1     
ADMINISTRATIVE LAW JUDGE AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Wayne A. Harper

5     
House Sponsor: V. Lowry Snow

6     

7     LONG TITLE
8     General Description:
9           This bill modifies provisions relating to administrative law judges.
10     Highlighted Provisions:
11          This bill:
12          ▸      defines terms;
13          ▸      addresses the process by which a procurement unit may obtain administrative law
14     judge services;
15          ▸     provides that a conducting procurement unit shall notify the Department of Human
16     Resource Management when the conducting procurement unit awards a contract for
17     administrative law judge services;
18          ▸     provides that each new administrative law judge shall be hired by means of a hiring
19     panel;
20          ▸     modifies the content of the administrative law judge performance survey to include
21     questions regarding the elements of procedural fairness;
22          ▸     requires the Department of Human Resource Management to establish a procedural
23     fairness training program for administrative law judges; and
24          ▸     makes technical and conforming changes.
25     Money Appropriated in this Bill:
26          None
27     Other Special Clauses:
28          None
29     Utah Code Sections Affected:
30     AMENDS:
31          63G-6a-103, as last amended by Laws of Utah 2015, Chapters 218 and 464
32          63G-6a-403, as last amended by Laws of Utah 2015, Chapter 97
33          63G-6a-408, as last amended by Laws of Utah 2015, Chapter 218
34          63G-6a-707, as last amended by Laws of Utah 2015, Chapters 97 and 218
35          67-19e-102, as enacted by Laws of Utah 2013, Chapter 165
36          67-19e-103, as enacted by Laws of Utah 2013, Chapter 165
37          67-19e-104, as enacted by Laws of Utah 2013, Chapter 165
38          67-19e-106, as enacted by Laws of Utah 2013, Chapter 165
39          67-19e-108, as enacted by Laws of Utah 2013, Chapter 165
40     ENACTS:
41          63G-6a-409, Utah Code Annotated 1953
42          67-19e-104.5, Utah Code Annotated 1953
43          67-19e-110, Utah Code Annotated 1953
44     

45     Be it enacted by the Legislature of the state of Utah:
46          Section 1. Section 63G-6a-103 is amended to read:
47          63G-6a-103. Definitions.
48          As used in this chapter:
49          (1) "Administrative law judge" means the same as that term is defined in Section
50     67-19e-102.
51          (2) "Administrative law judge services" means services provided by an administrative
52     law judge.
53          [(1)] (3) "Bidder" means a person who responds to an invitation for bids.
54          [(2)] (4) "Change directive" means a written order signed by the procurement officer
55     that directs the contractor to suspend work or make changes, as authorized by contract, without
56     the consent of the contractor.
57          [(3)] (5) "Change order" means a written alteration in specifications, delivery point,
58     rate of delivery, period of performance, price, quantity, or other provisions of a contract, upon
59     mutual agreement of the parties to the contract.
60          [(4)] (6) "Chief procurement officer" means the chief procurement officer appointed
61     under Subsection 63G-6a-302(1).
62          [(5)] (7) "Conducting procurement unit" means a procurement unit that conducts all
63     aspects of a procurement:
64          (a) except:
65          (i) reviewing a solicitation to verify that it is in proper form; and
66          (ii) causing the publication of a notice of a solicitation; and
67          (b) including:
68          (i) preparing any solicitation document;
69          (ii) appointing an evaluation committee;
70          (iii) conducting the evaluation process, except as provided in Subsection
71     63G-6a-707(5)(b) relating to scores calculated for costs of proposals;
72          (iv) selecting and recommending the person to be awarded a contract;
73          (v) negotiating the terms and conditions of a contract, subject to the issuing
74     procurement unit's approval; and
75          (vi) administering a contract.
76          [(6)] (8) (a) "Construction" means the process of building, renovating, altering,
77     improving, or repairing a public building or public work.
78          (b) "Construction" does not include the routine operation, routine repair, or routine
79     maintenance of an existing structure, building, or real property.
80          [(7)] (9) (a) "Construction manager/general contractor" means a contractor who enters
81     into a contract for the management of a construction project when the contract allows the
82     contractor to subcontract for additional labor and materials that are not included in the
83     contractor's cost proposal submitted at the time of the procurement of the contractor's services.
84          (b) "Construction manager/general contractor" does not include a contractor whose
85     only subcontract work not included in the contractor's cost proposal submitted as part of the
86     procurement of the contractor's services is to meet subcontracted portions of change orders
87     approved within the scope of the project.
88          [(8)] (10) "Contract" means an agreement for the procurement or disposal of a
89     procurement item.
90          [(9)] (11) "Contractor" means a person who is awarded a contract with a procurement
91     unit.
92          [(10)] (12) "Cooperative procurement" means procurement conducted by, or on behalf
93     of:
94          (a) more than one procurement unit; or
95          (b) a procurement unit and a cooperative purchasing organization.
96          [(11)] (13) "Cost-plus-a-percentage-of-cost contract" means a contract where the
97     contractor is paid a percentage over and above the contractor's actual expenses or costs.
98          [(12)] (14) "Cost-reimbursement contract" means a contract under which a contractor
99     is reimbursed for costs which are allowed and allocated in accordance with the contract terms
100     and the provisions of this chapter, and a fee, if any.
101          [(13)] (15) "Days" means calendar days, unless expressly provided otherwise.
102          [(14)] (16) "Definite quantity contract" means a fixed price contract that provides for
103     the supply of a specified amount of goods over a specified period, with deliveries scheduled
104     according to a specified schedule.
105          [(15)] (17) "Design-build" means the procurement of design professional services and
106     construction by the use of a single contract with the design-build provider.
107          [(16)] (18) "Design professional" means:
108          (a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
109     Licensing Act; or
110          (b) an individual licensed as a professional engineer or professional land surveyor
111     under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing
112     Act.
113          [(17)] (19) "Design professional services" means:
114          (a) professional services within the scope of the practice of architecture as defined in
115     Section 58-3a-102;
116          (b) professional engineering as defined in Section 58-22-102; or
117          (c) master planning and programming services.
118          [(18)] (20) "Directed procurement" means a procurement of a procurement item in
119     which the source of the funds used to procure the procurement item:
120          (a) directs from whom the procurement item is to be procured; or
121          (b) imposes requirements on how the procurement is to be administered.
122          [(19)] (21) "Director" means the director of the division.
123          [(20)] (22) "Established catalogue price" means the price included in a catalogue, price
124     list, schedule, or other form that:
125          (a) is regularly maintained by a manufacturer or contractor;
126          (b) is either published or otherwise available for inspection by customers; and
127          (c) states prices at which sales are currently or were last made to a significant number
128     of any category of buyers or buyers constituting the general buying public for the supplies or
129     services involved.
130          [(21)] (23) "Fixed price contract" means a contract that provides a price, for each
131     procurement item obtained under the contract, that is not subject to adjustment except to the
132     extent that:
133          (a) the contract provides, under circumstances specified in the contract, for an
134     adjustment in price that is not based on cost to the contractor; or
135          (b) an adjustment is required by law.
136          [(22)] (24) "Fixed price contract with price adjustment" means a fixed price contract
137     that provides for an upward or downward revision of price, precisely described in the contract,
138     that:
139          (a) is based on the consumer price index or another commercially acceptable index,
140     source, or formula; and
141          (b) is not based on a percentage of the cost to the contractor.
142          [(23)] (25) "Grant" means an expenditure of public funds or other assistance, or an
143     agreement to expend public funds or other assistance, for a public purpose authorized by law,
144     without acquiring a procurement item in exchange.
145          [(24)] (26) "Head of a procurement unit" means:
146          (a) as it relates to a legislative procurement unit, any person designated by rule made
147     by the applicable rulemaking authority;
148          (b) as it relates to an executive branch procurement unit:
149          (i) the director of a division; or
150          (ii) any other person designated by the board, by rule;
151          (c) as it relates to a judicial procurement unit:
152          (i) the Judicial Council; or
153          (ii) any other person designated by the Judicial Council, by rule;
154          (d) as it relates to a local government procurement unit:
155          (i) the legislative body of the local government procurement unit; or
156          (ii) any other person designated by the local government procurement unit;
157          (e) as it relates to a local district, the board of trustees of the local district or a designee
158     of the board of trustees;
159          (f) as it relates to a special service district, the governing body of the special service
160     district or a designee of the governing body;
161          (g) as it relates to a local building authority, the board of directors of the local building
162     authority or a designee of the board of directors;
163          (h) as it relates to a conservation district, the board of supervisors of the conservation
164     district or a designee of the board of supervisors;
165          (i) as it relates to a public corporation, the board of directors of the public corporation
166     or a designee of the board of directors;
167          (j) as it relates to a school district or any school or entity within a school district, the
168     board of the school district, or the board's designee;
169          (k) as it relates to a charter school, the individual or body with executive authority over
170     the charter school, or the individual's or body's designee;
171          (l) as it relates to an institution of higher education of the state, the president of the
172     institution of higher education, or the president's designee; or
173          (m) as it relates to a public transit district, the board of trustees or a designee of the
174     board of trustees.
175          [(25)] (27) "Indefinite quantity contract" means a fixed price contract that:
176          (a) is for an indefinite amount of procurement items to be supplied as ordered by a
177     procurement unit; and
178          (b) (i) does not require a minimum purchase amount; or
179          (ii) provides a maximum purchase limit.
180          [(26)] (28) "Independent procurement authority" means authority granted to a
181     procurement unit under Subsection 63G-6a-106(4)(a).
182          [(27)] (29) "Invitation for bids" includes all documents, including documents that are
183     attached or incorporated by reference, used for soliciting bids to provide a procurement item to
184     a procurement unit.
185          [(28)] (30) "Issuing procurement unit" means a procurement unit that:
186          (a) reviews a solicitation to verify that it is in proper form;
187          (b) causes the notice of a solicitation to be published; and
188          (c) negotiates the terms and conditions of a contract.
189          [(29)] (31) "Labor hour contract" is a contract where:
190          (a) the supplies and materials are not provided by, or through, the contractor; and
191          (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
192     profit for a specified number of labor hours or days.
193          [(30)] (32) "Multiple award contracts" means the award of a contract for an indefinite
194     quantity of a procurement item to more than one bidder or offeror.
195          [(31)] (33) "Multiyear contract" means a contract that extends beyond a one-year
196     period, including a contract that permits renewal of the contract, without competition, beyond
197     the first year of the contract.
198          [(32)] (34) "Municipality" means a city or a town.
199          [(33)] (35) "Offeror" means a person who responds to a request for proposals.
200          [(34)] (36) "Preferred bidder" means a bidder that is entitled to receive a reciprocal
201     preference under the requirements of this chapter.
202          [(35)] (37) "Procure" means to acquire a procurement item through a procurement.
203          [(36)] (38) "Procurement":
204          (a) means an expenditure of public funds, or an agreement to expend public funds, in
205     exchange for a procurement item;
206          (b) includes all functions that pertain to the acquisition of a procurement item,
207     including:
208          (i) the description of requirements;
209          (ii) the selection process;
210          (iii) solicitation of sources;
211          (iv) the preparation for soliciting a procurement item; and
212          (v) the award of a contract; and
213          (c) does not include a grant.
214          [(37)] (39) "Procurement item" means a supply, a service, construction, or technology.
215          [(38)] (40) "Procurement officer" means:
216          (a) as it relates to a procurement unit with independent procurement authority:
217          (i) the head of the procurement unit;
218          (ii) a designee of the head of the procurement unit; or
219          (iii) a person designated by rule made by the applicable rulemaking authority; or
220          (b) as it relates to the division or a procurement unit without independent procurement
221     authority, the chief procurement officer.
222          [(39)] (41) "Professional service" means a service that requires a high degree of
223     specialized knowledge and discretion in the performance of the service, including:
224          (a) legal services;
225          (b) consultation services;
226          (c) architectural services;
227          (d) engineering;
228          (e) design;
229          (f) underwriting;
230          (g) bond counsel;
231          (h) financial advice;
232          (i) construction management;
233          (j) medical services;
234          (k) psychiatric services; [or]
235          (l) counseling services[.]; or
236          (m) administrative law judge services.
237          [(40)] (42) "Protest officer" means:
238          (a) as it relates to the division or a procurement unit with independent procurement
239     authority:
240          (i) the head of the procurement unit;
241          (ii) a designee of the head of the procurement unit; or
242          (iii) a person designated by rule made by the applicable rulemaking authority; or
243          (b) as it relates to a procurement unit without independent procurement authority, the
244     chief procurement officer or the chief procurement officer's designee.
245          [(41)] (43) "Request for information" means a nonbinding process where a
246     procurement unit requests information relating to a procurement item.
247          [(42)] (44) "Request for proposals" includes all documents, including documents that
248     are attached or incorporated by reference, used for soliciting proposals to provide a
249     procurement item to a procurement unit.
250          [(43)] (45) "Request for statement of qualifications" means all documents used to
251     solicit information about the qualifications of the person interested in responding to a potential
252     procurement, including documents attached or incorporated by reference.
253          [(44)] (46) "Requirements contract" means a contract:
254          (a) where a contractor agrees to provide a procurement unit's entire requirements for
255     certain procurement items at prices specified in the contract during the contract period; and
256          (b) that:
257          (i) does not require a minimum purchase amount; or
258          (ii) provides a maximum purchase limit.
259          [(45)] (47) "Responsible" means being capable, in all respects, of:
260          (a) meeting all the requirements of a solicitation; and
261          (b) fully performing all the requirements of the contract resulting from the solicitation,
262     including being financially solvent with sufficient financial resources to perform the contract.
263          [(46)] (48) "Responsive" means conforming in all material respects to the invitation for
264     bids or request for proposals.
265          [(47)] (49) "Sealed" means manually or electronically sealed and submitted bids or
266     proposals.
267          [(48)] (50) (a) "Services" means the furnishing of labor, time, or effort by a contractor,
268     not involving the delivery of a specific end product other than a report that is incidental to the
269     required performance.
270          (b) "Services" does not include an employment agreement or a collective bargaining
271     agreement.
272          [(49)] (51) "Sole source contract" means a contract resulting from a sole source
273     procurement.
274          [(50)] (52) "Sole source procurement" means a procurement without competition
275     pursuant to a determination under Subsection 63G-6a-802(2)(a) that there is only one source
276     for the procurement item.
277          [(51)] (53) "Solicitation" means an invitation for bids, request for proposals, notice of a
278     sole source procurement, request for statement of qualifications, request for information, or any
279     document used to obtain bids, proposals, pricing, qualifications, or information for the purpose
280     of entering into a procurement contract.
281          [(52)] (54) "Specification" means any description of the physical or functional
282     characteristics, or nature of a procurement item included in an invitation for bids or a request
283     for proposals, or otherwise specified or agreed to by a procurement unit, including a description
284     of:
285          (a) a requirement for inspecting or testing a procurement item; or
286          (b) preparing a procurement item for delivery.
287          [(53)] (55) "Standard procurement process" means one of the following methods of
288     obtaining a procurement item:
289          (a) bidding, as described in Part 6, Bidding;
290          (b) request for proposals, as described in Part 7, Request for Proposals; or
291          (c) small purchases, in accordance with the requirements established under Section
292     63G-6a-408.
293          [(54)] (56) "State cooperative contract" means a contract awarded by the division for
294     and in behalf of all public entities.
295          [(55)] (57) "Statement of qualifications" means a written statement submitted to a
296     procurement unit in response to a request for statement of qualifications.
297          [(56)] (58) (a) "Subcontractor" means a person under contract with a contractor or
298     another subcontractor to provide services or labor for design or construction.
299          (b) "Subcontractor" includes a trade contractor or specialty contractor.
300          (c) "Subcontractor" does not include a supplier who provides only materials,
301     equipment, or supplies to a contractor or subcontractor.
302          [(57)] (59) "Supplies" means all property, including equipment, materials, and printing.
303          [(58)] (60) "Tie bid" means that the lowest responsive and responsible bids are
304     identical in price.
305          [(59)] (61) "Time and materials contract" means a contract where the contractor is
306     paid:
307          (a) the actual cost of direct labor at specified hourly rates;
308          (b) the actual cost of materials and equipment usage; and
309          (c) an additional amount, expressly described in the contract, to cover overhead and
310     profit, that is not based on a percentage of the cost to the contractor.
311          Section 2. Section 63G-6a-403 is amended to read:
312          63G-6a-403. Prequalification of potential vendors.
313          (1) As used in this section:
314          (a) "Closed-ended prequalification process" means a process to prequalify potential
315     vendors under this section that is characterized by:
316          (i) a short, specified period of time during which potential vendors may be
317     prequalified; and
318          (ii) a specified date at which prequalifications expire.
319          (b) "Open-ended prequalification process" means a process to prequalify vendors and
320     potential vendors under this section that is characterized by an indeterminate period of time
321     during any part of which vendors or potential vendors may be prequalified and the
322     prequalification of previously prequalified vendors or potential vendors may be periodically
323     renewed.
324          (c) "Vendor" means:
325          (i) a bidder;
326          (ii) an offeror; or
327          (iii) a contractor, including an architect or an engineer.
328          (2) A procurement unit may, in accordance with this section:
329          (a) using a closed-ended prequalification process or an open-ended prequalification
330     process:
331          (i) prequalify potential vendors to provide any procurement item or type of
332     procurement item specified by the procurement unit; or
333          (ii) rank architects, engineers, or other professional service providers to begin the fee
334     negotiation process, as provided in this chapter; and
335          (b) limit participation in a standard procurement process to the prequalified potential
336     vendors for the specified procurement item or type of procurement item.
337          (3) To prequalify potential vendors or rank professional service providers, a
338     procurement unit shall issue a request for statement of qualifications.
339          (4) A procurement unit that issues a request for statement of qualifications:
340          (a) shall:
341          (i) publish the request for statement of qualifications in accordance with the
342     requirements of Section 63G-6a-406; and
343          (ii) state in the request for statement of qualifications:
344          (A) the procurement item or type of procurement item to which the request for
345     statement of qualifications relates;
346          (B) the scope of work to be performed;
347          (C) the instructions and deadline for submitting a statement of qualifications;
348          (D) the criteria by which the procurement unit will evaluate statements of
349     qualifications;
350          (E) whether the prequalification process is a closed-ended prequalification process or
351     an open-ended prequalification process;
352          (F) if the prequalification process is a closed-ended prequalification process, the period
353     of time during which the list of prequalified potential vendors will remain in effect, which may
354     not be longer than 18 months after the list of prequalified potential vendors is made available to
355     the public under Subsection (11)(b);
356          (G) if the prequalification process is an open-ended prequalification process, when a
357     potential vendor may submit a statement of qualifications for the potential vendor to be
358     considered for inclusion on the list of prequalified potential vendors; and
359          (H) that a procurement unit may limit participation in an invitation for bids or a request
360     for proposals to the potential vendors that are prequalified to provide the specified procurement
361     item or type of procurement item; and
362          (b) may request the person submitting a statement of qualifications to provide:
363          (i) basic information about the person;
364          (ii) the person's experience and work history;
365          (iii) information about the person's management and staff;
366          (iv) information about the person's licenses, certifications, and other qualifications;
367          (v) any applicable performance ratings;
368          (vi) financial statements reporting the person's financial condition;
369          (vii) information about the person's work site safety program, including any
370     requirement that the person imposes on subcontractors for a work site safety program; and
371          (viii) any other pertinent information.
372          (5) (a) In order to renew a prequalification, a vendor or potential vendor that has been
373     previously prequalified through an open-ended prequalification process shall submit a
374     statement of qualifications no more than 18 months after the previous prequalification of that
375     vendor or potential vendor.
376          (b) A previously prequalified vendor or potential vendor submitting a statement of
377     qualifications under Subsection (5)(a) shall comply with all requirements applicable at that
378     time to a potential vendor seeking prequalification for the first time.
379          (6) A procurement unit may at any time modify prequalification requirements of an
380     open-ended prequalification process.
381          (7) The criteria described in Subsection (4)(a)(ii)(D):
382          (a) shall include the prequalification requirements unique to the procurement;
383          (b) may include performance rating criteria; and
384          (c) may not be so restrictive that the criteria unreasonably limit competition.
385          (8) A procurement unit may, before making a final list of prequalified vendors, request
386     additional information to clarify responses made to the request for statement of qualifications.
387          (9) A potential vendor shall be included on the list of prequalified potential vendors if
388     the potential vendor:
389          (a) submits a timely, responsive response to the request for statement of qualifications;
390     and
391          (b) meets the criteria for qualification described in Subsection (4)(a)(ii)(D).
392          (10) If a request for statement of qualifications will result in only one potential vendor
393     being placed on the list of prequalified potential vendors:
394          (a) the procurement unit shall cancel the request for statement of qualifications; and
395          (b) the list may not be used by the procurement unit.
396          (11) The procurement unit shall:
397          (a) before making the list of prequalified potential vendors available to the public,
398     provide each potential vendor who provided information in response to the request, but who
399     did not meet the minimum qualifications for placement on the list, a written justification
400     statement describing why the potential vendor did not meet the criteria for inclusion on the list;
401     and
402          (b) make the list of prequalified potential vendors available to the public within 30
403     days after:
404          (i) completing the evaluation process, if the prequalification process is a closed-ended
405     prequalification process; or
406          (ii) updating the list of prequalified potential vendors, if the prequalification process is
407     an open-ended prequalification process.
408          (12) For the procurement of administrative law judge services, a procurement unit shall
409     review and evaluate each statement of qualifications received under this section by means of an
410     evaluation committee described in Section 63G-6a-409.
411          Section 3. Section 63G-6a-408 is amended to read:
412          63G-6a-408. Small purchases.
413          (1) As used in this section:
414          (a) "Annual cumulative threshold" means the maximum total annual amount,
415     established by the applicable rulemaking authority under Subsection (2)(a)(i), that a
416     procurement unit may expend to obtain procurement items from the same source under this
417     section.
418          (b) "Individual procurement threshold" means the maximum amount, established by
419     the applicable rulemaking authority under Subsection (2)(a)(ii), for which a procurement unit
420     may purchase a procurement item under this section.
421          (c) "Single procurement aggregate threshold" means the maximum total amount,
422     established by the applicable rulemaking authority under Subsection (2)(a)(iii), that a
423     procurement unit may expend to obtain multiple procurement items from one source at one
424     time under this section.
425          (2) (a) The applicable rulemaking authority may make rules governing small purchases
426     of any procurement item, including construction, job order contracting, design professional
427     services, other professional services, information technology, and goods.
428          (b) Rules under Subsection (2)(a) may include provisions:
429          (i) establishing expenditure thresholds, including:
430          (A) an annual cumulative threshold;
431          (B) an individual procurement threshold; and
432          (C) a single procurement aggregate threshold;
433          (ii) establishing procurement requirements relating to the thresholds described in
434     Subsection (2)(b)(i); and
435          (iii) providing for the use of electronic, telephone, or written quotes.
436          (c) If a procurement unit obtains administrative law judge services through a small
437     purchase standard procurement process, rules made under Subsection (2)(a) shall provide that
438     the process for the procurement of administrative law judge services include an evaluation
439     committee described in Section 63G-6a-409.
440          (3) Expenditures made under this section by a procurement unit may not exceed a
441     threshold established by the applicable rulemaking authority, unless the chief procurement
442     officer or the head of a procurement unit with independent procurement authority gives written
443     authorization to exceed the threshold that includes the reasons for exceeding the threshold.
444          (4) Except as provided in Subsection (5), an executive branch procurement unit may
445     not obtain a procurement item through a small purchase standard procurement process if the
446     procurement item may be obtained through a state cooperative contract or a contract awarded
447     by the chief procurement officer under Subsection 63G-6a-2105(1).
448          (5) Subsection (4) does not apply if:
449          (a) the procurement item is obtained for an unanticipated, urgent or unanticipated,
450     emergency condition, including:
451          (i) an item needed to avoid stopping a public construction project;
452          (ii) an immediate repair to a facility or equipment; or
453          (iii) another emergency condition; or
454          (b) the chief procurement officer or the head of a procurement unit that is an executive
455     branch procurement unit with independent procurement authority:
456          (i) determines in writing that it is in the best interest of the procurement unit to obtain
457     an individual procurement item outside of the state contract, comparing:
458          (A) the contract terms and conditions applicable to the procurement item under the
459     state contract with the contract terms and conditions applicable to the procurement item if the
460     procurement item is obtained outside of the state contract;
461          (B) the maintenance and service applicable to the procurement item under the state
462     contract with the maintenance and service applicable to the procurement item if the
463     procurement item is obtained outside of the state contract;
464          (C) the warranties applicable to the procurement item under the state contract with the
465     warranties applicable to the procurement item if the procurement item is obtained outside of
466     the state contract;
467          (D) the quality of the procurement item under the state contract with the quality of the
468     procurement item if the procurement item is obtained outside of the state contract; and
469          (E) the cost of the procurement item under the state contract with the cost of the
470     procurement item if the procurement item is obtained outside of the state contract;
471          (ii) for a procurement item that, if defective in its manufacture, installation, or
472     performance, may result in serious physical injury, death, or substantial property damage,
473     determines in writing that the terms and conditions, relating to liability for injury, death, or
474     property damage, available from the source other than the contractor who holds the state
475     contract, are similar to, or better than, the terms and conditions available under the state
476     contract; and
477          (iii) grants an exception, in writing, to the requirement described in Subsection (4).
478          (6) Except as otherwise expressly provided in this section, a procurement unit:
479          (a) may not use the small purchase standard procurement process described in this
480     section for ongoing, continuous, and regularly scheduled procurements that exceed the annual
481     cumulative threshold; and
482          (b) shall make its ongoing, continuous, and regularly scheduled procurements that
483     exceed the annual cumulative threshold through a contract awarded through another standard
484     procurement process described in this chapter or an applicable exception to another standard
485     procurement process, described in Part 8, Exceptions to Procurement Requirements.
486          (7) This section does not prohibit regularly scheduled payments for a procurement item
487     obtained under another provision of this chapter.
488          (8) (a) It is unlawful for a person to intentionally or knowingly divide a procurement
489     into one or more smaller procurements with the intent to make a procurement:
490          (i) qualify as a small purchase, if, before dividing the procurement, it would not have
491     qualified as a small purchase; or
492          (ii) meet a threshold established by rule made by the applicable rulemaking authority,
493     if, before dividing the procurement, it would not have met the threshold.
494          (b) A person who engages in the conduct made unlawful under Subsection (8)(a) is
495     guilty of:
496          (i) a second degree felony, if the value of the procurement before being divided is
497     $1,000,000 or more;
498          (ii) a third degree felony, if the value of the procurement before being divided is
499     $250,000 or more but less than $1,000,000;
500          (iii) a class A misdemeanor, if the value of the procurement before being divided is
501     $100,000 or more but less than $250,000; or
502          (iv) a class B misdemeanor, if the value of the procurement before being divided is less
503     than $100,000.
504          (9) A division of a procurement that is prohibited under Subsection (8) includes doing
505     any of the following with the intent or knowledge described in Subsection (8):
506          (a) making two or more separate purchases;
507          (b) dividing an invoice or purchase order into two or more invoices or purchase orders;
508     or
509          (c) making smaller purchases over a period of time.
510          (10) A person who violates Subsection (8) is subject to the criminal penalties described
511     in Section 63G-6a-2405.
512          (11) The Division of Finance within the Department of Administrative Services may
513     conduct an audit of an executive branch procurement unit to verify compliance with the
514     requirements of this section.
515          (12) An executive branch procurement unit may not make a small purchase after
516     January 1, 2014, unless the chief procurement officer certifies that the person responsible for
517     procurements in the procurement unit has satisfactorily completed training on this section and
518     the rules made under this section.
519          Section 4. Section 63G-6a-409 is enacted to read:
520          63G-6a-409. Procurement of administrative law judge services.
521          (1) Subject to the provisions of this section, a procurement unit shall use a standard
522     procurement process under this chapter for the procurement of administrative law judge
523     services.
524          (2) For the procurement of administrative law judge services, the evaluation committee
525     shall consist of:
526          (a) the head of the conducting procurement unit, or the head's designee;
527          (b) the head of an executive branch procurement unit other than the conducting
528     procurement unit, appointed by the executive director of the Department of Human Resource
529     Management, or the head's designee; and
530          (c) the executive director of the Department of Human Resource Management, or the
531     executive director's designee.
532          (3) Within 30 days after the day on which a conducting procurement unit awards a
533     contract for administrative law judge services, the conducting procurement unit shall give
534     written notice to the Department of Human Resource Management that states:
535          (a) that the conducting procurement unit awarded a contract for administrative law
536     judge services;
537          (b) the name of the conducting procurement unit; and
538          (c) the expected term of the contract.
539          Section 5. Section 63G-6a-707 is amended to read:
540          63G-6a-707. Evaluation of proposals -- Evaluation committee.
541          (1) To determine which proposal provides the best value to the procurement unit, the
542     evaluation committee shall evaluate each responsive and responsible proposal that has not been
543     disqualified from consideration under the provisions of this chapter, using the criteria described
544     in the request for proposals, which may include:
545          (a) experience;
546          (b) performance ratings;
547          (c) inspection;
548          (d) testing;
549          (e) quality;
550          (f) workmanship;
551          (g) time, manner, or schedule of delivery;
552          (h) references;
553          (i) financial solvency;
554          (j) suitability for a particular purpose;
555          (k) management plans;
556          (l) the presence and quality of a work site safety program, including any requirement
557     that the offeror imposes on subcontractors for a work site safety program;
558          (m) cost; or
559          (n) other subjective or objective criteria specified in the request for proposals.
560          (2) Criteria not described in the request for proposals may not be used to evaluate a
561     proposal.
562          (3) [The] Except as provided in Subsection 63G-6a-409(2), the conducting
563     procurement unit shall:
564          (a) appoint an evaluation committee consisting of at least three individuals; and
565          (b) ensure that the evaluation committee and each member of the evaluation
566     committee:
567          (i) does not have a conflict of interest with any of the offerors;
568          (ii) can fairly evaluate each proposal;
569          (iii) does not contact or communicate with an offeror concerning the procurement
570     outside the official evaluation committee process; and
571          (iv) conducts the evaluation in a manner that ensures a fair and competitive process
572     and avoids the appearance of impropriety.
573          (4) The evaluation committee may, with the approval of the head of the conducting
574     procurement unit, enter into discussions or conduct interviews with, or attend presentations by,
575     the offerors.
576          (5) (a) Except as provided in Subsections (5)(b) and (8), each member of the evaluation
577     committee is prohibited from knowing, or having access to, any information relating to the
578     cost, or the scoring of the cost, of a proposal until after the evaluation committee submits its
579     final recommended scores on all other criteria to the issuing procurement unit.
580          (b) The issuing procurement unit shall:
581          (i) if applicable, assign an individual who is not a member of the evaluation committee
582     to calculate scores for cost based on the applicable scoring formula, weighting, and other
583     scoring procedures contained in the request for proposals;
584          (ii) review the evaluation committee's scores and correct any errors, scoring
585     inconsistencies, and reported noncompliance with this chapter;
586          (iii) add the scores calculated for cost, if applicable, to the evaluation committee's final
587     recommended scores on criteria other than cost to derive the total combined score for each
588     responsive and responsible proposal; and
589          (iv) provide to the evaluation committee the total combined score calculated for each
590     responsive and responsible proposal, including any applicable cost formula, weighting, and
591     scoring procedures used to calculate the total combined scores.
592          (c) The evaluation committee may not:
593          (i) change its final recommended scores described in Subsection (5)(a) after the
594     evaluation committee has submitted those scores to the issuing procurement unit; or
595          (ii) change cost scores calculated by the issuing procurement unit.
596          (6) (a) As used in this Subsection (6), "management fee" includes only the following
597     fees of the construction manager/general contractor:
598          (i) preconstruction phase services;
599          (ii) monthly supervision fees for the construction phase; and
600          (iii) overhead and profit for the construction phase.
601          (b) When selecting a construction manager/general contractor for a construction
602     project, the evaluation committee:
603          (i) may score a construction manager/general contractor based upon criteria contained
604     in the solicitation, including qualifications, performance ratings, references, management plan,
605     certifications, and other project specific criteria described in the solicitation;
606          (ii) may, as described in the solicitation, weight and score the management fee as a
607     fixed rate or as a fixed percentage of the estimated contract value;
608          (iii) may, at any time after the opening of the responses to the request for proposals,
609     have access to, and consider, the management fee proposed by the offerors; and
610          (iv) except as provided in Subsection (8), may not know or have access to any other
611     information relating to the cost of construction submitted by the offerors, until after the
612     evaluation committee submits its final recommended scores on all other criteria to the issuing
613     procurement unit.
614          (7) (a) The deliberations of an evaluation committee may be held in private.
615          (b) If the evaluation committee is a public body, as defined in Section 52-4-103, the
616     evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
617     deliberations.
618          (8) An issuing procurement unit is not required to comply with Subsection (5) if the
619     head of the issuing procurement unit or a person designated by rule made by the applicable
620     rulemaking authority:
621          (a) signs a written statement:
622          (i) indicating that, due to the nature of the proposal or other circumstances, it is in the
623     best interest of the procurement unit to waive compliance with Subsection (5); and
624          (ii) describing the nature of the proposal and the other circumstances relied upon to
625     waive compliance with Subsection (5); and
626          (b) makes the written statement available to the public, upon request.
627          Section 6. Section 67-19e-102 is amended to read:
628          67-19e-102. Definitions.
629          [(1)] In addition to the definitions found in Section 67-19-3, the following definitions
630     apply to this chapter[.]:
631          (1) (a) "Administrative law judge" means an individual who is employed or contracted
632     by a state agency [that] who:
633          (i) presides over or conducts formal administrative hearings on behalf of an agency;
634          (ii) has the power to administer oaths, rule on the admissibility of evidence, take
635     testimony, evaluate evidence, and make determinations of fact; and
636          (iii) issues written orders, rulings, or final decisions on behalf of an agency.
637          (b) "Administrative law judge" does not mean:
638          (i) an individual who reviews an order or ruling of an administrative law judge; or
639          (ii) the executive director of a state agency.
640          [(c)] (2) "Committee" means the Administrative Law Judge Conduct Committee
641     created in Section 67-19e-108.
642          (3) "Department" means the Department of Human Resource Management created in
643     Section 67-19-5.
644          (4) "Executive director" means the executive director of the department.
645          [(2) This chapter applies to all agencies of the state except the:]
646          [(a) Board of Pardons and Parole;]
647          [(b) Department of Corrections; and]
648          [(c) State Tax Commission.]
649          Section 7. Section 67-19e-103 is amended to read:
650          67-19e-103. Administrative law judges -- Applicability -- Destruction of evidence.
651          [(1) All agency administrative law judges who conduct formal administrative hearings
652     are subject to this chapter.]
653          [(2) All administrative law judges are subject to the code of conduct promulgated by
654     the department in accordance with Section 67-19e-104.]
655          (1) (a) Except as provided in Subsections (1)(b) and (2), the provisions of this chapter
656     apply to an administrative law judge who conducts formal adjudicative proceedings.
657          (b) Except as provided in Subsection (2), the provisions of this chapter do not apply to
658     an administrative law judge who is employed by or contracts with:
659          (i) the Board of Pardons and Parole;
660          (ii) the Department of Corrections; or
661          (iii) the State Tax Commission.
662          (2) The code of conduct established by the department under Subsection 67-19e-104(4)
663     applies to all administrative law judges.
664          (3) An administrative law judge who tampers with or destroys evidence submitted to
665     the administrative law judge is subject to the provisions of Section 76-8-510.5. This section
666     does not apply to documents destroyed in accordance with Title 63G, Chapter 2, Government
667     Records Access and Management Act.
668          Section 8. Section 67-19e-104 is amended to read:
669          67-19e-104. Rulemaking authority.
670          The department shall make rules, in accordance with Title 63G, Chapter 3, Utah
671     Administrative Rulemaking Act:
672          (1) establishing minimum performance standards for all administrative law judges;
673          (2) providing procedures for filing, addressing, and reviewing complaints against
674     administrative law judges;
675          (3) providing standards for complaints against administrative law judges; [and]
676          (4) promulgating a code of conduct for all administrative law judges in all state
677     agencies[.]; and
678          (5) establishing a procedural fairness training program as described in Section
679     67-19e-109.
680          Section 9. Section 67-19e-104.5 is enacted to read:
681          67-19e-104.5. Hiring of administrative law judges.
682          (1) Each administrative law judge hired on or after May 10, 2016, shall be hired in
683     accordance with this section.
684          (2) If an applicant for an administrative law judge position is selected for an interview
685     in accordance with applicable law and department rule, the agency shall interview the applicant
686     by means of a hiring panel.
687          (3) The hiring panel described in Subsection (2) shall consist of:
688          (a) the head of the hiring agency;
689          (b) the head of another agency, appointed by the executive director; and
690          (c) the executive director.
691          (4) Each individual described in Subsection (3) may designate another individual to
692     serve on the hiring panel on the individual's behalf.
693          (5) After the hiring panel completes the interviews for an administrative law judge
694     position:
695          (a) the hiring panel shall select the top three applicants for the administrative law judge
696     position; and
697          (b) the head of the hiring agency shall:
698          (i) consider any opinions or feedback from the other members of the hiring panel with
699     respect to the top three applicants; and
700          (ii) (A) hire an applicant from the top three applicants to fill the administrative law
701     judge position; or
702          (B) decide not to hire any of the top three applicants and restart the hiring process to
703     fill the administrative law judge position.
704          Section 10. Section 67-19e-106 is amended to read:
705          67-19e-106. Performance surveys.
706          (1) For administrative law judges contracted or employed before July 1, 2013,
707     performance surveys shall be conducted initially at either the two-, three-, or four-year mark
708     beginning January 1, 2014. By July 1, 2018, all administrative law judges shall be on a
709     four-year staggered cycle for performance evaluations.
710          (2) The performance survey shall include as respondents a sample of each of the
711     following groups as applicable:
712          (a) attorneys who have appeared before the administrative law judge as counsel; and
713          (b) staff who have worked with the administrative law judge.
714          (3) The department may include an additional classification of respondents if the
715     department:
716          (a) considers a survey of that classification of respondents helpful to the department;
717     and
718          (b) establishes the additional classification of respondents by rule made in accordance
719     with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
720          (4) A survey response is anonymous, including any comment included with a survey
721     response.
722          (5) If the department provides any information to an administrative law judge or the
723     committee, the information shall be provided in such a way as to protect the confidentiality of a
724     survey respondent.
725          (6) If the department establishes an additional classification, in accordance with
726     Subsection (3), a survey shall be provided to a potential survey respondent within 30 days of
727     the day on which the case in which the person appeared before the administrative law judge is
728     closed, exclusive of any appeal. Staff and attorneys may be surveyed at any time during the
729     survey period.
730          (7) The performance survey shall include questions relating to whether the
731     administrative law judge's behavior furthers the following elements of procedural fairness:
732          (a) neutrality, including:
733          (i) consistent and equal treatment of the individuals who appear before the
734     administrative law judge;
735          (ii) concern for the individual needs of the individuals who appear before the
736     administrative law judge; and
737          (iii) careful deliberation;
738          (b) respectful treatment of others; and
739          (c) providing individuals a voice and opportunity to be heard.
740          [(7) Survey categories]
741          (8) The performance survey may include questions concerning an administrative law
742     judge's:
743          (a) legal ability, including the following:
744          (i) demonstration of understanding of the substantive law and any relevant rules of
745     procedure and evidence;
746          (ii) attentiveness to factual and legal issues before the administrative law judge;
747          (iii) adherence to precedent and ability to clearly explain departures from precedent;
748          (iv) grasp of the practical impact on the parties of the administrative law judge's
749     rulings, including the effect of delay and increased litigation expense;
750          (v) ability to write clear opinions and decisions; and
751          (vi) ability to clearly explain the legal basis for opinions;
752          (b) temperament and integrity, including the following:
753          (i) demonstration of courtesy toward attorneys, staff, and others in the administrative
754     law judge's department;
755          (ii) maintenance of decorum in the courtroom;
756          (iii) demonstration of judicial demeanor and personal attributes that promote public
757     trust and confidence in the administrative law judge system;
758          (iv) preparedness for oral argument;
759          (v) avoidance of impropriety or the appearance of impropriety;
760          (vi) display of fairness and impartiality toward all parties; and
761          (vii) ability to clearly communicate, including the ability to explain the basis for
762     written rulings, court procedures, and decisions; and
763          (c) administrative performance, including the following:
764          (i) management of workload;
765          (ii) sharing proportionally the workload within the department; and
766          (iii) issuance of opinions and orders without unnecessary delay.
767          [(8)] (9) If the department determines that a certain survey question or category of
768     questions is not appropriate for a respondent group, the department may omit that question or
769     category of questions from the survey provided to that respondent group.
770          [(9)] (10) (a) The survey shall allow respondents to indicate responses in a manner
771     determined by the department, which shall be:
772          (i) on a numerical scale from one to five; or
773          (ii) in the affirmative or negative, with an option to indicate the respondent's inability
774     to respond in the affirmative or negative.
775          (b) To supplement the responses to questions on either a numerical scale or in the
776     affirmative or negative, the department may allow respondents to provide written comments.
777          [(10)] (11) The department shall compile and make available to each administrative
778     law judge that administrative law judge's survey results with each of the administrative law
779     judge's performance evaluations.
780          Section 11. Section 67-19e-108 is amended to read:
781          67-19e-108. Administrative Law Judge Conduct Committee.
782          (1) There is created the Administrative Law Judge Conduct Committee to investigate,
783     review, and hear complaints filed against administrative law judges.
784          (2) The committee shall be composed of:
785          (a) the executive director [of the department], or the executive director's designee, as
786     chair; and
787          (b) four executive directors, or their designees, of agencies that employ or contract with
788     administrative law judges, to be selected by the executive director as needed.
789          (3) The department shall provide staff for the committee as needed.
790          Section 12. Section 67-19e-110 is enacted to read:
791          67-19e-110. Required training.
792          (1) Each year that an administrative law judge receives a performance evaluation
793     conducted by the department under this chapter, the administrative law judge shall complete
794     the procedural fairness training program described in this section.
795          (2) The department shall establish a procedural fairness training program that includes
796     training on how an administrative law judge's actions and behavior influence others'
797     perceptions of the fairness of the adjudicative process.
798          (3) The procedural fairness training program shall include discussion of the following
799     elements of procedural fairness:
800          (a) neutrality, including:
801          (i) consistent and equal treatment of the individuals who appear before the
802     administrative law judge;
803          (ii) concern for the individual needs of the individuals who appear before the
804     administrative law judge; and
805          (iii) unhurried and careful deliberation;
806          (b) respectful treatment of others; and
807          (c) providing individuals a voice and opportunity to be heard.
808          (4) The department may contract with a public or private person to develop or provide
809     the procedural fairness training program.




Legislative Review Note
Office of Legislative Research and General Counsel