S.B. 95 Enrolled

AMENDMENT TO PROCUREMENT
REQUIREMENTS FOR CONSTRUCTION PROJECTS
1997 GENERAL SESSION
STATE OF UTAH
Sponsor: David L. Buhler
AN ACT RELATING TO PROCUREMENT; DEFINING TERMS; SPECIFYING
ALTERNATIVE METHODS OF CONSTRUCTION CONTRACTING
MANAGEMENT; MODIFYING PROCUREMENT REQUIREMENTS RELATING TO
ARCHITECT-ENGINEER SERVICE PROVIDERS; AND MAKING TECHNICAL
CORRECTIONS.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
63-56-5, as last amended by Chapter 260, Laws of Utah 1996
63-56-36, as enacted by Chapter 75, Laws of Utah 1980
ENACTS:
63-56-43.1, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 63-56-5 is amended to read:
63-56-5. Definitions.
As used in this chapter:
(1) "Architect-engineer services" are those professional services within the scope of the
practice of architecture as defined in Section 58-3a-102, or professional engineering as defined in
Section 58-22-102.
(2) "Business" means any corporation, partnership, individual, sole proprietorship, joint
stock company, joint venture, or any other private legal entity.
(3) "Change order" means a written order signed by the procurement officer, directing the
contractor to suspend work or make changes, which the appropriate clauses of the contract
authorize the procurement officer to order without the consent of the contractor or any written
alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity,

or other provisions of any contract accomplished by mutual action of the parties to the contract.
(4) (a) "Construction" means the process of building, renovation, alteration, improvement,
or repair of any public building or public work.
(b) "Construction" does not mean the routine operation, routine repair, or routine
maintenance of existing structures, buildings, or real property.
(5) (a) "Construction Manager/General Contractor" means any contractor who enters into
a contract for the management of a construction project when that contract allows the contractor to
subcontract for additional labor and materials that were not included in the contractor's cost proposal
submitted at the time of the procurement of the Construction Manager/General Contractor's services.
(b) "Construction Manager/General Contractor" does not mean a contractor whose only
subcontract work not included in the contractor's cost proposal submitted as part of the procurement
of construction is to meet subcontracted portions of change orders approved within the scope of the
project.
[(5)] (6) "Contract" means any state agreement for the procurement or disposal of supplies,
services, or construction.
[(6)] (7) "Cooperative purchasing" means procurement conducted by, or on behalf of, more
than one public procurement unit, or by a public procurement unit with an external procurement unit.
[(7)] (8) "Cost-reimbursement contract" means a contract under which a contractor is
reimbursed for costs which are allowed and allocated in accordance with the contract terms and the
provisions of this chapter, and a fee, if any.
(9) (a) "Design-build" means the procurement of architect-engineer services and construction
by the use of a single contract with the design-build provider.
(b) This method of design and construction can include the design-build provider supplying
the site as part of the contract.
[(8)] (10) "Established catalogue price" means the price included in a catalogue, price list,
schedule, or other form that:
(a) is regularly maintained by a manufacturer or contractor;
(b) is either published or otherwise available for inspection by customers; and

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(c) states prices at which sales are currently or were last made to a significant number of any
category of buyers or buyers constituting the general buying public for the supplies or services
involved.
[(9)] (11) "External procurement unit" means any buying organization not located in this
state which, if located in this state, would qualify as a public procurement unit. An agency of the
United States is an external procurement unit.
[(10)] (12) "Grant" means the furnishing by the state or by any other public or private source
assistance, whether financial or otherwise, to any person to support a program authorized by law.
It does not include an award whose primary purpose is to procure an end product, whether in the
form of supplies, services, or construction. A contract resulting from the award is not a grant but
a procurement contract.
[(11)] (13) "Invitation for bids" means all documents, whether attached or incorporated by
reference, utilized for soliciting bids.
[(12)] (14) "Local public procurement unit" means any political subdivision or institution
of higher education of the state or public agency of any subdivision, public authority, educational,
health, or other institution, and to the extent provided by law, any other entity which expends public
funds for the procurement of supplies, services, and construction, but not counties, municipalities,
political subdivisions created by counties or municipalities under the Interlocal Cooperation Act, the
Utah Housing Finance Agency, the Utah Technology Finance Corporation, or the Legislature and
its staff offices. It includes two or more local public procurement units acting under legislation
which authorizes intergovernmental cooperation.
[(13)] (15) "Person" means any business, individual, union, committee, club, other
organization, or group of individuals, not including a state agency or a local public procurement unit.
[(14)] (16) "Policy board" means the procurement policy board created by Section 63-56-6.
[(15)] (17) "Preferred bidder" means a bidder that is entitled to receive a reciprocal
preference under the requirements of this chapter.
[(16)] (18) "Procurement" means buying, purchasing, renting, leasing, leasing with an option
to purchase, or otherwise acquiring any supplies, services, or construction. It also includes all

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functions that pertain to the obtaining of any supply, service, or construction, including description
of requirements, selection, and solicitation of sources, preparation, and award of a contract, and all
phases of contract administration.
[(17)] (19) "Procurement officer" means any person or board duly authorized to enter into
and administer contracts and make written determinations with respect thereto. It also includes an
authorized representative acting within the limits of authority.
[(18)] (20) "Public procurement unit" means either a local public procurement unit or a state
public procurement unit.
[(19)] (21) "Purchase description" means the words used in a solicitation to describe the
supplies, services, or construction to be purchased, and includes specifications attached to or made
a part of the solicitation.
[(20)] (22) "Purchasing agency" means any state agency other than the purchasing division
which is authorized by this chapter or its implementing regulations, or by way of delegation from
the chief procurement officer, to enter into contracts.
[(21)] (23) "Request for proposals" means all documents, whether attached or incorporated
by reference, utilized for soliciting proposals.
[(22)] (24) "Responsible bidder or offeror" means a person who has the capability in all
respects to perform fully the contract requirements and who has the integrity and reliability which
will assure good faith performance.
[(23)] (25) "Responsive bidder" means a person who has submitted a bid which conforms
in all material respects to the invitation for bids.
[(24)] (26) "Services" means the furnishing of labor, time, or effort by a contractor, not
involving the delivery of a specific end product other than reports which are merely incidental to the
required performance. It does not include employment agreements or collective bargaining
agreements.
[(25)] (27) "Specification" means any description of the physical or functional
characteristics, or of the nature of a supply, service, or construction item. It may include a
description of any requirement for inspecting, testing, or preparing a supply, service, or construction

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item for delivery.
[(26)] (28) "State agency" means any department, division, commission, council, board,
bureau, committee, institution, government corporation, or other establishment or official of this
state.
[(27)] (29) "State public procurement unit" means the purchasing division and any other
purchasing agency of this state.
[(28)] (30) "Supplies" means all property, including equipment, materials, and printing.
[(29)] (31) "Using agency" means any state agency which utilizes any supplies, services, or
construction procured under this chapter.
Section 2. Section 63-56-36 is amended to read:
63-56-36. Alternative methods of construction contracting management.
(1) (a) Rules [and regulations] shall provide [for] as many alternative methods of
construction contracting management as determined to be feasible.
(b) These rules [and regulations] shall:
[(1) set forth criteria to be used in determining which method of construction contracting
management is to be used for a particular project;]
[(2)] (i) grant to the chief procurement officer or the head of the purchasing agency
responsible for carrying out the construction project the discretion to select the appropriate method
of construction contracting management for a particular project; and
[(3)] (ii) require the procurement officer to execute and include in the contract file a written
statement setting forth the facts which led to the selection of a particular method of construction
contracting management for each project.
(c) Before choosing a construction contracting management method, the chief procurement
officer or the head of the purchasing agency responsible for carrying out the construction project
shall consider the following factors:
(i) when the project must be ready to be occupied;
(ii) the type of project;
(iii) the extent to which the requirements of the procuring agencies and the ways in which

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they are to be met are known;
(iv) the location of the project;
(v) the size, scope, complexity, and economics of the project;
(vi) the source of funding and any resulting constraints necessitated by the funding source;
(vii) the availability, qualification, and experience of state personnel to be assigned to the
project and how much time the state personnel can devote to the project; and
(viii) the availability, qualifications, and experience of outside consultants and contractors
to complete the project under the various methods being considered.
(2) (a) Rules adopted by state public procurement units and local public procurement units
to implement this section may authorize the use of a Construction Manager/General Contractor as
one method of construction contracting management.
(b) Those rules shall require that:
(i) the Construction Manager/General Contractor shall be selected using one of the source
selection methods provided for in Sections 63-56-20 through 63-56-35.8 of this chapter; and
(ii) when entering into any subcontract that was not specifically included in the Construction
Manager/General Contractor's cost proposal submitted under the requirements of Subsection
(2)(c)(ii), the Construction Manager/General Contractor shall procure that subcontractor by using
one of the source selection methods provided for in Sections 63-56-20 through 63-56-35.8 of this
chapter in the same manner as if the subcontract work was procured directly by the state.
(3) Procurement rules adopted by the State Building Board under Subsection (1) for state
building construction projects may authorize the use of a design-build provider as one method of
construction contracting management.
Section 3. Section 63-56-43.1 is enacted to read:
63-56-43.1. Selection as part of design-build or lease.
Notwithstanding any other provision of this chapter, architect-engineer services may be
procured under Title 63A, Chapter 5, State Building Board/ Division of Facilities Construction and
Management, as part of the services obtained in a design-build contract or as part of the services
obtained in a lease contract for real property, provided that the qualifications of those providing the

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architect-engineer services are part of the consideration in the selection process.

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