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S.B. 47 Enrolled





Sponsor: David L. Gladwell

                  This act modifies the Utah Procurement Code by redefining terms and establishing more
                  precisely the relief a protesting offeror or bidder may obtain from the state. This act makes
                  technical corrections.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                      63-56-5, as last amended by Chapter 86, Laws of Utah 2000
                      63-56-47, as last amended by Chapter 252, Laws of Utah 1997
                      63-56-59, as enacted by Chapter 75, Laws of Utah 1980
                  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
                      (6) "Contract" means any state agreement for the procurement or disposal of supplies,
                  services, or construction.
                      (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.
                      (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.
                      (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
                      (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
                      (11) "External procurement unit" means any buying organization not located in this state

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                  which, if located in this state, would qualify as a public procurement unit. An agency of the United
                  States is an external procurement unit.
                      (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.
                      (13) "Invitation for bids" means all documents, whether attached or incorporated by
                  reference, utilized for soliciting bids.
                      (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.
                      (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.
                      (16) "Policy board" means the procurement policy board created by Section 63-56-6 .
                      (17) "Preferred bidder" means a bidder that is entitled to receive a reciprocal preference
                  under the requirements of this chapter.
                      (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 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.
                      (19) "Procurement officer" means any person or board duly authorized to enter into and

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                  administer contracts and make written determinations with respect thereto. It also includes an
                  authorized representative acting within the limits of authority.
                      (20) "Public procurement unit" means either a local public procurement unit or a state public
                  procurement unit.
                      (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.
                      (22) "Purchasing agency" means any state agency other than the Division of Purchasing and
                  General Services that is authorized by this chapter or its implementing regulations, or by delegation
                  from the chief procurement officer, to enter into contracts.
                      (23) "Request for proposals" means all documents, whether attached or incorporated by
                  reference, used for soliciting proposals.
                      (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.
                      (25) "Responsive bidder" means a person who has submitted a bid which conforms in all
                  material respects to the invitation for bids.
                      (26) "Sealed" does not preclude acceptance of electronically sealed and submitted bids or
                  proposals in addition to bids or proposals manually sealed and submitted.
                      (27) "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.
                      (28) "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 item for delivery.
                      (29) "State agency" or "the state" means any department, division, commission, council,
                  board, bureau, committee, institution, government corporation, or other establishment [or], official,
                  or employee of this state.

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                      (30) "State public procurement unit" means the Division of Purchasing and General Services
                  and any other purchasing agency of this state.
                      (31) "Supplies" means all property, including equipment, materials, and printing.
                      (32) "Using agency" means any state agency which utilizes any supplies, services, or
                  construction procured under this chapter.
                      Section 2. Section 63-56-47 is amended to read:
                       63-56-47. Costs to or against protestor.
                      (1) When a protest is sustained administratively or upon administrative or judicial review and
                  the protesting bidder or offeror should have been awarded the contract under the solicitation but is
                  not, the protestor[, in addition to any other relief,] shall be entitled[,] to the following relief as a
                  claim against the state[, to]:
                      (a) the reasonable costs incurred in connection with the solicitation, including bid
                  preparation and appeal costs[.]; and
                      (b) any equitable relief determined to be appropriate by the reviewing administrative or
                  judicial body.
                      (2) When a protest is not sustained by the Procurement Appeals Board, the protestor shall
                  reimburse the Division of Purchasing and General Services for the per diem and expenses paid by
                  the division to witnesses or appeals board members and any additional expenses incurred by the state
                  agency staff who have provided materials and administrative services to the board for that case.
                      Section 3. Section 63-56-59 is amended to read:
                       63-56-59. Jurisdiction of district court.
                      (1) The district court shall have jurisdiction over an action, whether the action is at law or
                  in equity, between the state and:
                      (a) a bidder, offeror, or contractor, prospective or actual, who is aggrieved in connection                   with
                  the solicitation or award of a contract;
                      (b) a person who is subject to a suspension or debarment proceeding; and
                      (c) a contractor, for any cause of action which arises under, or by virtue of a contract.
                      (2) The provisions of Sections [ 63-30-2 through] 63-30-11 , 63-30-12 , 63-30-14 , 63-30-15 ,

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                  and 63-30-19 [shall] do not apply to actions brought under this chapter by an aggrieved party for
                  equitable relief or reasonable costs incurred in preparing or appealing an unsuccessful bid or offer.

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