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7 LONG TITLE
8 General Description:
9 This bill modifies provisions of the Utah Procurement Code.
10 Highlighted Provisions:
11 This bill:
12 ▸ modifies the stated purposes of the Utah Procurement Code;
13 ▸ enacts and modifies definitions applicable to the Utah Procurement Code;
14 ▸ modifies a provision relating to public notice;
15 ▸ provides that it is the responsibility of a person seeking information provided by a
16 public notice to seek out, find, and respond to the public notice;
17 ▸ modifies minimum experience requirements for the chief procurement officer;
18 ▸ modifies language relating to the bidding process and request for proposals process;
19 ▸ clarifies the use of multiple award contracts in the bidding process and request for
20 proposals process;
21 ▸ clarifies provisions involving the terms "responsible" and "responsive";
22 ▸ modifies language relating to the situations where the use of a request for proposals
23 process is appropriate;
24 ▸ repeals and reenacts a provision relating to best and final offers;
25 ▸ modifies a provision relating to a determination concerning a contract extension;
26 ▸ modifies a provision relating to a determination of nonresponsibility;
27 ▸ eliminates an appeal to the procurement appeals panel for a debarment or
28 suspension and modifies the process of obtaining judicial review of a suspension or
29 debarment;
30 ▸ modifies provisions relating to protests and appeals of protest decisions;
31 ▸ makes it unlawful for a person to divide a single procurement in order to avoid the
32 use of a standard procurement process and for a person to take certain action against
33 a public officer or employee involved in the procurement process;
34 ▸ exempts taxed interlocal entities and their directors, officers, and employees from
35 provisions relating to unlawful conduct and penalties;
36 ▸ modifies language relating to the consequence of failing to report unlawful conduct;
37 and
38 ▸ makes technical changes.
39 Money Appropriated in this Bill:
40 None
41 Other Special Clauses:
42 This bill provides a coordination clause.
43 Utah Code Sections Affected:
44 AMENDS:
45 63G-6a-102, as last amended by Laws of Utah 2014, Chapter 196
46 63G-6a-103, as last amended by Laws of Utah 2016, Chapters 176, 237, 355 and last
47 amended by Coordination Clause, Laws of Utah 2016, Chapter 355
48 63G-6a-112, as renumbered and amended by Laws of Utah 2016, Chapter 355
49 63G-6a-116, as enacted by Laws of Utah 2016, Chapter 355 and last amended by
50 Coordination Clause, Laws of Utah 2016, Chapter 355
51 63G-6a-302, as last amended by Laws of Utah 2013, Chapter 445
52 63G-6a-410, as enacted by Laws of Utah 2016, Chapter 355
53 63G-6a-506, as last amended by Laws of Utah 2016, Chapters 237, 348 and
54 renumbered and amended by Laws of Utah 2016, Chapter 355
55 63G-6a-507, as enacted by Laws of Utah 2016, Chapter 355
56 63G-6a-602, as last amended by Laws of Utah 2013, Chapter 445
57 63G-6a-603, as last amended by Laws of Utah 2016, Chapter 355
58 63G-6a-606, as last amended by Laws of Utah 2016, Chapter 355
59 63G-6a-607, as last amended by Laws of Utah 2014, Chapter 196
60 63G-6a-608, as last amended by Laws of Utah 2013, Chapter 445
61 63G-6a-612, as last amended by Laws of Utah 2014, Chapter 196
62 63G-6a-702, as last amended by Laws of Utah 2014, Chapter 196
63 63G-6a-703, as last amended by Laws of Utah 2016, Chapter 355
64 63G-6a-707, as last amended by Laws of Utah 2016, Chapters 237 and 355
65 63G-6a-709, as last amended by Laws of Utah 2016, Chapter 355
66 63G-6a-802.7, as enacted by Laws of Utah 2016, Chapter 355
67 63G-6a-903, as last amended by Laws of Utah 2013, Chapter 445
68 63G-6a-904, as last amended by Laws of Utah 2015, Chapter 258
69 63G-6a-1002, as last amended by Laws of Utah 2013, Chapter 445
70 63G-6a-1003, as last amended by Laws of Utah 2013, Chapter 445
71 63G-6a-1204.5, as renumbered and amended by Laws of Utah 2013, Chapter 445
72 63G-6a-1402, as last amended by Laws of Utah 2014, Chapter 196
73 63G-6a-1403, as renumbered and amended by Laws of Utah 2012, Chapter 347
74 63G-6a-1601.5, as enacted by Laws of Utah 2016, Chapter 355
75 63G-6a-1602, as last amended by Laws of Utah 2016, Chapter 355
76 63G-6a-1603, as last amended by Laws of Utah 2016, Chapter 355
77 63G-6a-1702, as last amended by Laws of Utah 2016, Chapter 355
78 63G-6a-1703, as last amended by Laws of Utah 2016, Chapter 355
79 63G-6a-1802, as last amended by Laws of Utah 2015, Chapter 218
80 63G-6a-2403, as enacted by Laws of Utah 2014, Chapter 196
81 63G-6a-2407, as last amended by Laws of Utah 2016, Chapter 355
82 63G-10-403, as last amended by Laws of Utah 2016, Chapter 355
83 ENACTS:
84 63G-6a-1701.5, Utah Code Annotated 1953
85 63G-6a-2404.3, Utah Code Annotated 1953
86 63G-6a-2404.7, Utah Code Annotated 1953
87 REPEALS AND REENACTS:
88 63G-6a-707.5, as last amended by Laws of Utah 2016, Chapter 355
89 REPEALS:
90 63G-6a-1604, as enacted by Laws of Utah 2012, Chapter 347 and last amended by
91 Coordination Clause, Laws of Utah 2012, Chapter 347
92 63G-6a-1706, as last amended by Laws of Utah 2014, Chapter 196
93 Utah Code Sections Affected by Coordination Clause:
94 63G-6a-702, as last amended by Laws of Utah 2014, Chapter 196
95
96 Be it enacted by the Legislature of the state of Utah:
97 Section 1. Section 63G-6a-102 is amended to read:
98 63G-6a-102. Purpose of chapter.
99 The underlying purposes and policies of this chapter are:
100 [
101 (1) to ensure transparency in the public procurement process;
102 (2) to ensure the fair and equitable treatment of all persons who [
103 participate in the public procurement [
104 (3) to provide increased economy in state procurement activities; and
105 (4) to foster effective broad-based competition within the free enterprise system.
106 Section 2. Section 63G-6a-103 is amended to read:
107 63G-6a-103. Definitions.
108 As used in this chapter:
109 [
110
111 [
112
113 [
114 (a) for a legislative procurement unit, the Legislative Management Committee;
115 (b) for a judicial procurement unit, the Judicial Council;
116 (c) (i) only to the extent of the procurement authority expressly granted to the
117 procurement unit by statute:
118 (A) for the building board or the Division of Facilities Construction and Management,
119 created in Section 63A-5-201, the building board;
120 (B) for the Office of the Attorney General, the attorney general; and
121 (C) for the Department of Transportation created in Section 72-1-201, the executive
122 director of the Department of Transportation; and
123 (ii) for each other executive branch procurement unit, the board;
124 (d) for a local government procurement unit:
125 (i) the legislative body of the local government procurement unit; or
126 (ii) an individual or body designated by the legislative body of the local government
127 procurement unit;
128 (e) for a school district or a public school, the board, except to the extent of a school
129 district's own nonadministrative rules that do not conflict with the provisions of this chapter;
130 (f) for a state institution of higher education, the State Board of Regents;
131 (g) for a public transit district, the chief executive of the public transit district;
132 (h) for a local district other than a public transit district or for a special service district:
133 (i) before January 1, 2015, the board of trustees of the local district or the governing
134 body of the special service district; or
135 (ii) on or after January 1, 2015, the board, except to the extent that the board of trustees
136 of the local district or the governing body of the special service district makes its own rules:
137 (A) with respect to a subject addressed by board rules; or
138 (B) that are in addition to board rules; [
139 (i) for an applied technology college within the Utah College of Applied Technology,
140 the Utah College of Applied Technology board of trustees; or
141 [
142 [
143 approved vendor list process.
144 [
145 Section 63G-6a-507.
146 [
147 Section 63G-6a-507.
148 [
149 invitation for bids.
150 [
151 Bidding.
152 [
153 63G-6a-202.
154 [
155 63A-5-101.
156 [
157 that directs the contractor to suspend work or make changes, as authorized by contract, without
158 the consent of the contractor.
159 [
160 rate of delivery, period of performance, price, quantity, or other provisions of a contract, upon
161 mutual agreement of the parties to the contract.
162 [
163 under Subsection 63G-6a-302(1).
164 [
165 aspects of a procurement:
166 (a) except:
167 (i) reviewing a solicitation to verify that it is in proper form; and
168 (ii) causing the publication of a notice of a solicitation; and
169 (b) including:
170 (i) preparing any solicitation document;
171 (ii) appointing an evaluation committee;
172 (iii) conducting the evaluation process, except as provided in Subsection
173 63G-6a-707(6)(b) relating to scores calculated for costs of proposals;
174 (iv) selecting and recommending the person to be awarded a contract;
175 (v) negotiating the terms and conditions of a contract, subject to the issuing
176 procurement unit's approval; and
177 (vi) contract administration.
178 [
179 17D-3-102.
180 [
181 (a) means services, including work, and supplies for a project for the construction,
182 renovation, alteration, improvement, or repair of a public facility on real property; and
183 (b) does not include services and supplies for the routine, day-to-day operation, repair,
184 or maintenance of an existing public facility.
185 [
186 (a) means a contractor who enters into a contract:
187 (i) for the management of a construction project; and
188 (ii) that allows the contractor to subcontract for additional labor and materials that are
189 not included in the contractor's cost proposal submitted at the time of the procurement of the
190 contractor's services; and
191 (b) does not include a contractor whose only subcontract work not included in the
192 contractor's cost proposal submitted as part of the procurement of the contractor's services is to
193 meet subcontracted portions of change orders approved within the scope of the project.
194 (16) "Construction subcontractor":
195 (a) means a person under contract with a contractor or another subcontractor to provide
196 services or labor for the design or construction of a construction project;
197 (b) includes a general contractor or specialty contractor licensed or exempt from
198 licensing under Title 58, Chapter 55, Utah Construction Trades Licensing Act; and
199 (c) does not include a supplier who provides only materials, equipment, or supplies to a
200 contractor or subcontractor for a construction project.
201 [
202 [
203 associated with managing, overseeing, and carrying out a contract between a procurement unit
204 and a contractor, including:
205 (a) implementing the contract;
206 (b) ensuring compliance with the contract terms and conditions by the conducting
207 procurement unit and the contractor;
208 (c) executing change orders;
209 (d) processing contract amendments;
210 (e) resolving, to the extent practicable, contract disputes;
211 (f) curing contract errors and deficiencies;
212 (g) terminating a contract;
213 (h) measuring or evaluating completed work and contractor performance;
214 (i) computing payments under the contract; and
215 (j) closing out a contract.
216 [
217 unit.
218 [
219 of:
220 (a) more than one procurement unit; or
221 (b) a procurement unit and a cooperative purchasing organization.
222 [
223 or alliance of purchasers established to combine purchasing power in order to obtain the best
224 value for the purchasers by engaging in procurements in accordance with Section 63G-6a-2105.
225 [
226 contractor is paid a percentage of the total actual expenses or costs in addition to the
227 contractor's actual expenses or costs.
228 [
229 is reimbursed for costs which are allowed and allocated in accordance with the contract terms
230 and the provisions of this chapter, and a fee, if any.
231 [
232 [
233 specified amount of supplies over a specified period, with deliveries scheduled according to a
234 specified schedule.
235 [
236 construction by the use of a single contract.
237 [
238 (a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
239 Licensing Act; or
240 (b) an individual licensed as a professional engineer or professional land surveyor
241 under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing
242 Act.
243 [
244 described in Part 15, Design Professional Services.
245 [
246 (a) professional services within the scope of the practice of architecture as defined in
247 Section 58-3a-102;
248 (b) professional engineering as defined in Section 58-22-102; or
249 (c) master planning and programming services.
250 [
251 [
252 in Section 63A-2-101.
253 [
254 (a) a school district;
255 (b) a public school, including a local school board and a charter school;
256 (c) the Utah Schools for the Deaf and Blind;
257 (d) the Utah Education and Telehealth Network; [
258 (e) an institution of higher education of the state[
259 (f) an applied technology college within the Utah College of Applied Technology.
260 [
261 list, schedule, or other form that:
262 (a) is regularly maintained by a manufacturer or contractor;
263 (b) is published or otherwise available for inspection by customers; and
264 (c) states prices at which sales are currently or were last made to a significant number
265 of any category of buyers or buyers constituting the general buying public for the supplies or
266 services involved.
267 [
268 bureau, agency, or other organization within the state executive branch.
269 [
270 procurement item obtained under the contract, that is not subject to adjustment except to the
271 extent that:
272 (a) the contract provides, under circumstances specified in the contract, for an
273 adjustment in price that is not based on cost to the contractor; or
274 (b) an adjustment is required by law.
275 [
276 that provides for an upward or downward revision of price, precisely described in the contract,
277 that:
278 (a) is based on the consumer price index or another commercially acceptable index,
279 source, or formula; and
280 (b) is not based on a percentage of the cost to the contractor.
281 [
282 agreement to expend public funds or other assistance, for a public purpose authorized by law,
283 without acquiring a procurement item in exchange.
284 [
285 (a) for a legislative procurement unit, any person designated by rule made by the
286 applicable rulemaking authority;
287 (b) for an executive branch procurement unit:
288 (i) the director of the division; or
289 (ii) any other person designated by the board, by rule;
290 (c) for a judicial procurement unit:
291 (i) the Judicial Council; or
292 (ii) any other person designated by the Judicial Council, by rule;
293 (d) for a local government procurement unit:
294 (i) the legislative body of the local government procurement unit; or
295 (ii) any other person designated by the local government procurement unit;
296 (e) for a local district other than a public transit district, the board of trustees of the
297 local district or a designee of the board of trustees;
298 (f) for a special service district, the governing body of the special service district or a
299 designee of the governing body;
300 (g) for a local building authority, the board of directors of the local building authority or
301 a designee of the board of directors;
302 (h) for a conservation district, the board of supervisors of the conservation district or a
303 designee of the board of supervisors;
304 (i) for a public corporation, the board of directors of the public corporation or a
305 designee of the board of directors;
306 (j) for a school district or any school or entity within a school district, the board of the
307 school district, or the board's designee;
308 (k) for a charter school, the individual or body with executive authority over the charter
309 school, or the individual's or body's designee;
310 (l) for an institution of higher education of the state, the president of the institution of
311 higher education, or the president's designee; [
312 (m) for an applied technology college within the Utah College of Applied Technology,
313 the president of the applied technology college or the president's designee; or
314 [
315 trustees.
316 [
317 (a) means an irregularity or abnormality that is:
318 (i) a matter of form that does not affect substance; or
319 (ii) an inconsequential variation from a requirement of a solicitation that has no, little,
320 or a trivial effect on the procurement process and that is not prejudicial to other vendors; and
321 (b) includes:
322 (i) a missing signature, missing acknowledgment of an addendum, or missing copy of a
323 professional license, bond, or insurance certificate;
324 (ii) a typographical error;
325 (iii) an error resulting from an inaccuracy or omission in the solicitation; and
326 (iv) any other error that the chief procurement officer or the head of a procurement unit
327 with independent procurement authority reasonably considers to be immaterial.
328 [
329 (a) is for an indefinite amount of procurement items to be supplied as ordered by a
330 procurement unit; and
331 (b) (i) does not require a minimum purchase amount; or
332 (ii) provides a maximum purchase limit.
333 [
334 procurement unit under Subsection 63G-6a-106(4)(a).
335 [
336 (a) means a document used to solicit:
337 (i) bids to provide a procurement item to a procurement unit; or
338 (ii) quotes for a price of a procurement item to be provided to a procurement unit; and
339 (b) includes all documents attached to or incorporated by reference in a document
340 described in Subsection [
341 [
342 (a) reviews a solicitation to verify that it is in proper form;
343 (b) causes the notice of a solicitation to be published; and
344 (c) negotiates and approves the terms and conditions of a contract.
345 [
346 (a) the Utah Supreme Court;
347 (b) the Utah Court of Appeals;
348 (c) the Judicial Council;
349 (d) a state judicial district; or
350 (e) an office, committee, subcommittee, or other organization within the state judicial
351 branch.
352 [
353 (a) the supplies and materials are not provided by, or through, the contractor; and
354 (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
355 profit for a specified number of labor hours or days.
356 [
357 (a) the Legislature;
358 (b) the Senate;
359 (c) the House of Representatives;
360 (d) a staff office of the Legislature, the Senate, or the House of Representatives; or
361 (e) [
362 (i) within the state legislative branch[
363 (ii) (A) that is created by statute to advise or make recommendations to the Legislature;
364 (B) the membership of which includes legislators; and
365 (C) for which the Office of Legislative Research and General Counsel provides staff
366 support.
367 [
368 17D-2-102.
369 [
370 17B-1-102.
371 [
372 (a) a county or municipality, and each office or agency of the county or municipality,
373 unless the county or municipality adopts its own procurement code by ordinance;
374 (b) a county or municipality that has adopted this entire chapter by ordinance, and each
375 office or agency of that county or municipality; or
376 (c) a county or municipality that has adopted a portion of this chapter by ordinance, to
377 the extent that a term in the ordinance is used in the adopted portion of this chapter, and each
378 office or agency of that county or municipality.
379 [
380 quantity of a procurement item to more than one [
381 [
382 period, including a contract that permits renewal of the contract, without competition, beyond
383 the first year of the contract.
384 [
385 [
386 (a) a county or municipality that has not adopted Part 16, Protests, Part 17,
387 Procurement Appeals Board, Part 18, Appeals to Court and Court Proceedings, and Part 19,
388 General Provisions Related to Protest or Appeal; and
389 (b) each office or agency of a county or municipality described in Subsection (54)(a).
390 [
391 for proposals.
392 [
393
394
395 [
396 preference under the requirements of this chapter.
397 [
398 [
399 (a) means a procurement unit's acquisition of a procurement item through an
400 expenditure of public funds, or an agreement to expend public funds;
401 (b) includes all functions that pertain to the acquisition of a procurement item,
402 including:
403 (i) preparing and issuing a solicitation; and
404 (ii) (A) conducting a standard procurement process; or
405 (B) conducting a procurement process that is an exception to a standard procurement
406 process under Part 8, Exceptions to Procurement Requirements; and
407 (c) does not include a grant.
408 [
409 [
410 (a) for a procurement unit with independent procurement authority:
411 (i) the head of the procurement unit;
412 (ii) a designee of the head of the procurement unit; or
413 (iii) a person designated by rule made by the applicable rulemaking authority; or
414 (b) for the division or a procurement unit without independent procurement authority,
415 the chief procurement officer.
416 [
417 (a) means:
418 (i) a legislative procurement unit;
419 (ii) an executive branch procurement unit;
420 (iii) a judicial procurement unit;
421 (iv) an educational procurement unit;
422 (v) a local government procurement unit;
423 (vi) a local district;
424 (vii) a special service district;
425 (viii) a local building authority;
426 (ix) a conservation district;
427 (x) a public corporation; or
428 (xi) a public transit district; and
429 (b) does not include a political subdivision created under Title 11, Chapter 13,
430 Interlocal Cooperation Act.
431 [
432 degree of specialized knowledge and discretion, including labor, effort, or work in the field of:
433 (a) accounting;
434 (b) architecture;
435 (c) construction design and management;
436 (d) engineering;
437 (e) financial services;
438 (f) information technology;
439 (g) the law;
440 (h) medicine;
441 (i) psychiatry; or
442 (j) underwriting.
443 [
444 (a) for the division or a procurement unit with independent procurement authority:
445 (i) the head of the procurement unit;
446 (ii) [
447 the procurement unit; or
448 (iii) a person designated by rule made by the applicable rulemaking authority; or
449 (b) for a procurement unit without independent procurement authority, the chief
450 procurement officer or the chief procurement officer's designee who is an employee of the
451 division .
452 [
453 63E-1-102.
454 [
455 subdivision of the state, including:
456 (a) a procurement unit;
457 (b) a municipality or county, regardless of whether the municipality or county has
458 adopted this chapter or any part of this chapter; and
459 (c) any other government entity located in the state that expends public funds.
460 [
461 or other facility of a public entity.
462 [
463 federal government, that is owned or held by a procurement unit.
464 [
465 17B, Chapter 2a, Part 8, Public Transit District Act.
466 [
467 (a) is responsible; and
468 (b) submits a responsive statement of qualifications under Section 63G-6a-410 that
469 meets the minimum mandatory requirements, evaluation criteria, and any applicable score
470 thresholds set forth in the request for statement of qualifications.
471 [
472 appurtenance, structure, or other development that is permanently affixed to land.
473 [
474 procurement unit requests information relating to a procurement item.
475 [
476 provide a procurement item to a procurement unit, including all other documents that are
477 attached to that document or incorporated in that document by reference.
478 [
479 in Part 7, Request for Proposals.
480 [
481 information about the qualifications of a person interested in responding to a potential
482 procurement, including all other documents attached to that document or incorporated in that
483 document by reference.
484 [
485 (a) under which a contractor agrees to provide a procurement unit's entire requirements
486 for certain procurement items at prices specified in the contract during the contract period; and
487 (b) that:
488 (i) does not require a minimum purchase amount; or
489 (ii) provides a maximum purchase limit.
490 [
491 (a) meeting all the requirements of a solicitation; and
492 (b) fully performing all the requirements of the contract resulting from the solicitation,
493 including being financially solvent with sufficient financial resources to perform the contract.
494 [
495 of a solicitation.
496 [
497 [
498 (a) means labor, effort, or work to produce a result that is beneficial to a procurement
499 unit;
500 (b) includes a professional service; and
501 (c) does not include labor, effort, or work provided under an employment agreement or
502 a collective bargaining agreement.
503 [
504 Section 63G-6a-506.
505 [
506 procurement.
507 [
508 pursuant to a determination under Subsection 63G-6a-802(1)(a) that there is only one source
509 for the procurement item.
510 [
511 for statement of qualifications, or request for information.
512 [
513 (a) a bid submitted in response to an invitation for bids;
514 (b) a proposal submitted in response to a request for proposals; or
515 (c) a statement of qualifications submitted in response to a request for statement of
516 qualifications.
517 [
518 17D-1-102.
519 [
520 characteristics or of the nature of a procurement item included in an invitation for bids or a
521 request for proposals, or otherwise specified or agreed to by a procurement unit, including a
522 description of:
523 (a) a requirement for inspecting or testing a procurement item; or
524 (b) preparing a procurement item for delivery.
525 [
526 (a) the bidding process;
527 (b) the request for proposals process;
528 (c) the approved vendor list process;
529 (d) the small purchase process; or
530 (e) the design professional procurement process.
531 [
532 and in behalf of all public entities.
533 [
534 procurement unit in response to a request for statement of qualifications.
535 [
536 [
537
538 [
539 [
540
541 (a) means a person under contract to perform part of a contractual obligation under the
542 control of the contractor, whether the person's contract is with the contractor directly or with
543 another person who is under contract to perform part of a contractual obligation under the
544 control of the contractor; and
545 (b) includes a supplier, distributor, or other vendor that furnishes supplies or services
546 to a contractor.
547 [
548 other item of personal property.
549 [
550 identical in price.
551 [
552 is paid:
553 (a) the actual cost of direct labor at specified hourly rates;
554 (b) the actual cost of materials and equipment usage; and
555 (c) an additional amount, expressly described in the contract, to cover overhead and
556 profit, that is not based on a percentage of the cost to the contractor.
557 [
558 (a) means the costs of changing:
559 (i) from an existing provider of a procurement item to another provider of that
560 procurement item; or
561 (ii) from an existing type of procurement item to another type;
562 (b) includes:
563 (i) training costs;
564 (ii) conversion costs;
565 (iii) compatibility costs;
566 (iv) costs associated with system downtime;
567 (v) disruption of service costs;
568 (vi) staff time necessary to implement the change;
569 (vii) installation costs; and
570 (viii) ancillary software, hardware, equipment, or construction costs; and
571 (c) does not include:
572 (i) the costs of preparing for or engaging in a procurement process; or
573 (ii) contract negotiation or drafting costs.
574 [
575 procurement unit acquires for a trial use or testing to determine whether the procurement item
576 will benefit the procurement unit.
577 [
578 (a) means a person who is seeking to enter into a contract with a procurement unit to
579 provide a procurement item; and
580 (b) includes:
581 (i) a bidder;
582 (ii) an offeror;
583 (iii) an approved vendor; and
584 (iv) a design professional.
585 Section 3. Section 63G-6a-112 is amended to read:
586 63G-6a-112. Required public notice.
587 (1) The division or a procurement unit with independent procurement authority that
588 issues a solicitation required to be published in accordance with this section, shall provide
589 public notice that includes:
590 [
591 [
592 [
593 [
594 [
595 [
596 the standard procurement process or procurement under Section 63G-6a-802; and
597 [
598 (i) contact information and other information relating to contesting or obtaining
599 additional information relating to the procurement; and
600 (ii) the earliest date that the procurement unit may make the procurement.
601 (2) Except as provided in Subsection (4), the issuing procurement unit shall publish the
602 notice described in Subsection (1):
603 (a) at least seven days before the day of the deadline for submission of a bid or other
604 response; and
605 (b) (i) in a newspaper of general circulation in the state;
606 (ii) in a newspaper of local circulation in the area:
607 (A) directly impacted by the procurement; or
608 (B) over which the procurement unit has jurisdiction;
609 (iii) on the main website for the issuing procurement unit or the procurement unit
610 acquiring the procurement item; or
611 (iv) on a state website that is owned, managed by, or provided under contract with, the
612 division for posting a public procurement notice.
613 (3) Except as provided in Subsection (4), for a procurement under Section 63G-6a-802
614 for which notice is required to be published in accordance with this section, the issuing
615 procurement unit shall publish the notice described in Subsection (1):
616 (a) at least seven days before the acquisition of the procurement item; and
617 (b) (i) in a newspaper of general circulation in the state;
618 (ii) in a newspaper of local circulation in the area:
619 (A) directly impacted by the procurement; or
620 (B) over which the procurement unit has jurisdiction;
621 (iii) on the main website for the procurement unit acquiring the procurement item; or
622 (iv) on a state website that is owned by, managed by, or provided under contract with,
623 the division for posting a procurement notice.
624 (4) An issuing procurement unit may reduce the seven-day period described in
625 Subsection (2) or (3), if the procurement officer or the procurement officer's designee signs a
626 written statement that:
627 (a) states that a shorter time is needed; and
628 (b) determines that competition from multiple sources may be obtained within the
629 shorter period of time.
630 (5) (a) An issuing procurement unit shall make a copy of the solicitation documents
631 available for public inspection at the main office of the issuing procurement unit or on the
632 website described in Subsection (2)(b) until the award of the contract or the cancellation of the
633 procurement.
634 (b) A procurement unit issuing a procurement under Section 63G-6a-802 shall make a
635 copy of information related to the procurement available for public inspection at the main
636 office of the procurement unit or on the website described in Subsection (3)(b) until the award
637 of the contract or the cancellation of the procurement.
638 (c) A procurement unit shall maintain all records in accordance with Part 20, Records.
639 (6) A procurement unit that issues a request for statement of qualifications as part of an
640 approved vendor list process that results in the establishment of an open-ended vendor list, as
641 defined in Section 63G-6a-507, shall keep the request for statement of qualifications posted on
642 a website described in Subsection (2)(b)(iii) or (iv) during the entire period of the open-ended
643 vendor list.
644 (7) (a) It is the responsibility of a person seeking information provided by a public
645 notice under this section to seek out, find, and respond to a public notice issued by a
646 procurement unit.
647 (b) As a courtesy and in order to promote competition, a procurement unit may
648 provide, but is not required to provide, individual notice.
649 Section 4. Section 63G-6a-116 is amended to read:
650 63G-6a-116. Procurement of administrative law judge service.
651 (1) As used in this section:
652 (a) "Administrative law judge" means the same as that term is defined in Section
653 67-19e-102.
654 (b) "Administrative law judge service" means service provided by an administrative
655 law judge.
656 [
657 chapter for the procurement of administrative law judge service.
658 (3) For a procurement of administrative law judge service, an evaluation committee
659 shall consist of:
660 (a) the head of the conducting procurement unit, or the head's designee;
661 (b) the head of an executive branch procurement unit other than the conducting
662 procurement unit, appointed by the executive director of the Department of Human Resource
663 Management, or the head's designee; and
664 (c) the executive director of the Department of Human Resource Management, or the
665 executive director's designee.
666 [
667 contract for administrative law judge service, the conducting procurement unit shall give
668 written notice to the Department of Human Resource Management that states:
669 (a) that the conducting procurement unit awarded a contract for administrative law
670 judge service;
671 (b) the name of the conducting procurement unit; and
672 (c) the expected term of the contract.
673 (5) A procurement of administrative law judge service using a small purchase process
674 is subject to rules made pursuant to Subsection 63G-6a-506(2)(c).
675 Section 5. Section 63G-6a-302 is amended to read:
676 63G-6a-302. Chief procurement officer -- Appointment -- Qualifications --
677 Authority.
678 (1) The executive director of the Department of Administrative Services, with the
679 consent of the governor, shall appoint the chief procurement officer after considering
680 recommendations from the board.
681 (2) The chief procurement officer shall:
682 (a) have a minimum of eight years' experience:
683 (i) (A) in the large-scale procurement of supplies [
684 construction[
685 (B) negotiating contract terms and conditions; and
686 (ii) at least five years of which shall have been in public or comparable private
687 procurement within 12 years preceding the date of appointment; and
688 (b) be a person with demonstrated executive and organizational ability.
689 (3) The chief procurement officer appointed under Subsection (1) is also the director of
690 the Division of Purchasing and General Services.
691 (4) The chief procurement officer has authority over a procurement by a procurement
692 unit, except:
693 (a) a procurement unit with independent procurement authority; or
694 (b) as otherwise expressly provided in this chapter.
695 Section 6. Section 63G-6a-410 is amended to read:
696 63G-6a-410. Request for statement of qualifications -- Process.
697 (1) (a) A procurement unit may use the process described in this section:
698 (i) as one of the stages of a multiple-stage:
699 (A) bidding process;
700 (B) request for proposals process; or
701 (C) design professional procurement process; and
702 (ii) to identify qualified vendors to participate in other stages of the multiple-stage
703 procurement process.
704 (b) A procurement unit shall use the process described in this section as part of the
705 approved vendor list process, if the procurement unit intends to establish an approved vendor
706 list.
707 (2) A procurement unit may not:
708 (a) award a contract based solely on the process described in this section; or
709 (b) solicit costs, pricing, or rates or negotiate fees through the process described in this
710 section.
711 (3) The process of identifying qualified vendors in a multiple-stage procurement
712 process or of establishing an approved vendor list under Section 63G-6a-507 is initiated by a
713 procurement unit issuing a request for statement of qualifications.
714 (4) A request for statement of qualifications in a multiple-stage procurement process
715 shall include:
716 (a) a statement indicating that participation in other stages of the multiple-stage
717 procurement process will be limited to qualified vendors;
718 (b) the minimum mandatory requirements, evaluation criteria, and applicable score
719 thresholds that will be used to identify qualified vendors, including, as applicable:
720 (i) experience and work history;
721 (ii) management and staff requirements or standards;
722 (iii) licenses, certifications, and other qualifications;
723 (iv) performance ratings or references;
724 (v) financial stability; and
725 (vi) other information pertaining to vendor qualifications that the chief procurement
726 officer or the head of a procurement unit with independent procurement authority considers
727 relevant or important; and
728 (c) the deadline by which a vendor is required to submit a statement of qualifications.
729 (5) A request for statement of qualifications in an approved vendor list process under
730 Section 63G-6a-507 shall include:
731 (a) a general description of, as applicable:
732 (i) the procurement item that the procurement unit seeks to acquire;
733 (ii) the type of project or scope or category of work that will be the subject of a
734 procurement by the procurement unit;
735 (iii) the procurement process the procurement unit will use to acquire the procurement
736 item; and
737 (iv) the type of vendor the procurement unit seeks to provide the procurement item;
738 (b) the minimum mandatory requirements, evaluation criteria, and applicable score
739 thresholds that vendors are required to meet to be included on the approved vendor list;
740 (c) a statement indicating that the approved vendor list will include only responsible
741 vendors that:
742 (i) submit a responsive statement of qualifications; and
743 (ii) meet the minimum mandatory requirements, evaluation criteria, and applicable
744 score thresholds described in the request for statement of qualifications;
745 (d) a statement indicating that only vendors on the approved vendor list will be able to
746 participate in the procurements identified in the request for statement of qualifications;
747 (e) a statement indicating whether the procurement unit will use a performance rating
748 system for evaluating the performance of vendors on the approved vendor list, including
749 whether a vendor on the approved vendor list may be disqualified and removed from the list;
750 (f) (i) a statement indicating whether the procurement unit uses a closed-ended
751 approved vendor list, as defined in Section 63G-6a-507, or an open-ended approved vendor
752 list, as defined in Section 63G-6a-507; and
753 (ii) (A) if the procurement unit uses a closed-ended approved vendor list, the deadline
754 by which a vendor is required to submit a statement of qualifications and a specified period of
755 time after which the approved vendor list will expire; or
756 (B) if the procurement unit uses an open-ended approved vendor list, the deadline by
757 which a vendor is required to submit a statement of qualifications to be considered for the
758 initial approved vendor list, a schedule indicating when a vendor not on the initial approved
759 vendor list may submit a statement of qualifications to be considered to be added to the
760 approved vendor list, and the specified period of time after which a vendor is required to
761 submit a new statement of qualifications for evaluation before the vendor's status as an
762 approved vendor on the approved vendor list may be renewed; and
763 (g) a description of any other criteria or requirements specific to the procurement item
764 or scope of work that is the subject of the procurement.
765 (6) A procurement unit issuing a request for statement of qualifications shall publish
766 the request as provided in Section 63G-6a-112.
767 (7) After the deadline for submitting a statement of qualifications, the chief
768 procurement officer or the head of a procurement unit with independent procurement authority
769 may allow a vendor to correct an immaterial error in a statement of qualifications, as provided
770 in Section 63G-6a-114.
771 (8) (a) A conducting procurement unit may reject a statement of qualifications if the
772 conducting procurement unit determines that:
773 (i) the vendor who submitted the statement of qualifications:
774 (A) is not responsible;
775 (B) is in violation of a provision of this chapter;
776 (C) has engaged in unethical conduct; or
777 (D) receives a performance rating below the satisfactory performance threshold
778 specified in the request for statement of qualifications;
779 (ii) there has been a change in the vendor's circumstances after the vendor submits a
780 statement of qualifications that, if the change had been known at the time the statement of
781 qualifications was evaluated, would have caused the statement of qualifications not to have
782 received a qualifying score; or
783 (iii) the statement of qualifications:
784 (A) is not responsive; or
785 (B) does not meet the mandatory minimum requirements, evaluation criteria, or
786 applicable score thresholds stated in the request for statement of qualifications.
787 (b) A procurement unit that rejects a statement of qualifications under Subsection
788 (8)(a) shall:
789 (i) make a written finding, stating the reasons for the rejection; and
790 (ii) provide a copy of the written finding to the vendor that submitted the rejected
791 statement of qualifications.
792 (9) (a) (i) After the issuance of a request for statement of qualifications, the conducting
793 procurement unit shall appoint an evaluation committee consisting of [
794
795
796
797
798
799
800
801 with at least a general familiarity with or basic understanding of:
802 (A) the technical requirements relating to the type of procurement item that is the
803 subject of the request for statement of qualifications; or
804 (B) the need that the procurement item is intended to address.
805 [
806 evaluation committee [
807 evaluation committee process:
808 (A) does not have a conflict of interest with any vendor that submits a statement of
809 qualifications;
810 (B) can fairly evaluate each statement of qualifications;
811 (C) does not contact or communicate with a vendor concerning the evaluation process
812 or procurement outside the official evaluation committee process; and
813 (D) conducts or participates in the evaluation in a manner that ensures a fair and
814 competitive process and avoids the appearance of impropriety.
815 (b) A conducting procurement unit may authorize an evaluation committee to receive
816 assistance:
817 (i) from an expert or consultant who:
818 (A) is not a member of the evaluation committee; and
819 (B) does not participate in the evaluation scoring; and
820 (ii) to better understand a technical issue involved in the procurement.
821 (c) An evaluation committee appointed under this Subsection (9):
822 (i) shall evaluate and score statements of qualifications submitted in response to a
823 request for statement of qualifications using the minimum mandatory requirements, evaluation
824 criteria, and applicable score thresholds set forth in the request for statement of qualifications;
825 (ii) may not evaluate or score a statement of qualifications using criteria not included in
826 the request for statement of qualifications; and
827 (iii) may, with the approval of the head of the conducting procurement unit, enter into
828 discussions or conduct interviews with or attend presentations by vendors, for the purpose of
829 clarifying information contained in statements of qualifications.
830 (d) In a discussion, interview, or presentation under Subsection (9)(c)(iii), a vendor:
831 (i) may only explain, illustrate, or interpret the contents of the vendor's original
832 statement of qualifications; and
833 (ii) may not:
834 (A) address criteria or specifications not contained in the vendor's original statement of
835 qualifications;
836 (B) correct a deficiency, inaccuracy, or mistake in a statement of qualifications that is
837 not an immaterial error;
838 (C) correct an incomplete submission of documents that the request for statement of
839 qualifications required to be submitted with the statement of qualifications;
840 (D) correct a failure to submit a timely statement of qualifications;
841 (E) substitute or alter a required form or other document specified in the statement of
842 qualifications;
843 (F) remedy a cause for a vendor being considered to be not responsible or a statement
844 of qualifications not responsive; or
845 (G) correct a defect or inadequacy resulting in a determination that a vendor does not
846 meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
847 established in the statement of qualifications.
848 (e) After the evaluation committee completes its evaluation and scoring of the
849 statements of qualifications, the evaluation committee shall submit the statements of
850 qualifications and evaluation scores to the head of the procurement unit for review and final
851 determination of:
852 (i) qualified vendors, if the request for statement of qualifications process is used as
853 one of the stages of a multiple-stage process; or
854 (ii) vendors to be included on an approved vendor list, if the request for statement of
855 qualifications process is used as part of the approved vendor list process.
856 (f) The issuing procurement unit shall review the evaluation committee's scores and
857 correct any errors, scoring inconsistencies, and reported noncompliance with this chapter.
858 (g) (i) The deliberations of an evaluation committee under this Subsection (9) may be
859 held in private.
860 (ii) If the evaluation committee is a public body, as defined in Section 52-4-103, the
861 evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
862 deliberations.
863 (10) A procurement unit may at any time request a vendor to clarify information
864 contained in a statement of qualifications, as provided in Section 63G-6a-115.
865 (11) A vendor may voluntarily withdraw a statement of qualifications at any time
866 before a contract is awarded with respect to which the statement of qualifications was
867 submitted.
868 (12) If only one vendor meets the minimum qualifications, evaluation criteria, and
869 applicable score thresholds set forth in the request for statement of qualifications that the
870 procurement unit is using as part of an approved vendor list process, the conducting
871 procurement unit:
872 (a) shall cancel the request for statement of qualifications; and
873 (b) may not establish an approved vendor list based on the canceled request for
874 statement of qualifications or on statements of qualifications submitted in response to the
875 request for statement of qualifications.
876 (13) If a conducting procurement unit cancels a request for statement of qualifications,
877 the conducting procurement unit shall make available for public inspection a written
878 justification for the cancellation.
879 (14) After receiving and reviewing the statements of qualifications and evaluation
880 scores submitted by the evaluation committee [
881 procurement unit using the request for statement of qualifications process under this section as
882 one of the stages of a multiple-stage procurement process shall identify those vendors meeting
883 the minimum mandatory requirements, evaluation criteria, and applicable score thresholds as
884 qualified vendors who are allowed to participate in the remaining stages of the multiple-stage
885 procurement process.
886 (15) The applicable rulemaking authority may make rules pertaining to the request for
887 statement of qualifications and the process described in this section.
888 Section 7. Section 63G-6a-506 is amended to read:
889 63G-6a-506. Small purchases.
890 (1) As used in this section:
891 (a) "Annual cumulative threshold" means the maximum total annual amount,
892 established by the applicable rulemaking authority under Subsection (2), that a procurement
893 unit may expend to obtain procurement items from the same source under this section.
894 (b) "Individual procurement threshold" means the maximum amount, established by
895 the applicable rulemaking authority under Subsection (2), for which a procurement unit may
896 purchase a procurement item under this section.
897 (c) "Single procurement aggregate threshold" means the maximum total amount,
898 established by the applicable rulemaking authority under Subsection (2), that a procurement
899 unit may expend to obtain multiple procurement items from one source at one time under this
900 section.
901 (2) (a) The applicable rulemaking authority may make rules governing small purchases
902 of any procurement item, including construction, job order contracting, design professional
903 services, other professional services, information technology, and goods.
904 (b) Rules under Subsection (2)(a) may include provisions:
905 (i) establishing expenditure thresholds, including:
906 (A) an annual cumulative threshold;
907 (B) an individual procurement threshold; and
908 (C) a single procurement aggregate threshold;
909 (ii) establishing procurement requirements relating to the thresholds described in
910 Subsection (2)(b)(i); and
911 (iii) providing for the use of electronic, telephone, or written quotes.
912 (c) If a procurement unit obtains administrative law judge service through a small
913 purchase standard procurement process, rules made under Subsection (2)(a) shall provide that
914 the process for the procurement of administrative law judge service include an evaluation
915 committee described in Subsection [
916 (3) Expenditures made under this section by a procurement unit may not exceed a
917 threshold established by the applicable rulemaking authority, unless the chief procurement
918 officer or the head of a procurement unit with independent procurement authority gives written
919 authorization to exceed the threshold that includes the reasons for exceeding the threshold.
920 (4) Except as provided in Subsection (5), an executive branch procurement unit may
921 not obtain a procurement item through a small purchase standard procurement process if the
922 procurement item may be obtained through a state cooperative contract or a contract awarded
923 by the chief procurement officer under Subsection 63G-6a-2105(1).
924 (5) Subsection (4) does not apply if:
925 (a) the procurement item is obtained for an unanticipated, urgent, or emergency
926 condition, including:
927 (i) an item needed to avoid stopping a public construction project;
928 (ii) an immediate repair to a facility or equipment; or
929 (iii) another emergency condition; or
930 (b) the chief procurement officer or the head of a procurement unit that is an executive
931 branch procurement unit with independent procurement authority:
932 (i) determines in writing that it is in the best interest of the procurement unit to obtain
933 an individual procurement item outside of the state contract, comparing:
934 (A) the contract terms and conditions applicable to the procurement item under the
935 state contract with the contract terms and conditions applicable to the procurement item if the
936 procurement item is obtained outside of the state contract;
937 (B) the maintenance and service applicable to the procurement item under the state
938 contract with the maintenance and service applicable to the procurement item if the
939 procurement item is obtained outside of the state contract;
940 (C) the warranties applicable to the procurement item under the state contract with the
941 warranties applicable to the procurement item if the procurement item is obtained outside of
942 the state contract;
943 (D) the quality of the procurement item under the state contract with the quality of the
944 procurement item if the procurement item is obtained outside of the state contract; and
945 (E) the cost of the procurement item under the state contract with the cost of the
946 procurement item if the procurement item is obtained outside of the state contract;
947 (ii) for a procurement item that, if defective in its manufacture, installation, or
948 performance, may result in serious physical injury, death, or substantial property damage,
949 determines in writing that the terms and conditions, relating to liability for injury, death, or
950 property damage, available from the source other than the contractor who holds the state
951 contract, are similar to, or better than, the terms and conditions available under the state
952 contract; and
953 (iii) grants an exception, in writing, to the requirement described in Subsection (4).
954 (6) Except as otherwise expressly provided in this section, a procurement unit:
955 (a) may not use the small purchase standard procurement process described in this
956 section for ongoing, continuous, and regularly scheduled procurements that exceed the annual
957 cumulative threshold; and
958 (b) shall make its ongoing, continuous, and regularly scheduled procurements that
959 exceed the annual cumulative threshold through a contract awarded through another standard
960 procurement process described in this chapter or an applicable exception to another standard
961 procurement process, described in Part 8, Exceptions to Procurement Requirements.
962 (7) This section does not prohibit regularly scheduled payments for a procurement item
963 obtained under another provision of this chapter.
964 [
965
966 [
967
968 [
969
970 [
971
972 [
973
974 [
975
976 [
977
978 [
979
980 [
981
982 [
983 [
984
985 [
986 (8) (a) It is unlawful for a person knowingly to divide a single procurement into
987 multiple smaller procurements, including by dividing an invoice or purchase order into
988 multiple invoices or purchase orders, if:
989 (i) the single procurement would not have qualified as a small purchase under this
990 section;
991 (ii) one or more of the multiple smaller procurements qualify as a small purchase under
992 this section; and
993 (iii) the division is done with the intent to:
994 (A) avoid having to use a standard procurement process, other than the small purchase
995 process, that the person would otherwise be required to use for the single procurement; or
996 (B) make one or more of the multiple smaller procurements fall below a small
997 purchase expenditure threshold established by rule under Subsection (2)(b) that the single
998 procurement would not have fallen below without the division.
999 (b) A violation of Subsection (8)(a) is subject to penalties as provided in Subsection
1000 63G-6a-2404.3(2).
1001 [
1002 may conduct an audit of an executive branch procurement unit to verify compliance with the
1003 requirements of this section.
1004 [
1005 January 1, 2014, unless the chief procurement officer certifies that the person responsible for
1006 procurements in the procurement unit has satisfactorily completed training on this section and
1007 the rules made under this section.
1008 Section 8. Section 63G-6a-507 is amended to read:
1009 63G-6a-507. Approved vendor list procurement process.
1010 (1) As used in this section:
1011 (a) "Closed-ended approved vendor list" means an approved vendor list that is subject
1012 to:
1013 (i) a short period of time, specified by the procurement unit, during which vendors may
1014 be added to the list; and
1015 (ii) a specified period of time after which the list will expire.
1016 (b) "Open-ended approved vendor list" means an approved vendor list that is subject
1017 to:
1018 (i) an indeterminate period of time during which vendors may be added to the list;
1019 (ii) the addition of vendors to the list throughout the term of the list; and
1020 (iii) a specified period of time after which a vendor on the list is required to submit the
1021 vendor's qualifications for evaluation before the vendor may be renewed as an approved
1022 vendor.
1023 (2) A procurement unit may not establish an approved vendor list unless the
1024 procurement unit has first completed the statement of qualifications process described in
1025 Section 63G-6a-410.
1026 (3) (a) A procurement unit may establish an approved vendor list for:
1027 (i) a specific, fully defined procurement item; or
1028 (ii) a future procurement item that is not specifically and fully defined, if the request
1029 for statement of qualifications contains a general description of:
1030 (A) the procurement item; and
1031 (B) the type of vendor that the procurement unit seeks to provide the procurement item.
1032 (b) A procurement unit may not award a contract to a vendor on an approved vendor
1033 list for a procurement item that is outside the scope of the general description of the
1034 procurement item contained in the request for statement of qualifications.
1035 (4) After receiving the statements of qualifications and evaluation scores submitted by
1036 the evaluation committee under Subsection 63G-6a-410(9)[
1037 procurement unit using the request for statement of qualifications process under Section
1038 63G-6a-410 as part of an approved vendor list process shall:
1039 (a) include on an approved vendor list those vendors meeting the minimum mandatory
1040 requirements, evaluation criteria, and applicable score thresholds; and
1041 (b) reject any vendor not meeting the minimum mandatory requirements, evaluation
1042 criteria, and applicable score thresholds as ineligible for inclusion on the approved vendor list.
1043 (5) (a) A procurement unit shall include approved vendors on a closed-ended approved
1044 vendor list or an open-ended approved vendor list.
1045 (b) (i) A closed-ended approved vendor list shall expire no later than 18 months after
1046 the publication of the closed-ended approved vendor list.
1047 (ii) A procurement unit shall require a vendor on an open-ended approved vendor list,
1048 in order to remain on the approved vendor list, to submit an updated statement of qualifications
1049 for evaluation no later than 18 months after the vendor was added to the list as an approved
1050 vendor.
1051 (6) A procurement unit may:
1052 (a) (i) using a bidding process, request for proposals process, small purchase process,
1053 or design professional procurement process, award a contract to a vendor on an approved
1054 vendor list for any procurement item or type of procurement item specified by the procurement
1055 unit in the request for statement of qualifications, including procurement items that the
1056 procurement unit intends to acquire in a series of future procurements described in the request
1057 for statement of qualifications; and
1058 (ii) limit participation in a bidding process, request for proposals process, small
1059 purchase process, or design professional procurement process to vendors on an approved
1060 vendor list; or
1061 (b) award a contract to a vendor on an approved vendor list at a price established as
1062 provided in Section 63G-6a-113.
1063 (7) After establishing an approved vendor list as provided in this section, the
1064 conducting procurement unit shall, before using the approved vendor list, submit the approved
1065 vendor list to the issuing procurement unit for publication by the issuing procurement unit.
1066 (8) A conducting procurement unit administering an open-ended approved vendor list
1067 shall:
1068 (a) require a vendor seeking inclusion on the approved vendor list to submit a
1069 statement of qualifications that complies with all requirements applicable at the time of the
1070 initial request for statement of qualifications;
1071 (b) if modifying the requirements for inclusion on the approved vendor list, apply any
1072 new or additional requirement to all vendors equally, whether a vendor is seeking inclusion on
1073 the approved vendor list for the first time or is already included on the approved vendor list;
1074 and
1075 (c) keep the request for statement of qualifications posted on a website as required
1076 under Subsection 63G-6a-112(6).
1077 (9) The applicable rulemaking authority shall make rules pertaining to an approved
1078 vendor list process, including:
1079 (a) procedures to ensure that all vendors on an approved vendor list have a fair and
1080 equitable opportunity to compete for a contract for a procurement item; and
1081 (b) requirements for using an approved vendor list with the small purchase process.
1082 Section 9. Section 63G-6a-602 is amended to read:
1083 63G-6a-602. Contracts awarded by bidding.
1084 (1) [
1085 unit with independent procurement authority [
1086 item by the bidding process, in accordance with the rules of the applicable rulemaking
1087 authority.
1088 (2) The bidding standard procurement process is appropriate to use when cost is the
1089 major factor in determining the award of a procurement.
1090 Section 10. Section 63G-6a-603 is amended to read:
1091 63G-6a-603. Invitation for bids -- Requirements -- Publication.
1092 (1) The bidding standard procurement process begins when the issuing procurement
1093 unit issues an invitation for bids.
1094 (2) An invitation for bids shall:
1095 (a) state the period of time during which bids will be accepted;
1096 (b) describe the manner in which a bid shall be submitted;
1097 (c) state the place where a bid shall be submitted; and
1098 (d) include, or incorporate by reference:
1099 (i) to the extent practicable, a full description of the procurement items sought and the
1100 full scope of work ;
1101 (ii) the objective criteria that will be used to evaluate the bids; and
1102 (iii) the required contractual terms and conditions.
1103 (3) An issuing procurement unit shall publish an invitation for bids in accordance with
1104 the requirements of Section 63G-6a-112.
1105 Section 11. Section 63G-6a-606 is amended to read:
1106 63G-6a-606. Evaluation of bids -- Award -- Cancellation -- Rejecting a bid.
1107 (1) A procurement unit that conducts a procurement using a bidding [
1108
1109 invitation for bids, which may include:
1110 (a) experience;
1111 (b) performance ratings;
1112 (c) inspection;
1113 (d) testing;
1114 (e) quality;
1115 (f) workmanship;
1116 (g) time and manner of delivery;
1117 (h) references;
1118 (i) financial stability;
1119 (j) cost;
1120 (k) suitability for a particular purpose;
1121 (l) the contractor's work site safety program, including any requirement that the
1122 contractor imposes on subcontractors for a work site safety program; or
1123 (m) other objective criteria specified in the invitation for bids.
1124 (2) Criteria not described in the invitation for bids may not be used to evaluate a bid.
1125 (3) The conducting procurement unit shall:
1126 (a) subject to the provisions of Section 63G-6a-1204.5 for multiple award contracts,
1127 award the contract as soon as practicable to:
1128 (i) the responsible bidder who submits the lowest responsive bid that meets the
1129 objective criteria described in the invitation for bids; or
1130 (ii) if, in accordance with Subsection (4), the procurement officer or the head of the
1131 conducting procurement unit rejects a bid described in Subsection (3)(a)(i), the responsible
1132 bidder who submits the next lowest responsive bid that meets the objective criteria described in
1133 the invitation for bids; or
1134 (b) cancel the invitation for bids without awarding a contract.
1135 (4) In accordance with Subsection (5), the procurement officer or the head of the
1136 conducting procurement unit may reject a bid for:
1137 (a) a violation of this chapter by the bidder who submitted the bid;
1138 (b) a violation of a requirement of the invitation for bids;
1139 (c) unlawful or unethical conduct by the bidder who submitted the bid; or
1140 (d) a change in a bidder's circumstance that, had the change been known at the time the
1141 bid was submitted, would have caused the bid to be rejected.
1142 (5) A procurement officer or head of a conducting procurement unit who rejects a bid
1143 under Subsection (4) shall:
1144 (a) make a written finding, stating the reasons for the rejection; and
1145 (b) provide a copy of the written finding to the bidder who submitted the rejected bid.
1146 (6) If a conducting procurement unit cancels an invitation for bids without awarding a
1147 contract, the conducting procurement unit shall make available for public inspection a written
1148 justification for the cancellation.
1149 Section 12. Section 63G-6a-607 is amended to read:
1150 63G-6a-607. Action if all bids exceed available funds -- Exemption.
1151 (1) Except as provided in Subsection (2) or (3), if the fiscal officer for the conducting
1152 procurement unit certifies that all accepted bids exceed available funds and that the lowest
1153 responsive [
1154 than 5%, the procurement officer may negotiate an adjustment of the bid price and bid
1155 requirements with the responsible bidder who submitted the lowest responsive [
1156
1157 (2) A procurement officer may not adjust the bid requirements under Subsection (1) if
1158 there is a substantial likelihood that, had the adjustment been included in the invitation for
1159 bids, a person that did not submit a bid would have submitted a responsive[
1160 competitive bid.
1161 (3) The Division of Facilities Construction and Management is exempt from the
1162 requirements of this section if:
1163 (a) the building board adopts rules governing procedures when all accepted bids exceed
1164 available funds; and
1165 (b) the Division of Facilities Construction and Management complies with the rules
1166 described in Subsection (3)(a).
1167 Section 13. Section 63G-6a-608 is amended to read:
1168 63G-6a-608. Tie bids -- Resolution -- Copies provided to attorney general.
1169 (1) A procurement officer shall resolve a tie bid in accordance with a method
1170 established by rule made by the applicable rulemaking authority. The method may include
1171 awarding the tie bid:
1172 (a) to the tie bidder who:
1173 (i) is a provider of state products, if no other tie bidder is a [
1174 state products;
1175 (ii) is closest to the point of delivery;
1176 (iii) received the previous award; or
1177 (iv) will provide the earliest delivery date;
1178 (b) by drawing lots; or
1179 (c) by any other reasonable method of resolving a tie bid.
1180 (2) The method chosen by the procurement officer to resolve a tie bid shall be at the
1181 sole discretion of the procurement officer, subject to the rules established under Subsection (1).
1182 (3) A procurement unit in the state executive branch shall provide a copy of the
1183 procurement to the attorney general if an award of a contract to a tie bidder exceeds $100,000
1184 in expenditures.
1185 Section 14. Section 63G-6a-612 is amended to read:
1186 63G-6a-612. Conduct of reverse auction.
1187 (1) A procurement unit conducting a reverse auction:
1188 (a) may conduct the reverse auction at a physical location or by electronic means;
1189 (b) shall permit all prequalified bidders to participate in the reverse auction;
1190 (c) may not permit a bidder to participate in the reverse auction if the bidder did not
1191 prequalify to participate in the reverse auction;
1192 (d) may not accept a bid after the time for submission of a bid has expired;
1193 (e) shall update the bids on a real time basis; and
1194 (f) shall conduct the reverse auction in a manner that permits each bidder to:
1195 (i) bid against each other; and
1196 (ii) lower the bidder's price below the lowest bid before the reverse auction closes.
1197 (2) At the end of the reverse auction, the conducting procurement unit shall:
1198 (a) award the contract as soon as practicable to the [
1199 bidder who:
1200 (i) meets the objective criteria described in the invitation for bids; [
1201 (ii) submitted the lowest responsive bid; or
1202 (b) cancel the reverse auction without awarding a contract.
1203 (3) After the reverse auction is finished, the conducting procurement unit shall make
1204 publicly available:
1205 (a) (i) the amount of the final bid submitted by each bidder during the reverse auction;
1206 and
1207 (ii) the identity of the bidder that submitted each final bid; and
1208 (b) if practicable:
1209 (i) the amount of each bid submitted during the reverse auction; and
1210 (ii) the identity of the bidder that submitted each bid.
1211 Section 15. Section 63G-6a-702 is amended to read:
1212 63G-6a-702. Contracts awarded by request for proposals.
1213 [
1214
1215
1216 (1) The division or a procurement unit with independent procurement authority may
1217 award a contract for a procurement item by the request for proposals process, in accordance
1218 with the rules of the applicable rulemaking authority.
1219 (2) (a) The request for proposals [
1220 procurement unit to use [
1221 most advantageous to the procurement unit, including when :
1222 [
1223 [
1224 (i) the procurement involves a contract whose terms and conditions are to be negotiated
1225 in order to achieve the result that is the most advantageous to the procurement unit;
1226 [
1227 selection that is most advantageous to the procurement unit; or
1228 [
1229 making the selection that is most advantageous to the procurement unit.
1230 (b) The types of procurements for which it is appropriate to use the request for
1231 proposals process include:
1232 (i) a procurement of professional services; and
1233 (ii) a procurement of design-build or construction manager/general contractor services.
1234 (3) The procurement of architect-engineer services is governed by Part 15,
1235 [
1236 Section 16. Section 63G-6a-703 is amended to read:
1237 63G-6a-703. Request for proposals -- Requirements -- Publication of request.
1238 (1) The request for proposals standard procurement process begins when the division
1239 or a procurement unit with independent procurement authority issues a request for proposals.
1240 (2) A request for proposals shall:
1241 (a) state the period of time during which a proposal will be accepted;
1242 (b) describe the manner in which a proposal shall be submitted;
1243 (c) state the place where a proposal shall be submitted;
1244 (d) include, or incorporate by reference:
1245 (i) to the extent practicable, a full description of the procurement items sought and the
1246 full scope of work;
1247 (ii) a description of the subjective and objective criteria that will be used to evaluate
1248 the proposal; and
1249 (iii) the standard contractual terms and conditions required by the authorized
1250 purchasing entity;
1251 (e) state the relative weight that will be given to each score for the criteria described in
1252 Subsection (2)(d)(ii), including cost;
1253 (f) state the formula that will be used to determine the score awarded for the cost of
1254 each proposal;
1255 (g) if the request for proposals will be conducted in multiple stages, as described in
1256 Section 63G-6a-710, include a description of the stages and the criteria and scoring that will be
1257 used to screen offerors at each stage; and
1258 (h) state that best and final offers may be allowed, as provided in Section
1259 63G-6a-707.5, from responsible offerors who submit responsive proposals that meet minimum
1260 qualifications, evaluation criteria, or applicable score thresholds identified in the request for
1261 proposals.
1262 (3) The division or a procurement unit with independent procurement authority shall
1263 publish a request for proposals in accordance with the requirements of Section 63G-6a-112.
1264 Section 17. Section 63G-6a-707 is amended to read:
1265 63G-6a-707. Evaluation of proposals -- Evaluation committee.
1266 (1) To determine which proposal provides the best value to the procurement unit, the
1267 evaluation committee shall evaluate each responsible offeror's responsive [
1268 proposal that has not been disqualified from consideration under the provisions of this chapter,
1269 using the criteria described in the request for proposals, which may include:
1270 (a) experience;
1271 (b) performance ratings;
1272 (c) inspection;
1273 (d) testing;
1274 (e) quality;
1275 (f) workmanship;
1276 (g) time, manner, or schedule of delivery;
1277 (h) references;
1278 (i) financial solvency;
1279 (j) suitability for a particular purpose;
1280 (k) management plans;
1281 (l) the presence and quality of a work site safety program, including any requirement
1282 that the offeror imposes on subcontractors for a work site safety program;
1283 (m) cost; or
1284 (n) other subjective or objective criteria specified in the request for proposals.
1285 (2) Criteria not described in the request for proposals may not be used to evaluate a
1286 proposal.
1287 [
1288
1289 [
1290 [
1291
1292
1293 [
1294
1295 [
1296
1297 (3) The conducting procurement unit shall:
1298 [
1299 least a general familiarity with or basic understanding of:
1300 [
1301 subject of the procurement; or
1302 [
1303 [
1304 evaluation committee process:
1305 [
1306 [
1307 [
1308 outside the official evaluation committee process; and
1309 [
1310 competitive process and avoids the appearance of impropriety.
1311 (4) A conducting procurement unit may authorize an evaluation committee to receive
1312 assistance:
1313 (a) from an expert or consultant who:
1314 (i) is not a member of the evaluation committee; and
1315 (ii) does not participate in the evaluation scoring; and
1316 (b) to better understand a technical issue involved in the procurement.
1317 (5) (a) An evaluation committee may, with the approval of the head of the conducting
1318 procurement unit, enter into discussions or conduct interviews with, or attend presentations by,
1319 the offerors, for the purpose of clarifying information contained in proposals.
1320 (b) In a discussion, interview, or presentation under Subsection (5)(a), an offeror:
1321 (i) may only explain, illustrate, or interpret the contents of the offeror's original
1322 proposal; and
1323 (ii) may not:
1324 (A) address criteria or specifications not contained in the offeror's original proposal;
1325 (B) correct a deficiency, inaccuracy, or mistake in a proposal that is not an immaterial
1326 error;
1327 (C) correct an incomplete submission of documents that the solicitation required to be
1328 submitted with the proposal;
1329 (D) correct a failure to submit a timely proposal;
1330 (E) substitute or alter a required form or other document specified in the solicitation;
1331 (F) remedy a cause for an offeror being considered to be not responsible or a proposal
1332 not responsive; or
1333 (G) correct a defect or inadequacy resulting in a determination that an offeror does not
1334 meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
1335 established in the solicitation.
1336 (6) (a) Except as provided in Subsection (7)(b) relating to access to management fee
1337 information, and except as provided in Subsection (9), each member of the evaluation
1338 committee is prohibited from knowing, or having access to, any information relating to the
1339 cost, or the scoring of the cost, of a proposal until after the evaluation committee submits its
1340 final recommended scores on all other criteria to the issuing procurement unit.
1341 (b) The issuing procurement unit shall:
1342 (i) if applicable, assign an individual who is not a member of the evaluation committee
1343 to calculate scores for cost based on the applicable scoring formula, weighting, and other
1344 scoring procedures contained in the request for proposals;
1345 (ii) review the evaluation committee's scores and correct any errors, scoring
1346 inconsistencies, and reported noncompliance with this chapter;
1347 (iii) add the scores calculated for cost, if applicable, to the evaluation committee's final
1348 recommended scores on criteria other than cost to derive the total combined score for each
1349 responsive [
1350 (iv) provide to the evaluation committee the total combined score calculated for each
1351 responsive [
1352 formula, weighting, and scoring procedures used to calculate the total combined scores.
1353 (c) The evaluation committee may not:
1354 (i) change its final recommended scores described in Subsection (6)(a) after the
1355 evaluation committee has submitted those scores to the issuing procurement unit; or
1356 (ii) change cost scores calculated by the issuing procurement unit.
1357 (7) (a) As used in this Subsection (7), "management fee" includes only the following
1358 fees of the construction manager/general contractor:
1359 (i) preconstruction phase services;
1360 (ii) monthly supervision fees for the construction phase; and
1361 (iii) overhead and profit for the construction phase.
1362 (b) When selecting a construction manager/general contractor for a construction
1363 project, the evaluation committee:
1364 (i) may score a construction manager/general contractor based upon criteria contained
1365 in the solicitation, including qualifications, performance ratings, references, management plan,
1366 certifications, and other project specific criteria described in the solicitation;
1367 (ii) may, as described in the solicitation, weight and score the management fee as a
1368 fixed rate or as a fixed percentage of the estimated contract value;
1369 (iii) may, at any time after the opening of the responses to the request for proposals,
1370 have access to, and consider, the management fee proposed by the offerors; and
1371 (iv) except as provided in Subsection (9), may not know or have access to any other
1372 information relating to the cost of construction submitted by the offerors, until after the
1373 evaluation committee submits its final recommended scores on all other criteria to the issuing
1374 procurement unit.
1375 (8) (a) The deliberations of an evaluation committee may be held in private.
1376 (b) If the evaluation committee is a public body, as defined in Section 52-4-103, the
1377 evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
1378 deliberations.
1379 (9) An issuing procurement unit is not required to comply with Subsection (6) or
1380 (7)(b)(iv), as applicable, if the head of the issuing procurement unit or a person designated by
1381 rule made by the applicable rulemaking authority:
1382 (a) signs a written statement:
1383 (i) indicating that, due to the nature of the proposal or other circumstances, it is in the
1384 best interest of the procurement unit to waive compliance with Subsection (6) or (7)(b)(iv), as
1385 the case may be; and
1386 (ii) describing the nature of the proposal and the other circumstances relied upon to
1387 waive compliance with Subsection (6) or (7)(b)(iv); and
1388 (b) makes the written statement available to the public, upon request.
1389 Section 18. Section 63G-6a-707.5 is repealed and reenacted to read:
1390 63G-6a-707.5. Best and final offers.
1391 (1) The best and final offer process described in this section:
1392 (a) may be used only in a request for proposals process, whether the request for
1393 proposals process is used independently or after the establishment of an approved vendor list
1394 through the approved vendor list process; and
1395 (b) may not be used in any other standard procurement process, whether the other
1396 standard procurement process is used independently or after the establishment of an approved
1397 vendor list through the approved vendor list process.
1398 (2) Subject to Subsection (3), a conducting procurement unit may request best and final
1399 offers from responsible offerors:
1400 (a) only with the approval of the chief procurement officer or the head of the issuing
1401 procurement unit; and
1402 (b) if:
1403 (i) no single proposal adequately addresses all the specifications stated in the request
1404 for proposals;
1405 (ii) all proposals are unclear or deficient in one or more respects;
1406 (iii) all cost proposals exceed the identified budget or the procurement unit's available
1407 funding; or
1408 (iv) two or more proposals receive an identical evaluation score that is the highest
1409 score.
1410 (3) A conducting procurement unit may request a best and final offer from, and a best
1411 and final offer may be submitted to the conducting procurement unit by, only a responsible
1412 offeror that has submitted a responsive proposal that meets the minimum mandatory criteria
1413 stated in the request for proposals required to be considered in the stage of the procurement
1414 process at which best and final offers are being requested.
1415 (4) The best and final offer process may not be used to change:
1416 (a) a determination that an offeror is not responsible to a determination that the offeror
1417 is responsible; or
1418 (b) a determination that a proposal is not responsive to a determination that the
1419 proposal is responsive.
1420 (5) (a) This Subsection (5) applies if a request for best and final offers is issued
1421 because all cost proposals exceed the identified budget or the procurement unit's available
1422 funding.
1423 (b) (i) The conducting procurement unit may, in the request for best and final offers:
1424 (A) specify the scope of work reductions the procurement unit is making in order to
1425 generate proposals that are within the identified budget or the procurement unit's available
1426 funding; or
1427 (B) invite offerors submitting best and final offers to specify the scope of work
1428 reductions being made so that the reduced cost proposal is within the identified budget or the
1429 procurement unit's available funding.
1430 (ii) The conducting procurement unit is not required to accept a scope of work
1431 reduction that an offeror has specified in the offeror's best and final offer.
1432 (c) A best and final offer submitted with a reduced cost proposal shall include an
1433 itemized list identifying specific reductions in the offeror's proposed scope of work that
1434 correspond to the offeror's reduced cost proposal.
1435 (d) A reduction in the scope of work may not:
1436 (i) eliminate a component identified in the request for proposals as a minimum
1437 mandatory requirement; or
1438 (ii) alter the nature of the original request for proposals to the extent that a request for
1439 proposals for the reduced scope of work would have likely attracted a significantly different set
1440 of offerors submitting proposals in response to the request for proposals.
1441 (6) If a request for best and final offers is issued because two or more proposals
1442 received an identical evaluation score that is the highest score:
1443 (a) the request may be issued only to offerors who submitted a proposal receiving the
1444 highest score; and
1445 (b) an offeror submitting a best and final offer may revise:
1446 (i) the technical aspects of the offeror's proposal;
1447 (ii) the offeror's cost proposal, as provided in Subsection (5); or
1448 (iii) both the technical aspects of the offeror's proposal and, as provided in Subsection
1449 (5), the offeror's cost proposal.
1450 (7) In a request for best and final offers, the conducting procurement unit shall:
1451 (a) clearly specify:
1452 (i) the issues that the procurement unit requests the offerors to address in their best and
1453 final offers; and
1454 (ii) how best and final offers will be evaluated and scored in accordance with Section
1455 63G-6a-707;
1456 (b) establish a deadline for an offeror to submit a best and final offer; and
1457 (c) if applicable, establish a schedule and procedure for conducting discussions with
1458 offerors concerning the best and final offers.
1459 (8) In conducting a best and final offer process under this section, a conducting
1460 procurement unit shall:
1461 (a) maintain confidential the information the procurement unit receives from an
1462 offeror, including any cost information, until a contract has been awarded or the request for
1463 proposals canceled;
1464 (b) ensure that each offeror receives fair and equal treatment; and
1465 (c) safeguard the integrity of the scope of the original request for proposals, except as
1466 specifically provided otherwise in this section.
1467 (9) In a best and final offer, an offeror:
1468 (a) may address only the issues described in the request for best and final offers; and
1469 (b) may not correct a material error or deficiency in the offeror's proposal or address
1470 any issue not described in the request for best and final offers.
1471 (10) If an offeror fails to submit a best and final offer, the conducting procurement unit
1472 shall treat the offeror's original proposal as the offeror's best and final offer.
1473 (11) After the deadline for submitting best and final offers has passed, the evaluation
1474 committee shall evaluate the best and final offers submitted using the criteria described in the
1475 request for proposals.
1476 (12) An offeror may not make and a conducting procurement unit may not consider a
1477 best and final offer that the conducting procurement unit has not requested under this section.
1478 (13) To implement the best and final offer process described in this section, an
1479 applicable rulemaking authority may make rules consistent with this section and the other
1480 provisions of this chapter.
1481 Section 19. Section 63G-6a-709 is amended to read:
1482 63G-6a-709. Award of contract -- Cancellation -- Rejection of proposal.
1483 (1) After the completion of the evaluation and scoring of proposals and the justification
1484 statement, including any required cost-benefit analysis, the evaluation committee shall submit
1485 the proposals, evaluation scores, and justification statement to the head of the procurement unit
1486 or designee for review and final determination of a contract award or an award of multiple
1487 contracts as provided in Section 63G-6a-1204.5.
1488 (2) After reviewing the proposals, evaluation scores, and justification statement,
1489 including any required cost-benefit analysis, the head of the issuing procurement unit shall:
1490 (a) (i) award the contract as soon as practicable to the responsible offeror with the
1491 responsive proposal receiving the highest total score; or
1492 (ii) (A) if the head of the issuing procurement unit [
1493 proposal under Subsection (3) of an offeror who would otherwise have been awarded a
1494 contract, award the contract to the responsible offeror with the responsive proposal receiving
1495 the next highest total score; and
1496 (B) if the head of the issuing procurement unit [
1497 proposal under Subsection (3) of an offeror who would otherwise have been awarded a contract
1498 under Subsection (2)(a)(ii)(A), repeat the process described in Subsection (2)(a)(ii)(A) as many
1499 times as necessary until a contract is awarded to a responsible offeror [
1500 whose proposal is not rejected; or
1501 (b) cancel the request for proposals without awarding a contract.
1502 (3) The head of an issuing procurement unit may reject a proposal if:
1503 (a) the offeror who submitted the proposal:
1504 (i) is not responsible;
1505 (ii) is in violation of a provision of this chapter;
1506 (iii) has engaged in unethical conduct; or
1507 (iv) fails to sign a contract within:
1508 (A) 90 days after the contract award, if no time is specified in the solicitation; or
1509 (B) a time authorized in writing by the head of the issuing procurement unit;
1510 (b) there is a change in the offeror's circumstances that, if the change had been known
1511 at the time the offeror's proposal was evaluated, would have caused the proposal not to have
1512 received the highest score; or
1513 (c) the proposal:
1514 (i) is not responsive; or
1515 (ii) does not meet the mandatory minimum requirements, evaluation criteria, or
1516 applicable score thresholds stated in the solicitation.
1517 (4) A head of an issuing procurement unit who rejects a proposal under Subsection (3)
1518 shall:
1519 (a) make a written finding, stating the reasons for the rejection; and
1520 (b) provide a copy of the written finding to the offeror whose proposal is rejected.
1521 (5) If an issuing procurement unit cancels a request for proposals without awarding a
1522 contract, the issuing procurement unit shall make available for public inspection a written
1523 justification for the cancellation.
1524 Section 20. Section 63G-6a-802.7 is amended to read:
1525 63G-6a-802.7. Extension of a contract without engaging in a standard
1526 procurement process.
1527 The chief procurement officer or the head of a procurement unit with independent
1528 procurement authority may extend an existing contract without engaging in a standard
1529 procurement process:
1530 (1) for a period of time not to exceed 120 days, if:
1531 (a) an extension of the contract is necessary to:
1532 (i) avoid a lapse in a critical government service; or
1533 (ii) to mitigate a circumstance that is likely to have a negative impact on public health,
1534 safety, welfare, or property; and
1535 (b) (i) (A) the procurement unit is engaged in a standard procurement process for a
1536 procurement item that is the subject of the contract being extended; and
1537 (B) the standard procurement process is delayed due to an unintentional error;
1538 (ii) a change in an industry standard requires one or more significant changes to
1539 specifications for the procurement item; or
1540 (iii) an extension is necessary:
1541 (A) to prevent the loss of federal funds;
1542 (B) to mitigate the effects of a delay of a state or federal appropriation;
1543 (C) to enable the procurement unit to continue to receive a procurement item during a
1544 delay in the implementation of a contract awarded pursuant to a procurement that has already
1545 been conducted; or
1546 (D) to enable the procurement unit to continue to receive a procurement item during a
1547 period of time during which negotiations with a vendor under a new contract for the
1548 procurement item are being conducted;
1549 (2) for the period of a protest, appeal, or court action, if the protest, appeal, or court
1550 action is the reason for delaying the award of a new contract; or
1551 (3) for a period of time exceeding 120 days, if, after consulting with the attorney
1552 general or the procurement unit's attorney, the chief procurement officer or head of a
1553 procurement unit with independent procurement authority determines in writing that the
1554 contract extension does not violate state or federal antitrust laws and is consistent with the
1555 purpose of ensuring the fair and equitable treatment of all persons who deal with the
1556 procurement system.
1557 Section 21. Section 63G-6a-903 is amended to read:
1558 63G-6a-903. Determination of nonresponsibility.
1559 (1) A determination of nonresponsibility of a [
1560 issuing procurement unit shall be made in writing, in accordance with the rules of the
1561 applicable rulemaking authority.
1562 (2) [
1563 information in connection with an inquiry with respect to responsibility may be grounds for a
1564 determination of nonresponsibility with respect to the [
1565 (3) Subject to Title 63G, Chapter 2, Government Records Access and Management
1566 Act, information furnished by a [
1567 disclosed outside of a procurement unit without the person's prior written consent [
1568
1569 Section 22. Section 63G-6a-904 is amended to read:
1570 63G-6a-904. Debarment or suspension from consideration for award of contracts
1571 -- Process -- Causes for debarment -- Judicial review.
1572 (1) (a) Subject to Subsection (1)(b), the chief procurement officer or the head of a
1573 procurement unit with independent procurement authority may:
1574 (i) debar a person for cause from consideration for award of contracts for a period not
1575 to exceed three years; or
1576 (ii) suspend a person from consideration for award of contracts if there is [
1577 cause to believe that the person has engaged in any activity that might lead to debarment.
1578 (b) Before debarring or suspending a person under Subsection (1)(a), the chief
1579 procurement officer or head of a procurement unit with independent procurement authority
1580 shall:
1581 (i) consult with:
1582 (A) the procurement unit involved in the matter for which debarment or suspension is
1583 sought; and
1584 (B) the attorney general, if the procurement unit is in the state executive branch, or the
1585 procurement unit's attorney, if the procurement unit is not in the state executive branch;
1586 (ii) give the person at least 10 days' prior written notice of:
1587 (A) the reasons for which debarment or suspension is being considered; and
1588 (B) the hearing under Subsection (1)(b)(iii); and
1589 (iii) hold [
1590 (c) (i) At [
1591 officer or head of a procurement unit with independent procurement authority may:
1592 (A) subpoena witnesses and compel their attendance at the hearing;
1593 (B) subpoena documents for production at the hearing;
1594 (C) obtain additional factual information; and
1595 (D) obtain testimony from experts, the person who is the subject of the proposed
1596 debarment or suspension, representatives of the procurement unit, or others to assist the chief
1597 procurement officer or head of a procurement unit with independent procurement authority to
1598 make a decision on the proposed debarment or suspension.
1599 (ii) The Rules of Evidence do not apply to [
1600 (1)(b)(iii).
1601 (iii) The chief procurement officer or head of a procurement unit with independent
1602 procurement authority shall:
1603 (A) record a hearing under Subsection (1)(b)(iii); and
1604 (B) preserve all records and other evidence relied upon in reaching a decision until the
1605 decision becomes final[
1606 [
1607
1608
1609
1610
1611
1612
1613 [
1614
1615
1616
1617
1618 (iv) The holding of [
1619 of a decision under Subsection (1)(c)(v) does not affect a person's right to later question or
1620 challenge the jurisdiction of the chief procurement officer or head of a procurement unit with
1621 independent procurement authority to hold a hearing or issue a decision.
1622 (v) The chief procurement officer or head of a procurement unit with independent
1623 procurement authority shall:
1624 (A) promptly issue a written decision regarding a proposed debarment or suspension,
1625 unless the matter is settled by mutual agreement; and
1626 (B) mail, email, or otherwise immediately furnish a copy of the decision to the person
1627 who is the subject of the decision.
1628 (vi) A written decision under Subsection (1)(c)(v) shall:
1629 (A) state the reasons for the debarment or suspension, if debarment or suspension is
1630 ordered; and
1631 (B) inform the person who is debarred or suspended of the right to judicial [
1632
1633 [
1634
1635 [
1636
1637
1638
1639 [
1640
1641
1642
1643 (2) A suspension under this section may not be for a period exceeding three months,
1644 unless an indictment has been issued for an offense which would be a cause for debarment
1645 under Subsection (3), in which case the suspension shall, at the request of the attorney general,
1646 if the procurement unit is in the state executive branch, or the procurement unit's attorney, if
1647 the procurement unit is not in the state executive branch, remain in effect until after the trial of
1648 the suspended person.
1649 (3) The causes for debarment include the following:
1650 (a) conviction of a criminal offense as an incident to obtaining or attempting to obtain a
1651 public or private contract or subcontract or in the performance of a public or private contract or
1652 subcontract;
1653 (b) conviction under state or federal statutes of embezzlement, theft, forgery, bribery,
1654 falsification or destruction of records, receiving stolen property, or any other offense indicating
1655 a lack of business integrity or business honesty which currently, seriously, and directly affects
1656 responsibility as a contractor for the procurement unit;
1657 (c) conviction under state or federal antitrust statutes;
1658 (d) failure without good cause to perform in accordance with the terms of the contract;
1659 (e) a violation of this chapter; or
1660 (f) any other cause that the chief procurement officer or the head of a procurement unit
1661 with independent procurement authority determines to be so serious and compelling as to affect
1662 responsibility as a contractor for the procurement unit, including debarment by another
1663 governmental entity.
1664 (4) (a) A person who is debarred or suspended under this section may [
1665 judicial review of the debarment or suspension[
1666 district court.
1667 [
1668
1669
1670
1671
1672 (b) A petition under Subsection (4)(a):
1673 (i) is a complaint governed by the Utah Rules of Civil Procedure;
1674 (ii) shall name the procurement unit as respondent;
1675 (iii) shall be accompanied by a copy of the written decision as to which judicial review
1676 is sought; and
1677 (iv) is barred unless filed in district court within 30 days after the date of the issuance
1678 of the written decision of suspension or debarment under Subsection (1)(c)(v).
1679 (c) A district court's review of a petition under Subsection (4)(a) shall be de novo.
1680 (d) A district court shall, without a jury, determine all questions of fact and law,
1681 including any constitutional issue, presented in the pleadings.
1682 (5) A procurement unit may consider a cause for debarment under Subsection (3) as the
1683 basis for determining that a person responding to a solicitation is not responsible:
1684 (a) independent of any effort or proceeding under this section to debar or suspend the
1685 person; and
1686 (b) even if the procurement unit does not choose to seek debarment or suspension.
1687 (6) An applicable rulemaking authority may make rules pertaining to the suspension
1688 and debarment process under this section, including rules governing an informal hearing under
1689 Subsection (1)(b)(iii).
1690 Section 23. Section 63G-6a-1002 is amended to read:
1691 63G-6a-1002. Reciprocal preference for providers of state products.
1692 (1) (a) An issuing procurement unit shall, for all procurements, give a reciprocal
1693 preference to those bidders offering procurement items that are produced, manufactured,
1694 mined, grown, or performed in Utah over those bidders offering procurement items that are
1695 produced, manufactured, mined, grown, or performed in any state that gives or requires a
1696 preference to procurement items that are produced, manufactured, mined, grown, or performed
1697 in that state.
1698 (b) The amount of reciprocal preference shall be equal to the amount of the preference
1699 applied by the other state for that particular procurement item.
1700 (c) In order to receive a reciprocal preference under this section, the bidder shall certify
1701 on the bid that the procurement items offered are produced, manufactured, mined, grown, or
1702 performed in Utah.
1703 (d) The reciprocal preference is waived if the certification described in Subsection
1704 (1)(c) does not appear on the bid.
1705 (2) (a) If the responsible bidder submitting the lowest responsive [
1706 offers procurement items that are produced, manufactured, mined, grown, or performed in a
1707 state that gives or requires a preference, and if another responsible bidder has submitted a
1708 responsive [
1709 mined, grown, or performed in Utah, and with the benefit of the reciprocal preference, the bid
1710 of the other bidder is equal to or less than the original lowest bid, the issuing procurement unit
1711 shall:
1712 (i) give notice to the bidder offering procurement items that are produced,
1713 manufactured, mined, grown, or performed in Utah that the bidder qualifies as a preferred
1714 bidder; and
1715 (ii) make the purchase from the preferred bidder if the bidder agrees, in writing, to
1716 meet the low bid within 72 hours after notification that the bidder is a preferred bidder.
1717 (b) The issuing procurement unit shall include the exact price submitted by the lowest
1718 bidder in the notice the issuing procurement unit submits to the preferred bidder.
1719 (c) The issuing procurement unit may not enter into a contract with any other bidder for
1720 the purchase until 72 hours have elapsed after notification to the preferred bidder.
1721 (3) (a) If there is more than one preferred bidder, the issuing procurement unit shall
1722 award the contract to the willing preferred bidder who was the lowest preferred bidder
1723 originally.
1724 (b) If there were two or more equally low preferred bidders, the issuing procurement
1725 unit shall comply with the rules of the applicable rulemaking authority to determine which
1726 bidder should be awarded the contract.
1727 (4) The provisions of this section do not apply if application of this section might
1728 jeopardize the receipt of federal funds.
1729 Section 24. Section 63G-6a-1003 is amended to read:
1730 63G-6a-1003. Preference for resident contractors.
1731 (1) As used in this section, "resident contractor" means a person, partnership,
1732 corporation, or other business entity that:
1733 (a) either has its principal place of business in Utah or that employs workers who are
1734 residents of this state when available; and
1735 (b) was transacting business on the date when bids for the public contract were first
1736 solicited.
1737 (2) (a) When awarding contracts for construction, an issuing procurement unit shall
1738 grant a resident contractor a reciprocal preference over a nonresident contractor from any state
1739 that gives or requires a preference to contractors from that state.
1740 (b) The amount of the reciprocal preference shall be equal to the amount of the
1741 preference applied by the state of the nonresident contractor.
1742 (3) (a) In order to receive the reciprocal preference under this section, the bidder shall
1743 certify on the bid that the bidder qualifies as a resident contractor.
1744 (b) The reciprocal preference is waived if the certification described in Subsection
1745 (2)(a) does not appear on the bid.
1746 (4) (a) If the responsible contractor submitting the lowest responsive [
1747 bid is not a resident contractor whose principal place of business is in a state that gives or
1748 requires a preference to contractors from that state, and if a resident responsible contractor has
1749 also submitted a responsive [
1750 preference, the resident contractor's bid is equal to or less than the original lowest bid, the
1751 issuing procurement unit shall:
1752 (i) give notice to the resident contractor that the resident contractor qualifies as a
1753 preferred resident contractor; and
1754 (ii) issue the contract to the resident contractor if the resident contractor agrees, in
1755 writing, to meet the low bid within 72 hours after notification that the resident contractor is a
1756 preferred resident contractor.
1757 (b) The issuing procurement unit shall include the exact price submitted by the lowest
1758 bidder in the notice that the issuing procurement unit submits to the preferred resident
1759 contractor.
1760 (c) The issuing procurement unit may not enter into a contract with any other bidder for
1761 the construction until 72 hours have elapsed after notification to the preferred resident
1762 contractor.
1763 (5) (a) If there is more than one preferred resident contractor, the issuing procurement
1764 unit shall award the contract to the willing preferred resident contractor who was the lowest
1765 preferred resident contractor originally.
1766 (b) If there were two or more equally low preferred resident contractors, the issuing
1767 procurement unit shall comply with the rules of the applicable rulemaking authority to
1768 determine which bidder should be awarded the contract.
1769 (6) The provisions of this section do not apply if application of this section might
1770 jeopardize the receipt of federal funds.
1771 Section 25. Section 63G-6a-1204.5 is amended to read:
1772 63G-6a-1204.5. Multiple award contracts.
1773 (1) (a) [
1774 unit with independent procurement authority may enter into multiple award contracts with
1775 [
1776 (b) The applicable rulemaking authority may make rules, consistent with this section,
1777 regulating the use of multiple award contracts.
1778 (2) Multiple award contracts may be in a procurement unit's best interest if award to
1779 two or more bidders or offerors for similar procurement items is needed or desired for adequate
1780 delivery, service, availability, or product compatibility.
1781 (3) A procurement unit that enters into multiple award contracts under this section
1782 shall:
1783 (a) exercise care to protect and promote competition among bidders or offerors when
1784 seeking to enter into multiple award contracts;
1785 (b) name all eligible users of the multiple award contracts in the invitation for bids or
1786 request for proposals; and
1787 (c) if the procurement unit anticipates entering into multiple award contracts before
1788 issuing the invitation for bids or request for proposals, state in the invitation for bids or request
1789 for proposals that the procurement unit may enter into multiple award contracts at the end of
1790 the procurement process.
1791 (4) A procurement unit that enters into multiple award contracts under this section
1792 shall:
1793 (a) obtain, under the multiple award contracts, all of its normal, recurring requirements
1794 for the procurement items that are the subject of the contracts until the contracts terminate; and
1795 (b) reserve the right to obtain the procurement items described in Subsection (4)(a)
1796 separately from the contracts if:
1797 (i) there is a need to obtain a quantity of the procurement items that exceeds the
1798 amount specified in the contracts; or
1799 (ii) the procurement officer makes a written finding that the procurement items
1800 available under the contract will not effectively or efficiently meet a nonrecurring special need
1801 of a procurement unit.
1802 (5) An applicable rulemaking authority may make rules to further regulate a
1803 procurement under this section.
1804 Section 26. Section 63G-6a-1402 is amended to read:
1805 63G-6a-1402. Procurement of design-build transportation project contracts.
1806 (1) As used in this section:
1807 (a) "Design-build transportation project contract" means the procurement of both the
1808 design and construction of a transportation project in a single contract with a company or
1809 combination of companies capable of providing the necessary engineering services and
1810 construction.
1811 (b) "Transportation agency" means:
1812 (i) the Department of Transportation;
1813 (ii) a county of the first or second class, as defined in Section 17-50-501;
1814 (iii) a municipality of the first class, as defined in Section 10-2-301;
1815 (iv) a public transit district that has more than 200,000 people residing within its
1816 boundaries; and
1817 (v) a public airport authority.
1818 (2) Except as provided in Subsection (3), a transportation agency may award a
1819 design-build transportation project contract for any transportation project that has an estimated
1820 cost of at least $50,000,000 by following the requirements of this section.
1821 (3) (a) The Department of Transportation:
1822 (i) may award a design-build transportation project contract for any transportation
1823 project by following the requirements of this section; and
1824 (ii) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
1825 Rulemaking Act, establishing requirements for the procurement of its design-build
1826 transportation project contracts in addition to those required by this section.
1827 (b) A public transit district that has more than 200,000 people residing within its
1828 boundaries:
1829 (i) may award a design-build transportation project contract for any transportation
1830 project by following the requirements of this section; and
1831 (ii) shall pass ordinances or a resolution establishing requirements for the procurement
1832 of its design-build transportation project contracts in addition to those required by this section.
1833 (c) A design-build transportation project contract authorized under this Subsection (3)
1834 is not subject to the estimated cost threshold described in Subsection (2).
1835 (d) A design-build transportation project contract may include provision by the
1836 contractor of operations, maintenance, or financing.
1837 (4) (a) Before entering into a design-build transportation project contract, a
1838 transportation agency may issue a request for qualifications to prequalify potential contractors.
1839 (b) Public notice of the request for qualifications shall be given in accordance with
1840 board rules.
1841 (c) A transportation agency shall require, as part of the qualifications specified in the
1842 request for qualifications, that potential contractors at least demonstrate their:
1843 (i) construction experience;
1844 (ii) design experience;
1845 (iii) financial, manpower, and equipment resources available for the project; and
1846 (iv) experience in other design-build transportation projects with attributes similar to
1847 the project being procured.
1848 (d) The request for qualifications shall identify the number of eligible competing
1849 proposers that the transportation agency will select to submit a proposal, which may not be less
1850 than two.
1851 (5) The transportation agency shall:
1852 (a) evaluate the responses received from the request for qualifications;
1853 (b) select from their number those qualified to submit proposals; and
1854 (c) invite those respondents to submit proposals based upon the transportation agency's
1855 request for proposals.
1856 (6) If the transportation agency fails to receive at least two qualified eligible competing
1857 proposals, the transportation agency shall readvertise the project.
1858 (7) The transportation agency shall issue a request for proposals to those qualified
1859 respondents that:
1860 (a) includes a scope of work statement constituting an information for proposal that
1861 may include:
1862 (i) preliminary design concepts;
1863 (ii) design criteria, needs, and objectives;
1864 (iii) warranty and quality control requirements;
1865 (iv) applicable standards;
1866 (v) environmental documents;
1867 (vi) constraints;
1868 (vii) time expectations or limitations;
1869 (viii) incentives or disincentives; and
1870 (ix) other special considerations;
1871 (b) requires submitters to provide:
1872 (i) a sealed cost proposal;
1873 (ii) a critical path matrix schedule, including cash flow requirements;
1874 (iii) proposal security; and
1875 (iv) other items required by the department for the project; and
1876 (c) may include award of a stipulated fee to be paid to offerors who submit
1877 unsuccessful proposals.
1878 (8) The transportation agency shall:
1879 (a) evaluate the submissions received in response to the request for proposals from the
1880 prequalified offerors;
1881 (b) comply with rules relating to discussion of proposals, best and final offers, and
1882 evaluations of the proposals submitted; and
1883 (c) after considering price and other identified factors, award the contract to the
1884 [
1885 transportation agency or the state.
1886 Section 27. Section 63G-6a-1403 is amended to read:
1887 63G-6a-1403. Procurement of tollway development agreements.
1888 (1) As used in this section, "tollway development agreement" is as defined in Section
1889 72-6-202.
1890 (2) The Department of Transportation and the Transportation Commission:
1891 (a) may solicit a tollway development agreement proposal by following the
1892 requirements of this section;
1893 (b) may award a solicited tollway development agreement contract for any tollway
1894 project by following the requirements of this section; and
1895 (c) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
1896 Rulemaking Act, establishing requirements for the procurement of tollway development
1897 agreement proposals in addition to those required by this section.
1898 (3) (a) Before entering into a tollway development agreement, the Department of
1899 Transportation may issue a request for qualifications to prequalify potential contractors.
1900 (b) Public notice of the request for qualifications shall be given in accordance with
1901 board rules.
1902 (c) The Department of Transportation shall require, as part of the qualifications
1903 specified in the request for qualifications, that potential contractors at least provide:
1904 (i) a demonstration of their experience with other transportation concession projects
1905 with attributes similar to the project being procured;
1906 (ii) a financial statement of the firm or consortium of firms making the proposal;
1907 (iii) a conceptual project development plan and financing plan;
1908 (iv) the legal structure of the firm or consortium of firms making the proposal;
1909 (v) the organizational structure for the project; and
1910 (vi) a statement describing why the firm or consortium of firms is best qualified for the
1911 project.
1912 (d) The request for qualifications shall identify the number of eligible competing
1913 offerors that the Department of Transportation will select to submit a proposal.
1914 (4) The Department of Transportation shall:
1915 (a) evaluate the responses received from the request for qualifications;
1916 (b) select from their number those qualified to submit proposals; and
1917 (c) invite those respondents to submit proposals based upon the Department of
1918 Transportation's request for proposals.
1919 (5) The Department of Transportation shall issue a request for proposals to those
1920 qualified respondents that may require, as appropriate for the procurement:
1921 (a) a description of the proposed project or projects;
1922 (b) a financial plan for the project, including:
1923 (i) the anticipated financial commitment of all parties;
1924 (ii) equity, debt, and other financing mechanisms;
1925 (iii) an analysis of the projected return, rate of return, or both; and
1926 (iv) the monetary benefit and other value to a government entity;
1927 (c) assumptions about user fees or toll rates;
1928 (d) a project development and management plan, including:
1929 (i) the contracting structure;
1930 (ii) the plan for quality management;
1931 (iii) the proposed toll enforcement plan; and
1932 (iv) the plan for safety management; and
1933 (e) that the proposal to comply with the minimum guidelines for tollway development
1934 agreement proposals under Section 72-6-204.
1935 (6) The Department of Transportation and the Transportation Commission:
1936 (a) shall evaluate the submissions received in response to the request for proposals
1937 from the prequalified offerors;
1938 (b) shall comply with rules relating to discussion of proposals, best and final offers,
1939 and evaluations of the proposals submitted; and
1940 (c) may, after considering price and other identified factors and complying with the
1941 requirements of Section 72-6-206, award the contract to the [
1942 offeror whose responsive proposal is most advantageous to the state.
1943 Section 28. Section 63G-6a-1601.5 is amended to read:
1944 63G-6a-1601.5. Definitions.
1945 As used in this part:
1946 (1) "Constructive knowledge":
1947 (a) means knowledge or information that a protestor would have if the protestor had
1948 exercised reasonable care or diligence, regardless of whether the protestor actually has the
1949 knowledge or information; and
1950 (b) includes knowledge of:
1951 (i) applicable provisions of this chapter and other law and administrative rule;
1952 (ii) instructions, criteria, deadlines, and requirements contained in the solicitation or in
1953 other documents made available to persons interested in the solicitation or provided in a
1954 mandatory pre-solicitation meeting;
1955 (iii) relevant facts and evidence supporting the protest or leading the protestor to
1956 contend that the protestor has been aggrieved in connection with a procurement;
1957 (iv) communications or actions, pertaining to the procurement, of all persons within the
1958 protestor's organization or under the supervision of the protestor; and
1959 (v) any other applicable information discoverable by the exercise of reasonable care or
1960 diligence.
1961 (2) "Hearing" means a proceeding in which evidence, which may include oral
1962 testimony, or argument relevant to a protest is presented to a protest officer in connection with
1963 the protest officer's determination of an issue of fact or law or both.
1964 (3) "Protest appeal record" means:
1965 (a) a copy of the protest officer's written decision;
1966 (b) all documentation and other evidence the protest officer relied upon in reaching the
1967 protest officer's decision;
1968 (c) the recording of the hearing, if the protest officer held a hearing;
1969 (d) a copy of the protestor's written protest; and
1970 (e) all documentation and other evidence submitted by the protestor supporting the
1971 protest or the protestor's claim of standing.
1972 [
1973 [
1974 imminent injury or harm, if:
1975 (a) the cause of the injury or harm is:
1976 (i) an infringement of the protestor's own right and not the right of another person who
1977 is not a party to the procurement;
1978 (ii) reasonably connected to the procurement unit's conduct; and
1979 (iii) the sole reason the protestor is not considered, or is no longer considered, for an
1980 award of a contract under the procurement that is the subject of the protest;
1981 (b) a decision on the protest in favor of the protestor:
1982 (i) is likely to redress the injury or harm; and
1983 (ii) would give the protestor a reasonable likelihood of being awarded a contract; and
1984 (c) the protestor has the legal authority to file the protest on behalf of the actual or
1985 prospective bidder or offeror or prospective contractor involved in the procurement that is the
1986 subject of the protest.
1987 Section 29. Section 63G-6a-1602 is amended to read:
1988 63G-6a-1602. Protest -- Time for filing -- Basis of protest -- Authority to resolve
1989 protest.
1990 (1) A protest may be filed with the protest officer by a person who:
1991 (a) has standing; and
1992 (b) is aggrieved in connection with a procurement or an award of a contract.
1993 (2) A protest may not be filed after:
1994 (a) (i) (A) the opening of bids, for a protest relating to a procurement under a bidding
1995 process; or
1996 (B) the deadline for submitting responses to the solicitation, for a protest relating to
1997 another standard procurement process; or
1998 (ii) the closing of the procurement stage that is the subject of the protest:
1999 (A) if the protest relates to a multiple-stage procurement; and
2000 (B) notwithstanding Subsections (2)(a)(i)(A) and (B); or
2001 (b) the day that is seven days after the day on which the person knows or first has
2002 constructive knowledge of the facts giving rise to the protest, if:
2003 (i) the protestor did not know and did not have constructive knowledge of the facts
2004 giving rise to the protest before:
2005 (A) the opening of bids, for a protest relating to a procurement under a bidding process;
2006 (B) the deadline for submitting responses to the solicitation, for a protest relating to
2007 another standard procurement process; or
2008 (C) the closing of the procurement stage that is the subject of the protest, if the protest
2009 relates to a multiple-stage procurement; or
2010 (ii) the protest relates to a procurement process not described in Subsection (2)(a).
2011 (3) A deadline under Subsection (2) for filing a protest may not be modified.
2012 [
2013 (i) the protestor's mailing address and email address; and
2014 (ii) a concise statement of the facts and evidence:
2015 (A) leading the protestor to claim that the protestor has been aggrieved in connection
2016 with a procurement and providing the grounds for the protestor's protest; and
2017 (B) supporting the protestor's claim of standing.
2018 (b) A protest may not be considered unless it contains facts and evidence that, if true,
2019 would establish:
2020 (i) a violation of this chapter or other applicable law or rule;
2021 (ii) the procurement unit's failure to follow a provision of a solicitation;
2022 (iii) an error made by an evaluation committee or conducting procurement unit;
2023 (iv) a bias exercised by an evaluation committee or an individual committee member,
2024 excluding a bias that is a preference arising during the evaluation process because of how well
2025 a solicitation response meets criteria in the solicitation;
2026 (v) a failure to correctly apply or calculate a scoring criterion; or
2027 (vi) that specifications in a solicitation are unduly restrictive or unduly anticompetitive.
2028 [
2029 (a) the rejection of a solicitation response due to a protestor's failure to attend or
2030 participate in a mandatory conference, meeting, or site visit held before the deadline for
2031 submitting a solicitation response; [
2032 (b) a vague or unsubstantiated allegation[
2033 (c) a person's claim that:
2034 (i) a procurement unit that complied with Section 63G-6a-112 did not provide
2035 individual notice of a solicitation to the person; or
2036 (ii) the person received late notice of a solicitation for which notice was provided in
2037 accordance with Section 63G-6a-112.
2038 [
2039 (a) an explanation of the rationale or scoring of evaluation committee members;
2040 (b) the disclosure of a protected record or protected information in addition to the
2041 information provided under the disclosure provisions of this chapter; or
2042 (c) other information, documents, or explanations not explicitly provided for in this
2043 chapter.
2044 [
2045 (2) may not:
2046 (a) protest to the protest officer a solicitation or award of a contract; or
2047 (b) file an action or appeal challenging a solicitation or award of a contract before an
2048 appeals panel, a court, or any other forum.
2049 [
2050 officer or the head of a procurement unit may enter into a settlement agreement to resolve a
2051 protest.
2052 Section 30. Section 63G-6a-1603 is amended to read:
2053 63G-6a-1603. Protest officer responsibilities and authority -- Proceedings on
2054 protest -- Effect of decision.
2055 (1) After a protest is filed, the protest officer shall determine whether the protest is
2056 timely filed and complies fully with the requirements of Section 63G-6a-1602.
2057 (2) If the protest officer determines that the protest is not timely filed or that the protest
2058 does not fully comply with Section 63G-6a-1602, the protest officer shall dismiss the protest
2059 without holding a hearing.
2060 (3) If the protest officer determines that the protest is timely filed and complies fully
2061 with Section 63G-6a-1602, the protest officer shall:
2062 (a) dismiss the protest without holding a hearing if the protest officer determines that
2063 the protest alleges facts that, if true, do not provide an adequate basis for the protest;
2064 (b) uphold the protest without holding a hearing if the protest officer determines that
2065 the undisputed facts of the protest indicate that the protest should be upheld; or
2066 (c) hold a hearing on the protest if there is a genuine issue of material fact or law that
2067 needs to be resolved in order to determine whether the protest should be upheld.
2068 (4) (a) If a hearing is held on a protest, the protest officer may:
2069 (i) subpoena witnesses and compel their attendance at the protest hearing;
2070 (ii) subpoena documents for production at the protest hearing;
2071 (iii) obtain additional factual information; and
2072 (iv) obtain testimony from experts, the person filing the protest, representatives of the
2073 procurement unit, or others to assist the protest officer to make a decision on the protest.
2074 (b) The Rules of Evidence do not apply to a protest hearing.
2075 (c) The applicable rulemaking authority shall make rules relating to intervention in a
2076 protest, including designating:
2077 (i) who may intervene; and
2078 (ii) the time and manner of intervention.
2079 (d) A protest officer shall:
2080 (i) record each hearing held on a protest under this section;
2081 (ii) regardless of whether a hearing on a protest is held under this section, preserve all
2082 records and other evidence relied upon in reaching the protest officer's written decision until
2083 the decision, and any appeal of the decision, becomes final; and
2084 [
2085
2086
2087 [
2088
2089 [
2090 (iii) if the protestor appeals the protest officer's decision, submit the protest appeal
2091 record to the procurement policy board chair within seven days after receiving:
2092 (A) notice that an appeal of the protest officer's decision has been filed under Section
2093 63G-6a-1702; or
2094 (B) a request for the protest appeal record from the chair of the procurement policy
2095 board.
2096 (e) A protest officer's holding a hearing, considering a protest, or issuing a written
2097 decision under this section does not affect a person's right to later question or challenge the
2098 protest officer's jurisdiction to hold the hearing, consider the protest, or issue the decision.
2099 (5) (a) The deliberations of a protest officer may be held in private.
2100 (b) If the protest officer is a public body, as defined in Section 52-4-103, the protest
2101 officer shall comply with Section 52-4-205 in closing a meeting for its deliberations.
2102 (6) (a) A protest officer[
2103 written decision regarding any protest, unless the protest is settled by mutual agreement.
2104 (b) The decision shall:
2105 (i) state the reasons for the action taken;
2106 (ii) inform the protestor of the right to judicial or administrative review as provided in
2107 this chapter; and
2108 (iii) indicate the amount of the security deposit or bond required under Section
2109 63G-6a-1703.
2110 (c) A person who issues a decision under Subsection (6)(a) shall mail, email, or
2111 otherwise immediately furnish a copy of the decision to the protestor.
2112 (7) A decision described in this section is effective until stayed or reversed on appeal,
2113 except to the extent provided in Section 63G-6a-1903.
2114 (8) (a) A decision described in Subsection (6)(a) that is issued in relation to a
2115 procurement unit other than a legislative procurement unit, a judicial procurement unit, a
2116 nonadopting local government procurement unit, or a public transit district is final and
2117 conclusive unless the protestor files an appeal under Section 63G-6a-1702.
2118 (b) A decision described in Subsection (6)(a) that is issued in relation to a legislative
2119 procurement unit, a judicial procurement unit, a nonadopting local government procurement
2120 unit, or a public transit district is final and conclusive unless the protestor files an appeal under
2121 Section 63G-6a-1802.
2122 (9) If the protest officer does not issue the written decision regarding a protest within
2123 30 calendar days after the day on which the protest was filed with the protest officer, or within
2124 a longer period as may be agreed upon by the parties, the protester may proceed as if an adverse
2125 decision had been received.
2126 (10) A determination under this section by the protest officer regarding an issue of fact
2127 may not be overturned on appeal unless the decision is arbitrary and capricious or clearly
2128 erroneous.
2129 (11) An individual is not precluded from acting, and may not be disqualified or
2130 required to be recused from acting, as a protest officer because the individual also acted in
2131 another capacity during the procurement process, as required or allowed in this chapter.
2132 Section 31. Section 63G-6a-1701.5 is enacted to read:
2133 63G-6a-1701.5. Definitions.
2134 As used in this part:
2135 (1) "Appointing officer" means:
2136 (a) the chair of the board; or
2137 (b) a designee of the chair who is not employed by the procurement unit responsible for
2138 the solicitation, contract award, or other action that is the subject of the protestor's protest.
2139 (2) "Protest appeal record" means the same as that term is defined in Section
2140 63G-6a-1601.5.
2141 (3) "Protestor" means the same as that term is defined in Section 63G-6a-1601.5.
2142 Section 32. Section 63G-6a-1702 is amended to read:
2143 63G-6a-1702. Appeal to Utah State Procurement Policy Board -- Appointment of
2144 procurement appeals panel -- Proceedings.
2145 (1) This part applies to all procurement units other than:
2146 (a) a legislative procurement unit;
2147 (b) a judicial procurement unit;
2148 (c) a nonadopting local government procurement unit; or
2149 (d) a public transit district.
2150 (2) (a) Subject to Section 63G-6a-1703, a [
2151
2152 appeal [
2153 to this part by filing a written notice of appeal with the chair of the board within seven days
2154 after:
2155 (i) the day on which the written decision described in Section 63G-6a-1603 is:
2156 (A) personally served on the party or the party's representative; or
2157 (B) emailed or mailed to the address or email address provided by the party under
2158 Subsection 63G-6a-1602[
2159 (ii) the day on which the 30-day period described in Subsection 63G-6a-1603(9) ends,
2160 if a written decision is not issued before the end of the 30-day period.
2161 [
2162
2163
2164 [
2165 (i) include the address of record and email address of record of the party filing the
2166 notice of appeal; and
2167 (ii) be accompanied by a copy of any written protest decision [
2168
2169 (c) The deadline for appealing a protest decision may not be modified.
2170 (3) A person may not base an appeal of a protest under this section on:
2171 (a) a ground not specified in the person's protest under Section 63G-6a-1602[
2172 (b) new or additional evidence not considered by the protest officer.
2173 (4) (a) A person may not appeal from a protest described in Section 63G-6a-1602,
2174 unless:
2175 [
2176 [
2177 63G-6a-1603(9), or a longer period agreed to by the parties, has passed.
2178 [
2179
2180
2181 [
2182
2183
2184 [
2185
2186 (b) A procurement unit may not appeal a protest decision or other determination made
2187 by the procurement unit's protest officer.
2188 (5) (a) Within seven days after the chair of the board receives a written notice of an
2189 appeal under this section, the chair shall submit a written request to the protest officer for the
2190 protest appeal record.
2191 (b) Within seven days after the chair receives the protest appeal record from the protest
2192 officer, the appointing officer shall, in consultation with the attorney general's office:
2193 (i) review the appeal to determine whether the appeal complies with the requirements
2194 of Subsections (2), (3), and (4) and Section 63G-6a-1703; and
2195 (ii) (A) dismiss any claim asserted in the appeal, or dismiss the appeal, without holding
2196 a hearing if the appointing officer determines that the claim or appeal, respectively, fails to
2197 comply with any of the requirements listed in Subsection (5)(b)(i); or
2198 (B) appoint a procurement appeals panel to conduct an administrative review of any
2199 claim in the appeal that has not been dismissed under Subsection (5)(b)(ii)(A), if the appointing
2200 officer determines that one or more claims asserted in the appeal comply with the requirements
2201 listed in Subsection (5)(b)(i).
2202 (c) A procurement appeals panel appointed under Subsection (5)(a) shall consist of an
2203 odd number of at least three individuals, each of whom is:
2204 [
2205 [
2206 designee is approved by the chair[
2207 [
2208 appeals panel to [
2209 [
2210 (i) appoint the same procurement appeals panel to hear more than one appeal; or
2211 (ii) appoint a separate procurement appeals panel for each appeal[
2212 [
2213 panel if the person is employed by the procurement unit responsible for the solicitation,
2214 contract award, or other action [
2215 [
2216 appointed, provide appeals panel members with a copy of the [
2217
2218
2219 (6) (a) A procurement appeals panel described in Subsection (5) [
2220 [
2221 [
2222 within [
2223 before a later date that all parties agree upon, unless the appeal is dismissed under Subsection
2224 (8)(a); and
2225 [
2226 [
2227 (ii) (A) may, as part of the administrative review and at the sole discretion of the
2228 procurement appeals panel, conduct an informal hearing, if the procurement appeals panel
2229 considers a hearing to be necessary; and
2230 [
2231 seven days before the [
2232 [
2233 (b) A procurement appeals panel may, during an informal hearing, ask questions and
2234 receive responses regarding the appeal and the protest appeal record to assist the procurement
2235 appeals panel to understand the basis of the appeal and information contained in the protest
2236 appeal record, but may not otherwise take any additional evidence or consider any additional
2237 ground for the appeal.
2238 (7) A procurement appeals panel shall consider and decide the appeal based solely on:
2239 (a) the notice of appeal and the protest appeal record; and
2240 (b) responses received during an informal hearing, if an informal hearing is held and to
2241 the extent allowed under Subsection (6)(b).
2242 (8) A procurement appeals panel:
2243 (a) may dismiss an appeal if the appeal does not comply with the requirements of this
2244 chapter; and
2245 (b) shall uphold the protest decision unless the protest decision is arbitrary and
2246 capricious or clearly erroneous.
2247 [
2248 the [
2249 [
2250 [
2251 the appeal and to the protest officer.
2252 [
2253 (b) If the procurement appeals panel is a public body, as defined in Section 52-4-103,
2254 the procurement appeals panel shall comply with Section 52-4-205 in closing a meeting for its
2255 deliberations.
2256 [
2257
2258 described in Subsection (6)[
2259 continuance is in the interests of justice.
2260 [
2261 [
2262 [
2263 [
2264 [
2265 [
2266 [
2267
2268
2269 [
2270
2271 [
2272 officer is arbitrary and capricious or clearly erroneous, the procurement appeals panel:
2273 (a) shall remand the matter to the protest officer, to cure the problem or render a new
2274 decision;
2275 (b) may recommend action that the protest officer should take; and
2276 (c) may not order that:
2277 (i) a contract be awarded to a certain person;
2278 (ii) a contract or solicitation be cancelled; or
2279 (iii) any other action be taken other than the action described in Subsection [
2280 (12)(a).
2281 [
2282 including rules that provide for:
2283 (a) expedited proceedings; and
2284 (b) electronic participation in the proceedings by panel members and participants.
2285 [
2286 held by a procurement appeals panel.
2287 (15) Part 20, Records, applies to the records involved in the process described in this
2288 section, including the decision issued by a procurement appeals panel.
2289 Section 33. Section 63G-6a-1703 is amended to read:
2290 63G-6a-1703. Requirement to pay a security deposit or post a bond -- Exceptions
2291 -- Amount -- Forfeiture of security deposit or bond.
2292 (1) A person who files a notice of appeal under Section 63G-6a-1702 shall, before the
2293 expiration of the time provided under Subsection 63G-6a-1702(2) for filing a notice of appeal,
2294 pay a security deposit or post a bond with the office of the protest officer.
2295 (2) The amount of a security deposit or bond required under Subsection (1) is:
2296 (a) for an appeal relating to an invitation for bids or request for proposals and except as
2297 provided in Subsection (2)(b)(ii):
2298 (i) $20,000, if the total contract value is under $500,000;
2299 (ii) $25,000, if the total contract value is $500,000 or more but less than $1,000,000;
2300 (iii) $50,000, if the total contract value is $1,000,000 or more but less than $2,000,000;
2301 (iv) $95,000, if the total contract value is $2,000,000 or more but less than $4,000,000;
2302 (v) $180,000, if the total contract value is $4,000,000 or more but less than $8,000,000;
2303 (vi) $320,000, if the total contract value is $8,000,000 or more but less than
2304 $16,000,000;
2305 (vii) $600,000, if the total contract value is $16,000,000 or more but less than
2306 $32,000,000;
2307 (viii) $1,100,000, if the total contract value is $32,000,000 or more but less than
2308 $64,000,000;
2309 (ix) $1,900,000, if the total contract value is $64,000,000 or more but less than
2310 $128,000,000;
2311 (x) $3,500,000, if the total contract value is $128,000,000 or more but less than
2312 $256,000,000;
2313 (xi) $6,400,000, if the total contract value is $256,000,000 or more but less than
2314 $512,000,000; and
2315 (xii) $10,200,000, if the total contract value is $512,000,000 or more; or
2316 (b) $20,000, for an appeal:
2317 (i) relating to any type of procurement process other than an invitation for bids or
2318 request for proposals;
2319 (ii) relating to an invitation for bids or request for proposals, if the estimated total
2320 contract value cannot be determined; or
2321 (iii) of a debarment or suspension.
2322 (3) (a) For an appeal relating to an invitation for bids, the estimated total contract value
2323 shall be based on:
2324 (i) the lowest [
2325 contract, excluding any renewal period, if the bid opening has occurred;
2326 (ii) the total budget for the procurement item for the entire term of the contract,
2327 excluding any renewal period, if bids are based on unit or rate pricing; or
2328 (iii) if the contract is being rebid, the historical usage and amount spent on the contract
2329 over the life of the contract.
2330 (b) For an appeal relating to a request for proposals, the estimated total contract value
2331 shall be based on:
2332 (i) the lowest cost proposed in a response to a request for proposals, considering the
2333 entire term of the contract, excluding any renewal period, if the opening of proposals has
2334 occurred;
2335 (ii) the total budget for the procurement item over the entire term of the contract,
2336 excluding any renewal period, if opened cost proposals are based on unit or rate pricing; or
2337 (iii) if the contract is being reissued, the historical usage and amount spent on the
2338 contract over the life of the contract that is being reissued.
2339 (4) The protest officer shall:
2340 (a) retain the security deposit or bond until the protest and any appeal of the protest
2341 decision is final;
2342 (b) as it relates to a security deposit:
2343 (i) deposit the security deposit into an interest-bearing account; and
2344 (ii) after any appeal of the protest decision becomes final, return the security deposit
2345 and the interest it accrues to the person who paid the security deposit, unless the security
2346 deposit is forfeited to the general fund of the procurement unit under Subsection (5); and
2347 (c) as it relates to a bond:
2348 (i) retain the bond until the protest and any appeal of the protest decision becomes
2349 final; and
2350 (ii) after the protest and any appeal of the protest decision becomes final, return the
2351 bond to the person who posted the bond, unless the bond is forfeited to the general fund of the
2352 procurement unit under Subsection (5).
2353 (5) A security deposit that is paid, or a bond that is posted, under this section shall
2354 forfeit to the general fund of the procurement unit if:
2355 (a) the person who paid the security deposit or posted the bond fails to ultimately
2356 prevail on appeal; and
2357 (b) the procurement appeals panel finds that the protest or appeal is frivolous or that its
2358 primary purpose is to harass or cause a delay.
2359 Section 34. Section 63G-6a-1802 is amended to read:
2360 63G-6a-1802. Appeal to Utah Court of Appeals.
2361 (1) (a) As provided in this part:
2362 (i) a person may appeal a dismissal of an appeal by the board chair under Subsection
2363 [
2364 (ii) a person who receives an adverse decision by a procurement appeals panel may
2365 appeal that decision;
2366 (iii) subject to Subsection (2), a procurement unit, other than a legislative procurement
2367 unit, a judicial procurement unit, a nonadopting local government procurement unit, or a public
2368 transit district, may appeal an adverse decision by a procurement appeals panel; and
2369 (iv) a person who receives an adverse decision in a protest relating to a legislative
2370 procurement unit, a judicial procurement unit, a nonadopting local government procurement
2371 unit, or a public transit district may appeal that decision[
2372 [
2373
2374
2375 (b) A person seeking to appeal a dismissal[
2376 under Subsection (1)(a) shall file a notice of appeal with the Utah Court of Appeals within
2377 seven days after the dismissal[
2378 (2) A procurement unit may not appeal the decision of a procurement appeals panel,
2379 unless the appeal is:
2380 (a) recommended by the protest officer involved; and
2381 (b) except for a procurement unit that is not represented by the attorney general's
2382 office, approved by the attorney general.
2383 (3) A person appealing a dismissal, decision, or protest[
2384 under this section may not base the appeal on a ground not specified in the proceeding from
2385 which the appeal is taken.
2386 (4) The Utah Court of Appeals:
2387 (a) shall consider the appeal as an appellate court;
2388 (b) may not hear the matter as a trial de novo; and
2389 (c) may not overturn a finding, dismissal, or decision[
2390 unless the finding, dismissal, or decision, [
2391 capricious or clearly erroneous.
2392 (5) The Utah Court of Appeals is encouraged to:
2393 (a) give an appeal made under this section priority; and
2394 (b) consider the appeal and render a decision in an expeditious manner.
2395 Section 35. Section 63G-6a-2403 is amended to read:
2396 63G-6a-2403. Applicability.
2397 (1) This part applies to each public entity.
2398 (2) A procurement professional is subject to this part at all times during:
2399 (a) the procurement process; and
2400 (b) the administration of a contract or grant.
2401 (3) A contract administration professional is subject to this part at all times during the
2402 period the contract administration professional is:
2403 (a) under contract with a procurement unit; and
2404 (b) involved in:
2405 (i) the procurement process; or
2406 (ii) the administration of a contract or grant.
2407 (4) This part does not apply to:
2408 (a) an individual described in Subsection 63G-6a-2402(9)(b); [
2409 (b) any individual other than a procurement professional or contract administration
2410 professional[
2411 (c) a taxed interlocal entity, as defined in Section 11-13-602, or a director, officer, or
2412 employee of a taxed interlocal entity.
2413 (5) The other subsections of this section do not affect the applicability or effect of any
2414 other ethics, bribery, or other law.
2415 Section 36. Section 63G-6a-2404.3 is enacted to read:
2416 63G-6a-2404.3. Dividing a procurement to avoid using a standard procurement
2417 process.
2418 (1) It is unlawful for a person knowingly to divide a single procurement into multiple
2419 smaller procurements if dividing the single procurement:
2420 (a) is done with the intent to avoid the use of a standard procurement process that
2421 would have otherwise been required if the procurement had not been divided;
2422 (b) constitutes unlawful conduct under Subsection 63G-6a-506(8); or
2423 (c) is otherwise prohibited by this chapter.
2424 (2) A violation of Subsection (1) is:
2425 (a) a second degree felony, if the value of the procurement before being divided is
2426 $1,000,000 or more;
2427 (b) a third degree felony, if the value of the procurement before being divided is
2428 $250,000 or more but less than $1,000,000;
2429 (c) a class A misdemeanor, if the value of the procurement before being divided is
2430 $100,000 or more but less than $250,000; or
2431 (d) a class B misdemeanor, if the value of the procurement before being divided is less
2432 than $100,000.
2433 Section 37. Section 63G-6a-2404.7 is enacted to read:
2434 63G-6a-2404.7. Improper action against a public officer or employee involved in
2435 the procurement process.
2436 (1) (a) It is unlawful for a person knowingly to threaten to make a false allegation
2437 against a public officer or employee, or knowingly to threaten to take a menacing or
2438 intimidating action against a public officer or employee, with the intent to:
2439 (i) prevent the officer or employee from performing a duty or responsibility that the
2440 officer or employee has under this chapter;
2441 (ii) influence the officer or employee to award a contract under this chapter to the
2442 person or take other action under this chapter in favor of the person; or
2443 (iii) retaliate against the officer or employee for:
2444 (A) not awarding a contract under this chapter to the person;
2445 (B) issuing a decision or taking an action under this chapter that is adverse to the
2446 person; or
2447 (C) performing a duty or responsibility the officer or employee has under this chapter.
2448 (b) A violation of Subsection (1)(a) is a class A misdemeanor.
2449 (2) (a) It is unlawful for a person knowingly to make a false allegation against a public
2450 officer or employee, or knowingly to take a menacing or intimidating action against a public
2451 officer or employee, with the intent to:
2452 (i) prevent the officer or employee from performing a duty or responsibility that the
2453 officer or employee has under this chapter;
2454 (ii) influence the officer or employee to award a contract under this chapter to the
2455 person or take other action under this chapter in favor of the person; or
2456 (iii) retaliate against the officer or employee for:
2457 (A) not awarding a contract under this chapter to the person;
2458 (B) issuing a decision or taking an action under this chapter that is adverse to the
2459 person; or
2460 (C) performing a duty or responsibility the officer or employee has under this chapter.
2461 (b) A violation of Subsection (2)(a) is a third degree felony.
2462 Section 38. Section 63G-6a-2407 is amended to read:
2463 63G-6a-2407. Duty to report unlawful conduct.
2464 (1) As used in this section, "unlawful conduct" means:
2465 (a) conduct made unlawful under this part; or
2466 (b) conduct, including bid rigging, improperly steering a contract to a favored vendor,
2467 exercising undue influence on an individual involved in the procurement process, or
2468 participating in collusion or other anticompetitive practices, made unlawful under other
2469 applicable law.
2470 (2) (a) A procurement professional with actual knowledge that a person has engaged in
2471 unlawful conduct shall report the person's unlawful conduct to:
2472 (i) the state auditor; or
2473 (ii) the attorney general or other appropriate prosecuting attorney.
2474 (b) An individual not subject to the requirement of Subsection (2)(a) who has actual
2475 knowledge that a person has engaged in unlawful conduct may report the person's unlawful
2476 conduct to:
2477 (i) the state auditor; or
2478 (ii) the attorney general or other appropriate prosecuting attorney.
2479 (3) A procurement professional who fails to comply with the requirement of
2480 Subsection (2)(a) is subject to any applicable disciplinary action [
2481
2482 Section 39. Section 63G-10-403 is amended to read:
2483 63G-10-403. Department of Transportation bid or request for proposals protest
2484 settlement agreement approval and review.
2485 (1) As used in this section:
2486 (a) "Department" means the Department of Transportation created in Section 72-1-201.
2487 (b) "Settlement agreement" includes stipulations, consent decrees, settlement
2488 agreements, or other legally binding documents or representations resolving a dispute between
2489 the department and another party when the department is required to pay money or required to
2490 take legally binding action.
2491 (2) The department shall obtain the approval of the Transportation Commission or the
2492 governor or review by the Legislative Management Committee of a settlement agreement that
2493 involves a bid or request for proposal protest in accordance with this section.
2494 (3) A settlement agreement that is being settled by the department as part of a bid or
2495 request for proposal protest, in accordance with Subsection 63G-6a-1602[
2496 cost government entities more than $100,000 to implement shall be presented to the
2497 Transportation Commission for approval or rejection.
2498 (4) A settlement agreement that is being settled by the department as part of a bid or
2499 request for proposal protest, in accordance with Subsection 63G-6a-1602[
2500 cost government entities more than $500,000 to implement shall be presented:
2501 (a) to the Transportation Commission for approval or rejection; and
2502 (b) to the governor for approval or rejection.
2503 (5) (a) A settlement agreement that is being settled by the department as part of a bid or
2504 request for proposal protest, in accordance with Subsection 63G-6a-1602[
2505 cost government entities more than $1,000,000 to implement shall be presented:
2506 (i) to the Transportation Commission for approval or rejection;
2507 (ii) to the governor for approval or rejection; and
2508 (iii) if the settlement agreement is approved by the Transportation Commission and the
2509 governor, to the Legislative Management Committee.
2510 (b) The Legislative Management Committee may recommend approval or rejection of
2511 the settlement agreement.
2512 (6) (a) The department may not enter into a settlement agreement that resolves a bid or
2513 request for proposal protest, in accordance with Subsection 63G-6a-1602[
2514 cost government entities more than $100,000 to implement until the Transportation
2515 Commission has approved the agreement.
2516 (b) The department may not enter into a settlement agreement that resolves a bid or
2517 request for proposal protest, in accordance with Subsection 63G-6a-1602[
2518 cost government entities more than $500,000 to implement until the Transportation
2519 Commission and the governor have approved the agreement.
2520 (c) The department may not enter into a settlement agreement that resolves a bid or
2521 request for proposal protest, in accordance with Subsection 63G-6a-1602[
2522 cost government entities more than $1,000,000 to implement until:
2523 (i) the Transportation Commission has approved the agreement;
2524 (ii) the governor has approved the agreement; and
2525 (iii) the Legislative Management Committee has reviewed the agreement.
2526 Section 40. Repealer.
2527 This bill repeals:
2528 Section 63G-6a-1604, Dismissal of protest not filed in accordance with
2529 requirements.
2530 Section 63G-6a-1706, Dismissal of an appeal not filed in compliance with
2531 requirements.
2532 Section 41. Coordinating H.B. 398 with S.B. 204 -- Technical amendments.
2533 If this H.B. 398 and S.B. 204, Public-Private Partnerships, both pass and become law, it
2534 is the intent of the Legislature that the Office of Legislative Research and General Counsel in
2535 preparing the Utah Code database for publication, merge the amendments in Subsection
2536 63G-6a-702(2) to read:
2537 "(2) (a) The request for proposals [
2538 procurement unit to use [
2539 most advantageous to the procurement unit, including when:
2540 [
2541 [
2542 (i) the procurement involves a contract whose terms and conditions are to be negotiated
2543 in order to achieve the result that is the most advantageous to the procurement unit;
2544 [
2545 selection that is most advantageous to the procurement unit; [
2546 [
2547 making the selection that is most advantageous to the procurement unit[
2548 (iv) the procurement unit anticipates entering into a public-private partnership.
2549 (b) The types of procurements for which it is appropriate to use the request for
2550 proposals process include:
2551 (i) a procurement of professional services; and
2552 (ii) a procurement of design-build or construction manager/general contractor
2553 services."