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S.B. 95






Sponsor: David L. Buhler

11    This act affects sections of Utah Code Annotated 1953 as follows:
12    AMENDS:
13         63-56-5, as last amended by Chapter 260, Laws of Utah 1996
14         63-56-36, as enacted by Chapter 75, Laws of Utah 1980
15    ENACTS:
16         63-56-43.1, Utah Code Annotated 1953
17    Be it enacted by the Legislature of the state of Utah:
18        Section 1. Section 63-56-5 is amended to read:
19         63-56-5. Definitions.
20        As used in this chapter:
21        (1) "Architect-engineer services" are those professional services within the scope of the
22    practice of architecture as defined in Section 58-3a-102, or professional engineering as defined in
23    Section 58-22-102.
24        (2) "Business" means any corporation, partnership, individual, sole proprietorship, joint
25    stock company, joint venture, or any other private legal entity.
26        (3) "Change order" means a written order signed by the procurement officer, directing the
27    contractor to suspend work or make changes, which the appropriate clauses of the contract

1    authorize the procurement officer to order without the consent of the contractor or any written
2    alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity,
3    or other provisions of any contract accomplished by mutual action of the parties to the contract.
4        (4) (a) "Construction" means the process of building, renovation, alteration, improvement,
5    or repair of any public building or public work.
6        (b) "Construction" does not mean the routine operation, routine repair, or routine
7    maintenance of existing structures, buildings, or real property.
8        (5) "Contract" means any state agreement for the procurement or disposal of supplies,
9    services, or construction.
10        (6) "Cooperative purchasing" means procurement conducted by, or on behalf of, more than
11    one public procurement unit, or by a public procurement unit with an external procurement unit.
12        (7) "Cost-reimbursement contract" means a contract under which a contractor is
13    reimbursed for costs which are allowed and allocated in accordance with the contract terms and
14    the provisions of this chapter, and a fee, if any.
15        (8) (a) "Design-build" means the procurement of architectural-engineer services and
16    construction by the use of a single contract with the design-build provider.
17        (b) This method of design and construction can include the design-build provider
18    supplying the site as part of the contract.
19        [(8)] (9) "Established catalogue price" means the price included in a catalogue, price list,
20    schedule, or other form that:
21        (a) is regularly maintained by a manufacturer or contractor;
22        (b) is either published or otherwise available for inspection by customers; and
23        (c) states prices at which sales are currently or were last made to a significant number of
24    any category of buyers or buyers constituting the general buying public for the supplies or services
25    involved.
26        [(9)] (10) "External procurement unit" means any buying organization not located in this
27    state which, if located in this state, would qualify as a public procurement unit. An agency of the
28    United States is an external procurement unit.
29        [(10)] (11) "Grant" means the furnishing by the state or by any other public or private
30    source assistance, whether financial or otherwise, to any person to support a program authorized
31    by law. It does not include an award whose primary purpose is to procure an end product, whether

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1    in the form of supplies, services, or construction. A contract resulting from the award is not a
2    grant but a procurement contract.
3        [(11)] (12) "Invitation for bids" means all documents, whether attached or incorporated
4    by reference, utilized for soliciting bids.
5        [(12)] (13) "Local public procurement unit" means any political subdivision or institution
6    of higher education of the state or public agency of any subdivision, public authority, educational,
7    health, or other institution, and to the extent provided by law, any other entity which expends
8    public funds for the procurement of supplies, services, and construction, but not counties,
9    municipalities, political subdivisions created by counties or municipalities under the Interlocal
10    Cooperation Act, the Utah Housing Finance Agency, the Utah Technology Finance Corporation,
11    or the Legislature and its staff offices. It includes two or more local public procurement units
12    acting under legislation which authorizes intergovernmental cooperation.
13        [(13)] (14) "Person" means any business, individual, union, committee, club, other
14    organization, or group of individuals, not including a state agency or a local public procurement
15    unit.
16        [(14)] (15) "Policy board" means the procurement policy board created by Section
17    63-56-6.
18        [(15)] (16) "Preferred bidder" means a bidder that is entitled to receive a reciprocal
19    preference under the requirements of this chapter.
20        [(16)] (17) "Procurement" means buying, purchasing, renting, leasing, leasing with an
21    option to purchase, or otherwise acquiring any supplies, services, or construction. It also includes
22    all functions that pertain to the obtaining of any supply, service, or construction, including
23    description of requirements, selection, and solicitation of sources, preparation, and award of a
24    contract, and all phases of contract administration.
25        [(17)] (18) "Procurement officer" means any person or board duly authorized to enter into
26    and administer contracts and make written determinations with respect thereto. It also includes
27    an authorized representative acting within the limits of authority.
28        [(18)] (19) "Public procurement unit" means either a local public procurement unit or a
29    state public procurement unit.
30        [(19)] (20) "Purchase description" means the words used in a solicitation to describe the
31    supplies, services, or construction to be purchased, and includes specifications attached to or made

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1    a part of the solicitation.
2        [(20)] (21) "Purchasing agency" means any state agency other than the purchasing division
3    which is authorized by this chapter or its implementing regulations, or by way of delegation from
4    the chief procurement officer, to enter into contracts.
5        [(21)] (22) "Request for proposals" means all documents, whether attached or incorporated
6    by reference, utilized for soliciting proposals.
7        [(22)] (23) "Responsible bidder or offeror" means a person who has the capability in all
8    respects to perform fully the contract requirements and who has the integrity and reliability which
9    will assure good faith performance.
10        [(23)] (24) "Responsive bidder" means a person who has submitted a bid which conforms
11    in all material respects to the invitation for bids.
12        [(24)] (25) "Services" means the furnishing of labor, time, or effort by a contractor, not
13    involving the delivery of a specific end product other than reports which are merely incidental to
14    the required performance. It does not include employment agreements or collective bargaining
15    agreements.
16        [(25)] (26) "Specification" means any description of the physical or functional
17    characteristics, or of the nature of a supply, service, or construction item. It may include a
18    description of any requirement for inspecting, testing, or preparing a supply, service, or
19    construction item for delivery.
20        [(26)] (27) "State agency" means any department, division, commission, council, board,
21    bureau, committee, institution, government corporation, or other establishment or official of this
22    state.
23        [(27)] (28) "State public procurement unit" means the purchasing division and any other
24    purchasing agency of this state.
25        [(28)] (29) "Supplies" means all property, including equipment, materials, and printing.
26        [(29)] (30) "Using agency" means any state agency which utilizes any supplies, services,
27    or construction procured under this chapter.
28        Section 2. Section 63-56-36 is amended to read:
29         63-56-36. Alternative methods of construction contracting management.
30        (1) (a) Rules [and regulations] shall provide [for] as many alternative methods of
31    construction contracting management as determined to be feasible.

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1        (b) Before choosing a construction contracting management method, the chief procurement
2    officer or the head of the purchasing agency responsible for carrying out the construction project
3    shall consider the following factors:
4        (i) when the project must be ready to be occupied;
5        (ii) the type of project;
6        (iii) the extent to which the requirements of the procuring agencies and the ways in which
7    they are to be met are known;
8        (iv) the location of the project;
9        (v) the size, scope, complexity, and economics of the project;
10        (vi) the source of funding and any resulting constraints necessitated by the funding source;
11        (vii) the availability, qualification, and experience of state personnel to be assigned to the
12    project and how much time the state personnel can devote to the project; and
13        (viii) the availability, qualifications, and experience of outside consultants and contractors
14    to complete the project under the various methods being considered.
15        (2) (a) S [Rules] Procurement rules adopted by the State Building Board for state building
15a     construction projects s may include the use of a design-build provider.
16        (b) These rules [and regulations] shall:
17        [(1) set forth criteria to be used in determining which method of construction contracting
18    management is to be used for a particular project;]
19        [(2)] (i) grant to the chief procurement officer or the head of the purchasing agency
20    responsible for carrying out the construction project the discretion to select the appropriate method
21    of construction contracting management for a particular project; and
22        [(3)] (ii) require the procurement officer to execute and include in the contract file a
23    written statement setting forth the facts which led to the selection of a particular method of
24    construction contracting management for each project.
25        Section 3. Section 63-56-43.1 is enacted to read:
26         63-56-43.1. Selection as part of design-build or lease.
27        Notwithstanding any other provision of this chapter, architect-engineer services may be
28    procured S under Title 63A, Chapter 5, State Building Board/ Division of Facilities Construction and
28a     Mangement s as part of the services obtained in a design-build contract or as part of the services
29    obtained in a lease contract for real property, provided that the qualifications of those providing

Text Box

Amend on 2_goldenrod January 28, 1997
30    the architect-engineer services are part of the consideration in the selection process.

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Legislative Review Note
    as of 11-21-96 8:50 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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