First Substitute S.B. 114

This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Wed, Feb 22, 2012 at 3:56 PM by khelgesen. --> This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Mon, Feb 27, 2012 at 4:23 PM by khelgesen. -->

Senator Wayne L. Niederhauser proposes the following substitute bill:

1 CONTESTING PUBLIC PROCUREMENTS
2 2012 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Wayne L. Niederhauser
5 House Sponsor: Ken Ivory
6
7 LONG TITLE
8 General Description:
9 This bill amends provisions of the Utah Procurement Code relating to protests, legal
10 action, and appeals.
11 Highlighted Provisions:
12 This bill:
13 . increases the number of members on the Procurement Policy Board;
14 . describes procedures and requirements for a protest before a protest officer and an
15 appeal of a protest decision;
16 . makes the procedures and requirements described in the preceding paragraph
17 applicable to state agencies, state purchasing agencies, and to most local public
18 procurement units;
19 . grants rulemaking authority to the Procurement Policy Board;
20 . requires a person who files an appeal of a protest decision to, subject to certain
21 exceptions, pay a security deposit or post a bond;
22 . describes the requirements and procedures relating to paying a security deposit or
23 posting a bond;
24 . provides for the forfeiture of a bond if an appeal or protest is frivolous or if its
25 primary purpose is to harass or cause a delay;

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- 2 - 26 . requires a person who desires to protest a procurement to exhaust administrative
27 remedies;
28 . establishes procedures and requirements relating to protests and appeals of state
29 procurements, contracts, debarments, and suspensions;
30 . dissolves the procurement appeals board;
31 . provides for appeals to be made to the Procurement Policy Board and provides for
32 appointment of procurement appeals panels from among the membership of the
33 Procurement Policy Board or approved designees;
34 . provides for dismissal of appeals that are not filed in accordance with the
35 requirements of this bill;
36 . amends provisions relating to the statute of limitations and the jurisdiction of the
37 district court in procurement matters;
38 . prohibits the award of consequential damages in relation to an action brought under
39 this bill;
40 . provides an uncodified transitions clause; and
41 . makes technical changes.
42 Money Appropriated in this Bill:
43 None
44 Other Special Clauses:
45 This bill provides an immediate effective date.
46 Utah Code Sections Affected:
47 AMENDS:
48 26-8a-405.3, as last amended by Laws of Utah 2011, Chapter 297
49 63A-5-208, as last amended by Laws of Utah 2008, Chapter 382
50 63G-6-104, as renumbered and amended by Laws of Utah 2008, Chapter 382
51 63G-6-201, as last amended by Laws of Utah 2011, Chapter 376
52 63G-6-202, as last amended by Laws of Utah 2011, Chapter 376
53 63G-6-801, as last amended by Laws of Utah 2011, Chapter 361
54 63G-6-802, as renumbered and amended by Laws of Utah 2008, Chapter 382
55 63G-6-803, as renumbered and amended by Laws of Utah 2008, Chapter 382
56 63G-6-805, as renumbered and amended by Laws of Utah 2008, Chapter 382

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- 3 - 57 63G-6-806, as renumbered and amended by Laws of Utah 2008, Chapter 382
58 63G-6-812, as renumbered and amended by Laws of Utah 2008, Chapter 382
59 63G-6-813, as renumbered and amended by Laws of Utah 2008, Chapter 382
60 63G-6-816, as renumbered and amended by Laws of Utah 2008, Chapter 382
61 63G-6-817, as renumbered and amended by Laws of Utah 2008, Chapter 382
62 63G-6-819, as renumbered and amended by Laws of Utah 2008, Chapter 382
63 63G-10-403, as enacted by Laws of Utah 2011, Chapter 361
64 ENACTS:
65 63G-6-801.5, Utah Code Annotated 1953
66 63G-6-807.5, Utah Code Annotated 1953
67 63G-6-814.5, Utah Code Annotated 1953
68 REPEALS AND REENACTS:
69 63G-6-807, as last amended by Laws of Utah 2010, Chapter 286
70 63G-6-815, as renumbered and amended by Laws of Utah 2008, Chapter 382
71 63G-6-907, as renumbered and amended by Laws of Utah 2008, Chapter 382
72 REPEALS:
73 63G-6-808, as renumbered and amended by Laws of Utah 2008, Chapter 382
74 63G-6-809, as renumbered and amended by Laws of Utah 2008, Chapter 382
75 63G-6-810, as renumbered and amended by Laws of Utah 2008, Chapter 382
76 63G-6-811, as renumbered and amended by Laws of Utah 2008, Chapter 382
77 63G-6-814, as renumbered and amended by Laws of Utah 2008, Chapter 382
78 Uncodified Material Affected:
79 ENACTS UNCODIFIED MATERIAL
80
81 Be it enacted by the Legislature of the state of Utah:
82 Section 1. Section 26-8a-405.3 is amended to read:
83 26-8a-405.3. Use of competitive sealed proposals -- Procedure -- Appeal rights.
84 (1) (a) Competitive sealed proposals for paramedic or 911 ambulance services under
85 Section 26-8a-405.2 , or for non-911 services under Section 26-8a-405.4 , shall be solicited
86 through a request for proposal and the provisions of this section.
87 (b) The governing body of the political subdivision shall approve the request for

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- 4 - 88 proposal prior to the notice of the request for proposals under Subsection (1)(c).
89 (c) (i) Notice of the request for proposals shall be published:
90 (A) at least once a week for three consecutive weeks in a newspaper of general
91 circulation published in the county; or
92 (B) if there is no such newspaper, then notice shall be posted for at least 20 days in at
93 least five public places in the county; and
94 (ii) in accordance with Section 45-1-101 for at least 20 days.
95 (2) (a) Proposals shall be opened so as to avoid disclosure of contents to competing
96 offerors during the process of negotiations.
97 (b) (i) Subsequent to the published notice, and prior to selecting an applicant, the
98 political subdivision shall hold a presubmission conference with interested applicants for the
99 purpose of assuring full understanding of, and responsiveness to, solicitation requirements.
100 (ii) A political subdivision shall allow at least 90 days from the presubmission
101 conference for the proposers to submit proposals.
102 (c) Subsequent to the presubmission conference, the political subdivision may issue
103 addenda to the request for proposals. An addenda to a request for proposal shall be finalized
104 and posted by the political subdivision at least 45 days before the day on which the proposal
105 must be submitted.
106 (d) Offerors to the request for proposals shall be accorded fair and equal treatment with
107 respect to any opportunity for discussion and revisions of proposals, and revisions may be
108 permitted after submission and before a contract is awarded for the purpose of obtaining best
109 and final offers.
110 (e) In conducting discussions, there shall be no disclosures of any information derived
111 from proposals submitted by competing offerors.
112 (3) (a) (i) A political subdivision may select an applicant approved by the department
113 under Section 26-8a-404 to provide 911 ambulance or paramedic services by contract to the
114 most responsible offeror as defined in Subsection 63G-6-103 (24).
115 (ii) An award under Subsection (3)(a)(i) shall be made to the responsible offeror whose
116 proposal is determined in writing to be the most advantageous to the political subdivision,
117 taking into consideration price and the evaluation factors set forth in the request for proposal.
118 (b) The applicants who are approved under Section 26-8a-405 and who are selected

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- 5 - 119 under this section may be the political subdivision issuing the request for competitive sealed
120 proposals, or any other public entity or entities, any private person or entity, or any
121 combination thereof.
122 (c) A political subdivision may reject all of the competitive proposals.
123 (4) In seeking competitive sealed proposals and awarding contracts under this section,
124 a political subdivision:
125 (a) shall apply the public convenience and necessity factors listed in Subsections
126 26-8a-408 (2) through (6);
127 (b) shall require the applicant responding to the proposal to disclose how the applicant
128 will meet performance standards in the request for proposal;
129 (c) may not require or restrict an applicant to a certain method of meeting the
130 performance standards, including:
131 (i) requiring ambulance medical personnel to also be a firefighter; or
132 (ii) mandating that offerors use fire stations or dispatch services of the political
133 subdivision;
134 (d) shall require an applicant to submit the proposal:
135 (i) based on full cost accounting in accordance with generally accepted accounting
136 principals; and
137 (ii) if the applicant is a governmental entity, in addition to the requirements of
138 Subsection (4)(e)(i), in accordance with generally accepted government auditing standards and
139 in compliance with the State of Utah Legal Compliance Audit Guide; and
140 (e) shall set forth in the request for proposal:
141 (i) the method for determining full cost accounting in accordance with generally
142 accepted accounting principles, and require an applicant to submit the proposal based on such
143 full cost accounting principles;
144 (ii) guidelines established to further competition and provider accountability; and
145 (iii) a list of the factors that will be considered by the political subdivision in the award
146 of the contract, including by percentage, the relative weight of the factors established under this
147 Subsection (4)(e), which may include such things as:
148 (A) response times;
149 (B) staging locations;

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- 6 - 150 (C) experience;
151 (D) quality of care; and
152 (E) cost, consistent with the cost accounting method in Subsection (4)(e)(i).
153 (5) (a) Notwithstanding the provisions of Subsection 63G-6-104 (3), the provisions of
154 Title 63G, Chapter 6, Part 8, Legal and Contractual Remedies, apply to the procurement
155 process required by this section, except as provided in Subsection (5)(c).
156 (b) [The Procurement Appeals Board created] A procurement appeals panel described
157 in Section 63G-6-807 shall have jurisdiction to review and determine an appeal of an offeror
158 under this section [in the same manner as provided in Section 63G-6-810 ].
159 (c) (i) An offeror may appeal the solicitation or award as provided by the political
160 subdivision's procedures. After all political subdivision appeal rights are exhausted, the offeror
161 may appeal under the provisions of Subsections (5)(a) and (b).
162 (ii) [The factual determination required by Subsection 63G-6-813 (1) shall be based on]
163 A procurement appeals panel described in Section 63G-6-807 shall determine whether the
164 solicitation or award was made in accordance with the procedures set forth in this section and
165 Section 26-8a-405.2 .
166 (d) The determination of an issue of fact by the appeals board shall be final and
167 conclusive unless arbitrary and capricious or clearly erroneous as provided in Section
168 63G-6-813 .
169 Section 2. Section 63A-5-208 is amended to read:
170 63A-5-208. Definitions -- Certain public construction bids to list subcontractors --
171 Changing subcontractors -- Bidders as subcontractors -- Dispute resolution process --
172 Penalties.
173 (1) As used in this section:
174 (a) "First-tier subcontractor" means a subcontractor who contracts directly with the
175 prime contractor.
176 (b) "Subcontractor" means any person or entity under contract with a contractor or
177 another subcontractor to provide services or labor for the construction, installation, or repair of
178 an improvement to real property.
179 (c) "Subcontractor" includes a trade contractor or specialty contractor.
180 (d) "Subcontractor" does not include suppliers who provide only materials, equipment,

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182 (2) The director shall apply the provisions of this section to achieve fair and
183 competitive bidding and to discourage bid-shopping by contractors.
184 (3) (a) (i) (A) On each public construction project, the director shall require the
185 apparent lowest three bidders to submit a list of their first-tier subcontractors indicating each
186 subcontractor's name, bid amount, and other information required by rule.
187 (B) Other bidders who are not one of the apparent lowest three bidders may also
188 submit a list of their first-tier subcontractors containing the information required by this
189 Subsection (3).
190 (C) The director may not consider any bid submitted by a bidder if the bidder fails to
191 submit a subcontractor list meeting the requirements of this section.
192 (ii) On projects where the contractor's total bid is less than $500,000, subcontractors
193 whose bid is less than $20,000 need not be listed.
194 (iii) On projects where the contractor's total bid is $500,000 or more, subcontractors
195 whose bid is less than $35,000 need not be listed.
196 (b) (i) The bidders shall submit this list within 24 hours after the bid opening time, not
197 including Saturdays, Sundays, and state holidays.
198 (ii) This list does not limit the director's right to authorize a change in the listing of any
199 subcontractor.
200 (c) The bidders shall verify that all subcontractors listed as part of their bids are
201 licensed as required by state law.
202 (d) Twenty-four hours after the bid opening, the contractor may change the contractor's
203 subcontractors only after:
204 (i) receiving permission from the director; and
205 (ii) establishing that:
206 (A) the change is in the best interest of the state; and
207 (B) the contractor establishes reasons for the change that meet the standards established
208 by the State Building Board.
209 (e) If the director approves any changes in subcontractors that result in a net lower
210 contract price for subcontracted work, the total of the prime contract may be reduced to reflect
211 the changes.

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- 8 - 212 (4) (a) A bidder may list himself as a subcontractor when the bidder is currently
213 licensed to perform the portion of the work for which the bidder lists himself as a subcontractor
214 and:
215 (i) the bidder intends to perform the work of a subcontractor himself; or
216 (ii) the bidder intends to obtain a subcontractor to perform the work at a later date
217 because the bidder was unable to:
218 (A) obtain a bid from a qualified subcontractor; or
219 (B) obtain a bid from a qualified subcontractor at a cost that the bidder considers to be
220 reasonable.
221 (b) (i) When the bidder intends to perform the work of a subcontractor himself, the
222 director may, by written request, require that the bidder provide the director with information
223 indicating the bidder's:
224 (A) previous experience in the type of work to be performed; and
225 (B) qualifications for performing the work.
226 (ii) The bidder must respond in writing within five business days of receiving the
227 director's written request.
228 (iii) If the bidder's submitted information causes the director to reasonably believe that
229 self-performance of the portion of the work by the bidder is likely to yield a substandard
230 finished product, the director shall:
231 (A) require the bidder to use a subcontractor for the portion of the work in question and
232 obtain the subcontractor bid under the supervision of the director; or
233 (B) reject the bidder's bid.
234 (c) (i) When the bidder intends to obtain a subcontractor to perform the work at a later
235 date, the bidder shall provide documentation with the subcontractor list describing:
236 (A) the bidder's efforts to obtain a bid of a qualified subcontractor at a reasonable cost;
237 and
238 (B) why the bidder was unable to obtain a qualified subcontractor bid.
239 (ii) If the bidder who intends to obtain a subcontractor to perform the work at a later
240 date is awarded a contract, the director shall supervise the bidder's efforts to obtain a qualified
241 subcontractor bid.
242 (iii) The director may not adjust the amount of the contract awarded in order to reflect

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244 (5) The division may not disclose any subcontractor bid amounts obtained under this
245 section until the division has awarded the project to a contractor.
246 (6) (a) The director shall, in consultation with the State Building Board, prepare draft
247 rules establishing a process for resolving disputes involved with contracts under the division's
248 procurement authority.
249 (b) The draft rules shall be presented to the Government Operations Interim Committee
250 for review, comment, and recommendations before August 31, 2004.
251 (c) The director shall consider, and the rules may include:
252 (i) requirements regarding preliminary resolution efforts between the parties directly
253 involved with the dispute;
254 (ii) requirements for the filing of claims, including notification, timeframes, and
255 documentation;
256 (iii) identification of the types of costs eligible for allocation and a method for
257 allocating costs among the parties to the dispute;
258 (iv) required time periods, not to exceed 60 days, for the resolution of the claim;
259 (v) provision for an independent hearing officer, panel, or arbitrator to extend the time
260 period for resolution of the claim by not to exceed 60 additional days for good cause;
261 (vi) provision for the extension of required time periods if the claimant agrees;
262 (vii) requirements that decisions be issued in writing;
263 (viii) provisions for administrative appeals of the decision;
264 (ix) provisions for the timely payment of claims after resolution of the dispute,
265 including any appeals;
266 (x) a requirement that the final determination resulting from the dispute resolution
267 process provided for in the rules is a final agency action subject to judicial review as provided
268 in Sections 63G-4-401 and 63G-4-402 ;
269 (xi) a requirement that a claim or dispute that does not include a monetary claim
270 against the division or its agents is not limited to the dispute resolution process provided for in
271 this Subsection (6);
272 (xii) requirements for claims and disputes to be eligible for this dispute resolution
273 process;

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- 10 - 274 (xiii) the use of an independent hearing officer, panel, arbitration, or mediation; and
275 (xiv) the circumstances under which a subcontractor may file a claim directly with the
276 division.
277 (d) Persons pursuing claims under the process required by this Subsection (6):
278 (i) are bound by the decision reached under this process unless the decision is properly
279 appealed; and
280 (ii) may not pursue claims or disputes under the dispute resolution process established
281 in [Sections 63G-6-805 through 63G-6-814 ] Title 63G, Chapter 6, Part 8, Legal and
282 Contractual Remedies.
283 (7) In addition to all other reasons allowed by law or rule, the director may reject all
284 bids if none of the bidders whose bid is within the budget of the project submit a subcontractor
285 list that meets the requirements of this section.
286 (8) Any violation of this section, or any fraudulent misrepresentation by a contractor,
287 subcontractor, or supplier, may be grounds for:
288 (a) the contractor, subcontractor, or supplier to be suspended or debarred by the
289 director; or
290 (b) the contractor or subcontractor to be disciplined by the Division of Professional and
291 Occupational Licensing.
292 Section 3. Section 63G-6-104 is amended to read:
293 63G-6-104. Application of chapter.
294 (1) This chapter applies only to contracts solicited or entered into after the effective
295 date of this chapter unless the parties agree to its application to a contract solicited or entered
296 into prior to the effective date. This chapter does not apply to a city or a town.
297 (2) Except as provided in Section 63G-6-105 , this chapter shall apply to every
298 expenditure of public funds irrespective of their source, including federal assistance, by any
299 state agency under any contract.
300 (3) (a) (i) [Only the following sections shall] Except as provided in Subsection
301 (3)(a)(ii), the only sections of this chapter that apply to local public procurement units[:] are
302 Sections 63G-6-103 , 63G-6-105 , 63G-6-301 , 63G-6-303 through 63G-6-420 , 63G-6-422 ,
303 63G-6-501 through 63G-6-602 , 63G-6-801 through [ 63G-6-806 , and 63G-6-815 through
304 63G-6-819 ; provided, however, that, except as provided in Sections 63G-6-906 and

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306 state agencies] 63G-6-820 .
307 (ii) (A) Except as provided in Subsection (3)(a)(ii)(B), the only sections of this chapter
308 that apply to the Utah Transit Authority are Sections 63G-6-103 , 63G-6-105 , 63G-6-301 ,
309 63G-6-303 through 63G-6-420 , 63G-6-422 , 63G-6-501 through 63G-6-602 , 63G-6-801
310 through 63G-6-806 , and 63G-6-815 through 63G-6-819 .
311 (B) Except as provided in Section 63G-6-906 , the jurisdiction of a procurement appeals
312 panel is limited to matters involving state agencies.
313 (b) Subsections 63G-6-208 (1)(b), 63G-6-504 (4), and 63G-6-505 (2) also apply to local
314 public procurement units.
315 (c) For the purpose of application of those sections and subsections to a local public
316 procurement unit, "state" shall mean "local public procurement unit," "chief procurement
317 officer" or "head of a purchasing agency" shall mean any person conducting procurement for a
318 local public procurement unit, and "rules and regulations" shall mean ordinances and rules and
319 regulations promulgated by a local public procurement unit to implement or supplement those
320 sections.
321 (d) In addition to the sections and subsections listed above and except as provided in
322 Subsection 17B-1-108 (3) relating to local districts, each local public procurement unit shall
323 adopt ordinances relating to the procurement of architect-engineer services not inconsistent
324 with the provisions of Part 7, Architect-Engineer Services.
325 (e) Any other section of this chapter, or its implementing regulations, may be adopted
326 by any local public procurement unit.
327 (f) Any other implementing regulations adopted by local public procurement units may
328 not be inconsistent with the provisions of this chapter.
329 (4) Unless otherwise provided by statute, this chapter does not apply to procurement of
330 real property.
331 Section 4. Section 63G-6-201 is amended to read:
332 63G-6-201. Creation of Procurement Policy Board.
333 (1) (a) There is created a state procurement policy board.
334 (b) The policy board shall consist of [10] 15 members as follows:
335 (i) [an employee of a state institution] two representatives of state institutions of higher

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education, appointed by the board of regents;
337 (ii) [an employee] a representative of the Department of Human Services, appointed by
338 the executive director of that department;
339 (iii) [an employee] a representative of the Department of Transportation, appointed by
340 the executive director of that department;
341 (iv) [an employee of a school district] two representatives of school districts, appointed
342 by [a cooperative purchasing entity for school districts] the State Office of Education;
343 (v) [an employee] a representative of the Division of Facilities Construction and
344 Management appointed by the director of that division;
345 (vi) [an employee of a county] one representative of a county, appointed by the Utah
346 Association of Counties;
347 (vii) [an employee of a city] one representative of a city or town, appointed by the Utah
348 League of Cities and Towns;
349 (viii) [an employee of a local district] two S. [ representative ] representatives .S of local
349a districts or special
350 service [district] districts, appointed by the Utah Association of Special Districts;
351 (ix) the executive director of the Department of Technology Services or the executive
352 director's designee; [and]
353 (x) the chief procurement officer or the chief procurement officer's designee[.]; and
354 (xi) two representatives of state agencies, other than a state agency already represented
355 on the board, appointed by the executive director of the Department of Administrative
356 Services, with the approval of the executive director of the state agency that employs the
357 employee.
358 (c) Members of the policy board shall be knowledgeable and experienced in, and have
359 supervisory responsibility for, procurement in their official positions.
360 (2) A board member shall serve as long as the member meets the description in
361 Subsection (1)(b) unless removed by the person or entity who appointed the board member.
362 (3) (a) The policy board shall:
363 (i) adopt rules of procedure for conducting its business; and
364 (ii) elect a chair to serve for one year.
365 (b) The chair may be elected to succeeding terms.
366 (c) The chief procurement officer shall designate an employee of the Division of

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368 (4) A member may not receive compensation or benefits for the member's service, but
369 may receive per diem and travel expenses in accordance with:
370 (a) Section 63A-3-106 ;
371 (b) Section 63A-3-107 ; and
372 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
373 63A-3-107 .
374 Section 5. Section 63G-6-202 is amended to read:
375 63G-6-202. Powers and duties of board.
376 (1) Except as otherwise provided in Section 63G-6-104 and Subsection
377 63G-6-208 (1)(b), the policy board shall:
378 (a) make rules, consistent with this chapter, governing the procurement, management,
379 and control of any and all supplies, services, technology, and construction to be procured by the
380 state; and
381 (b) consider and decide matters of policy within the provisions of this chapter,
382 including those referred to it by the chief procurement officer.
383 (2) (a) The policy board may:
384 (i) audit and monitor the implementation of its rules and the requirements of this
385 chapter;
386 (ii) upon the request of a local public procurement unit, review that procurement unit's
387 proposed rules to ensure that they are not inconsistent with the provisions of this chapter; and
388 (iii) approve the use of innovative procurement methods proposed by local public
389 procurement units.
390 (b) [The] Except as provided in Section 63G-6-807 , the policy board may not exercise
391 authority over the award or administration of:
392 (i) any particular contact; or
393 (ii) over any dispute, claim, or litigation pertaining to any particular contract.
394 Section 6. Section 63G-6-801 is amended to read:
395 63G-6-801. Definitions -- Protest to chief procurement officer or head of a
396 purchasing agency -- Time -- Authority to resolve protest.
397 (1) As used in this part, "protest officer" means:

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(a) as it relates to a purchasing agency, the head of the purchasing agency or a designee
399 of the head of the purchasing agency;
400 (b) as it relates to a local public procurement unit, the purchasing officer or the
401 governing body of the local public procurement S. unit .S , or a designee of either;
402 (c) as it relates to a public procurement unit other than a public procurement unit
403 described in Subsection (1) (a) or (b), the chief procurement officer or the chief procurement
404 officer's designee.
405 [(1) Any] (2) Except as provided in Subsection (3), a person who is an actual or
406 prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation
407 or award of a contract may protest to the S. [ chief procurement officer or, if the solicitation or
408 award of the contract is the responsibility of a purchasing agency, the head of [a] the
409 purchasing agency ] protest officer .S [. A protest], by filing the protest in writing, with the
409a S. [ chief procurement
410 officer or the head of the purchasing agency ] protest officer .S as follows:
411 (a) with respect to an invitation for bids or a request for proposals [shall be submitted
412 in writing prior to]:
413 (i) before the opening of bids or the closing date for proposals[, unless]; or
414 (ii) if the [aggrieved] person did not know and should not have known of the facts
415 giving rise to the protest [prior to] before the bid opening or the closing date for proposals[.
416 The protest shall be submitted in writing within five working days after the aggrieved person
417 knows or should have known of the facts giving rise thereto.], within seven days after the day
418 on which the person knows or should have known of the facts giving rise to the protest; or
419 [(2) Subject to the applicable requirements in Section 63G-10-403 , the chief
420 procurement officer, the head of a purchasing agency, or a designee of either officer shall have
421 the authority, prior to the commencement of an action in court concerning the controversy, to
422 settle and resolve the protest.]
423 (b) if Subsection (2)(a) does not apply, within seven days after the day on which the
424 person knows or should have known of the facts giving rise to the protest.
425 (3) As it relates to a solicitation or award by a local public procurement unit, the
426 aggrieved actual or prospective bidder, offeror, or contractor shall:
427 (a) file the protest, in writing, with the procurement officer or governing body of the
428 public procurement unit; and

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(b) comply with the requirements described in Subsections (2)(a) and (b).
430 (4) A person who is debarred or suspended under this chapter may protest the
431 debarment or suspension to the S. [ chief procurement officer or the head of the purchasing agency ]
431a protest officer .S
432 that ordered the debarment, as applicable, within seven days after the day on which the
433 debarment or suspension is ordered.
434 (5) A person who files a protest under this section shall include in the filing document:
435 (a) the person's address of record and email address of record; and
436 (b) a concise statement of the grounds upon which the protest is made.
437 (6) A person described in Subsection (2), (3), or (4) who fails to timely file a protest
438 under this section may not bring a protest, action, or appeal challenging a solicitation or award
439 of a contract, or a debarment or suspension, before the S. [ chief procurement officer, the head of a
440 purchasing agency ] protest officer .S , an appeals panel, a court, or any other forum.
441 (7) Subject to the applicable requirements of Section 63G-10-403 , S. [ the chief
442 procurement officer, the head of a purchasing agency, or a designee of either ] a protest officer, or
442a the protest officer's designee .S , may enter into a
443 settlement agreement to resolve a protest.
444 Section 7. Section 63G-6-801.5 is enacted to read:
445 63G-6-801.5. Requirement to exhaust administrative remedies -- Protests and
446 appeals.
447 (1) A person may not challenge a procurement, a procurement process, the award of a
448 contract relating to a procurement, a debarment, or a suspension, in a court, before an
449 administrative officer or body, or in any other forum other than the forum permitted in this
450 chapter.
451 (2) A person who desires to challenge a procurement, a procurement process, the award
452 of a contract relating to a procurement, a debarment, or a suspension, shall bring the challenge,
453 in accordance with the requirements of this chapter, by timely filing:
454 (a) a protest in accordance with Section 63G-6-801 ;
455 (b) any appeal of the protest decision in accordance with Section 63G-6-807 ; and
456 (c) any appeal from a procurement appeals panel in accordance with Section
457 63G-6-815 .
458 (3) A person who files a protest or appeal under this chapter is limited to protesting or
459 appealing on the grounds specified in the filing document described in Subsection

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63G-6-801 (3)(b).
461 (4) In hearing a protest or an appeal under this chapter relating to an expenditure of
462 federal assistance, federal contract funds, or a federal grant, the person who hears the appeal
463 shall ensure compliance with federal law and regulations relating to the expenditure.
464 Section 8. Section 63G-6-802 is amended to read:
465 63G-6-802. Effect of timely protest or appeal.
466 In the event of a timely protest under [Subsection 63G-6-801 (1), 63G-6-810 (1), or
467 63G-6-815 (1), the state shall] Subsection 63G-6-801 (1), or a timely appeal of the protest under
468 Section 63G-6-807 or 63G-6-815 , a state executive branch agency or a local public
469 procurement unit may not proceed further with the solicitation or with the award of the contract
470 until:
471 (1) all administrative and judicial remedies [have been] are exhausted [or until];
472 (2) for a protest under Section 63G-6-801 or an appeal under Section 63G-6-807 :
473 (a) the chief procurement officer, after consultation with the S. [ Attorney General's Office ]
473a attorney general's office .S
474 and the head of the using agency [or the head of a purchasing agency], makes a written
475 determination that [the] award of the contract without delay is necessary to protect substantial
476 interests of the state[.];
477 (b) the head of the purchasing agency, after consultation with the S. [ Attorney General's
478 Office ] attorney general's office .S , makes a written determination that award of the contract
478a without delay is necessary to
479 protect substantial interests of the state; or
480 (c) for a local public procurement unit that is not represented by the attorney general's
481 office, the local public procurement unit, after consulting with the attorney for the local public
482 procurement unit, makes a written determination that award of the contract without delay is
483 necessary to protect substantial interests of the local public procurement unit; or
484 (3) for an appeal under Section 63G-6-815 , or an appeal to a higher court than district
485 court:
486 (a) the chief procurement officer, after consultation with the S. [ Attorney General's Office ]
486a attorney general's office .S
487 and the head of the using agency, makes a written determination that award of the contract
488 without delay is in the best interest of the state;
489 (b) the head of the purchasing agency, after consultation with the S. [ Attorney General's
490 Office ] attorney general's office .S , makes a written determination that award of the contract
490a without delay is in the best

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Senate 3rd Reading Amendments 2-22-2012 kh/trv 491

interest of the state; or
492 (c) for a local public procurement unit that is not represented by the attorney general's
493 office, the local public procurement unit, after consulting with the attorney for the local public
494 procurement unit, makes a written determination that award of the contract without delay is
495 necessary to protect the best interest of the local public procurement unit.
496 Section 9. Section 63G-6-803 is amended to read:
497 63G-6-803. Costs to or against protestor.
498 (1) When a protest is sustained administratively or upon administrative or judicial
499 review and the protesting bidder or offeror should have been awarded the contract under the
500 solicitation but is not, the protestor shall be entitled to the following relief as a claim against
501 the state:
502 (a) the reasonable costs incurred in connection with the solicitation, including bid
503 preparation and appeal costs; and
504 (b) any equitable relief determined to be appropriate by the reviewing administrative or
505 judicial body.
506 (2) When a protest is not sustained by [the Procurement Appeals Board] a procurement
507 appeals panel, the protestor shall reimburse the Division of Purchasing and General Services
508 for the per diem and expenses paid by the division to witnesses or appeals [board] panel
509 members and any additional expenses incurred by the state agency staff who have provided
510 materials and administrative services to the [board] procurement appeals panel for that case.
511 (3) The provisions of Title 63G, Chapter 7, Part 4, Notice of Claim Against a
512 Governmental Entity or a Government Employee, and Section 63G-7-601 do not apply to
513 actions brought under this chapter by an aggrieved party for equitable relief or reasonable costs
514 incurred in preparing or appealing an unsuccessful bid or offer.
515 Section 10. Section 63G-6-805 is amended to read:
516 63G-6-805. Authority to resolve controversy between state and contractor.
517 S. [ The chief procurement officer, the head of a purchasing agency, or a designee of either ] A
517a protest officer, or the protest officer's designee, .S
518 [officer] is authorized, [prior to] before commencement of an action in court concerning [the
519 controversy, to settle and resolve] a controversy [which] that arises between the state and a
520 contractor [under or by virtue of a contract between them. This includes, without limitation,]
521 in relation to an existing contract between the state and the contractor, including controversies

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based upon breach of contract, [mistakes] mistake, misrepresentation, or other cause for
523 contract modification or rescission, to settle and resolve the controversy.
524 Section 11. Section 63G-6-806 is amended to read:
525 63G-6-806. Decisions of protest officer to be in writing -- Effect of no writing.
526 (1) After a timely protest is filed in accordance with Section 63G-6-801 , the protest
527 officer:
528 (a) shall consider the protest; and
529 (b) may hold a hearing on the protest.
530 (2) (a) The protest officer may:
531 (i) subpoena witnesses and compel their attendance at a protest hearing; or
532 (ii) subpoena documents for production at a protest hearing.
533 (b) The Rules of Evidence do not apply to a protest hearing.
534 (c) The Procurement Policy Board shall make rules relating to intervention in a protest,
535 including designating:
536 (i) who may intervene; and
537 (ii) the time and manner of intervention.
538 (d) If a hearing on a protest is held under this section, the protest officer shall:
539 (i) record the hearing;
540 (ii) preserve all evidence presented at the hearing; and
541 (iii) preserve all records and other evidence relied upon in reaching the written decision
542 described in this section.
543 (e) Regardless of whether a hearing on a protest is held under this section, the protest
544 officer shall preserve all records and other evidence relied upon in reaching the written
545 decision.
546 (f) The records described in Subsections (2) S. [ (e) and (f) ] (d) and (e) .S may not be
546a destroyed until the
547 decision, and any appeal of the decision, becomes final.
548 (g) A protest officer who holds a hearing, considers a protest, or issues a written
549 decision under this section does not waive the right to, at a later date, question or challenge the
550 protest officer's jurisdiction to hold the hearing, consider the protest, or render the decision.
551 [(1)] (3) S. [ The chief procurement officer, the head of a purchasing agency, or the
552 designee of either ] A protest officer, or the protest officer's designee .S [officer], shall promptly
552a issue a written decision regarding any protest,

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554 The decision shall state the reasons for the action taken and inform the protestor, contractor, or
555 prospective contractor of the right to judicial or administrative review as provided in this
556 chapter.
557 [(2)] (4) A decision shall be effective until stayed or reversed on appeal, except to the
558 extent provided in Section 63G-6-802 . A copy of the decision [under] described in Subsection
559 (1) shall be mailed, emailed, or otherwise furnished immediately to the protestor, prospective
560 contractor, or contractor. The decision shall be final and conclusive unless the protestor,
561 prospective contractor, or contractor [appeals administratively to the procurement appeals
562 board in accordance with Subsection 63G-6-810 (2) or the protestor, prospective contractor, or
563 contractor]:
564 (a) for a controversy described in Section 63G-6-805 , commences an action in district
565 court in accordance with [Section 63G-6-815 .] Subsection 63G-6-815 (5);
566 (b) for a controversy related to a solicitation or the award of a contract, files an appeal
567 under Section 63G-6-807 ; or
568 (c) for a debarment or suspension, files an appeal under Section 63G-6-807 .
569 [(3)] (5) If the [chief procurement officer, the head of a purchasing agency, or the
570 designee of either] protest officer does not issue the written decision regarding a protest or a
571 contract controversy within [60] 30 calendar days after the day on which a written request for a
572 final decision is filed with the protest officer, or within [such] a longer period as may be agreed
573 upon by the parties, [then] the protester, prospective contractor, or contractor may proceed as if
574 an adverse decision had been received.
575 (6) Except for a controversy described in Section 63G-6-805 , a determination under
576 this section by the protest officer regarding an issue of fact may not be overturned on appeal
577 unless the decision is arbitrary and capricious or clearly erroneous.
578 Section 12. Section 63G-6-807 is repealed and reenacted to read:
579 63G-6-807. Appeal to procurement policy board -- Appointment of procurement
580 appeals panel -- Proceedings.
581 (1) A party to a protest may appeal the protest decision to the procurement policy board
582 by:
583 (a) filing a written notice of appeal with the chair of the procurement policy board

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585 (i) the day on which the written decision described in Section 63G-6-806 is:
586 (A) personally served on the party or the party's representative; or
587 (B) emailed or mailed to the address or email address of record provided by the party
588 under Subsection 63G-6-801 (2); or
589 (ii) the day on which the 30-day period described in Subsection 63G-6-806 (5) ends, if a
590 written decision is not issued before the end of the 30-day period;
591 (b) including in the filing document the person's address of record and email address of
592 record; and
593 (c) at the time that the notice of appeal described in Subsection (1)(a) is filed,
594 complying with the requirements of Section 63G-6-807.5 regarding the posting of a security
595 deposit or a bond.
596 (2) A person may not appeal from a protest described in Section 63G-6-801 , unless:
597 (a) a decision on the protest has been issued; or
598 (b) a decision is not issued and the 30-day period described in Subsection
599 63G-6-806 (5) has passed.
600 (3) The chair of the procurement policy board or a designee of the chair who is not
601 employed by the public entity responsible for the solicitation, contract award, or other action
602 complained of:
603 (a) shall, within seven days after the day on which the chair receives a timely written
604 notice of appeal under Subsection (1), appoint:
605 (i) a procurement appeals panel to hear and decide the appeal, consisting of at least
606 three individuals, each of whom shall be:
607 (A) a member of the Procurement Policy Board; or
608 (B) a designee of a member appointed under Subsection (3)(a)(i)(A), if the designee is
609 approved by the chair; and
610 (ii) one of the members of the procurement appeals panel to be the chair of the panel;
611 (b) may:
612 (i) appoint the same procurement appeals panel to hear more than one appeal; or
613 (ii) appoint a separate procurement appeals panel for each appeal; and
614 (c) may not appoint a person to a procurement appeals panel if the person is employed

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Senate 3rd Reading Amendments 2-22-2012 kh/trv 615

by the public entity responsible for the solicitation, contract award, or other action complained
616 of.
617 (4) A procurement appeals panel described in Subsection (3) shall:
618 (a) consist of an odd number of members;
619 (b) except as provided in Subsection (5), conduct an informal proceeding on the appeal
620 within 60 days after the day on which the procurement appeals panel is appointed, unless all
621 parties stipulate to a later date;
622 (c) at least seven days before the proceeding, mail, email, or hand-deliver a written
623 notice of the proceeding to the parties to the appeal; and
624 (d) within seven days after the day on which the proceeding ends:
625 (i) issue a written decision on the appeal; and
626 (ii) mail, email, or hand-deliver the written decision on the appeal to the parties to the
627 appeal S. [ , the chief procurement officer, and the head of the applicable purchasing agency ] and to
627a the protest officer .S .
628 (5) A procurement appeals panel may continue a procurement appeals proceeding
629 beyond the 60-day period described in Subsection (4)(b) if the procurement appeals panel
630 determines that the continuance is in the interests of justice.
631 (6) A procurement appeals panel:
632 (a) shall consider the appeal based solely on:
633 (i) the protest decision;
634 (ii) the record considered by the person who issued the protest decision; and
635 (iii) if a protest hearing was held, the record of the protest hearing;
636 (b) may not take additional evidence; and
637 (c) shall uphold the decision of the S. [ chief procurement officer or the head of the
638 purchasing agency ] protest officer .S , unless the decision is arbitrary and capricious or clearly
638a erroneous.
639 (7) If a procurement appeals panel determines that the decision of the S. [ chief
640 procurement officer or the head of the purchasing agency ] protest officer .S is arbitrary and
640a capricious or clearly
641 erroneous, the procurement appeals panel:
642 (a) shall remand the matter to the S. [ chief procurement officer or the head of the
643 purchasing agency, as applicable, ] protest officer .S to cure the problem or render a new decision;
644 (b) may recommend action that the S. [ chief procurement officer or the head of the
645 purchasing agency ] protest officer .S should take; and

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647 (i) a contract be awarded to a certain person;
648 (ii) a contract or solicitation be cancelled; or
649 (iii) any other action be taken other than the action described in Subsection (7)(a).
650 (8) The Procurement Policy Board shall make rules relating to the conduct of an
651 appeals proceeding, including rules that provide for:
652 (a) expedited proceedings; and
653 (b) electronic participation in the proceedings by panel members and participants.
654 (9) The Rules of Evidence do not apply to an appeals proceeding.
655 Section 13. Section 63G-6-807.5 is enacted to read:
656 63G-6-807.5. Requirement to post a security deposit or bond -- Exceptions --
657 Forfeiture of security deposit or bond.
658 (1) Except as provided by rule made under Subsection (2)(a), a person who files an
659 appeal under Section 63G-6-807 shall, at the time that the appeal is filed, pay a security deposit
660 or post a bond with the protest officer in an amount that is the greater of:
661 (a) for the appeal of a debarment or suspension, $1,000;
662 (b) for any type of procurement, $1,000;
663 (c) for an invitation for bids, 5% of:
664 (i) the lowest bid amount, if the bid opening has occurred; or
665 (ii) the estimated contract cost, established in accordance with Subsection (2)(b), if the
666 bid opening has not yet occurred;
667 (d) for a request for proposals, 5% of:
668 (i) the lowest cost proposed in a response to a request for proposals, if the opening of
669 proposals has occurred; or
670 (ii) the estimated contract cost, established in accordance with Subsection (2)(b), if the
671 opening of proposals has not occurred; or
672 (e) for a type of procurement other than an invitation for bids or a request for
673 proposals, the amount established in accordance with Subsection (2).
674 (2) The Procurement Policy Board shall make rules, in accordance with Title 63G,
675 Chapter 3, Utah Administrative Rulemaking Act, that establish:
676 (a) circumstances and procedures under which the requirement for paying a security

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deposit or posting a bond may be waived or reduced on grounds, including:
678 (i) that the person filing the appeal is impecunious;
679 (ii) circumstances where certain small purchases are involved; or
680 (iii) other grounds determined by the Division of Purchasing and General Services to
681 be appropriate; and
682 (b) the method used to determine:
683 (i) the estimated contract cost described in Subsections (1)(c)(ii) and (1)(d)(ii); and
684 (ii) the amount described in Subsection (1)(e).
685 (3) The chair of the S. [ procurement policy board ] Procurement Policy Board .S shall
685a dismiss a protest filed under
686 Section 63G-6-807 if the actual or prospective bidder, offeror, or contractor fails to timely pay
687 the security deposit or post the bond required under Subsection (1).
688 (4) The chair of the S. [ procurement policy board ] Procurement Policy Board .S shall:
689 (a) retain the security deposit or bond until the protest and any appeal of the protest
690 decision is final;
691 (b) as it relates to a security deposit:
692 (i) deposit the security deposit into an interest-bearing account; and
693 (ii) after any appeal of the protest decision becomes final, return the security deposit
694 and the interest it accrues to the person who paid the security deposit, unless the security
695 deposit is forfeited to the S. [ general fund ] General Fund .S under Subsection (5); and
696 (c) as it relates to a bond:
697 (i) retain the bond until the protest and any appeal of the protest decision becomes
698 final; and
699 (ii) after the protest and any appeal of the protest decision becomes final, return the
700 bond to the person who posted the bond, unless the bond is forfeited to the S. [ general fund ]
700a General Fund .S under
701 Subsection (5).
702 (5) A security deposit that is paid, or a bond that is posted, under this section shall
703 forfeit to the S. [ general fund ] General Fund .S if:
704 (a) the person who paid the security deposit or posted the bond fails to ultimately
705 prevail on appeal; and
706 (b) the procurement appeals panel finds that the protest or appeal is frivolous or that its
707 primary purpose is to harass or cause a delay.

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709 63G-6-812. Discontinued appeal with prejudice, except as authorized.
710 After notice of an appeal [has been filed with the Procurement Appeals Board] to the
711 procurement policy board is filed under Section 63G-6-807 , no party may discontinue the
712 appeal without prejudice, except as authorized by the [Procurement Appeals Board]
713 procurement appeals panel appointed for the appeal.
714 Section 15. Section 63G-6-813 is amended to read:
715 63G-6-813. Factual determination of procurement appeals panel final and
716 conclusive.
717 [(1) On any protest or appeal under Section 63G-6-810 , the Procurement Appeals
718 Board shall promptly decide the contract controversy or whether the solicitation or award was
719 in accordance with this chapter. Any prior determinations by administrative officials regarding
720 protests of solicitations or awards, suspension or debarments, contract controversies, or breach
721 of contract controversies shall not be final or conclusive.]
722 [(2)] A determination of an issue of fact by [the Procurement Appeals Board under
723 Subsection (1) shall be final and conclusive unless] a procurement appeals panel may not be
724 overturned on appeal, unless the determination is arbitrary and capricious or clearly erroneous.
725 [No determination on an issue of law shall be final or conclusive.]
726 Section 16. Section 63G-6-814.5 is enacted to read:
727 63G-6-814.5. Dismissal of an appeal not filed in compliance with requirements.
728 (1) The protest officer may dismiss a protest described in Section 63G-6-801 that is not
729 filed in accordance with the requirements of this chapter.
730 (2) A procurement appeals panel may dismiss an appeal that is assigned to the
731 procurement appeals panel if the appeal is not filed in accordance with the requirements of this
732 chapter.
733 Section 17. Section 63G-6-815 is repealed and reenacted to read:
734 63G-6-815. Appeal to Utah Court of Appeals -- Jurisdiction of district court.
735 (1) Subject to Subsection (2), a person who receives an adverse decision, or the state,
736 may appeal a decision of a procurement appeals panel to the Utah Court of Appeals within
737 seven days after the day on which the decision is issued.
738 (2) An agency in the state executive branch or a local public procurement unit may not

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appeal the decision of a procurement appeals panel, unless the appeal is:
740 (a) recommended by the S. [ chief procurement officer or the head of the purchasing
741 agency ] protest officer .S involved; and
742 (b) except for a local public procurement unit that is not represented by the attorney
743 general's office, approved by the attorney general.
744 (3) The Utah Court of Appeals:
745 (a) shall consider the appeal as an appellate court;
746 (b) may not hear the matter as a trial de novo; and
747 (c) may not overturn a finding or decision of the protest officer or a procurement
748 appeals panel, unless the finding or decision is arbitrary and capricious or clearly erroneous.
749 (4) The Utah Court of Appeals is encouraged to:
750 (a) give an appeal made under Subsection (1) priority; and
751 (b) consider the appeal and render a decision in an expeditious manner.
752 (5) The district court shall S. [ also ] .S have original jurisdiction in a cause of action
752a between a
753 contractor and the state for any cause of action that arises under, or in relation to, an existing
754 contract between the contractor and the state.
755 Section 18. Section 63G-6-816 is amended to read:
756 63G-6-816. Effect of prior determination by agents of state.
757 In any judicial action under Section 63G-6-815 , determinations by employees, agents,
758 or other persons appointed by the state shall be final and conclusive only as provided in
759 Sections 63G-6-419 [and], 63G-6-806 , and [Subsection] 63G-6-813 [(2)].
760 Section 19. Section 63G-6-817 is amended to read:
761 63G-6-817. Statutes of limitations.
762 [(1) Any action under Subsection 63G-6-815 (1)(a) shall be initiated as follows:]
763 [(a) within 20 calendar days after the aggrieved person knows or should have known of
764 the facts giving rise to the action; provided, however, that an action with respect to an
765 invitation for bids or request for proposals shall be initiated prior to the opening of bids or the
766 closing date for proposals unless the aggrieved person did not know and should not have
767 known of the facts giving rise to the action prior to bid opening or the closing date for
768 proposals; or]
769 [(b) within 14 calendar days after receipt of a final administrative decision pursuant to

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771 [(2) Any] (1) An action [under] described in Subsection 63G-6-815 [(1)(b)](5) shall be
772 commenced within six months after [receipt of a final administrative decision pursuant to
773 Section 63G-6-806 or Section 63G-6-813 , whichever is applicable] the person bringing the
774 action knew or should have known of the circumstances upon which the action is based.
775 [(3)] (2) The statutory limitations on an action between private persons on a contract or
776 for breach of contract shall apply to any action commenced pursuant to Subsection
777 63G-6-815 [(1)(c)](2)[, except notice of appeals from the Procurement Appeals Board pursuant
778 to Section 63G-6-814 concerning actions on a contract or for breach of contract shall be filed
779 within one year after the date of the Procurement Appeals Board decision].
780 Section 20. Section 63G-6-819 is amended to read:
781 63G-6-819. Effect of violation after award of contract.
782 (1) If after [an] award of a contract it is determined administratively or upon
783 administrative or judicial review that a solicitation or award of a contract is in violation of law:
784 [(1) If] (a) (i) if the person awarded the contract [has not acted] did not act
785 fraudulently or in bad faith:
786 [(a) The] (A) the contract may be ratified and affirmed if it [is determined that doing
787 so] is in the best interests of the state; or
788 [(b) The] (B) the contract may be terminated; and
789 (ii) the person awarded the contract shall be compensated for the actual expenses
790 reasonably incurred under the contract [prior to] before the termination, plus a reasonable
791 profit; or
792 [(2) If] (b) if the person awarded the contract [has] acted fraudulently or in bad faith:
793 [(a) The] (i) the contract may be declared null and void; or
794 [(b) The] (ii) the contract may be ratified and affirmed if [such action] it is in the best
795 interests of the state, without prejudice to the state's rights to any appropriate damages.
796 (2) Under no circumstances is a person entitled to consequential damages in relation to
797 a solicitation or award of a contract under this chapter, including consequential damages for
798 lost profits, loss of business opportunities, or damage to reputation.
799 Section 21. Section 63G-6-907 is repealed and reenacted to read:
800 63G-6-907. Resolution of local public procurement controversies.

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802 public procurement unit.
803 (2) An agreement is not required for Subsection (1) to apply.
804 Section 22. Section 63G-10-403 is amended to read:
805 63G-10-403. Department of Transportation bid or request for proposal protest
806 settlement agreement approval and review.
807 (1) As used in this section:
808 (a) "Department" means the Department of Transportation created in Section 72-1-201 .
809 (b) "Settlement agreement" includes stipulations, consent decrees, settlement
810 agreements, or other legally binding documents or representations resolving a dispute between
811 the department and another party when the department is required to pay money or required to
812 take legally binding action.
813 (2) The department shall obtain the approval of the Transportation Commission or the
814 governor or review by the Legislative Management Committee of a settlement agreement that
815 involves a bid or request for proposal protest in accordance with this section.
816 (3) A settlement agreement that is being settled by the department as part of a bid or
817 request for proposal protest, in accordance with [Section 63G-6-801 ] Subsection 63G-6-801 (9),
818 that might cost government entities more than $100,000 to implement shall be presented to the
819 Transportation Commission for approval or rejection.
820 (4) A settlement agreement that is being settled by the department as part of a bid or
821 request for proposal protest, in accordance with [Section 63G-6-801 ] Subsection 63G-6-801 (9),
822 that might cost government entities more than $500,000 to implement shall be presented:
823 (a) to the Transportation Commission for approval or rejection; and
824 (b) to the governor for approval or rejection.
825 (5) (a) A settlement agreement that is being settled by the department as part of a bid or
826 request for proposal protest, in accordance with [Section 63G-6-801 ] Subsection 63G-6-801 (9),
827 that might cost government entities more than $1,000,000 to implement shall be presented:
828 (i) to the Transportation Commission for approval or rejection;
829 (ii) to the governor for approval or rejection; and
830 (iii) if the settlement agreement is approved by the Transportation Commission and the
831 governor, to the Legislative Management Committee.

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(b) The Legislative Management Committee may recommend approval or rejection of
833 the settlement agreement.
834 (6) (a) The department may not enter into a settlement agreement that resolves a bid or
835 request for proposal protest, in accordance with [Section 63G-6-801 ] Subsection 63G-6-801 (9) ,
836 that might cost government entities more than $100,000 to implement until the Transportation
837 Commission has approved the agreement.
838 (b) The department may not enter into a settlement agreement that resolves a bid or
839 request for proposal protest, in accordance with [Section 63G-6-801 ] Subsection 63G-6-801 (9) ,
840 that might cost government entities more than $500,000 to implement until the Transportation
841 Commission and the governor have approved the agreement.
842 (c) The department may not enter into a settlement agreement that resolves a bid or
843 request for proposal protest in accordance with [Section 63G-6-801 ] Subsection 63G-6-801 (9)
844 that might cost government entities more than $1,000,000 to implement until:
845 (i) the Transportation Commission has approved the agreement;
846 (ii) the governor has approved the agreement; and
847 (iii) the Legislative Management Committee has reviewed the agreement.
848 Section 23. Repealer.
849 This bill repeals:
850 Section 63G-6-808, Rules of procedure to be adopted.
851 Section 63G-6-809, Decisions to be in writing.
852 Section 63G-6-810, Jurisdiction of Procurement Appeals Board.
853 Section 63G-6-811, Time limits to file protest or appeal -- Effect of filing.
854 Section 63G-6-814, Right to appeal to Court of Appeals.
855 Section 24. Transition.
856 (1) The Procurement Appeals Board is dissolved after all cases pending before the
857 Procurement Appeals Board on February 1, 2012 are heard and become final.
858 (2) All appeals made to the Procurement Appeals Board on or after February 2, 2012
858a S. , .S
859 shall be assigned to a procurement appeals panel by the chair of the Procurement Policy Board
860 within 30 days after the day on which this bill becomes law.
861 (3) Payment of a security deposit or the posting of a bond required in this bill is not
862 required for:

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864 2012; or
865 (b) a case that is pending before a district court or an appellate court on February 1,
866 2012.
867 (4) Until the rules described in Subsections 63G-6-807.5 (1)(c)(ii), (d)(ii), and (e) are
868 made and in effect, the amount of a security deposit or bond described in this bill shall be the
869 lesser of:
870 (a) $1,000; or
871 (b) an amount set by the chief procurement officer.
872 (5) Uncodified Section 24, Transition, is repealed on July 1, 2014.
873 Section 25. Effective date.
874 If approved by two-thirds of all the members elected to each house, this bill takes effect
875 upon approval by the governor, or the day following the constitutional time limit of Utah
876 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
877 the date of veto override.