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H.B. 476 Enrolled
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7 LONG TITLE
8 General Description:
9 This bill amends Title 63G, Chapter 6, Utah Procurement Code and another
10 procurement provision, to address procurement of technology and changes to the State
11 Procurement Policy Board.
12 Highlighted Provisions:
13 This bill:
14 . defines terms;
15 . amends provisions relating to the State Procurement Policy Board to:
16 . designate the executive director of the Department of Technology Services and
17 the chief procurement officer as voting members;
18 . change board member terms; and
19 . designate an employee of the Division of Purchasing and General Services as
20 the secretary;
21 . requires that specifications for purposes of procurement provisions include
22 specifications for technology;
23 . requires the State Procurement Policy Board to make rules governing technology;
24 and
25 . makes technical and conforming changes.
26 Money Appropriated in this Bill:
27 None
28 Other Special Clauses:
29 None
30 Utah Code Sections Affected:
31 AMENDS:
32 63F-1-205, as last amended by Laws of Utah 2008, Chapters 352 and 382
33 63G-6-103, as renumbered and amended by Laws of Utah 2008, Chapter 382
34 63G-6-201, as last amended by Laws of Utah 2010, Chapter 286
35 63G-6-202, as last amended by Laws of Utah 2009, Chapter 132
36 63G-6-301, as renumbered and amended by Laws of Utah 2008, Chapter 382
37 63G-6-302, as last amended by Laws of Utah 2008, Chapter 352 and renumbered and
38 amended by Laws of Utah 2008, Chapter 382
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40 Be it enacted by the Legislature of the state of Utah:
41 Section 1. Section 63F-1-205 is amended to read:
42 63F-1-205. Approval of acquisitions of information technology.
43 (1) (a) Except as provided in Title 63M, Chapter 1, Part 26, Government Procurement
44 Private Proposal Program, in accordance with Subsection (2), the chief information officer
45 shall approve the acquisition by an executive branch agency of:
46 (i) information technology equipment;
47 (ii) telecommunications equipment;
48 (iii) software;
49 (iv) services related to the items listed in Subsections (1)(a)(i) through (iii); and
50 (v) data acquisition.
51 (b) The chief information officer may negotiate the purchase, lease, or rental of private
52 or public information technology or telecommunication services or facilities in accordance with
53 this section.
54 (c) Where practical, efficient, and economically beneficial, the chief information
55 officer shall use existing private and public information technology or telecommunication
56 resources.
57 (d) Notwithstanding another provision of this section, an acquisition authorized by this
58 section shall comply with rules made by the State Procurement Policy Board under Title 63G,
59 Chapter 6, Utah Procurement Code.
60 (2) Before negotiating a purchase, lease, or rental under Subsection (1) for an amount
61 that exceeds the value established by the chief information officer by rule in accordance with
62 Section 63F-1-206 , the chief information officer shall:
63 (a) conduct an analysis of the needs of executive branch agencies and subscribers of
64 services and the ability of the proposed information technology or telecommunications services
65 or supplies to meet those needs; and
66 (b) for purchases, leases, or rentals not covered by an existing statewide contract,
67 provide in writing to the chief procurement officer in the Division of Purchasing and General
68 Services that:
69 (i) the analysis required in Subsection (2)(a) was completed; and
70 (ii) based on the analysis, the proposed purchase, lease, rental, or master contract of
71 services, products, or supplies is practical, efficient, and economically beneficial to the state
72 and the executive branch agency or subscriber of services.
73 (3) In approving an acquisition described in Subsections (1) and (2), the chief
74 information officer shall:
75 (a) establish by administrative rule, in accordance with Section 63F-1-206 , standards
76 under which an agency must obtain approval from the chief information officer before
77 acquiring the items listed in Subsections (1) and (2);
78 (b) for those acquisitions requiring approval, determine whether the acquisition is in
79 compliance with:
80 (i) the executive branch strategic plan;
81 (ii) the applicable agency information technology plan;
82 (iii) the budget for the executive branch agency or department as adopted by the
83 Legislature; and
84 (iv) Title 63G, Chapter 6, Utah Procurement Code; and
85 (c) in accordance with Section 63F-1-207 , require coordination of acquisitions between
86 two or more executive branch agencies if it is in the best interests of the state.
87 (4) (a) Each executive branch agency shall provide the chief information officer with
88 complete access to all information technology records, documents, and reports:
89 (i) at the request of the chief information officer; and
90 (ii) related to the executive branch agency's acquisition of any item listed in Subsection
91 (1).
92 (b) Beginning July 1, 2006 and in accordance with administrative rules established by
93 the department under Section 63F-1-206 , no new technology projects may be initiated by an
94 executive branch agency or the department unless the technology project is described in a
95 formal project plan and the business case analysis has been approved by the chief information
96 officer and agency head. The project plan and business case analysis required by this
97 Subsection (4) shall be in the form required by the chief information officer, and shall include:
98 (i) a statement of work to be done and existing work to be modified or displaced;
99 (ii) total cost of system development and conversion effort, including system analysis
100 and programming costs, establishment of master files, testing, documentation, special
101 equipment cost and all other costs, including overhead;
102 (iii) savings or added operating costs that will result after conversion;
103 (iv) other advantages or reasons that justify the work;
104 (v) source of funding of the work, including ongoing costs;
105 (vi) consistency with budget submissions and planning components of budgets; and
106 (vii) whether the work is within the scope of projects or initiatives envisioned when the
107 current fiscal year budget was approved.
108 (5) (a) The chief information officer and the Division of Purchasing and General
109 Services shall work cooperatively to establish procedures under which the chief information
110 officer shall monitor and approve acquisitions as provided in this section.
111 (b) The procedures established under this section shall include at least the written
112 certification required by Subsection 63G-6-204 (8).
113 Section 2. Section 63G-6-103 is amended to read:
114 63G-6-103. Definitions.
115 As used in this chapter:
116 (1) "Architect-engineer services" are those professional services within the scope of the
117 practice of architecture as defined in Section 58-3a-102 , or professional engineering as defined
118 in Section 58-22-102 .
119 (2) "Business" means any corporation, partnership, individual, sole proprietorship,
120 joint stock company, joint venture, or any other private legal entity.
121 (3) "Change order" means a written order signed by the procurement officer, directing
122 the contractor to suspend work or make changes, which the appropriate clauses of the contract
123 authorize the procurement officer to order without the consent of the contractor or any written
124 alteration in specifications, delivery point, rate of delivery, period of performance, price,
125 quantity, or other provisions of any contract accomplished by mutual action of the parties to the
126 contract.
127 (4) (a) "Construction" means the process of building, renovation, alteration,
128 improvement, or repair of any public building or public work.
129 (b) "Construction" does not mean the routine operation, routine repair, or routine
130 maintenance of existing structures, buildings, or real property.
131 (5) (a) "Construction Manager/General Contractor" means any contractor who enters
132 into a contract for the management of a construction project when that contract allows the
133 contractor to subcontract for additional labor and materials that were not included in the
134 contractor's cost proposal submitted at the time of the procurement of the Construction
135 Manager/General Contractor's services.
136 (b) "Construction Manager/General Contractor" does not mean a contractor whose only
137 subcontract work not included in the contractor's cost proposal submitted as part of the
138 procurement of construction is to meet subcontracted portions of change orders approved
139 within the scope of the project.
140 (6) "Contract" means any state agreement for the procurement or disposal of supplies,
141 services, or construction.
142 (7) "Cooperative purchasing" means procurement conducted by, or on behalf of, more
143 than one public procurement unit, or by a public procurement unit with an external
144 procurement unit.
145 (8) "Cost-reimbursement contract" means a contract under which a contractor is
146 reimbursed for costs which are allowed and allocated in accordance with the contract terms and
147 the provisions of this chapter, and a fee, if any.
148 (9) (a) "Design-build" means the procurement of architect-engineer services and
149 construction by the use of a single contract with the design-build provider.
150 (b) This method of design and construction can include the design-build provider
151 supplying the site as part of the contract.
152 (10) "Established catalogue price" means the price included in a catalogue, price list,
153 schedule, or other form that:
154 (a) is regularly maintained by a manufacturer or contractor;
155 (b) is either published or otherwise available for inspection by customers; and
156 (c) states prices at which sales are currently or were last made to a significant number
157 of any category of buyers or buyers constituting the general buying public for the supplies or
158 services involved.
159 (11) "External procurement unit" means any buying organization not located in this
160 state which, if located in this state, would qualify as a public procurement unit. An agency of
161 the United States is an external procurement unit.
162 (12) "Grant" means the furnishing by the state or by any other public or private source
163 assistance, whether financial or otherwise, to any person to support a program authorized by
164 law. It does not include an award whose primary purpose is to procure an end product, whether
165 in the form of supplies, services, or construction. A contract resulting from the award is not a
166 grant but a procurement contract.
167 (13) "Invitation for bids" means all documents, whether attached or incorporated by
168 reference, utilized for soliciting bids.
169 (14) "Local public procurement unit" means any political subdivision or institution of
170 higher education of the state or public agency of any subdivision, public authority, educational,
171 health, or other institution, and to the extent provided by law, any other entity which expends
172 public funds for the procurement of supplies, services, and construction, but not counties,
173 municipalities, political subdivisions created by counties or municipalities under the Interlocal
174 Cooperation Act, the Utah Housing Corporation, or the Legislature and its staff offices. It
175 includes two or more local public procurement units acting under legislation which authorizes
176 intergovernmental cooperation.
177 (15) "Person" means any business, individual, union, committee, club, other
178 organization, or group of individuals, not including a state agency or a local public
179 procurement unit.
180 (16) "Policy board" means the procurement policy board created by Section
181 63G-6-201 .
182 (17) "Preferred bidder" means a bidder that is entitled to receive a reciprocal preference
183 under the requirements of this chapter.
184 (18) "Procurement" means buying, purchasing, renting, leasing, leasing with an option
185 to purchase, or otherwise acquiring any supplies, services, or construction. It also includes all
186 functions that pertain to the obtaining of any supply, service, or construction, including
187 description of requirements, selection, and solicitation of sources, preparation, and award of a
188 contract, and all phases of contract administration.
189 (19) "Procurement officer" means any person or board duly authorized to enter into and
190 administer contracts and make written determinations with respect thereto. It also includes an
191 authorized representative acting within the limits of authority.
192 (20) "Public procurement unit" means either a local public procurement unit or a state
193 public procurement unit.
194 (21) "Purchase description" means the words used in a solicitation to describe the
195 supplies, services, or construction to be purchased, and includes specifications attached to or
196 made a part of the solicitation.
197 (22) "Purchasing agency" means any state agency other than the Division of Purchasing
198 and General Services that is authorized by this chapter or its implementing regulations, or by
199 delegation from the chief procurement officer, to enter into contracts.
200 (23) "Request for proposals" means all documents, whether attached or incorporated by
201 reference, used for soliciting proposals.
202 (24) "Responsible bidder or offeror" means a person who has the capability in all
203 respects to perform fully the contract requirements and who has the integrity and reliability
204 which will assure good faith performance.
205 (25) "Responsive bidder" means a person who has submitted a bid which conforms in
206 all material respects to the invitation for bids.
207 (26) "Sealed" does not preclude acceptance of electronically sealed and submitted bids
208 or proposals in addition to bids or proposals manually sealed and submitted.
209 (27) "Services" means the furnishing of labor, time, or effort by a contractor, not
210 involving the delivery of a specific end product other than reports which are merely incidental
211 to the required performance. It does not include employment agreements or collective
212 bargaining agreements.
213 (28) "Specification" means any description of the physical or functional characteristics,
214 or of the nature of a supply, service, technology, or construction item. It may include a
215 description of any requirement for inspecting, testing, or preparing a supply, service,
216 technology, or construction item for delivery.
217 (29) "State agency" or "the state" means any department, division, commission,
218 council, board, bureau, committee, institution, government corporation, or other establishment,
219 official, or employee of this state.
220 (30) "State public procurement unit" means the Division of Purchasing and General
221 Services and any other purchasing agency of this state.
222 (31) "Supplies" means all property, including equipment, materials, and printing.
223 (32) "Using agency" means any state agency which utilizes any supplies, services, or
224 construction procured under this chapter.
225 Section 3. Section 63G-6-201 is amended to read:
226 63G-6-201. Creation of procurement policy board.
227 (1) (a) There is created a state procurement policy board.
228 (b) The policy board shall consist of [
229 follows:
230 (i) an employee of a state institution of higher education, appointed by the board of
231 regents;
232 (ii) an employee of the Department of Human Services, appointed by the executive
233 director of that department;
234 (iii) an employee of the Department of Transportation, appointed by the executive
235 director of that department;
236 (iv) an employee of a school district appointed by a cooperative purchasing entity for
237 school districts;
238 (v) an employee of the Division of Facilities Construction and Management appointed
239 by the director of that division;
240 (vi) an employee of a county, appointed by the Utah Association of Counties;
241 (vii) an employee of a city, appointed by the Utah League of Cities and Towns; [
242 (viii) an employee of a local district or special service district, appointed by the Utah
243 Association of Special Districts[
244 (ix) the executive director of the Department of Technology Services or the executive
245 director's designee; and
246 (x) the chief procurement officer or the chief procurement officer's designee.
247 (c) Members of the policy board shall be knowledgeable and experienced in, and have
248 supervisory responsibility for, procurement in their official positions.
249 [
250 [
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252 (2) A board member shall serve as long as the member meets the description in
253 Subsection (1)(b) unless removed by the person or entity who appointed the board member.
254 [
255 (i) adopt rules of procedure for conducting its business; and
256 (ii) elect a chair to serve for one year.
257 (b) The chair may be elected to succeeding terms.
258 (c) The chief procurement officer shall designate an employee of the Division of
259 Purchasing and General Services to serve as the nonvoting secretary to the policy board.
260 [
261 but may receive per diem and travel expenses in accordance with:
262 (a) Section 63A-3-106 ;
263 (b) Section 63A-3-107 ; and
264 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
265 63A-3-107 .
266 Section 4. Section 63G-6-202 is amended to read:
267 63G-6-202. Powers and duties of board.
268 (1) Except as otherwise provided in Section 63G-6-104 and Subsection
269 63G-6-208 (1)(b), the policy board shall:
270 (a) make rules, consistent with this chapter, governing the procurement, management,
271 and control of any and all supplies, services, technology, and construction to be procured by the
272 state; and
273 (b) consider and decide matters of policy within the provisions of this chapter,
274 including those referred to it by the chief procurement officer.
275 (2) (a) The policy board may:
276 (i) audit and monitor the implementation of its rules and the requirements of this
277 chapter;
278 (ii) upon the request of a local public procurement unit, review that procurement unit's
279 proposed rules to ensure that they are not inconsistent with the provisions of this chapter; and
280 (iii) approve the use of innovative procurement methods proposed by local public
281 procurement units.
282 (b) The policy board may not exercise authority over the award or administration of:
283 (i) any particular contact; or
284 (ii) over any dispute, claim, or litigation pertaining to any particular contract.
285 Section 5. Section 63G-6-301 is amended to read:
286 63G-6-301. Rules for specifications.
287 [
288 (1) Administrative rules shall be [
289 maintenance, and content of specifications for supplies, services, [
290 technology required by the state. [
291 (2) The administrative rules described in Subsection (1) shall determine the extent to
292 which a nonemployee who has prepared specifications for use by the state may participate in
293 any state procurement using such specifications.
294 Section 6. Section 63G-6-302 is amended to read:
295 63G-6-302. Duty of chief procurement officer in maintaining specifications.
296 (1) The chief procurement officer shall prepare, issue, revise, maintain, and monitor the
297 use of specifications for supplies, services, [
298 state.
299 (2) The chief procurement officer shall obtain expert advice and assistance from
300 personnel of using agencies in the development of specifications and may delegate in writing to
301 a using agency the authority to prepare and utilize its own specifications.
302 (3) For a procurement process under Title 63M, Chapter 1, Part 26, Government
303 Procurement Private Proposal Program, any delegation by the chief procurement officer under
304 this section shall be made to the Governor's Office of Economic Development.
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