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S.B. 47





Sponsor: David L. Gladwell

             5      This act modifies the Utah Procurement Code by redefining terms and establishing more
             6      precisely the relief a protesting offeror or bidder may obtain from the state. This act makes
             7      technical corrections.
             8      This act affects sections of Utah Code Annotated 1953 as follows:
             9      AMENDS:
             10          63-56-5, as last amended by Chapter 86, Laws of Utah 2000
             11          63-56-47, as last amended by Chapter 252, Laws of Utah 1997
             12          63-56-59, as enacted by Chapter 75, Laws of Utah 1980
             13      Be it enacted by the Legislature of the state of Utah:
             14          Section 1. Section 63-56-5 is amended to read:
             15           63-56-5. Definitions.
             16          As used in this chapter:
             17          (1) "Architect-engineer services" are those professional services within the scope of the
             18      practice of architecture as defined in Section 58-3a-102 , or professional engineering as defined in
             19      Section 58-22-102 .
             20          (2) "Business" means any corporation, partnership, individual, sole proprietorship, joint
             21      stock company, joint venture, or any other private legal entity.
             22          (3) "Change order" means a written order signed by the procurement officer, directing the
             23      contractor to suspend work or make changes, which the appropriate clauses of the contract
             24      authorize the procurement officer to order without the consent of the contractor or any written
             25      alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity,
             26      or other provisions of any contract accomplished by mutual action of the parties to the contract.
             27          (4) (a) "Construction" means the process of building, renovation, alteration, improvement,

             28      or repair of any public building or public work.
             29          (b) "Construction" does not mean the routine operation, routine repair, or routine
             30      maintenance of existing structures, buildings, or real property.
             31          (5) (a) "Construction Manager/General Contractor" means any contractor who enters into
             32      a contract for the management of a construction project when that contract allows the contractor
             33      to subcontract for additional labor and materials that were not included in the contractor's cost
             34      proposal submitted at the time of the procurement of the Construction Manager/General
             35      Contractor's services.
             36          (b) "Construction Manager/General Contractor" does not mean a contractor whose only
             37      subcontract work not included in the contractor's cost proposal submitted as part of the
             38      procurement of construction is to meet subcontracted portions of change orders approved within
             39      the scope of the project.
             40          (6) "Contract" means any state agreement for the procurement or disposal of supplies,
             41      services, or construction.
             42          (7) "Cooperative purchasing" means procurement conducted by, or on behalf of, more than
             43      one public procurement unit, or by a public procurement unit with an external procurement unit.
             44          (8) "Cost-reimbursement contract" means a contract under which a contractor is
             45      reimbursed for costs which are allowed and allocated in accordance with the contract terms and
             46      the provisions of this chapter, and a fee, if any.
             47          (9) (a) "Design-build" means the procurement of architect-engineer services and
             48      construction by the use of a single contract with the design-build provider.
             49          (b) This method of design and construction can include the design-build provider
             50      supplying the site as part of the contract.
             51          (10) "Established catalogue price" means the price included in a catalogue, price list,
             52      schedule, or other form that:
             53          (a) is regularly maintained by a manufacturer or contractor;
             54          (b) is either published or otherwise available for inspection by customers; and
             55          (c) states prices at which sales are currently or were last made to a significant number of
             56      any category of buyers or buyers constituting the general buying public for the supplies or services
             57      involved.
             58          (11) "External procurement unit" means any buying organization not located in this state

             59      which, if located in this state, would qualify as a public procurement unit. An agency of the United
             60      States is an external procurement unit.
             61          (12) "Grant" means the furnishing by the state or by any other public or private source
             62      assistance, whether financial or otherwise, to any person to support a program authorized by law.
             63      It does not include an award whose primary purpose is to procure an end product, whether in the
             64      form of supplies, services, or construction. A contract resulting from the award is not a grant but
             65      a procurement contract.
             66          (13) "Invitation for bids" means all documents, whether attached or incorporated by
             67      reference, utilized for soliciting bids.
             68          (14) "Local public procurement unit" means any political subdivision or institution of
             69      higher education of the state or public agency of any subdivision, public authority, educational,
             70      health, or other institution, and to the extent provided by law, any other entity which expends
             71      public funds for the procurement of supplies, services, and construction, but not counties,
             72      municipalities, political subdivisions created by counties or municipalities under the Interlocal
             73      Cooperation Act, the Utah Housing Finance Agency, the Utah Technology Finance Corporation,
             74      or the Legislature and its staff offices. It includes two or more local public procurement units
             75      acting under legislation which authorizes intergovernmental cooperation.
             76          (15) "Person" means any business, individual, union, committee, club, other organization,
             77      or group of individuals, not including a state agency or a local public procurement unit.
             78          (16) "Policy board" means the procurement policy board created by Section 63-56-6 .
             79          (17) "Preferred bidder" means a bidder that is entitled to receive a reciprocal preference
             80      under the requirements of this chapter.
             81          (18) "Procurement" means buying, purchasing, renting, leasing, leasing with an option to
             82      purchase, or otherwise acquiring any supplies, services, or construction. It also includes all
             83      functions that pertain to the obtaining of any supply, service, or construction, including description
             84      of requirements, selection, and solicitation of sources, preparation, and award of a contract, and
             85      all phases of contract administration.
             86          (19) "Procurement officer" means any person or board duly authorized to enter into and
             87      administer contracts and make written determinations with respect thereto. It also includes an
             88      authorized representative acting within the limits of authority.
             89          (20) "Public procurement unit" means either a local public procurement unit or a state

             90      public procurement unit.
             91          (21) "Purchase description" means the words used in a solicitation to describe the supplies,
             92      services, or construction to be purchased, and includes specifications attached to or made a part
             93      of the solicitation.
             94          (22) "Purchasing agency" means any state agency other than the Division of Purchasing
             95      and General Services that is authorized by this chapter or its implementing regulations, or by
             96      delegation from the chief procurement officer, to enter into contracts.
             97          (23) "Request for proposals" means all documents, whether attached or incorporated by
             98      reference, used for soliciting proposals.
             99          (24) "Responsible bidder or offeror" means a person who has the capability in all respects
             100      to perform fully the contract requirements and who has the integrity and reliability which will
             101      assure good faith performance.
             102          (25) "Responsive bidder" means a person who has submitted a bid which conforms in all
             103      material respects to the invitation for bids.
             104          (26) "Sealed" does not preclude acceptance of electronically sealed and submitted bids or
             105      proposals in addition to bids or proposals manually sealed and submitted.
             106          (27) "Services" means the furnishing of labor, time, or effort by a contractor, not involving
             107      the delivery of a specific end product other than reports which are merely incidental to the required
             108      performance. It does not include employment agreements or collective bargaining agreements.
             109          (28) "Specification" means any description of the physical or functional characteristics,
             110      or of the nature of a supply, service, or construction item. It may include a description of any
             111      requirement for inspecting, testing, or preparing a supply, service, or construction item for
             112      delivery.
             113          (29) "State agency" or "the state" means any department, division, commission, council,
             114      board, bureau, committee, institution, government corporation, or other establishment [or], official,
             115      or employee of this state.
             116          (30) "State public procurement unit" means the Division of Purchasing and General
             117      Services and any other purchasing agency of this state.
             118          (31) "Supplies" means all property, including equipment, materials, and printing.
             119          (32) "Using agency" means any state agency which utilizes any supplies, services, or
             120      construction procured under this chapter.

             121          Section 2. Section 63-56-47 is amended to read:
             122           63-56-47. Costs to or against protestor.
             123          (1) When a protest is sustained administratively or upon administrative or judicial review
             124      and the protesting bidder or offeror should have been awarded the contract under the solicitation
             125      but is not, the protestor[, in addition to any other relief,] shall be entitled[,] to the following relief
             126      as a claim against the state[, to]:
             127          (a) the reasonable costs incurred in connection with the solicitation, including bid
             128      preparation and appeal costs[.]; and
             129          (b) any equitable relief determined to be appropriate by the reviewing administrative or
             130      judicial body.
             131          (2) When a protest is not sustained by the Procurement Appeals Board, the protestor shall
             132      reimburse the Division of Purchasing and General Services for the per diem and expenses paid by
             133      the division to witnesses or appeals board members and any additional expenses incurred by the
             134      state agency staff who have provided materials and administrative services to the board for that
             135      case.
             136          Section 3. Section 63-56-59 is amended to read:
             137           63-56-59. Jurisdiction of district court.
             138          (1) The district court shall have jurisdiction over an action, whether the action is at law or
             139      in equity, between the state and:
             140          (a) a bidder, offeror, or contractor, prospective or actual, who is aggrieved in connection
             141      with the solicitation or award of a contract;
             142          (b) a person who is subject to a suspension or debarment proceeding; and
             143          (c) a contractor, for any cause of action which arises under, or by virtue of a contract.
             144          (2) The provisions of Sections [ 63-30-2 through] 63-30-11 , 63-30-12 , 63-30-14 , 63-30-15 ,
             145      and 63-30-19 [shall] do not apply to actions brought under this chapter by an aggrieved party for
             146      equitable relief or reasonable costs incurred in preparing or appealing an unsuccessful bid or offer.

Legislative Review Note
    as of 12-19-01 9:05 AM

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

Office of Legislative Research and General Counsel

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