First Substitute S.B. 95

1

AMENDMENT TO PROCUREMENT
2 REQUIREMENTS FOR CONSTRUCTION PROJECTS
3 1997 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: David L. Buhler
6 AN ACT RELATING TO PROCUREMENT; DEFINING TERMS; SPECIFYING
7 ALTERNATIVE METHODS OF CONSTRUCTION CONTRACTING MANAGEMENT;
8 MODIFYING PROCUREMENT REQUIREMENTS RELATING TO
9 ARCHITECT-ENGINEER SERVICE PROVIDERS; AND MAKING TECHNICAL
10 CORRECTIONS.
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) (a) "Construction Manager/General Contractor" means any contractor who enters into
9 a contract for the management of a construction project when that contract allows the contractor
10 to subcontract for additional labor and materials that were not included in the contractor's cost
11 proposal submitted at the time of the procurement of the Construction Manager/General
12 Contractor's services.
13 (b) "Construction Manager/General Contractor" does not mean a contractor whose only
14 subcontract work not included in the contractor's cost proposal submitted as part of the
15 procurement of construction is to meet subcontracted portions of change orders approved within
16 the scope of the project.
17 [(5)] (6) "Contract" means any state agreement for the procurement or disposal of supplies,
18 services, or construction.
19 [(6)] (7) "Cooperative purchasing" means procurement conducted by, or on behalf of, more
20 than one public procurement unit, or by a public procurement unit with an external procurement
21 unit.
22 [(7)] (8) "Cost-reimbursement contract" means a contract under which a contractor is
23 reimbursed for costs which are allowed and allocated in accordance with the contract terms and
24 the provisions of this chapter, and a fee, if any.
25 (9) (a) "Design-build" means the procurement of architectural-engineer services and
26 construction by the use of a single contract with the design-build provider.
27 (b) This method of design and construction can include the design-build provider
28 supplying the site as part of the contract.
29 [(8)] (10) "Established catalogue price" means the price included in a catalogue, price list,
30 schedule, or other form that:
31 (a) is regularly maintained by a manufacturer or contractor;

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1 (b) is either published or otherwise available for inspection by customers; and
2 (c) states prices at which sales are currently or were last made to a significant number of
3 any category of buyers or buyers constituting the general buying public for the supplies or services
4 involved.
5 [(9)] (11) "External procurement unit" means any buying organization not located in this
6 state which, if located in this state, would qualify as a public procurement unit. An agency of the
7 United States is an external procurement unit.
8 [(10)] (12) "Grant" means the furnishing by the state or by any other public or private
9 source assistance, whether financial or otherwise, to any person to support a program authorized
10 by law. It does not include an award whose primary purpose is to procure an end product, whether
11 in the form of supplies, services, or construction. A contract resulting from the award is not a
12 grant but a procurement contract.
13 [(11)] (13) "Invitation for bids" means all documents, whether attached or incorporated
14 by reference, utilized for soliciting bids.
15 [(12)] (14) "Local public procurement unit" means any political subdivision or institution
16 of higher education of the state or public agency of any subdivision, public authority, educational,
17 health, or other institution, and to the extent provided by law, any other entity which expends
18 public funds for the procurement of supplies, services, and construction, but not counties,
19 municipalities, political subdivisions created by counties or municipalities under the Interlocal
20 Cooperation Act, the Utah Housing Finance Agency, the Utah Technology Finance Corporation,
21 or the Legislature and its staff offices. It includes two or more local public procurement units
22 acting under legislation which authorizes intergovernmental cooperation.
23 [(13)] (15) "Person" means any business, individual, union, committee, club, other
24 organization, or group of individuals, not including a state agency or a local public procurement
25 unit.
26 [(14)] (16) "Policy board" means the procurement policy board created by Section
27 63-56-6.
28 [(15)] (17) "Preferred bidder" means a bidder that is entitled to receive a reciprocal
29 preference under the requirements of this chapter.
30 [(16)] (18) "Procurement" means buying, purchasing, renting, leasing, leasing with an
31 option to purchase, or otherwise acquiring any supplies, services, or construction. It also includes

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1 all functions that pertain to the obtaining of any supply, service, or construction, including
2 description of requirements, selection, and solicitation of sources, preparation, and award of a
3 contract, and all phases of contract administration.
4 [(17)] (19) "Procurement officer" means any person or board duly authorized to enter into
5 and administer contracts and make written determinations with respect thereto. It also includes
6 an authorized representative acting within the limits of authority.
7 [(18)] (20) "Public procurement unit" means either a local public procurement unit or a
8 state public procurement unit.
9 [(19)] (21) "Purchase description" means the words used in a solicitation to describe the
10 supplies, services, or construction to be purchased, and includes specifications attached to or made
11 a part of the solicitation.
12 [(20)] (22) "Purchasing agency" means any state agency other than the purchasing division
13 which is authorized by this chapter or its implementing regulations, or by way of delegation from
14 the chief procurement officer, to enter into contracts.
15 [(21)] (23) "Request for proposals" means all documents, whether attached or incorporated
16 by reference, utilized for soliciting proposals.
17 [(22)] (24) "Responsible bidder or offeror" means a person who has the capability in all
18 respects to perform fully the contract requirements and who has the integrity and reliability which
19 will assure good faith performance.
20 [(23)] (25) "Responsive bidder" means a person who has submitted a bid which conforms
21 in all material respects to the invitation for bids.
22 [(24)] (26) "Services" means the furnishing of labor, time, or effort by a contractor, not
23 involving the delivery of a specific end product other than reports which are merely incidental to
24 the required performance. It does not include employment agreements or collective bargaining
25 agreements.
26 [(25)] (27) "Specification" means any description of the physical or functional
27 characteristics, or of the nature of a supply, service, or construction item. It may include a
28 description of any requirement for inspecting, testing, or preparing a supply, service, or
29 construction item for delivery.
30 [(26)] (28) "State agency" means any department, division, commission, council, board,
31 bureau, committee, institution, government corporation, or other establishment or official of this

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1 state.
2 [(27)] (29) "State public procurement unit" means the purchasing division and any other
3 purchasing agency of this state.
4 [(28)] (30) "Supplies" means all property, including equipment, materials, and printing.
5 [(29)] (31) "Using agency" means any state agency which utilizes any supplies, services,
6 or construction procured under this chapter.
7 Section 2. Section 63-56-36 is amended to read:
8 63-56-36. Alternative methods of construction contracting management.
9 (1) (a) Rules [and regulations] shall provide [for] as many alternative methods of
10 construction contracting management as determined to be feasible.
11 (b) These rules [and regulations] shall:
12 [(1) set forth criteria to be used in determining which method of construction contracting
13 management is to be used for a particular project;]
14 [(2)] (i) grant to the chief procurement officer or the head of the purchasing agency
15 responsible for carrying out the construction project the discretion to select the appropriate method
16 of construction contracting management for a particular project; and
17 [(3)] (ii) require the procurement officer to execute and include in the contract file a
18 written statement setting forth the facts which led to the selection of a particular method of
19 construction contracting management for each project.
20 (c) Before choosing a construction contracting management method, the chief procurement
21 officer or the head of the purchasing agency responsible for carrying out the construction project
22 shall consider the following factors:
23 (i) when the project must be ready to be occupied;
24 (ii) the type of project;
25 (iii) the extent to which the requirements of the procuring agencies and the ways in which
26 they are to be met are known;
27 (iv) the location of the project;
28 (v) the size, scope, complexity, and economics of the project;
29 (vi) the source of funding and any resulting constraints necessitated by the funding source;
30 (vii) the availability, qualification, and experience of state personnel to be assigned to the
31 project and how much time the state personnel can devote to the project; and

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1 (viii) the availability, qualifications, and experience of outside consultants and contractors
2 to complete the project under the various methods being considered.
3 (2) (a) Rules adopted by state public procurement units and local public procurement units
4 to implement this section may authorize the use of a Construction Manager/General Contractor
5 as one method of construction contracting management.
6 (b) Those rules shall require that:
7 (i) the Construction Manager/General Contractor shall be selected using one of the source
8 selection methods provided for in Sections 63-56-20 through 63-56-35.8 of this chapter; and
9 (ii) when entering into any subcontract that was not specifically included in the
10 Construction Manager/General Contractor's cost proposal submitted under the requirements of
11 Subsection (2)(c)(ii), the Construction Manager/General Contractor shall procure that
12 subcontractor by using one of the source selection methods provided for in Sections 63-56-20
13 through 63-56-35.8 of this chapter in the same manner as if the subcontract work was procured
14 directly by the state.
15 (3) Procurement rules adopted by the State Building Board under Subsection (1) for state
16 building construction projects may authorize the use of a design-build provider as one method of
17 construction contracting management.
18 Section 3. Section 63-56-43.1 is enacted to read:
19 63-56-43.1. Selection as part of design-build or lease.
20 Notwithstanding any other provision of this chapter, architect-engineer services may be
21 procured under Title 63A, Chapter 5, State Building Board/ Division of Facilities Construction and
22 Management, as part of the services obtained in a design-build contract or as part of the services
23 obtained in a lease contract for real property, provided that the qualifications of those providing
24 the architect-engineer services are part of the consideration in the selection process.

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