Representative Keven J. Stratton proposes the following substitute bill:


1     
PROCUREMENT CHANGES

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Keven J. Stratton

5     
Senate Sponsor: Curtis S. Bramble

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Utah Procurement Code.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies definitions relating to grants and procurements in which the source of the
13     funds imposes requirements on the procurement;
14          ▸     modifies a provision regarding the application of the procurement code;
15          ▸     modifies a provision relating to exemptions from the procurement code; and
16          ▸     modifies a provision relating to issuing and conducting procurement units.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          63G-6a-103, as last amended by Laws of Utah 2014, Chapter 196
24          63G-6a-105, as last amended by Laws of Utah 2013, Chapter 445
25          63G-6a-107, as last amended by Laws of Utah 2014, Chapters 180, 196, and 313
26          63G-6a-109, as enacted by Laws of Utah 2014, Chapter 196
27          63G-6a-1702, as last amended by Laws of Utah 2014, Chapter 196
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 63G-6a-103 is amended to read:
31          63G-6a-103. Definitions.
32          As used in this chapter:
33          (1) "Architect-engineer services" means:
34          (a) professional services within the scope of the practice of architecture as defined in
35     Section 58-3a-102;
36          (b) professional engineering as defined in Section 58-22-102; or
37          (c) master planning and programming services.
38          (2) "Bidder" means a person who responds to an invitation for bids.
39          (3) "Change directive" means a written order signed by the procurement officer that
40     directs the contractor to suspend work or make changes, as authorized by contract, without the
41     consent of the contractor.
42          (4) "Change order" means a written alteration in specifications, delivery point, rate of
43     delivery, period of performance, price, quantity, or other provisions of a contract, upon mutual
44     agreement of the parties to the contract.
45          (5) "Chief procurement officer" means the chief procurement officer appointed under
46     Subsection 63G-6a-302(1).
47          (6) "Conducting procurement unit" means a procurement unit that conducts all aspects
48     of a procurement:
49          (a) except:
50          (i) reviewing a solicitation to verify that it is in proper form; and
51          (ii) causing the publication of a notice of a solicitation; and
52          (b) including:
53          (i) preparing any solicitation document;
54          (ii) appointing an evaluation committee;
55          (iii) conducting the evaluation process, except as provided in Subsection
56     63G-6a-707(5)(b) relating to scores calculated for costs of proposals;
57          (iv) selecting and recommending the person to be awarded a contract;
58          (v) negotiating the terms and conditions of a contract, subject to the issuing
59     procurement unit's approval; and
60          (vi) administering a contract.
61          (7) (a) "Construction" means the process of building, renovating, altering, improving,
62     or repairing a public building or public work.
63          (b) "Construction" does not include the routine operation, routine repair, or routine
64     maintenance of an existing structure, building, or real property.
65          (8) (a) "Construction manager/general contractor" means a contractor who enters into a
66     contract for the management of a construction project when the contract allows the contractor
67     to subcontract for additional labor and materials that are not included in the contractor's cost
68     proposal submitted at the time of the procurement of the contractor's services.
69          (b) "Construction manager/general contractor" does not include a contractor whose
70     only subcontract work not included in the contractor's cost proposal submitted as part of the
71     procurement of the contractor's services is to meet subcontracted portions of change orders
72     approved within the scope of the project.
73          (9) "Contract" means an agreement for the procurement or disposal of a procurement
74     item.
75          (10) "Contractor" means a person who is awarded a contract with a procurement unit.
76          (11) "Cooperative procurement" means procurement conducted by, or on behalf of:
77          (a) more than one procurement unit; or
78          (b) a procurement unit and a cooperative purchasing organization.
79          (12) "Cost-plus-a-percentage-of-cost contract" means a contract where the contractor is
80     paid a percentage over and above the contractor's actual expenses or costs.
81          (13) "Cost-reimbursement contract" means a contract under which a contractor is
82     reimbursed for costs which are allowed and allocated in accordance with the contract terms and
83     the provisions of this chapter, and a fee, if any.
84          (14) "Days" means calendar days, unless expressly provided otherwise.
85          (15) "Definite quantity contract" means a fixed price contract that provides for the
86     supply of a specified amount of goods over a specified period, with deliveries scheduled
87     according to a specified schedule.
88          (16) "Design-build" means the procurement of architect-engineer services and
89     construction by the use of a single contract with the design-build provider.
90          (17) "Directed procurement" means a procurement of a procurement item in which the
91     source of the funds used to procure the procurement item:
92          (a) directs from whom the procurement item is to be procured; or
93          (b) imposes requirements on how the procurement is to be administered.
94          [(17)] (18) "Director" means the director of the division.
95          [(18)] (19) "Established catalogue price" means the price included in a catalogue, price
96     list, schedule, or other form that:
97          (a) is regularly maintained by a manufacturer or contractor;
98          (b) is either published or otherwise available for inspection by customers; and
99          (c) states prices at which sales are currently or were last made to a significant number
100     of any category of buyers or buyers constituting the general buying public for the supplies or
101     services involved.
102          [(19)] (20) "Fixed price contract" means a contract that provides a price, for each
103     procurement item obtained under the contract, that is not subject to adjustment except to the
104     extent that:
105          (a) the contract provides, under circumstances specified in the contract, for an
106     adjustment in price that is not based on cost to the contractor; or
107          (b) an adjustment is required by law.
108          [(20)] (21) "Fixed price contract with price adjustment" means a fixed price contract
109     that provides for an upward or downward revision of price, precisely described in the contract,
110     that:
111          (a) is based on the consumer price index or another commercially acceptable index,
112     source, or formula; and
113          (b) is not based on a percentage of the cost to the contractor.
114          [(21) (a)] (22) "Grant" means [furnishing, by a public entity or by any other public or
115     private source, financial or other assistance to a person to support a program authorized by law]
116     an expenditure of public funds or other assistance, or an agreement to expend public funds or
117     other assistance, for a public purpose authorized by law, without acquiring a procurement item
118     in exchange.
119          [(b) "Grant" does not include:]
120          [(i) an award whose primary purpose is to procure an end product or procurement item;
121     or]
122          [(ii) a contract that is awarded as a result of a procurement or a procurement process.]
123          [(22)] (23) "Head of a procurement unit" means:
124          (a) as it relates to a legislative procurement unit, any person designated by rule made
125     by the applicable rulemaking authority;
126          (b) as it relates to an executive branch procurement unit:
127          (i) the director of a division; or
128          (ii) any other person designated by the board, by rule;
129          (c) as it relates to a judicial procurement unit:
130          (i) the Judicial Council; or
131          (ii) any other person designated by the Judicial Council, by rule;
132          (d) as it relates to a local government procurement unit:
133          (i) the legislative body of the local government procurement unit; or
134          (ii) any other person designated by the local government procurement unit;
135          (e) as it relates to a local district, the board of trustees of the local district or a designee
136     of the board of trustees;
137          (f) as it relates to a special service district, the governing body of the special service
138     district or a designee of the governing body;
139          (g) as it relates to a local building authority, the board of directors of the local building
140     authority or a designee of the board of directors;
141          (h) as it relates to a conservation district, the board of supervisors of the conservation
142     district or a designee of the board of supervisors;
143          (i) as it relates to a public corporation, the board of directors of the public corporation
144     or a designee of the board of directors;
145          (j) as it relates to a school district or any school or entity within a school district, the
146     board of the school district, or the board's designee;
147          (k) as it relates to a charter school, the individual or body with executive authority over
148     the charter school, or the individual's or body's designee;
149          (l) as it relates to an institution of higher education of the state, the president of the
150     institution of higher education, or the president's designee; or
151          (m) as it relates to a public transit district, the board of trustees or a designee of the
152     board of trustees.
153          [(23)] (24) "Indefinite quantity contract" means a fixed price contract that:
154          (a) is for an indefinite amount of procurement items to be supplied as ordered by a
155     procurement unit; and
156          (b) (i) does not require a minimum purchase amount; or
157          (ii) provides a maximum purchase limit.
158          [(24)] (25) "Independent procurement authority" means authority granted to a
159     procurement unit under Subsection 63G-6a-106(4)(a).
160          [(25)] (26) "Invitation for bids" includes all documents, including documents that are
161     attached or incorporated by reference, used for soliciting bids to provide a procurement item to
162     a procurement unit.
163          [(26)] (27) "Issuing procurement unit" means a procurement unit that:
164          (a) reviews a solicitation to verify that it is in proper form;
165          (b) causes the notice of a solicitation to be published; and
166          (c) negotiates the terms and conditions of a contract.
167          [(27)] (28) "Labor hour contract" is a contract where:
168          (a) the supplies and materials are not provided by, or through, the contractor; and
169          (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
170     profit for a specified number of labor hours or days.
171          [(28)] (29) "Multiple award contracts" means the award of a contract for an indefinite
172     quantity of a procurement item to more than one bidder or offeror.
173          [(29)] (30) "Multiyear contract" means a contract that extends beyond a one-year
174     period, including a contract that permits renewal of the contract, without competition, beyond
175     the first year of the contract.
176          [(30)] (31) "Municipality" means a city or a town.
177          [(31)] (32) "Offeror" means a person who responds to a request for proposals.
178          [(32)] (33) "Preferred bidder" means a bidder that is entitled to receive a reciprocal
179     preference under the requirements of this chapter.
180          [(33) (a)] (34) "Procure" [or "procurement" means buying, purchasing, renting, leasing,
181     leasing with an option to purchase, or otherwise acquiring a procurement item] means to
182     acquire a procurement item through a procurement.
183          (35) "Procurement":
184          (a) means an expenditure of public funds, or an agreement to expend public funds, in
185     exchange for a procurement item;
186          (b) ["Procure" or "procurement"] includes all functions that pertain to the [obtaining]
187     acquisition of a procurement item, including:
188          (i) the description of requirements;
189          (ii) the selection process;
190          (iii) solicitation of sources;
191          (iv) the preparation for soliciting a procurement item; and
192          (v) the award of a contract[.]; and
193          (c) does not include a grant.
194          [(34)] (36) "Procurement item" means a supply, a service, construction, or technology.
195          [(35)] (37) "Procurement officer" means:
196          (a) as it relates to a procurement unit with independent procurement authority:
197          (i) the head of the procurement unit;
198          (ii) a designee of the head of the procurement unit; or
199          (iii) a person designated by rule made by the applicable rulemaking authority; or
200          (b) as it relates to the division or a procurement unit without independent procurement
201     authority, the chief procurement officer.
202          [(36)] (38) "Professional service" means a service that requires a high degree of
203     specialized knowledge and discretion in the performance of the service, including:
204          (a) legal services;
205          (b) consultation services;
206          (c) architectural services;
207          (d) engineering;
208          (e) design;
209          (f) underwriting;
210          (g) bond counsel;
211          (h) financial advice;
212          (i) construction management;
213          (j) medical services;
214          (k) psychiatric services; or
215          (l) counseling services.
216          [(37)] (39) "Protest officer" means:
217          (a) as it relates to the division or a procurement unit with independent procurement
218     authority:
219          (i) the head of the procurement unit;
220          (ii) a designee of the head of the procurement unit; or
221          (iii) a person designated by rule made by the applicable rulemaking authority; or
222          (b) as it relates to a procurement unit without independent procurement authority, the
223     chief procurement officer or the chief procurement officer's designee.
224          [(38)] (40) "Request for information" means a nonbinding process where a
225     procurement unit requests information relating to a procurement item.
226          [(39)] (41) "Request for proposals" includes all documents, including documents that
227     are attached or incorporated by reference, used for soliciting proposals to provide a
228     procurement item to a procurement unit.
229          [(40)] (42) "Request for statement of qualifications" means all documents used to
230     solicit information about the qualifications of the person interested in responding to a potential
231     procurement, including documents attached or incorporated by reference.
232          [(41)] (43) "Requirements contract" means a contract:
233          (a) where a contractor agrees to provide a procurement unit's entire requirements for
234     certain procurement items at prices specified in the contract during the contract period; and
235          (b) that:
236          (i) does not require a minimum purchase amount; or
237          (ii) provides a maximum purchase limit.
238          [(42)] (44) "Responsible" means being capable, in all respects, of:
239          (a) meeting all the requirements of a solicitation; and
240          (b) fully performing all the requirements of the contract resulting from the solicitation,
241     including being financially solvent with sufficient financial resources to perform the contract.
242          [(43)] (45) "Responsive" means conforming in all material respects to the invitation for
243     bids or request for proposals.
244          [(44)] (46) "Sealed" means manually or electronically sealed and submitted bids or
245     proposals.
246          [(45)] (47) (a) "Services" means the furnishing of labor, time, or effort by a contractor,
247     not involving the delivery of a specific end product other than a report that is incidental to the
248     required performance.
249          (b) "Services" does not include an employment agreement or a collective bargaining
250     agreement.
251          [(46)] (48) "Sole source contract" means a contract resulting from a sole source
252     procurement.
253          [(47)] (49) "Sole source procurement" means a procurement without competition
254     pursuant to a determination under Subsection 63G-6a-802(2)(a) that there is only one source
255     for the procurement item.
256          [(48)] (50) "Solicitation" means an invitation for bids, request for proposals, notice of a
257     sole source procurement, request for statement of qualifications, request for information, or any
258     document used to obtain bids, proposals, pricing, qualifications, or information for the purpose
259     of entering into a procurement contract.
260          [(49)] (51) "Specification" means any description of the physical or functional
261     characteristics, or nature of a procurement item included in an invitation for bids or a request
262     for proposals, or otherwise specified or agreed to by a procurement unit, including a description
263     of:
264          (a) a requirement for inspecting or testing a procurement item; or
265          (b) preparing a procurement item for delivery.
266          [(50)] (52) "Standard procurement process" means one of the following methods of
267     obtaining a procurement item:
268          (a) bidding, as described in Part 6, Bidding;
269          (b) request for proposals, as described in Part 7, Request for Proposals; or
270          (c) small purchases, in accordance with the requirements established under Section
271     63G-6a-408.
272          [(51)] (53) "State cooperative contract" means a contract awarded by the division for
273     and in behalf of all public entities.
274          [(52)] (54) "Statement of qualifications" means a written statement submitted to a
275     procurement unit in response to a request for statement of qualifications.
276          [(53)] (55) (a) "Subcontractor" means a person under contract with a contractor or
277     another subcontractor to provide services or labor for design or construction.
278          (b) "Subcontractor" includes a trade contractor or specialty contractor.
279          (c) "Subcontractor" does not include a supplier who provides only materials,
280     equipment, or supplies to a contractor or subcontractor.
281          [(54)] (56) "Supplies" means all property, including equipment, materials, and printing.
282          [(55)] (57) "Tie bid" means that the lowest responsive and responsible bids are
283     identical in price.
284          [(56)] (58) "Time and materials contract" means a contract where the contractor is
285     paid:
286          (a) the actual cost of direct labor at specified hourly rates;
287          (b) the actual cost of materials and equipment usage; and
288          (c) an additional amount, expressly described in the contract, to cover overhead and
289     profit, that is not based on a percentage of the cost to the contractor.
290          Section 2. Section 63G-6a-105 is amended to read:
291          63G-6a-105. Application of chapter.
292          (1) The provisions of this chapter that are enacted on May 1, 2013, apply only to a
293     procurement advertised, or begun on or after May 1, 2013, unless the parties agree to have the
294     provisions apply with respect to a procurement that was advertised or begun before May 1,
295     2013, but is not completed before May 1, 2013.
296          (2) (a) Except as provided in Section 63G-6a-107, this chapter shall apply to every
297     expenditure of public funds irrespective of the source of the funds, including federal assistance,
298     by any procurement unit, under any contract.
299          (b) The provisions of this chapter do not apply to a public entity that is not a
300     procurement unit.
301          (3) Except as provided in Subsection 17B-1-108(3) relating to local districts, the
302     following procurement units shall adopt ordinances or resolutions relating to the procurement
303     of architect-engineer services not inconsistent with the provisions of Part 15,
304     Architect-Engineer Services:
305          (a) an educational procurement unit;
306          (b) a conservation district;
307          (c) a local building authority;
308          (d) a local district;
309          (e) a public corporation; or
310          (f) a special service district.
311          (4) Any section of this chapter, or its implementing regulations, may be adopted by:
312          (a) a county;
313          (b) a municipality; or
314          (c) the Utah Housing Corporation.
315          (5) Rules adopted under this chapter shall be consistent with the provisions of this
316     chapter.
317          (6) An applicable rulemaking authority or a procurement unit may not adopt rules,
318     policies, or regulations that are inconsistent with this chapter.
319          (7) Unless otherwise provided by statute, this chapter does not apply to procurement of
320     real property.
321          (8) Notwithstanding any provision of this chapter, a procurement unit may administer a
322     direct procurement in accordance with the requirements imposed by the source of the funds
323     used to procure the procurement item.
324          Section 3. Section 63G-6a-107 is amended to read:
325          63G-6a-107. Exemptions from chapter -- Compliance with federal law.
326          (1) Except for Part 24, Unlawful Conduct and Penalties, the provisions of this chapter
327     do not apply to:
328          (a) funds administered under the Percent-for-Art Program of the Utah Percent-for-Art
329     Act;
330          [(b) grants awarded by the state or contracts between the state and any of the
331     following:]
332          [(i) an educational procurement unit;]
333          [(ii) a conservation district;]
334          [(iii) a local building authority;]
335          [(iv) a local district;]
336          [(v) a public corporation;]
337          [(vi) a special service district;]
338          [(vii) a public transit district; or]
339          [(viii) two or more of the entities described in Subsections (1)(b)(i) through (vii),
340     acting under legislation that authorizes intergovernmental cooperation;]
341          (b) a grant;
342          (c) a contract between procurement units;
343          [(c)] (d) medical supplies or medical equipment, including service agreements for
344     medical equipment, obtained through a purchasing consortium by the Utah State Hospital, the
345     Utah State Developmental Center, the University of Utah Hospital, or any other hospital owned
346     by the state or a political subdivision of the state, if:
347          (i) the consortium uses a competitive procurement process; and
348          (ii) the chief administrative officer of the hospital makes a written finding that the
349     prices for purchasing medical supplies and medical equipment through the consortium are
350     competitive with market prices;
351          [(d)] (e) the purchase of firefighting supplies or equipment by the Division of Forestry,
352     Fire, and State Lands, created in Section 65A-1-4, through the federal General Services
353     Administration or the National Fire Cache system;
354          [(e)] (f) goods purchased for resale to the public; or
355          [(f)] (g) the Division of Parks and Recreation, during a fiscal emergency, as defined by
356     Subsection 79-4-1102(1), if the division is acting under the authority described in Sections
357     79-4-1101 through 79-4-1103.
358          (2) This chapter does not prevent a procurement unit from complying with the terms
359     and conditions of any grant, gift, or bequest that is otherwise consistent with law.
360          (3) This chapter does not apply to any action taken by a majority of both houses of the
361     Legislature.
362          (4) Notwithstanding any conflicting provision of this chapter, when a procurement
363     involves the expenditure of federal assistance, federal contract funds, local matching funds, or
364     federal financial participation funds, the procurement unit shall comply with mandatory
365     applicable federal law and regulations not reflected in this chapter.
366          (5) This chapter does not supersede the requirements for retention or withholding of
367     construction proceeds and release of construction proceeds as provided in Section 13-8-5.
368          Section 4. Section 63G-6a-109 is amended to read:
369          63G-6a-109. Issuing procurement unit and conducting procurement unit.
370          (1) [With] (a) Except as provided in Subsection (1)(b), with respect to a procurement
371     by an executive branch procurement unit:
372          [(a)] (i) the division is the issuing procurement unit; and
373          [(b)] (ii) the executive branch procurement unit is the conducting procurement unit and
374     is responsible to ensure that the procurement is conducted in compliance with this chapter.
375          (b) An executive branch procurement unit administering a directed procurement is both
376     the issuing procurement unit and the conducting procurement unit.
377          (2) With respect to a procurement by any other procurement unit, the procurement unit
378     is both the issuing procurement unit and the conducting procurement unit.
379          Section 5. Section 63G-6a-1702 is amended to read:
380          63G-6a-1702. Appeal to Utah State Procurement Policy Board -- Appointment of
381     procurement appeals panel -- Proceedings.
382          (1) This part applies to all procurement units other than:
383          (a) a legislative procurement unit;
384          (b) a judicial procurement unit;
385          (c) a local government procurement unit; or
386          (d) a public transit district.
387          (2) (a) Subject to Section 63G-6a-1703, a party to a protest involving a procurement
388     unit other than a procurement unit listed in Subsection (1)(a), (b), (c), or (d) may appeal the
389     protest decision to the board by filing a written notice of appeal with the chair of the board
390     within seven days after:
391          (i) the day on which the written decision described in Section 63G-6a-1603 is:
392          (A) personally served on the party or the party's representative; or
393          (B) emailed or mailed to the address or email address of record provided by the party
394     under Subsection 63G-6a-1602[(3)](2); or
395          (ii) the day on which the 30-day period described in Subsection 63G-6a-1603(7) ends,
396     if a written decision is not issued before the end of the 30-day period.
397          (b) A person appealing a debarment or suspension of a procurement unit other than a
398     procurement unit listed in Subsection (1)(a), (b), (c), or (d) shall file a written notice of appeal
399     with the chair of the board no later than seven days after the debarment or suspension.
400          (c) A notice of appeal under Subsection (2)(a) or (b) shall:
401          (i) include the address of record and email address of record of the party filing the
402     notice of appeal; and
403          (ii) be accompanied by a copy of any written protest decision or debarment or
404     suspension order.
405          (3) A person may not base an appeal of a protest under this section on a ground not
406     specified in the person's protest under Section 63G-6a-1602.
407          (4) A person may not appeal from a protest described in Section 63G-6a-1602, unless:
408          (a) a decision on the protest has been issued; or
409          (b) a decision is not issued and the 30-day period described in Subsection
410     63G-6a-1603(7), or a longer period agreed to by the parties, has passed.
411          (5) The chair of the board or a designee of the chair who is not employed by the
412     procurement unit responsible for the solicitation, contract award, or other action complained of:
413          (a) shall, within seven days after the day on which the chair receives a timely written
414     notice of appeal under Subsection (2), and if all the requirements of Subsection (2) and Section
415     63G-6a-1703 have been met, appoint:
416          (i) a procurement appeals panel to hear and decide the appeal, consisting of at least
417     three individuals, each of whom is:
418          (A) a member of the board; or
419          (B) a designee of a member appointed under Subsection [(4)] (5)(a)(i)(A), if the
420     designee is approved by the chair; and
421          (ii) one of the members of the procurement appeals panel to be the chair of the panel;
422          (b) may:
423          (i) appoint the same procurement appeals panel to hear more than one appeal; or
424          (ii) appoint a separate procurement appeals panel for each appeal;
425          (c) may not appoint a person to a procurement appeals panel if the person is employed
426     by the procurement unit responsible for the solicitation, contract award, or other action
427     complained of; and
428          (d) shall, at the time the procurement appeals panel is appointed, provide appeals panel
429     members with a copy of the protest officer's written decision and all other records and other
430     evidence that the protest officer relied on in reaching the decision.
431          (6) A procurement appeals panel described in Subsection (5) shall:
432          (a) consist of an odd number of members;
433          (b) conduct an informal proceeding on the appeal within 60 days after the day on which
434     the procurement appeals panel is appointed:
435          (i) unless all parties stipulate to a later date; and
436          (ii) subject to Subsection (8);
437          (c) at least seven days before the proceeding, mail, email, or hand-deliver a written
438     notice of the proceeding to the parties to the appeal; and
439          (d) within seven days after the day on which the proceeding ends:
440          (i) issue a written decision on the appeal; and
441          (ii) mail, email, or hand-deliver the written decision on the appeal to the parties to the
442     appeal and to the protest officer.
443          (7) (a) The deliberations of a procurement appeals panel may be held in private.
444          (b) If the procurement appeals panel is a public body, as defined in Section 52-4-103,
445     the procurement appeals panel shall comply with Section 52-4-205 in closing a meeting for its
446     deliberations.
447          (8) A procurement appeals panel may continue a procurement appeals proceeding
448     beyond the 60-day period described in Subsection (6)(b) if the procurement appeals panel
449     determines that the continuance is in the interests of justice.
450          (9) A procurement appeals panel:
451          (a) shall, subject to Subsection (9)(c), consider the appeal based solely on:
452          (i) the protest decision;
453          (ii) the record considered by the person who issued the protest decision; and
454          (iii) if a protest hearing was held, the record of the protest hearing;
455          (b) may not take additional evidence;
456          (c) notwithstanding Subsection (9)(b), may, during an informal hearing, ask questions
457     and receive responses regarding the appeal, the protest decision, or the record in order to assist
458     the panel to understand the appeal, the protest decision, and the record; and
459          (d) shall uphold the decision of the protest officer, unless the decision is arbitrary and
460     capricious or clearly erroneous.
461          (10) If a procurement appeals panel determines that the decision of the protest officer is
462     arbitrary and capricious or clearly erroneous, the procurement appeals panel:
463          (a) shall remand the matter to the protest officer, to cure the problem or render a new
464     decision;
465          (b) may recommend action that the protest officer should take; and
466          (c) may not order that:
467          (i) a contract be awarded to a certain person;
468          (ii) a contract or solicitation be cancelled; or
469          (iii) any other action be taken other than the action described in Subsection (10)(a).
470          (11) The board shall make rules relating to the conduct of an appeals proceeding,
471     including rules that provide for:
472          (a) expedited proceedings; and
473          (b) electronic participation in the proceedings by panel members and participants.
474          (12) The Rules of Evidence do not apply to an appeals proceeding.