Representative Gage Froerer proposes the following substitute bill:


1     
PROCUREMENT CODE AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Gage Froerer

5     
Senate Sponsor: D. Gregg Buxton

6     

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          [(1) to simplify, clarify, and modernize the law governing procurement in the state;]
101          (1) to ensure transparency in the public procurement process;
102          (2) to ensure the fair and equitable treatment of all persons who [deal with the]
103     participate in the public procurement [system] process;
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          [(1) "Administrative law judge" means the same as that term is defined in Section
110     67-19e-102.]
111          [(2) "Administrative law judge service" means service provided by an administrative
112     law judge.]
113          [(3)] (1) "Applicable rulemaking authority" means:
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; [or]
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          [(i)] (j) for any other procurement unit, the board.
142          [(4)] (2) "Approved vendor" means a vendor who has been approved through the
143     approved vendor list process.
144          [(5)] (3) "Approved vendor list" means a list of approved vendors established under
145     Section 63G-6a-507.
146          [(6)] (4) "Approved vendor list process" means the procurement process described in
147     Section 63G-6a-507.
148          [(7)] (5) "Bidder" means a person who submits a bid or price quote in response to an
149     invitation for bids.

150          [(8)] (6) "Bidding process" means the procurement process described in Part 6,
151     Bidding.
152          [(9)] (7) "Board" means the Utah State Procurement Policy Board, created in Section
153     63G-6a-202.
154          [(10)] (8) "Building board" means the State Building Board, created in Section
155     63A-5-101.
156          [(11)] (9) "Change directive" means a written order signed by the procurement officer
157     that directs the contractor to suspend work or make changes, as authorized by contract, without
158     the consent of the contractor.
159          [(12)] (10) "Change order" means a written alteration in specifications, delivery point,
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          [(13)] (11) "Chief procurement officer" means the chief procurement officer appointed
163     under Subsection 63G-6a-302(1).
164          [(14)] (12) "Conducting procurement unit" means a procurement unit that conducts all
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          [(15)] (13) "Conservation district" means the same as that term is defined in Section
179     17D-3-102.
180          [(16)] (14) "Construction":

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          [(17)] (15) "Construction manager/general contractor":
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          [(18)] (17) "Contract" means an agreement for a procurement.
202          [(19)] (18) "Contract administration" means all functions, duties, and responsibilities
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          [(20)] (19) "Contractor" means a person who is awarded a contract with a procurement
217     unit.
218          [(21)] (20) "Cooperative procurement" means procurement conducted by, or on behalf
219     of:
220          (a) more than one procurement unit; or
221          (b) a procurement unit and a cooperative purchasing organization.
222          [(22)] (21) "Cooperative purchasing organization" means an organization, association,
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          [(23)] (22) "Cost-plus-a-percentage-of-cost contract" means a contract under which the
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          [(24)] (23) "Cost-reimbursement contract" means a contract under which a contractor
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          [(25)] (24) "Days" means calendar days, unless expressly provided otherwise.
232          [(26)] (25) "Definite quantity contract" means a fixed price contract that provides for a
233     specified amount of supplies over a specified period, with deliveries scheduled according to a
234     specified schedule.
235          [(27)] (26) "Design-build" means the procurement of design professional services and
236     construction by the use of a single contract.
237          [(28)] (27) "Design professional" means:
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          [(29)] (28) "Design professional procurement process" means the procurement process
244     described in Part 15, Design Professional Services.
245          [(30)] (29) "Design professional services" means:
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          [(31)] (30) "Director" means the director of the division.
251          [(32)] (31) "Division" means the Division of Purchasing and General Services, created
252     in Section 63A-2-101.
253          [(33)] (32) "Educational procurement unit" means:
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; [or]
258          (e) an institution of higher education of the state[.]; or
259          (f) an applied technology college within the Utah College of Applied Technology.
260          [(34)] (33) "Established catalogue price" means the price included in a catalogue, price
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          [(35)] (34) "Executive branch procurement unit" means a department, division, office,
268     bureau, agency, or other organization within the state executive branch.
269          [(36)] (35) "Fixed price contract" means a contract that provides a price, for each
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          [(37)] (36) "Fixed price contract with price adjustment" means a fixed price contract
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          [(38)] (37) "Grant" means an expenditure of public funds or other assistance, or an
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          [(39)] (38) "Head of a procurement unit" means:
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; [or]
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          [(m)] (n) for a public transit district, the board of trustees or a designee of the board of
315     trustees.
316          [(40)] (39) "Immaterial error":
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          [(41)] (40) "Indefinite quantity contract" means a fixed price contract that:
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          [(42)] (41) "Independent procurement authority" means authority granted to a
334     procurement unit under Subsection 63G-6a-106(4)(a).
335          [(43)] (42) "Invitation for bids":

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 [(43)] (42)(a).
341          [(44)] (43) "Issuing procurement unit" means a procurement unit that:
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          [(45)] (44) "Judicial procurement unit" means:
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          [(46)] (45) "Labor hour contract" is a contract under which:
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          [(47)] (46) "Legislative procurement unit" means:
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) [an office,] a committee, subcommittee, commission, or other organization:
362          (i) within the state legislative branch[.]; or
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          [(48)] (47) "Local building authority" means the same as that term is defined in Section
368     17D-2-102.
369          [(49)] (48) "Local district" means the same as that term is defined in Section
370     17B-1-102.
371          [(50)] (49) "Local government procurement unit" means:
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          [(51)] (50) "Multiple award contracts" means the award of a contract for an indefinite
380     quantity of a procurement item to more than one [bidder or offeror] person.
381          [(52)] (51) "Multiyear contract" means a contract that extends beyond a one-year
382     period, including a contract that permits renewal of the contract, without competition, beyond
383     the first year of the contract.
384          [(53)] (52) "Municipality" means a city, town, or metro township.
385          [(54)] (53) "Nonadopting local government procurement unit" means:
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          [(55)] (54) "Offeror" means a person who submits a proposal in response to a request
391     for proposals.
392          [(56) "Person" means the same as that term is defined in Section 68-3-12.5, excluding
393     a political subdivision and a government office, department, division, bureau, or other body of
394     government.]
395          [(57)] (55) "Preferred bidder" means a bidder that is entitled to receive a reciprocal
396     preference under the requirements of this chapter.
397          [(58)] (56) "Procure" means to acquire a procurement item through a procurement.

398          [(59)] (57) "Procurement":
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          [(60)] (58) "Procurement item" means a supply, a service, or construction.
409          [(61)] (59) "Procurement officer" means:
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          [(62)] (60) "Procurement unit":
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          [(63)] (61) "Professional service" means labor, effort, or work that requires an elevated
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          [(64)] (62) "Protest officer" means:
444          (a) for the division or a procurement unit with independent procurement authority:
445          (i) the head of the procurement unit;
446          (ii) [a designee of] the head of the procurement unit's designee who is an employee of
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          [(65)] (63) "Public corporation" means the same as that term is defined in Section
453     63E-1-102.
454          [(66)] (64) "Public entity" means any government entity of the state or political
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          [(67)] (65) "Public facility" means a building, structure, infrastructure, improvement,
461     or other facility of a public entity.
462          [(68)] (66) "Public funds" means money, regardless of its source, including from the
463     federal government, that is owned or held by a procurement unit.
464          [(69)] (67) "Public transit district" means a public transit district organized under Title
465     17B, Chapter 2a, Part 8, Public Transit District Act.
466          [(70)] (68) "Qualified vendor" means a vendor who:
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          [(71)] (69) "Real property" means land and any building, fixture, improvement,
472     appurtenance, structure, or other development that is permanently affixed to land.
473          [(72)] (70) "Request for information" means a nonbinding process through which a
474     procurement unit requests information relating to a procurement item.
475          [(73)] (71) "Request for proposals" means a document used to solicit proposals to
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          [(74)] (72) "Request for proposals process" means the procurement process described
479     in Part 7, Request for Proposals.
480          [(75)] (73) "Request for statement of qualifications" means a document used to solicit
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          [(76)] (74) "Requirements contract" means a contract:
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          [(77)] (75) "Responsible" means being capable, in all respects, of:

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          [(78)] (76) "Responsive" means conforming in all material respects to the requirements
495     of a solicitation.
496          [(79)] (77) "Sealed" means manually or electronically secured to prevent disclosure.
497          [(80)] (78) "Service":
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          [(81)] (79) "Small purchase process" means the procurement process described in
504     Section 63G-6a-506.
505          [(82)] (80) "Sole source contract" means a contract resulting from a sole source
506     procurement.
507          [(83)] (81) "Sole source procurement" means a procurement without competition
508     pursuant to a determination under Subsection 63G-6a-802(1)(a) that there is only one source
509     for the procurement item.
510          [(84)] (82) "Solicitation" means an invitation for bids, request for proposals, request
511     for statement of qualifications, or request for information.
512          [(85)] (83) "Solicitation response" means:
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          [(86)] (84) "Special service district" means the same as that term is defined in Section
518     17D-1-102.
519          [(87)] (85) "Specification" means any description of the physical or functional
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          [(88)] (86) "Standard procurement process" means:
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          [(89)] (87) "State cooperative contract" means a contract awarded by the division for
532     and in behalf of all public entities.
533          [(90)] (88) "Statement of qualifications" means a written statement submitted to a
534     procurement unit in response to a request for statement of qualifications.
535          [(91)] (89) "Subcontractor":
536          [(a) means a person under contract with a contractor or another subcontractor to
537     provide services or labor for design or construction;]
538          [(b) includes a trade contractor or specialty contractor; and]
539          [(c) does not include a supplier who provides only materials, equipment, or supplies to
540     a contractor or subcontractor.]
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          [(92)] (90) "Supply" means a good, material, technology, piece of equipment, or any
548     other item of personal property.
549          [(93)] (91) "Tie bid" means that the lowest responsive bids of responsible bidders are
550     identical in price.
551          [(94)] (92) "Time and materials contract" means a contract under which the contractor
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          [(95)] (93) "Transitional costs":
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          [(96)] (94) "Trial use contract" means a contract for a procurement item that the
575     procurement unit acquires for a trial use or testing to determine whether the procurement item
576     will benefit the procurement unit.
577          [(97)] (95) "Vendor":
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          [(a) the name of the conducting procurement unit;]
591          [(b)] (a) the name of the procurement unit acquiring the procurement item;
592          [(c)] (b) information on how to contact the issuing procurement unit;
593          [(d)] (c) the date of the opening and closing of the solicitation;
594          [(e)] (d) information on how to obtain a copy of the procurement documents;
595          [(f)] (e) a general description of the procurement items that will be obtained through
596     the standard procurement process or procurement under Section 63G-6a-802; and
597          [(g)] (f) for a notice of a procurement under Section 63G-6a-802:
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          [(1)] (2) A procurement unit shall use a standard procurement process under this
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          [(2)] (4) Within 30 days after the day on which a conducting procurement unit awards a
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 [and], services, or [services and]
684     construction[,]; or
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 [membership as provided
794     in Subsection (9)(a)(ii) or (iii), as applicable. (ii) An evaluation committee for a procurement of
795     administrative law judge service shall consist of: (A) the head of the conducting procurement
796     unit, or the head's designee; (B) the head of an executive branch procurement unit other than
797     the conducting procurement unit, appointed by the executive director of the Department of
798     Human Resource Management, or the head's designee; and (C) the executive director of the
799     Department of Human Resource Management, or the executive director's designee. (iii) An
800     evaluation committee for each other procurement shall consist of] at least three individuals

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          [(iv)] (ii) The conducting procurement unit shall ensure that each member of [the] an
806     evaluation committee [under Subsection (9)(a)(iii)] and each individual participating in the
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 [under Subsection (9)(d)], the head of the
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 [63G-6a-707(3)(a)] 63G-6a-116(3).
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          [(8) (a) It is unlawful for a person to intentionally or knowingly divide a procurement
965     into smaller procurements with the intent to make a procurement:]
966          [(i) qualify as a small purchase, if, before dividing the procurement, it would not have
967     qualified as a small purchase; or]
968          [(ii) meet a threshold established by rule made by the applicable rulemaking authority,
969     if, before dividing the procurement, it would not have met the threshold.]
970          [(b) A person who engages in the conduct made unlawful under Subsection (8)(a) is
971     guilty of:]
972          [(i) a second degree felony, if the value of the procurement before being divided is
973     $1,000,000 or more;]
974          [(ii) a third degree felony, if the value of the procurement before being divided is
975     $250,000 or more but less than $1,000,000;]
976          [(iii) a class A misdemeanor, if the value of the procurement before being divided is
977     $100,000 or more but less than $250,000; or]
978          [(iv) a class B misdemeanor, if the value of the procurement before being divided is
979     less than $100,000.]
980          [(9) A division of a procurement that is prohibited under Subsection (8) includes doing
981     any of the following with the intent or knowledge described in Subsection (8):]
982          [(a) making two or more separate purchases;]
983          [(b) dividing an invoice or purchase order into two or more invoices or purchase
984     orders; or]
985          [(c) making smaller purchases over a period of time.]
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          [(10)] (9) The Division of Finance within the Department of Administrative Services
1002     may conduct an audit of an executive branch procurement unit to verify compliance with the
1003     requirements of this section.
1004          [(11)] (10) An executive branch procurement unit may not make a small purchase after
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)[(d)](e), the head of the conducting
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) [Except as otherwise provided in this chapter, the] The division or a procurement
1085     unit with independent procurement authority [shall] may award a contract for a procurement
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 [standard
1108     procurement] process shall evaluate each bid using the objective criteria described in the
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 [and] bid from a responsible bidder does not exceed the available funds by more
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 [and responsible
1156     bidder] bid in order to bring the bid within the amount of available funds.
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[, responsible,] and
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 [responsive] provider of
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 [lowest responsive and] responsible
1199     bidder who:
1200          (i) meets the objective criteria described in the invitation for bids; [or] and
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          [(1) A request for proposals standard procurement process may be used instead of
1214     bidding if the procurement officer determines, in writing, that the request for proposals
1215     standard procurement process will provide the best value to the procurement unit.]
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 [standard procurement] process is appropriate for a
1220     procurement unit to use [for] in selecting the proposal that provides the best value or is the
1221     most advantageous to the procurement unit, including when :
1222          [(a) the procurement of professional services;]
1223          [(b) a design-build procurement;]
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          [(c) when] (ii) cost is not the most important factor to be considered in making the
1227     selection that is most advantageous to the procurement unit; or
1228          [(d) when] (iii) factors, apart from or in addition to cost, are highly significant in
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     [Architect-Engineer Services] Design Professional Services.
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 [and responsible]
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          [(3) (a) For a procurement of administrative law judge service, an evaluation
1288     committee shall consist of:]
1289          [(i) the head of the conducting procurement unit, or the head's designee;]
1290          [(ii) the head of an executive branch procurement unit other than the conducting
1291     procurement unit, appointed by the executive director of the Department of Human Resource
1292     Management, or the head's designee; and]
1293          [(iii) the executive director of the Department of Human Resource Management, or the
1294     executive director's designee.]
1295          [(b) For every other procurement requiring an evaluation by an evaluation committee,
1296     the]

1297          (3) The conducting procurement unit shall:
1298          [(i)] (a) appoint an evaluation committee consisting of at least three individuals with at
1299     least a general familiarity with or basic understanding of:
1300          [(A)] (i) the technical requirements relating to the type of procurement item that is the
1301     subject of the procurement; or
1302          [(B)] (ii) the need that the procurement item is intended to address; and
1303          [(ii)] (b) ensure that the evaluation committee and each individual participating in the
1304     evaluation committee process:
1305          [(A)] (i) does not have a conflict of interest with any of the offerors;
1306          [(B)] (ii) can fairly evaluate each proposal;
1307          [(C)] (iii) does not contact or communicate with an offeror concerning the procurement
1308     outside the official evaluation committee process; and
1309          [(D)] (iv) conducts or participates in the evaluation in a manner that ensures a fair and
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 [and responsible] proposal from a responsible offeror; and
1350          (iv) provide to the evaluation committee the total combined score calculated for each
1351     responsive [and responsible] proposal from a responsible offeror, including any applicable cost
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 [disqualifies an offeror] rejects a
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 [disqualifies an offeror] rejects a
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 [who is not disqualified]
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 [bidder or offeror] person made by an
1560     issuing procurement unit shall be made in writing, in accordance with the rules of the
1561     applicable rulemaking authority.
1562          (2) [The] A person's unreasonable failure [of a bidder or offeror] to promptly supply
1563     information in connection with an inquiry with respect to responsibility may be grounds for a
1564     determination of nonresponsibility with respect to the [bidder or offeror] person.
1565          (3) Subject to Title 63G, Chapter 2, Government Records Access and Management
1566     Act, information furnished by a [bidder or offeror] person pursuant to this section may not be
1567     disclosed outside of a procurement unit without the person's prior written consent [by the
1568     bidder or offeror].
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 -- Appeal.
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 [probable]
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 [a] an informal hearing in accordance with Subsection (1)(c).
1590          (c) (i) At [a] an informal hearing under Subsection (1)(b)(iii), the chief procurement
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 [a] an informal hearing under Subsection
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          [(C) for an appeal of a debarment or suspension by a procurement unit other than a

1607     legislative procurement unit, a judicial procurement unit, a local government procurement unit,
1608     or a public transit district, submit to the procurement policy board chair a copy of the written
1609     decision and all records and other evidence relied upon in reaching the decision, within seven
1610     days after receiving a notice that an appeal of a debarment or suspension has been filed under
1611     Section 63G-6a-1702 or after receiving a request from the procurement policy board chair;
1612     and]
1613          [(D) for an appeal of a debarment or suspension by a legislative procurement unit, a
1614     judicial procurement unit, a local government procurement unit, or a public transit district,
1615     submit to the Utah Court of Appeals a copy of the written decision and all records and other
1616     evidence relied upon in reaching the decision, within seven days after receiving a notice that an
1617     appeal of a debarment or suspension has been filed under Section 63G-6a-1802.]
1618          (iv) The holding of [a] an informal hearing under Subsection (1)(b)(iii) or the issuing
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 [or
1632     administrative] review as provided in this chapter[; and].
1633          [(C) indicate the amount of the security deposit or bond required under Section
1634     63G-6a-1703 and how that amount was calculated.]
1635          [(vii) (A) A decision of debarment or suspension issued by a procurement unit other
1636     than a legislative procurement unit, a judicial procurement unit, a local government
1637     procurement unit, or a public transit district is final and conclusive unless the person who is

1638     debarred or suspended files an appeal of the decision under Section 63G-6a-1702.]
1639          [(B)] (vii) A decision of debarment or suspension [issued by a legislative procurement
1640     unit, a judicial procurement unit, a local government procurement unit, or a public transit
1641     district] is final and conclusive unless [the person who is debarred or suspended files an appeal
1642     of] the decision is overturned by a court under [Section 63G-6a-1802] Subsection (4).
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 [appeal] seek
1665     judicial review of the debarment or suspension[:] by filing a petition for judicial review in
1666     district court.
1667          [(a) as provided in Section 63G-6a-1702, if the debarment or suspension is by a
1668     procurement unit other than a legislative procurement unit, a judicial procurement unit, a local

1669     government procurement unit, or a public transit district; or (b) as provided in Section
1670     63G-6a-1802, if the debarment or suspension is by a legislative procurement unit, a judicial
1671     procurement unit, a local government procurement unit, or a public transit district.]
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 [and responsible] bid
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 [and responsible] bid offering procurement items that are produced, manufactured,
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 [and responsible]
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 [and responsible] bid, and, with the benefit of the reciprocal
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) [The] Through a standard procurement process, the division or a procurement
1774     unit with independent procurement authority may enter into multiple award contracts with
1775     [bidders or offerors] multiple persons.
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     [responsive and] responsible offeror whose responsive proposal is most advantageous to the
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 [responsive and] responsible
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          [(2)] (4) "Protestor" means a person who files a protest under this part.
1973          [(3)] (5) "Standing" means to have suffered an injury or harm or to be about to suffer
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          [(3)] (4) (a) A protestor shall include in a protest:
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          [(4)] (5) A protest may not be based on:
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; [or]
2032          (b) a vague or unsubstantiated allegation[.]; or
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          [(5)] (6) A protest may not include a request for:
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          [(6)] (7) A person who fails to file a protest within the time prescribed in Subsection
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          [(7)] (8) Subject to the applicable requirements of Section 63G-10-403, a protest
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          [(iii) submit to the procurement policy board chair a copy of the protest officer's
2085     written decision and all records and other evidence relied upon in reaching the decision, within
2086     seven days after receiving:]
2087          [(A) notice that an appeal of the protest officer's decision has been filed under Section
2088     63G-6a-1702; or]
2089          [(B) a request from the chair of the procurement policy board.]
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[, or the protest officer's designee,] shall promptly issue a

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 [party to a protest involving a procurement
2151     unit other than a procurement unit listed in Subsection (1)(a), (b), (c), or (d)] protestor may
2152     appeal [the protest decision] to the board a protest decision of a procurement unit that is subject
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[(3)](4); or
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          [(b) A person appealing a debarment or suspension of a procurement unit other than a
2162     procurement unit listed in Subsection (1)(a), (b), (c), or (d) shall file a written notice of appeal
2163     with the chair of the board no later than seven days after the debarment or suspension.]
2164          [(c)] (b) A notice of appeal under Subsection (2)(a) [or (b)] shall:

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 [or debarment or
2168     suspension order].
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[.]; or
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          [(a)] (i) a decision on the protest has been issued; or
2176          [(b)] (ii) a decision is not issued and the 30-day period described in Subsection
2177     63G-6a-1603(9), or a longer period agreed to by the parties, has passed.
2178          [(5) The chair of the board or a designee of the chair who is not employed by the
2179     procurement unit responsible for the solicitation, contract award, or other action complained
2180     of:]
2181          [(a) shall, within seven days after the day on which the chair receives a timely written
2182     notice of appeal under Subsection (2), and if all the requirements of Subsection (2) and Section
2183     63G-6a-1703 have been met, appoint:]
2184          [(i) a procurement appeals panel to hear and decide the appeal, consisting of at least
2185     three individuals, each of whom is:]
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          [(A)] (i) a member of the board; or
2205          [(B)] (ii) a designee of a member appointed under Subsection (5)[(a)(i)(A)](c)(i), if the
2206     designee is approved by the chair[; and] of the board.
2207          [(ii)] (d) The appointing officer shall appoint one of the members of the procurement
2208     appeals panel to [be the chair] serve as the coordinator of the panel[;].
2209          [(b)] (e) The appointing officer may:
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          [(c)] (f) The appointing officer may not appoint a person to a procurement appeals
2213     panel if the person is employed by the procurement unit responsible for the solicitation,
2214     contract award, or other action [complained of; and] that is the subject of the protestor's protest.
2215          [(d)] (g) The appointing officer shall, at the time the procurement appeals panel is
2216     appointed, provide appeals panel members with a copy of the [protest officer's written decision
2217     and all other records and other evidence that the protest officer relied on in reaching the
2218     decision] notice of appeal filed under Subsection (2) and the protest decision record.
2219          (6) (a) A procurement appeals panel described in Subsection (5) [shall]:
2220          [(a) consist of an odd number of members;]
2221          [(b)] (i) shall conduct an [informal proceeding on] administrative review of the appeal
2222     within [60] 30 days after the day on which the procurement appeals panel is appointed[:], or
2223     before a later date that all parties agree upon, unless the appeal is dismissed under Subsection
2224     (8)(a); and
2225          [(i) unless all parties stipulate to a later date; and]
2226          [(ii) subject to Subsection (8);]

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          [(c)] (B) if the procurement appeals panel conducts an informal hearing, shall, at least
2231     seven days before the [proceeding] hearing, mail, email, or hand-deliver a written notice of the
2232     [proceeding] hearing to the parties to the appeal[; and].
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          [(d)] (9) The procurement appeals panel shall, within seven days after the day on which
2248     the [proceeding ends] procurement appeals panel concludes the administrative review:
2249          [(i)] (a) issue a written decision on the appeal; and
2250          [(ii)] (b) mail, email, or hand-deliver the written decision on the appeal to the parties to
2251     the appeal and to the protest officer.
2252          [(7)] (10) (a) The deliberations of a procurement appeals panel may be held in private.
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          [(8)] (11) A procurement appeals panel may continue [a procurement appeals
2257     proceeding] an administrative review under this section beyond the [60-day] 30-day period

2258     described in Subsection (6)[(b)](a)(i) if the procurement appeals panel determines that the
2259     continuance is in the interests of justice.
2260          [(9) A procurement appeals panel:]
2261          [(a) shall, subject to Subsection (9)(c), consider the appeal based solely on:]
2262          [(i) the protest decision;]
2263          [(ii) the record considered by the person who issued the protest decision; and]
2264          [(iii) if a protest hearing was held, the record of the protest hearing;]
2265          [(b) may not take additional evidence;]
2266          [(c) notwithstanding Subsection (9)(b), may, during an informal hearing, ask questions
2267     and receive responses regarding the appeal, the protest decision, or the record in order to assist
2268     the panel to understand the appeal, the protest decision, and the record; and]
2269          [(d) shall uphold the decision of the protest officer, unless the decision is arbitrary and
2270     capricious or clearly erroneous.]
2271          [(10)] (12) If a procurement appeals panel determines that the decision of the protest
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 [(10)]
2280     (12)(a).
2281          [(11)] (13) The board shall make rules relating to the conduct of an appeals proceeding,
2282     including rules that provide for:
2283          (a) expedited proceedings; and
2284          (b) electronic participation in the proceedings by panel members and participants.
2285          [(12)] (14) The Rules of Evidence do not apply to [an appeals proceeding] a hearing
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 [responsible and] responsive bid amount for the entire term of the
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     [63G-6a-1706(1)] 63G-6a-1702(5)(b)(ii)(A);
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[; and].
2372          [(v) a person who is debarred or suspended under Section 63G-6a-904 by a legislative
2373     procurement unit, a judicial procurement unit, a nonadopting local government procurement
2374     unit, or a public transit district may appeal the debarment or suspension.]
2375          (b) A person seeking to appeal a dismissal[,] or decision[, or debarment or suspension]
2376     under Subsection (1)(a) shall file a notice of appeal with the Utah Court of Appeals within
2377     seven days after the dismissal[,] or decision[, or debarment or suspension].
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[, debarment, or suspension]
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[, or debarment or suspension,]
2390     unless the finding, dismissal, or decision, [or debarment or suspension] is arbitrary and
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); [or]
2409          (b) any individual other than a procurement professional or contract administration
2410     professional[.]; or
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 [or civil penalty identified in
2481     Subsection 63G-6a-2404(5)].
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[(7)](8), that might
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[(7)](8), that might
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[(7)](8), that might
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[(7)](8), that might
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[(7)](8), that might
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[(7)](8), that might
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 [standard procurement] process is appropriate for a
2538     procurement unit to use [for] in selecting the proposal that provides the best value or is the
2539     most advantageous to the procurement unit, including when:
2540          [(a) the procurement of professional services;]
2541          [(b) a design-build procurement;]
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          [(c) when] (ii) cost is not the most important factor to be considered in making the
2545     selection that is most advantageous to the procurement unit; [or]
2546          [(d) when] (iii) factors, apart from or in addition to cost, are highly significant in
2547     making the selection that is most advantageous to the procurement unit[.]; or
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."