relating to intervention in a
3017     protest, including designating:
3018          (i) who may intervene; and
3019          (ii) the time and manner of intervention.
3020          (d) A protest officer shall:
3021          (i) record each hearing held on a protest under this section;
3022          (ii) regardless of whether a hearing on a protest is held under this section, preserve all
3023     records and other evidence relied upon in reaching the protest officer's written decision until
3024     the decision, and any appeal of the decision, becomes final; and
3025          (iii) submit to the procurement policy board chair a copy of the protest officer's written

3026     decision and all records and other evidence relied upon in reaching the decision, within seven
3027     days after receiving:
3028          (A) notice that an appeal of the protest officer's decision has been filed under Section
3029     63G-6a-1702; or
3030          (B) a request from the chair of the procurement policy board.
3031          (e) A protest officer's holding a hearing, considering a protest, or issuing a written
3032     decision under this section does not affect a person's right to later question or challenge the
3033     protest officer's jurisdiction to hold the hearing, consider the protest, or issue the decision.
3034          (5) (a) The deliberations of a protest officer may be held in private.
3035          (b) If the protest officer is a public body, as defined in Section 52-4-103, the protest
3036     officer shall comply with Section 52-4-205 in closing a meeting for its deliberations.
3037          (6) (a) A protest officer, or the protest officer's designee, shall promptly issue a written
3038     decision regarding any protest, unless the protest is settled by mutual agreement.
3039          (b) The decision shall:
3040          (i) state the reasons for the action taken;
3041          (ii) inform the protestor of the right to judicial or administrative review as provided in
3042     this chapter; and
3043          (iii) indicate the amount of the security deposit or bond required under Section
3044     63G-6a-1703.
3045          (c) A person who issues a decision under Subsection (6)(a) shall mail, email, or
3046     otherwise immediately furnish a copy of the decision to the protestor.
3047          (7) A decision described in this section is effective until stayed or reversed on appeal,
3048     except to the extent provided in Section 63G-6a-1903.
3049          (8) (a) A decision described in Subsection (6)(a) that is issued in relation to a
3050     procurement unit other than a legislative procurement unit, a judicial procurement unit, a
3051     nonadopting local government procurement unit, or a public transit district is final and
3052     conclusive unless the protestor files an appeal under Section 63G-6a-1702.
3053          (b) A decision described in Subsection (6)(a) that is issued in relation to a legislative

3054     procurement unit, a judicial procurement unit, a nonadopting local government procurement
3055     unit, or a public transit district is final and conclusive unless the protestor files an appeal under
3056     Section 63G-6a-1802.
3057          (9) If the protest officer does not issue the written decision regarding a protest [or a
3058     contract controversy] within 30 calendar days after the day on which [a written request for a
3059     final decision is] the protest was filed with the protest officer, or within a longer period as may
3060     be agreed upon by the parties, the protester[, prospective contractor, or contractor] may proceed
3061     as if an adverse decision had been received.
3062          (10) A determination under this section by the protest officer regarding an issue of fact
3063     may not be overturned on appeal unless the decision is arbitrary and capricious or clearly
3064     erroneous.
3065          Section 53. Section 63G-6a-1702 is amended to read:
3066          63G-6a-1702. Appeal to Utah State Procurement Policy Board -- Appointment of
3067     procurement appeals panel -- Proceedings.
3068          (1) This part applies to all procurement units other than:
3069          (a) a legislative procurement unit;
3070          (b) a judicial procurement unit;
3071          (c) a nonadopting local government procurement unit; or
3072          (d) a public transit district.
3073          (2) (a) Subject to Section 63G-6a-1703, a party to a protest involving a procurement
3074     unit other than a procurement unit listed in Subsection (1)(a), (b), (c), or (d) may appeal the
3075     protest decision to the board by filing a written notice of appeal with the chair of the board
3076     within seven days after:
3077          (i) the day on which the written decision described in Section 63G-6a-1603 is:
3078          (A) personally served on the party or the party's representative; or
3079          (B) emailed or mailed to the address or email address [of record] provided by the party
3080     under Subsection 63G-6a-1602[(2)](3); or
3081          (ii) the day on which the 30-day period described in Subsection 63G-6a-1603(9) ends,

3082     if a written decision is not issued before the end of the 30-day period.
3083          (b) A person appealing a debarment or suspension of a procurement unit other than a
3084     procurement unit listed in Subsection (1)(a), (b), (c), or (d) shall file a written notice of appeal
3085     with the chair of the board no later than seven days after the debarment or suspension.
3086          (c) A notice of appeal under Subsection (2)(a) or (b) shall:
3087          (i) include the address of record and email address of record of the party filing the
3088     notice of appeal; and
3089          (ii) be accompanied by a copy of any written protest decision or debarment or
3090     suspension order.
3091          (3) A person may not base an appeal of a protest under this section on a ground not
3092     specified in the person's protest under Section 63G-6a-1602.
3093          (4) A person may not appeal from a protest described in Section 63G-6a-1602, unless:
3094          (a) a decision on the protest has been issued; or
3095          (b) a decision is not issued and the 30-day period described in Subsection
3096     63G-6a-1603(9), or a longer period agreed to by the parties, has passed.
3097          (5) The chair of the board or a designee of the chair who is not employed by the
3098     procurement unit responsible for the solicitation, contract award, or other action complained of:
3099          (a) shall, within seven days after the day on which the chair receives a timely written
3100     notice of appeal under Subsection (2), and if all the requirements of Subsection (2) and Section
3101     63G-6a-1703 have been met, appoint:
3102          (i) a procurement appeals panel to hear and decide the appeal, consisting of at least
3103     three individuals, each of whom is:
3104          (A) a member of the board; or
3105          (B) a designee of a member appointed under Subsection (5)(a)(i)(A), if the designee is
3106     approved by the chair; and
3107          (ii) one of the members of the procurement appeals panel to be the chair of the panel;
3108          (b) may:
3109          (i) appoint the same procurement appeals panel to hear more than one appeal; or

3110          (ii) appoint a separate procurement appeals panel for each appeal;
3111          (c) may not appoint a person to a procurement appeals panel if the person is employed
3112     by the procurement unit responsible for the solicitation, contract award, or other action
3113     complained of; and
3114          (d) shall, at the time the procurement appeals panel is appointed, provide appeals panel
3115     members with a copy of the protest officer's written decision and all other records and other
3116     evidence that the protest officer relied on in reaching the decision.
3117          (6) A procurement appeals panel described in Subsection (5) shall:
3118          (a) consist of an odd number of members;
3119          (b) conduct an informal proceeding on the appeal within 60 days after the day on which
3120     the procurement appeals panel is appointed:
3121          (i) unless all parties stipulate to a later date; and
3122          (ii) subject to Subsection (8);
3123          (c) at least seven days before the proceeding, mail, email, or hand-deliver a written
3124     notice of the proceeding to the parties to the appeal; and
3125          (d) within seven days after the day on which the proceeding ends:
3126          (i) issue a written decision on the appeal; and
3127          (ii) mail, email, or hand-deliver the written decision on the appeal to the parties to the
3128     appeal and to the protest officer.
3129          (7) (a) The deliberations of a procurement appeals panel may be held in private.
3130          (b) If the procurement appeals panel is a public body, as defined in Section 52-4-103,
3131     the procurement appeals panel shall comply with Section 52-4-205 in closing a meeting for its
3132     deliberations.
3133          (8) A procurement appeals panel may continue a procurement appeals proceeding
3134     beyond the 60-day period described in Subsection (6)(b) if the procurement appeals panel
3135     determines that the continuance is in the interests of justice.
3136          (9) A procurement appeals panel:
3137          (a) shall, subject to Subsection (9)(c), consider the appeal based solely on:

3138          (i) the protest decision;
3139          (ii) the record considered by the person who issued the protest decision; and
3140          (iii) if a protest hearing was held, the record of the protest hearing;
3141          (b) may not take additional evidence;
3142          (c) notwithstanding Subsection (9)(b), may, during an informal hearing, ask questions
3143     and receive responses regarding the appeal, the protest decision, or the record in order to assist
3144     the panel to understand the appeal, the protest decision, and the record; and
3145          (d) shall uphold the decision of the protest officer, unless the decision is arbitrary and
3146     capricious or clearly erroneous.
3147          (10) If a procurement appeals panel determines that the decision of the protest officer is
3148     arbitrary and capricious or clearly erroneous, the procurement appeals panel:
3149          (a) shall remand the matter to the protest officer, to cure the problem or render a new
3150     decision;
3151          (b) may recommend action that the protest officer should take; and
3152          (c) may not order that:
3153          (i) a contract be awarded to a certain person;
3154          (ii) a contract or solicitation be cancelled; or
3155          (iii) any other action be taken other than the action described in Subsection (10)(a).
3156          (11) The board shall make rules relating to the conduct of an appeals proceeding,
3157     including rules that provide for:
3158          (a) expedited proceedings; and
3159          (b) electronic participation in the proceedings by panel members and participants.
3160          (12) The Rules of Evidence do not apply to an appeals proceeding.
3161          Section 54. Section 63G-6a-1703 is amended to read:
3162          63G-6a-1703. Requirement to pay a security deposit or post a bond -- Exceptions
3163     -- Amount -- Forfeiture of security deposit or bond.
3164          (1) [Except as provided by rule made under Subsection (2)(a), a] A person who files a
3165     notice of appeal under Section 63G-6a-1702 shall, before the expiration of the time provided

3166     under Subsection 63G-6a-1702(2) for filing a notice of appeal, pay a security deposit or post a
3167     bond with the office of the protest officer.
3168          (2) The amount of a security deposit or bond required under Subsection (1) is:
3169          (a) for an appeal relating to an invitation for bids or request for proposals and except as
3170     provided in Subsection (2)(b)(ii):
3171          (i) $20,000, if the total contract value is under $500,000;
3172          (ii) $25,000, if the total contract value is $500,000 or more but less than $1,000,000;
3173          (iii) $50,000, if the total contract value is $1,000,000 or more but less than $2,000,000;
3174          (iv) $95,000, if the total contract value is $2,000,000 or more but less than $4,000,000;
3175          (v) $180,000, if the total contract value is $4,000,000 or more but less than $8,000,000;
3176          (vi) $320,000, if the total contract value is $8,000,000 or more but less than
3177     $16,000,000;
3178          (vii) $600,000, if the total contract value is $16,000,000 or more but less than
3179     $32,000,000;
3180          (viii) $1,100,000, if the total contract value is $32,000,000 or more but less than
3181     $64,000,000;
3182          (ix) $1,900,000, if the total contract value is $64,000,000 or more but less than
3183     $128,000,000;
3184          (x) $3,500,000, if the total contract value is $128,000,000 or more but less than
3185     $256,000,000;
3186          (xi) $6,400,000, if the total contract value is $256,000,000 or more but less than
3187     $512,000,000; and
3188          (xii) $10,200,000, if the total contract value is $512,000,000 or more; or
3189          (b) $20,000, for an appeal:
3190          (i) relating to any type of procurement process other than an invitation for bids or
3191     request for proposals;
3192          (ii) relating to an invitation for bids or request for proposals, if the estimated total
3193     contract value cannot be determined; or

3194          (iii) of a debarment or suspension.
3195          (3) (a) For an appeal relating to an invitation for bids, the estimated total contract value
3196     shall be based on:
3197          (i) the lowest responsible and responsive bid amount for the entire term of the contract,
3198     excluding any renewal period, if the bid opening has occurred;
3199          (ii) the total budget for the procurement item for the entire term of the contract,
3200     excluding any renewal period, if bids are based on unit or rate pricing; or
3201          (iii) if the contract is being rebid, the historical usage and amount spent on the contract
3202     over the life of the contract.
3203          (b) For an appeal relating to a request for proposals, the estimated total contract value
3204     shall be based on:
3205          (i) the lowest cost proposed in a response to a request for proposals, considering the
3206     entire term of the contract, excluding any renewal period, if the opening of proposals has
3207     occurred;
3208          (ii) the total budget for the procurement item over the entire term of the contract,
3209     excluding any renewal period, if opened cost proposals are based on unit or rate pricing; or
3210          (iii) if the contract is being reissued, the historical usage and amount spent on the
3211     contract over the life of the contract that is being reissued.
3212          (4) The protest officer shall:
3213          (a) retain the security deposit or bond until the protest and any appeal of the protest
3214     decision is final;
3215          (b) as it relates to a security deposit:
3216          (i) deposit the security deposit into an interest-bearing account; and
3217          (ii) after any appeal of the protest decision becomes final, return the security deposit
3218     and the interest it accrues to the person who paid the security deposit, unless the security
3219     deposit is forfeited to the general fund of the procurement unit under Subsection (5); and
3220          (c) as it relates to a bond:
3221          (i) retain the bond until the protest and any appeal of the protest decision becomes

3222     final; and
3223          (ii) after the protest and any appeal of the protest decision becomes final, return the
3224     bond to the person who posted the bond, unless the bond is forfeited to the general fund of the
3225     procurement unit under Subsection (5).
3226          (5) A security deposit that is paid, or a bond that is posted, under this section shall
3227     forfeit to the general fund of the procurement unit if:
3228          (a) the person who paid the security deposit or posted the bond fails to ultimately
3229     prevail on appeal; and
3230          (b) the procurement appeals panel finds that the protest or appeal is frivolous or that its
3231     primary purpose is to harass or cause a delay.
3232          Section 55. Section 63G-6a-1903 is amended to read:
3233          63G-6a-1903. Effect of timely protest or appeal.
3234          A procurement unit, other than a legislative procurement unit, a judicial procurement
3235     unit, a nonadopting local government procurement unit, or a public transit district, may not
3236     proceed further with a solicitation or with the award of a contract:
3237          (1) during the pendency of a timely:
3238          (a) protest under [Subsection] Section 63G-6a-1602[(1)];
3239          (b) appeal of a protest under Section 63G-6a-1702; or
3240          (c) appeal of a procurement appeals panel decision under Section 63G-6a-1802; and
3241          (2) until:
3242          (a) all administrative and judicial remedies are exhausted;
3243          (b) for a protest under Section 63G-6a-1602 or an appeal under Section 63G-6a-1702:
3244          (i) the chief procurement officer, after consultation with the attorney general's office
3245     and the head of the using agency, makes a written determination that award of the contract
3246     without delay is in the best interest of the procurement unit or the state;
3247          (ii) the head of a procurement unit with independent procurement authority, after
3248     consultation with the procurement unit's attorney, makes a written determination that award of
3249     the contract without delay is in the best interest of the procurement unit or the state; or

3250          (iii) for a procurement unit that is not represented by the attorney general's office, the
3251     procurement unit, after consulting with the attorney for the procurement unit, makes a written
3252     determination that award of the contract without delay is in the best interest of the procurement
3253     unit or the state; or
3254          (c) for an appeal under Section 63G-6a-1802, or an appeal to a higher court than
3255     district court:
3256          (i) the chief procurement officer, after consultation with the attorney general's office
3257     and the head of the using agency, makes a written determination that award of the contract
3258     without delay is in the best interest of the procurement unit or the state;
3259          (ii) the head of a procurement unit with independent procurement authority, after
3260     consultation with the procurement unit's attorney, makes a written determination that award of
3261     the contract without delay is in the best interest of the procurement unit or the state; or
3262          (iii) for a procurement unit that is not represented by the attorney general's office, the
3263     procurement unit, after consulting with the attorney for the procurement unit, makes a written
3264     determination that award of the contract without delay is necessary to protect the best interest
3265     of the procurement unit or the state.
3266          Section 56. Section 63G-6a-2002 is amended to read:
3267          63G-6a-2002. Records -- Retention.
3268          (1) All procurement records shall be retained and disposed of in accordance with Title
3269     63G, Chapter 2, Government Records Access and Management Act.
3270          (2) Written determinations required by this chapter shall be retained in the appropriate
3271     official contract file of:
3272          (a) the division;
3273          (b) the procurement unit with independent procurement authority; or
3274          (c) for a legislative procurement unit or a judicial procurement unit, the person
3275     designated by rule made by the applicable rulemaking authority.
3276          (3) A procurement unit shall keep, and make available to the public, upon request,
3277     written records of procurements for which an expenditure of $50 or more is made, for the

3278     longer of:
3279          (a) [four] six years;
3280          (b) the time otherwise required by law; or
3281          (c) the time period provided by rule made by the applicable rulemaking authority.
3282          (4) The written record described in Subsection (3) shall include:
3283          (a) the name of the provider from whom the procurement was made;
3284          (b) a description of the procurement item;
3285          (c) the date of the procurement; and
3286          (d) the expenditure made for the procurement.
3287          Section 57. Section 63G-6a-2003 is amended to read:
3288          63G-6a-2003. Record of contracts made.
3289          The chief procurement officer, the procurement officer, or the head of a procurement
3290     unit with independent procurement authority shall maintain a record of all contracts made
3291     under Section [63G-6a-408] 63G-6a-506, 63G-6a-802, or 63G-6a-803, in accordance with
3292     Title 63G, Chapter 2, Government Records Access and Management Act. The record shall
3293     contain each contractor's name, the amount and type of each contract, and a listing of the
3294     procurement items to which the contract relates.
3295          Section 58. Section 63G-6a-2105 is amended to read:
3296          63G-6a-2105. Cooperative procurements -- Contracts with federal government --
3297     Regional solicitations.
3298          (1) The chief procurement officer may, in accordance with the requirements of this
3299     chapter, enter into a cooperative procurement, and a contract that is awarded as a result of a
3300     cooperative procurement, with:
3301          (a) another state;
3302          (b) a cooperative purchasing organization; or
3303          (c) a public entity inside or outside the state.
3304          (2) A public entity, nonprofit organization, or, as permitted under federal law, an
3305     agency of the federal government, may obtain a procurement item from a state cooperative

3306     contract or a contract awarded by the chief procurement officer under Subsection (1), without
3307     signing a participating addendum if the solicitation issued by the chief procurement officer to
3308     obtain the contract includes a statement indicating that the resulting contract will be issued for
3309     the benefit of public entities and, as applicable, nonprofit organizations and agencies of the
3310     federal government.
3311          (3) Except as provided in Section [63G-6a-408] 63G-6a-506, or as otherwise provided
3312     in this chapter, an executive branch procurement unit may not obtain a procurement item from
3313     a source other than a state cooperative contract or a contract awarded by the chief procurement
3314     officer under Subsection (1), if the procurement item is available under a state cooperative
3315     contract or a contract awarded by the chief procurement officer under Subsection (1).
3316          (4) A Utah procurement unit may:
3317          (a) contract with the federal government without going through a standard procurement
3318     process or an exception to a standard procurement process, described in Part 8, Exceptions to
3319     Procurement Requirements, if the procurement item obtained under the contract is provided:
3320          (i) directly by the federal government and not by a person contracting with the federal
3321     government; or
3322          (ii) by a person under contract with the federal government that obtained the contract in
3323     a manner that substantially complies with the provisions of this chapter;
3324          (b) participate in, sponsor, conduct, or administer a cooperative procurement with
3325     another Utah procurement unit or another public entity in Utah, if:
3326          (i) each party unit involved in the cooperative procurement enters into an agreement
3327     describing the rights and duties of each party;
3328          (ii) the procurement is conducted, and the contract awarded, in accordance with the
3329     requirements of this 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; or
3335          (c) purchase under, or otherwise participate in, an agreement or contract of a
3336     cooperative purchasing organization, if:
3337          (i) each party involved in the cooperative procurement enters into an agreement
3338     describing the rights and duties of each party;
3339          (ii) the procurement was conducted in accordance with the requirements of this
3340     chapter;
3341          (iii) the solicitation:
3342          (A) clearly indicates that the procurement is a cooperative procurement; and
3343          (B) identifies each party that may purchase under the resulting contract; and
3344          (iv) each party involved in the cooperative procurement signs a participating addendum
3345     describing its rights and obligations in relation to the resulting contract.
3346          (5) A procurement unit may not obtain a procurement item under a contract that results
3347     from a cooperative procurement described in Subsection (4), [if] unless the procurement unit:
3348          (a) is [not] identified under Subsection (4)(b)(iii)(B) or (4)(c)(iii)(B); [or] and
3349          (b) [does not sign] signs a participating addendum to the contract as required by this
3350     section.
3351          (6) A procurement unit, other than a legislative procurement unit or a judicial
3352     procurement unit, may not obtain a procurement item under a contract held by the United
3353     States General Services Administration, unless, based upon documentation provided by the
3354     procurement unit, the Director of the State Division of Purchasing and General Services
3355     determines in writing that the United States General Services Administration procured the
3356     contract in a manner that substantially complies with the provisions of this chapter.
3357          (7) (a) As used in this Subsection (7), "regional solicitation" means a solicitation issued
3358     by the chief procurement officer for the procurement of a procurement item within a specified
3359     geographical region of the state.
3360          (b) In addition to any other duty or authority under this section, the chief procurement
3361     officer shall:

3362          (i) after considering board recommendations, develop a plan for issuing regional
3363     solicitations;
3364          (ii) present the plan to the Government Operations Interim Committee by September 1,
3365     2014; and
3366          (iii) after developing a plan, issue regional solicitations for procurement items in
3367     accordance with the plan and this chapter.
3368          (c) A plan under Subsection (7)(b) shall:
3369          (i) define the proposed regional boundaries for regional solicitations;
3370          (ii) specify the types of procurement items for which a regional solicitation may be
3371     issued; and
3372          (iii) identify the regional solicitations that the chief procurement officer plans to issue.
3373          (d) A regional solicitation shall require that a person responding to the solicitation offer
3374     similar warranties and submit to similar obligations as are standard under other state
3375     cooperative contracts.
3376          (e) [A] Except as authorized by the chief procurement officer, a procurement item that
3377     is available under a state cooperative contract may not be provided under a contract pursuant to
3378     a regional solicitation until after the expiration of the state cooperative contract.
3379          Section 59. Section 63G-6a-2407 is amended to read:
3380          63G-6a-2407. Duty to report unlawful conduct.
3381          [(1) A procurement professional shall notify the attorney general or other appropriate
3382     prosecuting attorney if the procurement professional has actual knowledge that a person has
3383     engaged in:]
3384          (1) As used in this section, "unlawful conduct" means:
3385          (a) conduct made unlawful under this part; or
3386          (b) conduct, including bid rigging, improperly steering a contract to a favored vendor,
3387     exercising undue influence on an individual involved in the procurement process, or
3388     participating in collusion or other anticompetitive practices, made unlawful under other
3389     applicable law.

3390          (2) (a) A procurement professional with actual knowledge that a person has engaged in
3391     unlawful conduct shall report the person's unlawful conduct to:
3392          (i) the state auditor; or
3393          (ii) the attorney general or other appropriate prosecuting attorney.
3394          (b) An individual not subject to the requirement of Subsection (2)(a) who has actual
3395     knowledge that a person has engaged in unlawful conduct may report the person's unlawful
3396     conduct to:
3397          (i) the state auditor; or
3398          (ii) the attorney general or other appropriate prosecuting attorney.
3399          [(2)] (3) A procurement professional who fails to comply with the requirement of
3400     Subsection [(1)] (2)(a) is subject to any applicable disciplinary action or civil penalty identified
3401     in Subsection 63G-6a-2404(5).
3402          Section 60. Section 63G-10-403 is amended to read:
3403          63G-10-403. Department of Transportation bid or request for proposals protest
3404     settlement agreement approval and review.
3405          (1) As used in this section:
3406          (a) "Department" means the Department of Transportation created in Section 72-1-201.
3407          (b) "Settlement agreement" includes stipulations, consent decrees, settlement
3408     agreements, or other legally binding documents or representations resolving a dispute between
3409     the department and another party when the department is required to pay money or required to
3410     take legally binding action.
3411          (2) The department shall obtain the approval of the Transportation Commission or the
3412     governor or review by the Legislative Management Committee of a settlement agreement that
3413     involves a bid or request for proposal protest in accordance with this section.
3414          (3) A settlement agreement that is being settled by the department as part of a bid or
3415     request for proposal protest, in accordance with Subsection 63G-6a-1602[(4)](7), that might
3416     cost government entities more than $100,000 to implement shall be presented to the
3417     Transportation Commission for approval or rejection.

3418          (4) A settlement agreement that is being settled by the department as part of a bid or
3419     request for proposal protest, in accordance with Subsection 63G-6a-1602[(4)](7), that might
3420     cost government entities more than $500,000 to implement shall be presented:
3421          (a) to the Transportation Commission for approval or rejection; and
3422          (b) to the governor for approval or rejection.
3423          (5) (a) A settlement agreement that is being settled by the department as part of a bid or
3424     request for proposal protest, in accordance with Subsection 63G-6a-1602[(4)](7), that might
3425     cost government entities more than $1,000,000 to implement shall be presented:
3426          (i) to the Transportation Commission for approval or rejection;
3427          (ii) to the governor for approval or rejection; and
3428          (iii) if the settlement agreement is approved by the Transportation Commission and the
3429     governor, to the Legislative Management Committee.
3430          (b) The Legislative Management Committee may recommend approval or rejection of
3431     the settlement agreement.
3432          (6) (a) The department may not enter into a settlement agreement that resolves a bid or
3433     request for proposal protest, in accordance with Subsection 63G-6a-1602[(4)](7), that might
3434     cost government entities more than $100,000 to implement until the Transportation
3435     Commission has approved the agreement.
3436          (b) The department may not enter into a settlement agreement that resolves a bid or
3437     request for proposal protest, in accordance with Subsection 63G-6a-1602[(4)](7), that might
3438     cost government entities more than $500,000 to implement until the Transportation
3439     Commission and the governor have approved the agreement.
3440          (c) The department may not enter into a settlement agreement that resolves a bid or
3441     request for proposal protest, in accordance with Subsection 63G-6a-1602[(4)](7), that might
3442     cost government entities more than $1,000,000 to implement until:
3443          (i) the Transportation Commission has approved the agreement;
3444          (ii) the governor has approved the agreement; and
3445          (iii) the Legislative Management Committee has reviewed the agreement.

3446          Section 61. Section 72-6-107.5 is amended to read:
3447          72-6-107.5. Construction of improvements of highway -- Contracts -- Health
3448     insurance coverage.
3449          (1) For purposes of this section:
3450          (a) "Employee" means an "employee," "worker," or "operative" as defined in Section
3451     34A-2-104 who:
3452          (i) works at least 30 hours per calendar week; and
3453          (ii) meets employer eligibility waiting requirements for health care insurance which
3454     may not exceed the first day of the calendar month following 60 days from the date of hire.
3455          (b) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
3456          (c) "Qualified health insurance coverage" is as defined in Section 26-40-115.
3457          (d) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
3458          (2) (a) Except as provided in Subsection (3), this section applies to contracts entered
3459     into by the department on or after July 1, 2009, for construction or design of highways and to a
3460     prime contractor or to a subcontractor in accordance with Subsection (2)(b).
3461          (b) (i) A prime contractor is subject to this section if the prime contract is in the
3462     amount of $1,500,000 or greater.
3463          (ii) A subcontractor is subject to this section if a subcontract is in the amount of
3464     $750,000 or greater.
3465          (3) This section does not apply if:
3466          (a) the application of this section jeopardizes the receipt of federal funds;
3467          (b) the contract is a sole source contract; or
3468          (c) the contract is an emergency procurement.
3469          (4) (a) This section does not apply to a change order as defined in Section 63G-6a-103,
3470     or a modification to a contract, when the contract does not meet the initial threshold required
3471     by Subsection (2).
3472          (b) A person who intentionally uses change orders or contract modifications to
3473     circumvent the requirements of Subsection (2) is guilty of an infraction.

3474          (5) (a) A contractor subject to Subsection (2) shall demonstrate to the department that
3475     the contractor has and will maintain an offer of qualified health insurance coverage for the
3476     contractor's employees and the employees' dependents during the duration of the contract.
3477          (b) If a subcontractor of the contractor is subject to Subsection (2), the contractor shall
3478     demonstrate to the department that the subcontractor has and will maintain an offer of qualified
3479     health insurance coverage for the subcontractor's employees and the employees' dependents
3480     during the duration of the contract.
3481          (c) (i) (A) A contractor who fails to meet the requirements of Subsection (5)(a) during
3482     the duration of the contract is subject to penalties in accordance with administrative rules
3483     adopted by the department under Subsection (6).
3484          (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
3485     requirements of Subsection (5)(b).
3486          (ii) (A) A subcontractor who fails to meet the requirements of Subsection (5)(b) during
3487     the duration of the contract is subject to penalties in accordance with administrative rules
3488     adopted by the department under Subsection (6).
3489          (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
3490     requirements of Subsection (5)(a).
3491          (6) The department shall adopt administrative rules:
3492          (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
3493          (b) in coordination with:
3494          (i) the Department of Environmental Quality in accordance with Section 19-1-206;
3495          (ii) the Department of Natural Resources in accordance with Section 79-2-404;
3496          (iii) the State Building Board in accordance with Section 63A-5-205;
3497          (iv) the State Capitol Preservation Board in accordance with Section 63C-9-403;
3498          (v) a public transit district in accordance with Section 17B-2a-818.5; and
3499          (vi) the Legislature's Administrative Rules Review Committee; and
3500          (c) which establish:
3501          (i) the requirements and procedures a contractor must follow to demonstrate to the

3502     department compliance with this section which shall include:
3503          (A) that a contractor will not have to demonstrate compliance with Subsection (5)(a) or
3504     (b) more than twice in any 12-month period; and
3505          (B) that the actuarially equivalent determination required for qualified health insurance
3506     coverage in Subsection (1) is met by the contractor if the contractor provides the department or
3507     division with a written statement of actuarial equivalency from either:
3508          (I) the Utah Insurance Department;
3509          (II) an actuary selected by the contractor or the contractor's insurer; or
3510          (III) an underwriter who is responsible for developing the employer group's premium
3511     rates;
3512          (ii) the penalties that may be imposed if a contractor or subcontractor intentionally
3513     violates the provisions of this section, which may include:
3514          (A) a three-month suspension of the contractor or subcontractor from entering into
3515     future contracts with the state upon the first violation;
3516          (B) a six-month suspension of the contractor or subcontractor from entering into future
3517     contracts with the state upon the second violation;
3518          (C) an action for debarment of the contractor or subcontractor in accordance with
3519     Section 63G-6a-904 upon the third or subsequent violation; and
3520          (D) monetary penalties which may not exceed 50% of the amount necessary to
3521     purchase qualified health insurance coverage for an employee and a dependent of the employee
3522     of the contractor or subcontractor who was not offered qualified health insurance coverage
3523     during the duration of the contract; and
3524          (iii) a website on which the department shall post the benchmark for the qualified
3525     health insurance coverage identified in Subsection (1)(c).
3526          (7) (a) (i) In addition to the penalties imposed under Subsection (6), a contractor or
3527     subcontractor who intentionally violates the provisions of this section shall be liable to the
3528     employee for health care costs that would have been covered by qualified health insurance
3529     coverage.

3530          (ii) An employer has an affirmative defense to a cause of action under Subsection
3531     (7)(a)(i) if:
3532          (A) the employer relied in good faith on a written statement of actuarial equivalency
3533     provided by:
3534          (I) an actuary; or
3535          (II) an underwriter who is responsible for developing the employer group's premium
3536     rates; or
3537          (B) the department determines that compliance with this section is not required under
3538     the provisions of Subsection (3) or (4).
3539          (b) An employee has a private right of action only against the employee's employer to
3540     enforce the provisions of this Subsection (7).
3541          (8) Any penalties imposed and collected under this section shall be deposited into the
3542     Medicaid Restricted Account created in Section 26-18-402.
3543          (9) The failure of a contractor or subcontractor to provide qualified health insurance
3544     coverage as required by this section:
3545          (a) may not be the basis for a protest or other action from a prospective bidder, offeror,
3546     or contractor under Section [63G-6a-1603] 63G-6a-1602 or any other provision in Title 63G,
3547     Chapter 6a, Utah Procurement Code; and
3548          (b) may not be used by the procurement entity or a prospective bidder, offeror, or
3549     contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design
3550     or construction.
3551          Section 62. Section 79-2-404 is amended to read:
3552          79-2-404. Contracting powers of department -- Health insurance coverage.
3553          (1) For purposes of this section:
3554          (a) "Employee" means an "employee," "worker," or "operative" as defined in Section
3555     34A-2-104 who:
3556          (i) works at least 30 hours per calendar week; and
3557          (ii) meets employer eligibility waiting requirements for health care insurance which

3558     may not exceed the first day of the calendar month following 60 days from the date of hire.
3559          (b) "Health benefit plan" has the same meaning as provided in Section 31A-1-301.
3560          (c) "Qualified health insurance coverage" is as defined in Section 26-40-115.
3561          (d) "Subcontractor" has the same meaning provided for in Section 63A-5-208.
3562          (2) (a) Except as provided in Subsection (3), this section applies a design or
3563     construction contract entered into by, or delegated to, the department or a division, board, or
3564     council of the department on or after July 1, 2009, and to a prime contractor or to a
3565     subcontractor in accordance with Subsection (2)(b).
3566          (b) (i) A prime contractor is subject to this section if the prime contract is in the
3567     amount of $1,500,000 or greater.
3568          (ii) A subcontractor is subject to this section if a subcontract is in the amount of
3569     $750,000 or greater.
3570          (3) This section does not apply to contracts entered into by the department or a
3571     division, board, or council of the department if:
3572          (a) the application of this section jeopardizes the receipt of federal funds;
3573          (b) the contract or agreement is between:
3574          (i) the department or a division, board, or council of the department; and
3575          (ii) (A) another agency of the state;
3576          (B) the federal government;
3577          (C) another state;
3578          (D) an interstate agency;
3579          (E) a political subdivision of this state; or
3580          (F) a political subdivision of another state; or
3581          (c) the contract or agreement is:
3582          (i) for the purpose of disbursing grants or loans authorized by statute;
3583          (ii) a sole source contract; or
3584          (iii) an emergency procurement.
3585          (4) (a) This section does not apply to a change order as defined in Section 63G-6a-103,

3586     or a modification to a contract, when the contract does not meet the initial threshold required
3587     by Subsection (2).
3588          (b) A person who intentionally uses change orders or contract modifications to
3589     circumvent the requirements of Subsection (2) is guilty of an infraction.
3590          (5) (a) A contractor subject to Subsection (2)(b)(i) shall demonstrate to the department
3591     that the contractor has and will maintain an offer of qualified health insurance coverage for the
3592     contractor's employees and the employees' dependents during the duration of the contract.
3593          (b) If a subcontractor of the contractor is subject to Subsection (2)(b)(ii), the contractor
3594     shall demonstrate to the department that the subcontractor has and will maintain an offer of
3595     qualified health insurance coverage for the subcontractor's employees and the employees'
3596     dependents during the duration of the contract.
3597          (c) (i) (A) A contractor who fails to meet the requirements of Subsection (5)(a) during
3598     the duration of the contract is subject to penalties in accordance with administrative rules
3599     adopted by the department under Subsection (6).
3600          (B) A contractor is not subject to penalties for the failure of a subcontractor to meet the
3601     requirements of Subsection (5)(b).
3602          (ii) (A) A subcontractor who fails to meet the requirements of Subsection (5)(b) during
3603     the duration of the contract is subject to penalties in accordance with administrative rules
3604     adopted by the department under Subsection (6).
3605          (B) A subcontractor is not subject to penalties for the failure of a contractor to meet the
3606     requirements of Subsection (5)(a).
3607          (6) The department shall adopt administrative rules:
3608          (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
3609          (b) in coordination with:
3610          (i) the Department of Environmental Quality in accordance with Section 19-1-206;
3611          (ii) a public transit district in accordance with Section 17B-2a-818.5;
3612          (iii) the State Building Board in accordance with Section 63A-5-205;
3613          (iv) the State Capitol Preservation Board in accordance with Section 63C-9-403;

3614          (v) the Department of Transportation in accordance with Section 72-6-107.5; and
3615          (vi) the Legislature's Administrative Rules Review Committee; and
3616          (c) which establish:
3617          (i) the requirements and procedures a contractor must follow to demonstrate
3618     compliance with this section to the department which shall include:
3619          (A) that a contractor will not have to demonstrate compliance with Subsection (5)(a) or
3620     (b) more than twice in any 12-month period; and
3621          (B) that the actuarially equivalent determination required for qualified health insurance
3622     coverage in Subsection (1) is met by the contractor if the contractor provides the department or
3623     division with a written statement of actuarial equivalency from either:
3624          (I) the Utah Insurance Department;
3625          (II) an actuary selected by the contractor or the contractor's insurer; or
3626          (III) an underwriter who is responsible for developing the employer group's premium
3627     rates;
3628          (ii) the penalties that may be imposed if a contractor or subcontractor intentionally
3629     violates the provisions of this section, which may include:
3630          (A) a three-month suspension of the contractor or subcontractor from entering into
3631     future contracts with the state upon the first violation;
3632          (B) a six-month suspension of the contractor or subcontractor from entering into future
3633     contracts with the state upon the second violation;
3634          (C) an action for debarment of the contractor or subcontractor in accordance with
3635     Section 63G-6a-904 upon the third or subsequent violation; and
3636          (D) monetary penalties which may not exceed 50% of the amount necessary to
3637     purchase qualified health insurance coverage for an employee and a dependent of an employee
3638     of the contractor or subcontractor who was not offered qualified health insurance coverage
3639     during the duration of the contract; and
3640          (iii) a website on which the department shall post the benchmark for the qualified
3641     health insurance coverage identified in Subsection (1)(c).

3642          (7) (a) (i) In addition to the penalties imposed under Subsection (6), a contractor or
3643     subcontractor who intentionally violates the provisions of this section shall be liable to the
3644     employee for health care costs that would have been covered by qualified health insurance
3645     coverage.
3646          (ii) An employer has an affirmative defense to a cause of action under Subsection
3647     (7)(a)(i) if:
3648          (A) the employer relied in good faith on a written statement of actuarial equivalency
3649     provided by:
3650          (I) an actuary; or
3651          (II) an underwriter who is responsible for developing the employer group's premium
3652     rates; or
3653          (B) the department determines that compliance with this section is not required under
3654     the provisions of Subsection (3) or (4).
3655          (b) An employee has a private right of action only against the employee's employer to
3656     enforce the provisions of this Subsection (7).
3657          (8) Any penalties imposed and collected under this section shall be deposited into the
3658     Medicaid Restricted Account created in Section 26-18-402.
3659          (9) The failure of a contractor or subcontractor to provide qualified health insurance
3660     coverage as required by this section:
3661          (a) may not be the basis for a protest or other action from a prospective bidder, offeror,
3662     or contractor under Section [63G-6a-1603] 63G-6a-1602 or any other provision in Title 63G,
3663     Chapter 6a, Utah Procurement Code; and
3664          (b) may not be used by the procurement entity or a prospective bidder, offeror, or
3665     contractor as a basis for any action or suit that would suspend, disrupt, or terminate the design
3666     or construction.
3667          Section 63. Repealer.
3668          This bill repeals:
3669          Section 63G-6a-104, Definitions relating to governmental bodies.

3670          Section 63G-6a-403, Prequalification of potential vendors.
3671          Section 63G-6a-404, Approved vendor list.
3672          Section 63G-6a-503, Request for information and response nonbinding.
3673          Section 63G-6a-504, Contents of request for information.
3674          Section 63G-6a-505, Protected information.
3675          Section 64. Effective date.
3676          If approved by two-thirds of all the members elected to each house, this bill takes effect
3677     upon approval by the governor, or the day following the constitutional time limit of Utah
3678     Constitution, Article VII, Section 8, without the governor's signature, or in the case of a veto,
3679     the date of veto override.
3680          Section 65. Coordinating S.B. 184 with S.B. 135 -- Merging technical and
3681     substantive amendments.
3682          If this S.B. 184 and S.B. 135, Administrative Law Judge Amendments, both pass and
3683     become law, it is the intent of the Legislature that the Office of Legislative Research and
3684     General Counsel shall prepare the Utah Code database for publication by:
3685          (1) modifying Subsection 63G-6a-103(2), as enacted in S.B. 135, to read:
3686          "(2) "Administrative law judge service" means service provided by an administrative
3687     law judge.";
3688          (2) modifying Subsection 63G-6a-103(41)(m), as enacted in S.B. 135, to read:
3689          "(m) administrative law judge service.";
3690          (3) inserting a newly enacted Section 63G-6a-116 to read:
3691          "63G-6a-116. Procurement of administrative law judge service.
3692          (1) A procurement unit shall use a standard procurement process under this chapter for
3693     the procurement of administrative law judge service.
3694          (2) Within 30 days after the day on which a conducting procurement unit awards a
3695     contract for administrative law judge service, the conducting procurement unit shall give
3696     written notice to the Department of Human Resource Management that states:
3697          (a) that the conducting procurement unit awarded a contract for administrative law

3698     judge service;
3699          (b) the name of the conducting procurement unit; and
3700          (c) the expected term of the contract.";
3701          (4) modifying language in Subsection 63G-6a-408(2)(c), as enacted in S.B. 135, by
3702     replacing the word "services" in the two places it appears with the word "service" and replacing
3703     "Section 63G-6a-409" with "Subsection 63G-6a-707(3)(a)";
3704          (5) not enacting Section 63G-6a-409 from S.B. 135;
3705          (6) modifying Subsection 63G-6a-410(9)(a), as enacted in this bill, to read:
3706          "(9) (a) (i) After the issuance of a request for statement of qualifications, the
3707     conducting procurement unit shall appoint an evaluation committee consisting of membership
3708     as provided in Subsection (9)(a)(ii) or (iii), as applicable.
3709          (ii) An evaluation committee for a procurement of administrative law judge service
3710     shall consist of:
3711          (A) the head of the conducting procurement unit, or the head's designee;
3712          (B) the head of an executive branch procurement unit other than the conducting
3713     procurement unit, appointed by the executive director of the Department of Human Resource
3714     Management, or the head's designee; and
3715          (C) the executive director of the Department of Human Resource Management, or the
3716     executive director's designee.
3717          (iii) An evaluation committee for each other procurement shall consist of at least three
3718     individuals with at least a general familiarity with or basic understanding of:
3719          (A) the technical requirements relating to the type of procurement item that is the
3720     subject of the request for statement of qualifications; or
3721          (B) the need that the procurement item is intended to address.
3722          (iv) The conducting procurement unit shall ensure that each member of the evaluation
3723     committee under Subsection (9)(a)(iii) and each individual participating in the evaluation
3724     committee process:
3725          (A) does not have a conflict of interest with any vendor that submits a statement of

3726     qualifications;
3727          (B) can fairly evaluate each statement of qualifications;
3728          (C) does not contact or communicate with a vendor concerning the evaluation process
3729     or procurement outside the official evaluation committee process; and
3730          (D) conducts or participates in the evaluation in a manner that ensures a fair and
3731     competitive process and avoids the appearance of impropriety."; and
3732          (7) modifying Subsection 63G-6a-707(3) to read:
3733          "(3) [The] (a) For a procurement of administrative law judge service, an evaluation
3734     committee shall consist of:
3735          (i) the head of the conducting procurement unit, or the head's designee;
3736          (ii) the head of an executive branch procurement unit other than the conducting
3737     procurement unit, appointed by the executive director of the Department of Human Resource
3738     Management, or the head's designee; and
3739          (iii) the executive director of the Department of Human Resource Management, or the
3740     executive director's designee.
3741          (b) For every other procurement requiring an evaluation by an evaluation committee,
3742     the conducting procurement unit shall:
3743          [(a)] (i) appoint an evaluation committee consisting of at least three individuals with at
3744     least a general familiarity with or basic understanding of:
3745          (A) the technical requirements relating to the type of procurement item that is the
3746     subject of the procurement; or
3747          (B) the need that the procurement item is intended to address; and
3748          [(b)] (ii) ensure that the evaluation committee and each [member of the evaluation
3749     committee] individual participating in the evaluation committee process:
3750          [(i)] (A) does not have a conflict of interest with any of the offerors;
3751          [(ii)] (B) can fairly evaluate each proposal;
3752          [(iii)] (C) does not contact or communicate with an offeror concerning the procurement
3753     outside the official evaluation committee process; and

3754          [(iv)] (D) conducts or participates in the evaluation in a manner that ensures a fair and
3755     competitive process and avoids the appearance of impropriety.".