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7 LONG TITLE
8 General Description:
9 This bill modifies provisions related to procurement.
10 Highlighted Provisions:
11 This bill:
12 ▸ includes the Utah Communications Authority as a procurement unit and establishes
13 the Utah Communications Authority Board as the applicable rulemaking authority;
14 ▸ modifies definitions;
15 ▸ modifies provisions relating to procurement units with independent procurement
16 authority;
17 ▸ modifies exemptions from the procurement code;
18 ▸ modifies provisions relating to the number of members of an evaluation committee;
19 ▸ modifies provisions relating to an approved vendor list;
20 ▸ modifies a provision relating to small purchases;
21 ▸ modifies provisions relating to the opening of bids;
22 ▸ modifies provisions relating to a justification statement and a cost-benefit analysis;
23 ▸ modifies provisions relating to a trial use contract;
24 ▸ modifies provisions relating to purchases from the Division of Correctional
25 Industries;
26 ▸ modifies a provision relating to agreements or purchases between public entities;
27 and
28 ▸ modifies the procurement authority of the executive director of the Department of
29 Transportation.
30 Money Appropriated in this Bill:
31 None
32 Other Special Clauses:
33 None
34 Utah Code Sections Affected:
35 AMENDS:
36 63G-6a-103, as last amended by Laws of Utah 2017, Chapters 181, 348, 376, 382, 463
37 and last amended by Coordination Clause, Laws of Utah 2017, Chapter 382
38 63G-6a-106, as last amended by Laws of Utah 2016, Chapter 355
39 63G-6a-107, as last amended by Laws of Utah 2016, Chapter 355
40 63G-6a-109, as last amended by Laws of Utah 2016, Chapter 355
41 63G-6a-410, as last amended by Laws of Utah 2017, Chapter 348
42 63G-6a-506, as last amended by Laws of Utah 2017, Chapter 348
43 63G-6a-507, as last amended by Laws of Utah 2017, Chapter 348
44 63G-6a-604, as last amended by Laws of Utah 2016, Chapter 355
45 63G-6a-707, as last amended by Laws of Utah 2017, Chapters 154, 348, and 376
46 63G-6a-708, as last amended by Laws of Utah 2016, Chapter 355
47 63G-6a-802, as last amended by Laws of Utah 2016, Chapter 355
48 63G-6a-802.3, as enacted by Laws of Utah 2016, Chapter 355
49 63G-6a-804, as last amended by Laws of Utah 2013, Chapter 445
50 63G-6a-2002, as last amended by Laws of Utah 2016, Chapter 355
51 63G-6a-2102, as last amended by Laws of Utah 2013, Chapter 445
52 63G-6a-2103, as last amended by Laws of Utah 2014, Chapter 196
53 72-1-202, as last amended by Laws of Utah 2013, Chapter 78
54 ENACTS:
55 63G-6a-708.5, Utah Code Annotated 1953
56
57 Be it enacted by the Legislature of the state of Utah:
58 Section 1. Section 63G-6a-103 is amended to read:
59 63G-6a-103. Definitions.
60 As used in this chapter:
61 (1) "Applicable rulemaking authority" means:
62 (a) for a legislative procurement unit, the Legislative Management Committee;
63 (b) for a judicial procurement unit, the Judicial Council;
64 (c) (i) only to the extent of the procurement authority expressly granted to the
65 procurement unit by statute:
66 (A) for the building board or the Division of Facilities Construction and Management,
67 created in Section 63A-5-201, the building board;
68 (B) for the Office of the Attorney General, the attorney general; and
69 (C) for the Department of Transportation created in Section 72-1-201, the executive
70 director of the Department of Transportation; and
71 (ii) for each other executive branch procurement unit, the board;
72 (d) for a local government procurement unit:
73 (i) the legislative body of the local government procurement unit; or
74 (ii) an individual or body designated by the legislative body of the local government
75 procurement unit;
76 (e) for a school district or a public school, the board, except to the extent of a school
77 district's own nonadministrative rules that do not conflict with the provisions of this chapter;
78 (f) for a state institution of higher education described in:
79 (i) Subsections 53B-1-102(1)(a) and (c), the State Board of Regents; or
80 (ii) Subsection 53B-1-102(1)(b), the Utah System of Technical Colleges Board of
81 Trustees;
82 (g) for the State Board of Education, the State Board of Education;
83 (h) for a public transit district, the chief executive of the public transit district;
84 (i) for a local district other than a public transit district or for a special service district:
85 (i) before January 1, 2015, the board of trustees of the local district or the governing
86 body of the special service district; or
87 (ii) on or after January 1, 2015, the board, except to the extent that the board of trustees
88 of the local district or the governing body of the special service district makes its own rules:
89 (A) with respect to a subject addressed by board rules; or
90 (B) that are in addition to board rules; [
91 (j) for the Utah Communications Authority, established in Section 63H-7a-201, the
92 Utah Communications Authority Board, created in Section 63H-7a-203; or
93 [
94 (2) "Approved vendor" means a vendor who has been approved through the approved
95 vendor list process.
96 (3) "Approved vendor list" means a list of approved vendors established under Section
97 63G-6a-507.
98 (4) "Approved vendor list process" means the procurement process described in
99 Section 63G-6a-507.
100 (5) "Bidder" means a person who submits a bid or price quote in response to an
101 invitation for bids.
102 (6) "Bidding process" means the procurement process described in Part 6, Bidding.
103 (7) "Board" means the Utah State Procurement Policy Board, created in Section
104 63G-6a-202.
105 (8) "Building board" means the State Building Board, created in Section 63A-5-101.
106 (9) "Change directive" means a written order signed by the procurement officer that
107 directs the contractor to suspend work or make changes, as authorized by contract, without the
108 consent of the contractor.
109 (10) "Change order" means a written alteration in specifications, delivery point, rate of
110 delivery, period of performance, price, quantity, or other provisions of a contract, upon mutual
111 agreement of the parties to the contract.
112 (11) "Chief procurement officer" means the chief procurement officer appointed under
113 Subsection 63G-6a-302(1).
114 (12) "Conducting procurement unit" means a procurement unit that conducts all
115 aspects of a procurement:
116 (a) except:
117 (i) reviewing a solicitation to verify that it is in proper form; and
118 (ii) causing the publication of a notice of a solicitation; and
119 (b) including:
120 (i) preparing any solicitation document;
121 (ii) appointing an evaluation committee;
122 (iii) conducting the evaluation process, except as provided in Subsection
123 63G-6a-707(6)(b) relating to scores calculated for costs of proposals;
124 (iv) selecting and recommending the person to be awarded a contract;
125 (v) negotiating the terms and conditions of a contract, subject to the issuing
126 procurement unit's approval; and
127 (vi) contract administration.
128 (13) "Conservation district" means the same as that term is defined in Section
129 17D-3-102.
130 (14) "Construction":
131 (a) means services, including work, and supplies for a project for the construction,
132 renovation, alteration, improvement, or repair of a public facility on real property; and
133 (b) does not include services and supplies for the routine, day-to-day operation, repair,
134 or maintenance of an existing public facility.
135 (15) "Construction manager/general contractor":
136 (a) means a contractor who enters into a contract:
137 (i) for the management of a construction project; and
138 (ii) that allows the contractor to subcontract for additional labor and materials that are
139 not included in the contractor's cost proposal submitted at the time of the procurement of the
140 contractor's services; and
141 (b) does not include a contractor whose only subcontract work not included in the
142 contractor's cost proposal submitted as part of the procurement of the contractor's services is to
143 meet subcontracted portions of change orders approved within the scope of the project.
144 (16) "Construction subcontractor":
145 (a) means a person under contract with a contractor or another subcontractor to provide
146 services or labor for the design or construction of a construction project;
147 (b) includes a general contractor or specialty contractor licensed or exempt from
148 licensing under Title 58, Chapter 55, Utah Construction Trades Licensing Act; and
149 (c) does not include a supplier who provides only materials, equipment, or supplies to a
150 contractor or subcontractor for a construction project.
151 (17) "Contract" means an agreement for a procurement.
152 (18) "Contract administration" means all functions, duties, and responsibilities
153 associated with managing, overseeing, and carrying out a contract between a procurement unit
154 and a contractor, including:
155 (a) implementing the contract;
156 (b) ensuring compliance with the contract terms and conditions by the conducting
157 procurement unit and the contractor;
158 (c) executing change orders;
159 (d) processing contract amendments;
160 (e) resolving, to the extent practicable, contract disputes;
161 (f) curing contract errors and deficiencies;
162 (g) terminating a contract;
163 (h) measuring or evaluating completed work and contractor performance;
164 (i) computing payments under the contract; and
165 (j) closing out a contract.
166 (19) "Contractor" means a person who is awarded a contract with a procurement unit.
167 (20) "Cooperative procurement" means procurement conducted by, or on behalf of:
168 (a) more than one procurement unit; or
169 (b) a procurement unit and a cooperative purchasing organization.
170 (21) "Cooperative purchasing organization" means an organization, association, or
171 alliance of purchasers established to combine purchasing power in order to obtain the best
172 value for the purchasers by engaging in procurements in accordance with Section 63G-6a-2105.
173 (22) "Cost-plus-a-percentage-of-cost contract" means a contract under which the
174 contractor is paid a percentage of the total actual expenses or costs in addition to the
175 contractor's actual expenses or costs.
176 (23) "Cost-reimbursement contract" means a contract under which a contractor is
177 reimbursed for costs which are allowed and allocated in accordance with the contract terms and
178 the provisions of this chapter, and a fee, if any.
179 (24) "Days" means calendar days, unless expressly provided otherwise.
180 (25) "Definite quantity contract" means a fixed price contract that provides for a
181 specified amount of supplies over a specified period, with deliveries scheduled according to a
182 specified schedule.
183 (26) "Design-build" means the procurement of design professional services and
184 construction by the use of a single contract.
185 (27) "Design professional" means:
186 (a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
187 Licensing Act; or
188 (b) an individual licensed as a professional engineer or professional land surveyor
189 under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing
190 Act.
191 (28) "Design professional procurement process" means the procurement process
192 described in Part 15, Design Professional Services.
193 (29) "Design professional services" means:
194 (a) professional services within the scope of the practice of architecture as defined in
195 Section 58-3a-102;
196 (b) professional engineering as defined in Section 58-22-102; or
197 (c) master planning and programming services.
198 (30) "Director" means the director of the division.
199 (31) "Division" means the Division of Purchasing and General Services, created in
200 Section 63A-2-101.
201 (32) "Educational procurement unit" means:
202 (a) a school district;
203 (b) a public school, including a local school board or a charter school;
204 (c) the Utah Schools for the Deaf and Blind;
205 (d) the Utah Education and Telehealth Network;
206 (e) an institution of higher education of the state described in Section 53B-1-102; or
207 (f) the State Board of Education.
208 (33) "Established catalogue price" means the price included in a catalogue, price list,
209 schedule, or other form that:
210 (a) is regularly maintained by a manufacturer or contractor;
211 (b) is published or otherwise available for inspection by customers; and
212 (c) states prices at which sales are currently or were last made to a significant number
213 of any category of buyers or buyers constituting the general buying public for the supplies or
214 services involved.
215 (34) "Executive branch procurement unit" means a department, division, office,
216 bureau, agency, or other organization within the state executive branch.
217 (35) "Fixed price contract" means a contract that provides a price, for each
218 procurement item obtained under the contract, that is not subject to adjustment except to the
219 extent that:
220 (a) the contract provides, under circumstances specified in the contract, for an
221 adjustment in price that is not based on cost to the contractor; or
222 (b) an adjustment is required by law.
223 (36) "Fixed price contract with price adjustment" means a fixed price contract that
224 provides for an upward or downward revision of price, precisely described in the contract, that:
225 (a) is based on the consumer price index or another commercially acceptable index,
226 source, or formula; and
227 (b) is not based on a percentage of the cost to the contractor.
228 (37) "Grant" means an expenditure of public funds or other assistance, or an agreement
229 to expend public funds or other assistance, for a public purpose authorized by law, without
230 acquiring a procurement item in exchange.
231 (38) "Head of a procurement unit" means:
232 (a) for a legislative procurement unit, any person designated by rule made by the
233 applicable rulemaking authority;
234 (b) for an executive branch procurement unit:
235 (i) the director of the division; or
236 (ii) any other person designated by the board, by rule;
237 (c) for a judicial procurement unit:
238 (i) the Judicial Council; or
239 (ii) any other person designated by the Judicial Council, by rule;
240 (d) for a local government procurement unit:
241 (i) the legislative body of the local government procurement unit; or
242 (ii) any other person designated by the local government procurement unit;
243 (e) for a local district other than a public transit district, the board of trustees of the
244 local district or a designee of the board of trustees;
245 (f) for a special service district, the governing body of the special service district or a
246 designee of the governing body;
247 (g) for a local building authority, the board of directors of the local building authority or
248 a designee of the board of directors;
249 (h) for a conservation district, the board of supervisors of the conservation district or a
250 designee of the board of supervisors;
251 (i) for a public corporation, the board of directors of the public corporation or a
252 designee of the board of directors;
253 (j) for a school district or any school or entity within a school district, the board of the
254 school district, or the board's designee;
255 (k) for a charter school, the individual or body with executive authority over the charter
256 school, or the individual's or body's designee;
257 (l) for an institution of higher education described in Section 53B-2-101, the president
258 of the institution of higher education, or the president's designee;
259 (m) for a public transit district, the board of trustees or a designee of the board of
260 trustees; or
261 (n) for the State Board of Education, the State Board of Education or a designee of the
262 State Board of Education.
263 (39) "Immaterial error":
264 (a) means an irregularity or abnormality that is:
265 (i) a matter of form that does not affect substance; or
266 (ii) an inconsequential variation from a requirement of a solicitation that has no, little,
267 or a trivial effect on the procurement process and that is not prejudicial to other vendors; and
268 (b) includes:
269 (i) a missing signature, missing acknowledgment of an addendum, or missing copy of a
270 professional license, bond, or insurance certificate;
271 (ii) a typographical error;
272 (iii) an error resulting from an inaccuracy or omission in the solicitation; and
273 (iv) any other error that the chief procurement officer or the head of a procurement unit
274 with independent procurement authority reasonably considers to be immaterial.
275 (40) "Indefinite quantity contract" means a fixed price contract that:
276 (a) is for an indefinite amount of procurement items to be supplied as ordered by a
277 procurement unit; and
278 (b) (i) does not require a minimum purchase amount; or
279 (ii) provides a maximum purchase limit.
280 (41) "Independent procurement authority" means authority granted to a procurement
281 unit under Subsection 63G-6a-106(4)(a).
282 (42) "Invitation for bids":
283 (a) means a document used to solicit:
284 (i) bids to provide a procurement item to a procurement unit; or
285 (ii) quotes for a price of a procurement item to be provided to a procurement unit; and
286 (b) includes all documents attached to or incorporated by reference in a document
287 described in Subsection (42)(a).
288 (43) "Issuing procurement unit" means a procurement unit that:
289 (a) reviews a solicitation to verify that it is in proper form;
290 (b) causes the notice of a solicitation to be published; and
291 (c) negotiates and approves the terms and conditions of a contract.
292 (44) "Judicial procurement unit" means:
293 (a) the Utah Supreme Court;
294 (b) the Utah Court of Appeals;
295 (c) the Judicial Council;
296 (d) a state judicial district; or
297 (e) an office, committee, subcommittee, or other organization within the state judicial
298 branch.
299 (45) "Labor hour contract" is a contract under which:
300 (a) the supplies and materials are not provided by, or through, the contractor; and
301 (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
302 profit for a specified number of labor hours or days.
303 (46) "Legislative procurement unit" means:
304 (a) the Legislature;
305 (b) the Senate;
306 (c) the House of Representatives;
307 (d) a staff office of the Legislature, the Senate, or the House of Representatives; or
308 (e) a committee, subcommittee, commission, or other organization:
309 (i) within the state legislative branch; or
310 (ii) (A) that is created by statute to advise or make recommendations to the Legislature;
311 (B) the membership of which includes legislators; and
312 (C) for which the Office of Legislative Research and General Counsel provides staff
313 support.
314 (47) "Local building authority" means the same as that term is defined in Section
315 17D-2-102.
316 (48) "Local district" means the same as that term is defined in Section 17B-1-102.
317 (49) "Local government procurement unit" means:
318 (a) a county or municipality, and each office or agency of the county or municipality,
319 unless the county or municipality adopts its own procurement code by ordinance;
320 (b) a county or municipality that has adopted this entire chapter by ordinance, and each
321 office or agency of that county or municipality; or
322 (c) a county or municipality that has adopted a portion of this chapter by ordinance, to
323 the extent that a term in the ordinance is used in the adopted portion of this chapter, and each
324 office or agency of that county or municipality.
325 (50) "Multiple award contracts" means the award of a contract for an indefinite
326 quantity of a procurement item to more than one person.
327 (51) "Multiyear contract" means a contract that extends beyond a one-year period,
328 including a contract that permits renewal of the contract, without competition, beyond the first
329 year of the contract.
330 (52) "Municipality" means a city, town, or metro township.
331 (53) "Nonadopting local government procurement unit" means:
332 (a) a county or municipality that has not adopted Part 16, Protests, Part 17,
333 Procurement Appeals Board, Part 18, Appeals to Court and Court Proceedings, and Part 19,
334 General Provisions Related to Protest or Appeal; and
335 (b) each office or agency of a county or municipality described in Subsection (53)(a).
336 (54) "Offeror" means a person who submits a proposal in response to a request for
337 proposals.
338 (55) "Preferred bidder" means a bidder that is entitled to receive a reciprocal preference
339 under the requirements of this chapter.
340 (56) "Procure" means to acquire a procurement item through a procurement.
341 (57) "Procurement"[
342 procurement item through an expenditure of public funds, or an agreement to expend public
343 funds, including an acquisition through a public-private partnership[
344 [
345
346 [
347 [
348 [
349
350 [
351 (58) "Procurement item" means a supply, a service, or construction.
352 (59) "Procurement officer" means:
353 (a) for a procurement unit with independent procurement authority:
354 (i) the head of the procurement unit;
355 (ii) a designee of the head of the procurement unit; or
356 (iii) a person designated by rule made by the applicable rulemaking authority; or
357 (b) for the division or a procurement unit without independent procurement authority,
358 the chief procurement officer.
359 (60) "Procurement unit":
360 (a) means:
361 (i) a legislative procurement unit;
362 (ii) an executive branch procurement unit;
363 (iii) a judicial procurement unit;
364 (iv) an educational procurement unit;
365 (v) the Utah Communications Authority, established in Section 63H-7a-201;
366 [
367 [
368 [
369 [
370 [
371 [
372 [
373 (b) does not include a political subdivision created under Title 11, Chapter 13,
374 Interlocal Cooperation Act.
375 (61) "Professional service" means labor, effort, or work that requires an elevated
376 degree of specialized knowledge and discretion, including labor, effort, or work in the field of:
377 (a) accounting;
378 (b) administrative law judge service;
379 (c) architecture;
380 (d) construction design and management;
381 (e) engineering;
382 (f) financial services;
383 (g) information technology;
384 (h) the law;
385 (i) medicine;
386 (j) psychiatry; or
387 (k) underwriting.
388 (62) "Protest officer" means:
389 (a) for the division or a procurement unit with independent procurement authority:
390 (i) the head of the procurement unit;
391 (ii) the head of the procurement unit's designee who is an employee of the procurement
392 unit; or
393 (iii) a person designated by rule made by the applicable rulemaking authority; or
394 (b) for a procurement unit without independent procurement authority, the chief
395 procurement officer or the chief procurement officer's designee who is an employee of the
396 division .
397 (63) "Public corporation" means the same as that term is defined in Section 63E-1-102.
398 (64) "Public entity" means any government entity [
399
400 [
401 [
402
403 [
404 (65) "Public facility" means a building, structure, infrastructure, improvement, or other
405 facility of a public entity.
406 (66) "Public funds" means money, regardless of its source, including from the federal
407 government, that is owned or held by a procurement unit.
408 (67) "Public-private partnership" means an arrangement or agreement, occurring on or
409 after January 1, 2017, between a procurement unit and one or more contractors to provide for a
410 public need through the development or operation of a project in which the contractor or
411 contractors share with the procurement unit the responsibility or risk of developing, owning,
412 maintaining, financing, or operating the project.
413 (68) "Public transit district" means a public transit district organized under Title 17B,
414 Chapter 2a, Part 8, Public Transit District Act.
415 (69) "Qualified vendor" means a vendor who:
416 (a) is responsible; and
417 (b) submits a responsive statement of qualifications under Section 63G-6a-410 that
418 meets the minimum mandatory requirements, evaluation criteria, and any applicable score
419 thresholds set forth in the request for statement of qualifications.
420 (70) "Real property" means land and any building, fixture, improvement, appurtenance,
421 structure, or other development that is permanently affixed to land.
422 (71) "Request for information" means a nonbinding process through which a
423 procurement unit requests information relating to a procurement item.
424 (72) "Request for proposals" means a document used to solicit proposals to provide a
425 procurement item to a procurement unit, including all other documents that are attached to that
426 document or incorporated in that document by reference.
427 (73) "Request for proposals process" means the procurement process described in Part
428 7, Request for Proposals.
429 (74) "Request for statement of qualifications" means a document used to solicit
430 information about the qualifications of a person interested in responding to a potential
431 procurement, including all other documents attached to that document or incorporated in that
432 document by reference.
433 (75) "Requirements contract" means a contract:
434 (a) under which a contractor agrees to provide a procurement unit's entire requirements
435 for certain procurement items at prices specified in the contract during the contract period; and
436 (b) that:
437 (i) does not require a minimum purchase amount; or
438 (ii) provides a maximum purchase limit.
439 (76) "Responsible" means being capable, in all respects, of:
440 (a) meeting all the requirements of a solicitation; and
441 (b) fully performing all the requirements of the contract resulting from the solicitation,
442 including being financially solvent with sufficient financial resources to perform the contract.
443 (77) "Responsive" means conforming in all material respects to the requirements of a
444 solicitation.
445 (78) "Sealed" means manually or electronically secured to prevent disclosure.
446 (79) "Service":
447 (a) means labor, effort, or work to produce a result that is beneficial to a procurement
448 unit;
449 (b) includes a professional service; and
450 (c) does not include labor, effort, or work provided under an employment agreement or
451 a collective bargaining agreement.
452 (80) "Small purchase process" means the procurement process described in Section
453 63G-6a-506.
454 (81) "Sole source contract" means a contract resulting from a sole source procurement.
455 (82) "Sole source procurement" means a procurement without competition pursuant to
456 a determination under Subsection 63G-6a-802(1)(a) that there is only one source for the
457 procurement item.
458 [
459
460 (83) "Solicitation" means a document or set of documents by which a procurement unit
461 using a standard procurement process solicits responses.
462 (84) "Solicitation response" means[
463 response to a solicitation.
464 [
465 [
466 [
467
468 (85) "Special service district" means the same as that term is defined in Section
469 17D-1-102.
470 (86) "Specification" means any description of the physical or functional characteristics
471 or of the nature of a procurement item included in an invitation for bids or a request for
472 proposals, or otherwise specified or agreed to by a procurement unit, including a description of:
473 (a) a requirement for inspecting or testing a procurement item; or
474 (b) preparing a procurement item for delivery.
475 (87) "Standard procurement process" means:
476 (a) the bidding process;
477 (b) the request for proposals process;
478 (c) the approved vendor list process;
479 (d) the small purchase process; or
480 (e) the design professional procurement process.
481 (88) "State cooperative contract" means a contract awarded by the division for and in
482 behalf of all public entities.
483 (89) "Statement of qualifications" means a written statement submitted to a
484 procurement unit in response to a request for statement of qualifications.
485 (90) "Subcontractor":
486 (a) means a person under contract to perform part of a contractual obligation under the
487 control of the contractor, whether the person's contract is with the contractor directly or with
488 another person who is under contract to perform part of a contractual obligation under the
489 control of the contractor; and
490 (b) includes a supplier, distributor, or other vendor that furnishes supplies or services
491 to a contractor.
492 (91) "Supply" means a good, material, technology, piece of equipment, or any other
493 item of personal property.
494 (92) "Tie bid" means that the lowest responsive bids of responsible bidders are
495 identical in price.
496 (93) "Time and materials contract" means a contract under which the contractor is paid:
497 (a) the actual cost of direct labor at specified hourly rates;
498 (b) the actual cost of materials and equipment usage; and
499 (c) an additional amount, expressly described in the contract, to cover overhead and
500 profit, that is not based on a percentage of the cost to the contractor.
501 (94) "Transitional costs":
502 (a) means the costs of changing:
503 (i) from an existing provider of a procurement item to another provider of that
504 procurement item; or
505 (ii) from an existing type of procurement item to another type;
506 (b) includes:
507 (i) training costs;
508 (ii) conversion costs;
509 (iii) compatibility costs;
510 (iv) costs associated with system downtime;
511 (v) disruption of service costs;
512 (vi) staff time necessary to implement the change;
513 (vii) installation costs; and
514 (viii) ancillary software, hardware, equipment, or construction costs; and
515 (c) does not include:
516 (i) the costs of preparing for or engaging in a procurement process; or
517 (ii) contract negotiation or drafting costs.
518 [
519
520
521 [
522 (a) means a person who is seeking to enter into a contract with a procurement unit to
523 provide a procurement item; and
524 (b) includes:
525 (i) a bidder;
526 (ii) an offeror;
527 (iii) an approved vendor; and
528 (iv) a design professional.
529 Section 2. Section 63G-6a-106 is amended to read:
530 63G-6a-106. Procurement units with specific statutory procurement authority --
531 Independent procurement authority -- Authority of head of a procurement unit with
532 independent procurement authority.
533 (1) A procurement unit with procurement authority under the following provisions has
534 independent procurement authority to the extent of the applicable provisions and for the
535 procurement items specified in the applicable provisions:
536 [
537 [
538 Construction and Management;
539 [
540 [
541 [
542 (2) Except as otherwise provided in Sections 63G-6a-105 and 63G-6a-107, a
543 procurement unit shall conduct a procurement in accordance with this chapter.
544 (3) (a) The Department of Transportation may make rules governing the procurement
545 of highway construction or improvement.
546 (b) The applicable rulemaking authority for a public transit district may make rules
547 governing the procurement of a transit construction project or a transit improvement project.
548 (4) (a) A procurement unit listed in Subsection (4)(b) may, without the supervision,
549 interference, oversight, control, or involvement of the division or the chief procurement officer,
550 but in accordance with the requirements of this chapter:
551 (i) engage in a standard procurement process;
552 (ii) procure an item under an exception, as provided in this chapter, to the requirement
553 to use a standard procurement process; or
554 (iii) otherwise engage in an act authorized or required by this chapter.
555 (b) The procurement units to which Subsection (4)(a) applies are:
556 (i) a legislative procurement unit;
557 (ii) a judicial procurement unit;
558 (iii) an educational procurement unit;
559 (iv) a local government procurement unit;
560 (v) a conservation district;
561 (vi) a local building authority;
562 (vii) a local district;
563 (viii) a public corporation;
564 (ix) a special service district;
565 (x) a public transit district; and
566 (xi) a procurement unit referred to in Subsection (1), to the extent authorized in
567 Subsection (1).
568 (c) A procurement unit with independent procurement authority shall comply with the
569 requirements of this chapter.
570 (d) Notwithstanding Subsection (4)(a), a procurement unit with independent
571 procurement authority may agree in writing with the division to extend the authority of the
572 division or the chief procurement officer to the procurement unit, as provided in the agreement.
573 (e) With respect to a procurement or contract over which the head of a procurement
574 unit with independent procurement authority has authority, the head of the procurement unit
575 with independent procurement authority may:
576 (i) manage and supervise the procurement to ensure to the extent practicable that
577 taxpayers receive the best value;
578 (ii) prepare and issue standard specifications for procurement items;
579 (iii) review contracts, coordinate contract compliance, conduct contract audits, and
580 approve change orders;
581 (iv) delegate duties and authority to an employee of the procurement unit, as the head
582 of the procurement unit with independent procurement authority considers appropriate;
583 (v) for the head of an executive branch procurement unit with independent
584 procurement authority, coordinate with the Department of Technology Services, created in
585 Section 63F-1-103, with respect to the procurement unit's procurement of information
586 technology services;
587 (vi) correct, amend, or cancel a procurement at any stage of the procurement process if
588 the procurement is out of compliance with this chapter or a rule adopted by the applicable
589 rulemaking authority; and
590 [
591
592
593 [
594 [
595
596
597 [
598 of the procurement unit with independent procurement authority.
599 (f) The head of a procurement unit with independent procurement authority serves as
600 the protest officer for a protest involving the procurement unit.
601 (g) If, at any time during the term of a contract awarded by a procurement unit with
602 independent procurement authority, the head of the procurement unit determines that the
603 contract is out of compliance with this chapter or applicable rules, the head of the procurement
604 unit may correct or amend the contract to bring it into compliance or cancel the contract:
605 (i) if the head of the procurement unit determines that correcting, amending, or
606 canceling the contract is in the best interest of the procurement unit; and
607 (ii) after consulting with, as applicable, the attorney general's office or the procurement
608 unit's legal counsel.
609 (5) (a) The attorney general may, in accordance with the provisions of this chapter, but
610 without involvement by the division or the chief procurement officer:
611 (i) retain outside counsel, subject to Section 67-5-33 if the attorney general retains
612 outside counsel under a contingent fee contract, as defined in that section; or
613 (ii) procure litigation support services, including retaining an expert witness.
614 (b) A procurement unit with independent procurement authority that is not represented
615 by the attorney general's office may, in accordance with the provisions of this chapter, but
616 without involvement by the division or the chief procurement officer:
617 (i) retain outside counsel; or
618 (ii) procure litigation support services, including retaining an expert witness.
619 (6) The state auditor's office may, in accordance with the provisions of this chapter, but
620 without involvement by the division or the chief procurement officer, procure audit services.
621 (7) The state treasurer may, in accordance with the provisions of this chapter, but
622 without involvement by the division or the chief procurement officer, procure:
623 (a) deposit services; and
624 (b) services related to issuing bonds.
625 Section 3. Section 63G-6a-107 is amended to read:
626 63G-6a-107. Exemptions from chapter -- Compliance with other provisions.
627 (1) Except for Part 24, Unlawful Conduct and Penalties, this chapter does not apply to:
628 (a) funds administered under the Percent-for-Art Program of the Utah Percent-for-Art
629 Act;
630 (b) a grant;
631 [
632 [
633 medical equipment, obtained by the University of Utah Hospital through a purchasing
634 consortium if:
635 (i) the consortium uses a competitive procurement process; and
636 (ii) the chief administrative officer of the hospital makes a written finding that the
637 prices for purchasing medical supplies and medical equipment through the consortium are
638 competitive with market prices;
639 [
640 Fire, and State Lands, created in Section 65A-1-4, through the federal General Services
641 Administration or the National Fire Cache system;
642 [
643 [
644 investment authority by law[
645 (g) a procurement from the Internet2 consortium, if the procurement is of a technology
646 specific to the needs of:
647 (i) an institution of higher education identified in Subsection 53B-1-102(1)(a); or
648 (ii) the Utah Education and Telehealth Network, created in Section 53B-17-105.
649 (2) Notwithstanding any conflicting provision of this chapter, if a procurement
650 involves the expenditure of federal or state assistance, federal contract funds, local matching
651 funds, or federal financial participation funds, the procurement unit shall comply with
652 mandatory applicable federal or state law and regulations not reflected in this chapter.
653 (3) This chapter does not supersede the requirements for retention or withholding of
654 construction proceeds and release of construction proceeds as provided in Section 13-8-5.
655 (4) This chapter does not apply to a procurement unit's hiring a mediator, arbitrator, or
656 arbitration panel member to participate in the procurement unit's dispute resolution efforts.
657 Section 4. Section 63G-6a-109 is amended to read:
658 63G-6a-109. Issuing procurement unit and conducting procurement unit.
659 (1) With respect to a procurement by an executive branch procurement unit:
660 (a) except as provided in Section 63G-6a-106, the division is the issuing procurement
661 unit; and
662 (b) the executive branch procurement unit is the conducting procurement unit and is
663 responsible to ensure that the procurement is conducted in compliance with this chapter.
664 (2) With respect to a procurement by any other procurement unit, the procurement unit
665 is both the issuing procurement unit and the conducting procurement unit.
666 (3) A conducting procurement unit is responsible for contract administration.
667 Section 5. Section 63G-6a-410 is amended to read:
668 63G-6a-410. Request for statement of qualifications -- Process.
669 (1) (a) A procurement unit may use the process described in this section:
670 (i) as one of the stages of a multiple-stage[
671 [
672 [
673 [
674 (ii) to identify qualified vendors to participate in other stages of the multiple-stage
675 procurement process.
676 (b) A procurement unit shall use the process described in this section as part of the
677 approved vendor list process, if the procurement unit intends to establish an approved vendor
678 list.
679 (2) A procurement unit may not:
680 (a) award a contract based solely on the process described in this section; or
681 (b) solicit costs, pricing, or rates or negotiate fees through the process described in this
682 section.
683 (3) The process of identifying qualified vendors in a multiple-stage standard
684 procurement process or of establishing an approved vendor list under Section 63G-6a-507 is
685 initiated by a procurement unit issuing a request for statement of qualifications.
686 (4) A request for statement of qualifications in a multiple-stage standard procurement
687 process shall include:
688 (a) a statement indicating that participation in other stages of the multiple-stage
689 standard procurement process will be limited to qualified vendors;
690 (b) the minimum mandatory requirements, evaluation criteria, and applicable score
691 thresholds that will be used to identify qualified vendors, including, as applicable:
692 (i) experience and work history;
693 (ii) management and staff requirements or standards;
694 (iii) licenses, certifications, and other qualifications;
695 (iv) performance ratings or references;
696 (v) financial stability; and
697 (vi) other information pertaining to vendor qualifications that the chief procurement
698 officer or the head of a procurement unit with independent procurement authority considers
699 relevant or important; and
700 (c) the deadline by which a vendor is required to submit a statement of qualifications.
701 (5) A request for statement of qualifications in an approved vendor list process under
702 Section 63G-6a-507 shall include:
703 (a) a general description of, as applicable:
704 (i) the procurement item that the procurement unit seeks to acquire;
705 (ii) the type of project or scope or category of work that will be the subject of a
706 procurement by the procurement unit;
707 (iii) the procurement process the procurement unit will use to acquire the procurement
708 item; and
709 (iv) the type of vendor the procurement unit seeks to provide the procurement item;
710 (b) the minimum mandatory requirements, evaluation criteria, and applicable score
711 thresholds that vendors are required to meet to be included on the approved vendor list;
712 (c) a statement indicating that the approved vendor list will include only responsible
713 vendors that:
714 (i) submit a responsive statement of qualifications; and
715 (ii) meet the minimum mandatory requirements, evaluation criteria, and applicable
716 score thresholds described in the request for statement of qualifications;
717 (d) a statement indicating that only vendors on the approved vendor list will be able to
718 participate in the procurements identified in the request for statement of qualifications;
719 (e) a statement indicating whether the procurement unit will use a performance rating
720 system for evaluating the performance of vendors on the approved vendor list, including
721 whether a vendor on the approved vendor list may be disqualified and removed from the list;
722 (f) (i) a statement indicating whether the procurement unit uses a closed-ended
723 approved vendor list, as defined in Section 63G-6a-507, or an open-ended approved vendor
724 list, as defined in Section 63G-6a-507; and
725 (ii) (A) if the procurement unit uses a closed-ended approved vendor list, the deadline
726 by which a vendor is required to submit a statement of qualifications and a specified period of
727 time after which the approved vendor list will expire; or
728 (B) if the procurement unit uses an open-ended approved vendor list, the deadline by
729 which a vendor is required to submit a statement of qualifications to be considered for the
730 initial approved vendor list, a schedule indicating when a vendor not on the initial approved
731 vendor list may submit a statement of qualifications to be considered to be added to the
732 approved vendor list, and the specified period of time after which a vendor is required to
733 submit a new statement of qualifications for evaluation before the vendor's status as an
734 approved vendor on the approved vendor list may be renewed; and
735 (g) a description of any other criteria or requirements specific to the procurement item
736 or scope of work that is the subject of the procurement.
737 (6) A procurement unit issuing a request for statement of qualifications shall publish
738 the request as provided in Section 63G-6a-112.
739 (7) After the deadline for submitting a statement of qualifications, the chief
740 procurement officer or the head of a procurement unit with independent procurement authority
741 may allow a vendor to correct an immaterial error in a statement of qualifications, as provided
742 in Section 63G-6a-114.
743 (8) (a) A conducting procurement unit may reject a statement of qualifications if the
744 conducting procurement unit determines that:
745 (i) the vendor who submitted the statement of qualifications:
746 (A) is not responsible;
747 (B) is in violation of a provision of this chapter;
748 (C) has engaged in unethical conduct; or
749 (D) receives a performance rating below the satisfactory performance threshold
750 specified in the request for statement of qualifications;
751 (ii) there has been a change in the vendor's circumstances after the vendor submits a
752 statement of qualifications that, if the change had been known at the time the statement of
753 qualifications was evaluated, would have caused the statement of qualifications not to have
754 received a qualifying score; or
755 (iii) the statement of qualifications:
756 (A) is not responsive; or
757 (B) does not meet the mandatory minimum requirements, evaluation criteria, or
758 applicable score thresholds stated in the request for statement of qualifications.
759 (b) A procurement unit that rejects a statement of qualifications under Subsection
760 (8)(a) shall:
761 (i) make a written finding, stating the reasons for the rejection; and
762 (ii) provide a copy of the written finding to the vendor that submitted the rejected
763 statement of qualifications.
764 (9) (a) (i) After the issuance of a request for statement of qualifications, the conducting
765 procurement unit shall appoint an evaluation committee consisting, subject to Subsection
766 (9)(b), of at least three individuals with at least a general familiarity with or basic
767 understanding of:
768 (A) the technical requirements relating to the type of procurement item that is the
769 subject of the request for statement of qualifications; or
770 (B) the need that the procurement item is intended to address.
771 (ii) The conducting procurement unit shall ensure that each member of an evaluation
772 committee and each individual participating in the evaluation committee process:
773 (A) does not have a conflict of interest with any vendor that submits a statement of
774 qualifications;
775 (B) can fairly evaluate each statement of qualifications;
776 (C) does not contact or communicate with a vendor concerning the evaluation process
777 or procurement outside the official evaluation committee process; and
778 (D) conducts or participates in the evaluation in a manner that ensures a fair and
779 competitive process and avoids the appearance of impropriety.
780 (b) The conducting procurement unit may reduce the number of individuals appointed
781 to an evaluation committee if the chief procurement officer or the head of the procurement unit
782 with independent procurement authority determines in writing that the evaluation criteria:
783 (i) consist of only objective criteria; and
784 (ii) do not include any subjective criterion that requires analysis, assessment, or
785 deliberation.
786 [
787 receive assistance:
788 (i) from an expert or consultant who:
789 (A) is not a member of the evaluation committee; and
790 (B) does not participate in the evaluation scoring; and
791 (ii) to better understand a technical issue involved in the procurement.
792 [
793 (i) shall evaluate and score statements of qualifications submitted in response to a
794 request for statement of qualifications using the minimum mandatory requirements, evaluation
795 criteria, and applicable score thresholds set forth in the request for statement of qualifications;
796 (ii) may not evaluate or score a statement of qualifications using criteria not included in
797 the request for statement of qualifications; and
798 (iii) may, with the approval of the head of the conducting procurement unit, enter into
799 discussions or conduct interviews with or attend presentations by vendors, for the purpose of
800 clarifying information contained in statements of qualifications.
801 [
802 vendor:
803 (i) may only explain, illustrate, or interpret the contents of the vendor's original
804 statement of qualifications; and
805 (ii) may not:
806 (A) address criteria or specifications not contained in the vendor's original statement of
807 qualifications;
808 (B) correct a deficiency, inaccuracy, or mistake in a statement of qualifications that is
809 not an immaterial error;
810 (C) correct an incomplete submission of documents that the request for statement of
811 qualifications required to be submitted with the statement of qualifications;
812 (D) correct a failure to submit a timely statement of qualifications;
813 (E) substitute or alter a required form or other document specified in the statement of
814 qualifications;
815 (F) remedy a cause for a vendor being considered to be not responsible or a statement
816 of qualifications not responsive; or
817 (G) correct a defect or inadequacy resulting in a determination that a vendor does not
818 meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
819 established in the statement of qualifications.
820 [
821 statements of qualifications, the evaluation committee shall submit the statements of
822 qualifications and evaluation scores to the head of the procurement unit for review and final
823 determination of:
824 (i) qualified vendors, if the request for statement of qualifications process is used as
825 one of the stages of a multiple-stage process; or
826 (ii) vendors to be included on an approved vendor list, if the request for statement of
827 qualifications process is used as part of the approved vendor list process.
828 [
829 and correct any errors, scoring inconsistencies, and reported noncompliance with this chapter.
830 [
831 may be held in private.
832 (ii) If the evaluation committee is a public body, as defined in Section 52-4-103, the
833 evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
834 deliberations.
835 (10) A procurement unit may at any time request a vendor to clarify information
836 contained in a statement of qualifications, as provided in Section 63G-6a-115.
837 (11) A vendor may voluntarily withdraw a statement of qualifications at any time
838 before a contract is awarded with respect to which the statement of qualifications was
839 submitted.
840 (12) If only one vendor meets the minimum qualifications, evaluation criteria, and
841 applicable score thresholds set forth in the request for statement of qualifications that the
842 procurement unit is using as part of an approved vendor list process, the conducting
843 procurement unit may:
844 (a) [
845 [
846
847
848 (b) establish an approved vendor list that includes the one vendor if the conducting
849 procurement unit continues to try to identify more vendors to be included on the approved
850 vendor list by:
851 (i) keeping the request for statement of qualifications open; or
852 (ii) immediately reissuing the request for statement of qualifications and repeating the
853 process under this section.
854 (13) If a conducting procurement unit cancels a request for statement of qualifications,
855 the conducting procurement unit shall make available for public inspection a written
856 justification for the cancellation.
857 (14) After receiving and reviewing the statements of qualifications and evaluation
858 scores submitted by the evaluation committee, the head of the procurement unit using the
859 request for statement of qualifications process under this section as one of the stages of a
860 multiple-stage procurement process shall identify those vendors meeting the minimum
861 mandatory requirements, evaluation criteria, and applicable score thresholds as qualified
862 vendors who are allowed to participate in the remaining stages of the multiple-stage
863 procurement process.
864 (15) The applicable rulemaking authority may make rules pertaining to the request for
865 statement of qualifications and the process described in this section.
866 Section 6. Section 63G-6a-506 is amended to read:
867 63G-6a-506. Small purchases.
868 (1) As used in this section:
869 (a) "Annual cumulative threshold" means the maximum total annual amount,
870 established by the applicable rulemaking authority under Subsection (2), that a procurement
871 unit may expend to obtain procurement items from the same source under this section.
872 (b) "Individual procurement threshold" means the maximum amount, established by
873 the applicable rulemaking authority under Subsection (2), for which a procurement unit may
874 purchase a procurement item under this section.
875 (c) "Single procurement aggregate threshold" means the maximum total amount,
876 established by the applicable rulemaking authority under Subsection (2), that a procurement
877 unit may expend to obtain multiple procurement items from one source at one time under this
878 section.
879 (2) (a) The applicable rulemaking authority may make rules governing small purchases
880 of any procurement item, including construction, job order contracting, design professional
881 services, other professional services, information technology, and goods.
882 (b) Rules under Subsection (2)(a) may include provisions:
883 (i) establishing expenditure thresholds, including:
884 (A) an annual cumulative threshold;
885 (B) an individual procurement threshold; and
886 (C) a single procurement aggregate threshold;
887 (ii) establishing procurement requirements relating to the thresholds described in
888 Subsection (2)(b)(i); and
889 (iii) providing for the use of electronic, telephone, or written quotes.
890 (c) If a procurement unit obtains administrative law judge service through a small
891 purchase standard procurement process, rules made under Subsection (2)(a) shall provide that
892 the process for the procurement of administrative law judge service include an evaluation
893 committee described in Subsection 63G-6a-116(3).
894 (3) Expenditures made under this section by a procurement unit may not exceed a
895 threshold established by the applicable rulemaking authority, unless the chief procurement
896 officer or the head of a procurement unit with independent procurement authority gives written
897 authorization to exceed the threshold that includes the reasons for exceeding the threshold.
898 (4) Except as provided in Subsection (5), an executive branch procurement unit may
899 not obtain a procurement item through a small purchase standard procurement process if the
900 procurement item may be obtained through a state cooperative contract or a contract awarded
901 by the chief procurement officer under Subsection 63G-6a-2105(1).
902 (5) Subsection (4) does not apply if:
903 (a) the procurement item is obtained for an unanticipated, urgent, or emergency
904 condition, including:
905 (i) an item needed to avoid stopping a public construction project;
906 (ii) an immediate repair to a facility or equipment; or
907 (iii) another emergency condition; or
908 (b) the chief procurement officer or the head of a procurement unit that is an executive
909 branch procurement unit with independent procurement authority:
910 (i) determines in writing that it is in the best interest of the procurement unit to obtain
911 an individual procurement item outside of the state contract, comparing:
912 (A) the contract terms and conditions applicable to the procurement item under the
913 state contract with the contract terms and conditions applicable to the procurement item if the
914 procurement item is obtained outside of the state contract;
915 (B) the maintenance and service applicable to the procurement item under the state
916 contract with the maintenance and service applicable to the procurement item if the
917 procurement item is obtained outside of the state contract;
918 (C) the warranties applicable to the procurement item under the state contract with the
919 warranties applicable to the procurement item if the procurement item is obtained outside of
920 the state contract;
921 (D) the quality of the procurement item under the state contract with the quality of the
922 procurement item if the procurement item is obtained outside of the state contract; and
923 (E) the [
924 [
925 outside of the state contract;
926 (ii) for a procurement item that, if defective in its manufacture, installation, or
927 performance, may result in serious physical injury, death, or substantial property damage,
928 determines in writing that the terms and conditions, relating to liability for injury, death, or
929 property damage, available from the source other than the contractor who holds the state
930 contract, are similar to, or better than, the terms and conditions available under the state
931 contract; and
932 (iii) grants an exception, in writing, to the requirement described in Subsection (4).
933 (6) Except as otherwise expressly provided in this section, a procurement unit:
934 (a) may not use the small purchase standard procurement process described in this
935 section for ongoing, continuous, and regularly scheduled procurements that exceed the annual
936 cumulative threshold; and
937 (b) shall make its ongoing, continuous, and regularly scheduled procurements that
938 exceed the annual cumulative threshold through a contract awarded through another standard
939 procurement process described in this chapter or an applicable exception to another standard
940 procurement process, described in Part 8, Exceptions to Procurement Requirements.
941 (7) This section does not prohibit regularly scheduled payments for a procurement item
942 obtained under another provision of this chapter.
943 (8) (a) It is unlawful for a person knowingly to divide a single procurement into
944 multiple smaller procurements, including by dividing an invoice or purchase order into
945 multiple invoices or purchase orders, if:
946 (i) the single procurement would not have qualified as a small purchase under this
947 section;
948 (ii) one or more of the multiple smaller procurements qualify as a small purchase under
949 this section; and
950 (iii) the division is done with the intent to:
951 (A) avoid having to use a standard procurement process, other than the small purchase
952 process, that the person would otherwise be required to use for the single procurement; or
953 (B) make one or more of the multiple smaller procurements fall below a small
954 purchase expenditure threshold established by rule under Subsection (2)(b) that the single
955 procurement would not have fallen below without the division.
956 (b) A violation of Subsection (8)(a) is subject to penalties as provided in Subsection
957 63G-6a-2404.3(2).
958 (9) The Division of Finance within the Department of Administrative Services may
959 conduct an audit of an executive branch procurement unit to verify compliance with the
960 requirements of this section.
961 (10) An executive branch procurement unit may not make a small purchase after
962 January 1, 2014, unless the chief procurement officer certifies that the person responsible for
963 procurements in the procurement unit has satisfactorily completed training on this section and
964 the rules made under this section.
965 Section 7. Section 63G-6a-507 is amended to read:
966 63G-6a-507. Approved vendor list procurement process.
967 (1) As used in this section:
968 (a) "Closed-ended approved vendor list" means an approved vendor list that is subject
969 to:
970 (i) a short period of time, specified by the procurement unit, during which vendors may
971 be added to the list; and
972 (ii) a specified period of time after which the list will expire.
973 (b) "Open-ended approved vendor list" means an approved vendor list that is subject
974 to:
975 (i) an indeterminate period of time during which vendors may be added to the list;
976 (ii) the addition of vendors to the list throughout the term of the list; and
977 (iii) a specified period of time after which [
978 (A) the procurement unit is required to verify that vendors on the list continue to meet
979 the minimum mandatory requirements, evaluation criteria, and applicable score thresholds; or
980 (B) each vendor on the list is required to submit the vendor's qualifications for
981 evaluation before the vendor may be renewed as an approved vendor.
982 (2) A procurement unit may not establish an approved vendor list unless the
983 procurement unit has first completed the statement of qualifications process described in
984 Section 63G-6a-410.
985 (3) (a) A procurement unit may establish an approved vendor list for:
986 (i) a specific, fully defined procurement item; or
987 (ii) a future procurement item that is not specifically and fully defined, if the request
988 for statement of qualifications contains a general description of:
989 (A) the procurement item; and
990 (B) the type of vendor that the procurement unit seeks to provide the procurement item.
991 (b) A procurement unit may not award a contract to a vendor on an approved vendor
992 list for a procurement item that is outside the scope of the general description of the
993 procurement item contained in the request for statement of qualifications.
994 (4) After receiving the statements of qualifications and evaluation scores submitted by
995 the evaluation committee under Subsection 63G-6a-410(9)(e), the head of the conducting
996 procurement unit using the request for statement of qualifications process under Section
997 63G-6a-410 as part of an approved vendor list process shall:
998 (a) include on an approved vendor list those vendors meeting the minimum mandatory
999 requirements, evaluation criteria, and applicable score thresholds; and
1000 (b) reject any vendor not meeting the minimum mandatory requirements, evaluation
1001 criteria, and applicable score thresholds as ineligible for inclusion on the approved vendor list.
1002 (5) (a) A procurement unit shall include approved vendors on a closed-ended approved
1003 vendor list or an open-ended approved vendor list.
1004 (b) (i) A closed-ended approved vendor list shall expire no later than 18 months after
1005 the publication of the closed-ended approved vendor list.
1006 (ii) A procurement unit shall:
1007 (A) verify, no less frequently than every 18 months, by a method approved by the chief
1008 procurement officer or head of the procurement unit with independent procurement authority,
1009 that each vendor on an open-ended approved vendor list continues to meet the minimum
1010 mandatory requirements, evaluation criteria, and applicable score thresholds; or
1011 (B) require a vendor on an open-ended approved vendor list, in order to remain on the
1012 approved vendor list, to submit an updated statement of qualifications for evaluation no later
1013 than 18 months after the vendor was added to the list as an approved vendor.
1014 (6) A procurement unit may:
1015 (a) (i) using a bidding process, request for proposals process, small purchase process,
1016 or design professional procurement process, award a contract to a vendor on an approved
1017 vendor list for any procurement item or type of procurement item specified by the procurement
1018 unit in the request for statement of qualifications, including procurement items that the
1019 procurement unit intends to acquire in a series of future procurements described in the request
1020 for statement of qualifications; and
1021 (ii) limit participation in a bidding process, request for proposals process, small
1022 purchase process, or design professional procurement process to vendors on an approved
1023 vendor list; or
1024 (b) award a contract to a vendor on an approved vendor list at a price established as
1025 provided in Section 63G-6a-113.
1026 (7) After establishing an approved vendor list as provided in this section, the
1027 conducting procurement unit shall, before using the approved vendor list, submit the approved
1028 vendor list to the issuing procurement unit for publication by the issuing procurement unit.
1029 (8) A conducting procurement unit administering an open-ended approved vendor list
1030 shall:
1031 (a) require a vendor seeking inclusion on the approved vendor list to submit a
1032 statement of qualifications that complies with all requirements applicable at the time of the
1033 initial request for statement of qualifications;
1034 (b) if modifying the requirements for inclusion on the approved vendor list, apply any
1035 new or additional requirement to all vendors equally, whether a vendor is seeking inclusion on
1036 the approved vendor list for the first time or is already included on the approved vendor list;
1037 and
1038 (c) keep the request for statement of qualifications posted on a website as required
1039 under Subsection 63G-6a-112(6).
1040 (9) The applicable rulemaking authority shall make rules pertaining to an approved
1041 vendor list process, including:
1042 (a) procedures to ensure that all vendors on an approved vendor list have a fair and
1043 equitable opportunity to compete for a contract for a procurement item; and
1044 (b) requirements for using an approved vendor list with the small purchase process.
1045 Section 8. Section 63G-6a-604 is amended to read:
1046 63G-6a-604. Bid opening and acceptance.
1047 [
1048 [
1049 [
1050
1051 [
1052 (1) (a) Bids shall be opened on the date and at the time and place specified in the
1053 solicitation.
1054 (b) (i) Except as provided in Subsection (1)(b)(ii), bids shall be opened through an
1055 electronic bid opening process.
1056 (ii) A procurement unit may open bids through a process other than an electronic bid
1057 opening process if the opening is physically in the presence of one or more witnesses.
1058 (c) A procurement unit that opens bids through an electronic bid opening process shall:
1059 (i) make bid prices of electronically opened bids available for public inspection no later
1060 than one day after the bid opening; and
1061 (ii) maintain records of the electronic bid opening:
1062 (A) electronically available for public inspection as provided in Part 20, Records; and
1063 (B) available for audit as provided in Section 63G-6a-1206.3.
1064 (2) Bids shall be accepted unconditionally, without alteration or correction, except as
1065 otherwise authorized by this chapter.
1066 (3) (a) The procurement officer shall reject a bid if the bid is not responsive or the bid
1067 is submitted by a bidder who is not responsible.
1068 (b) A bid that is not responsive includes a bid that:
1069 (i) is conditional;
1070 (ii) attempts to modify the bid requirements;
1071 (iii) contains additional terms or conditions; or
1072 (iv) fails to conform with the requirements or specifications of the invitation for bids.
1073 [
1074
1075 (c) The chief procurement officer or the head of a procurement unit with independent
1076 procurement authority may determine that a bidder who submitted a bid is not responsible if
1077 the chief procurement officer or head reasonably concludes that the bidder or an employee,
1078 agent, or subcontractor of the bidder, at any tier, is unable to satisfactorily fulfill the bid
1079 requirements.
1080 (4) An issuing procurement unit may not accept a bid after the time for submission of a
1081 bid has expired.
1082 (5) The procurement officer shall:
1083 (a) record the name of each bidder and the amount of each bid; and
1084 (b) after the bid is awarded, make the information described in Subsection (5)(a)
1085 available for public disclosure.
1086 Section 9. Section 63G-6a-707 is amended to read:
1087 63G-6a-707. Evaluation of proposals -- Evaluation committee.
1088 (1) (a) To determine which proposal provides the best value to the procurement unit,
1089 the evaluation committee shall evaluate each responsible offeror's responsive proposal that has
1090 not been disqualified from consideration under the provisions of this chapter, using the criteria
1091 described in the request for proposals.
1092 (b) The criteria in a request for proposals may include:
1093 (i) experience;
1094 (ii) performance ratings;
1095 (iii) inspection;
1096 (iv) testing;
1097 (v) quality;
1098 (vi) workmanship;
1099 (vii) time, manner, or schedule of delivery;
1100 (viii) references;
1101 (ix) financial solvency;
1102 (x) suitability for a particular purpose;
1103 (xi) management plans;
1104 (xii) cost;
1105 (xiii) if applicable, the offeror's willingness and capability to enter into a public-private
1106 partnership; or
1107 (xiv) other subjective or objective criteria specified in the request for proposals.
1108 (c) The criteria in a request for proposals for a construction project shall include the
1109 existence and quality of:
1110 (i) an offeror's company safety plan; and
1111 (ii) the offeror's safety plan for the specific project that is the subject of the proposal.
1112 (2) Criteria not described in the request for proposals may not be used to evaluate a
1113 proposal.
1114 (3) (a) The conducting procurement unit shall:
1115 [
1116 least three individuals with at least a general familiarity with or basic understanding of:
1117 [
1118 subject of the procurement; or
1119 [
1120 [
1121 evaluation committee process:
1122 [
1123 [
1124 [
1125 outside the official evaluation committee process; and
1126 [
1127 competitive process and avoids the appearance of impropriety.
1128 (b) The conducting procurement unit may reduce the number of individuals appointed
1129 to an evaluation committee if the chief procurement officer or the head of the procurement unit
1130 with independent procurement authority determines in writing that the evaluation criteria:
1131 (i) consist of only objective criteria; and
1132 (ii) do not include any subjective criterion that requires analysis, assessment, or
1133 deliberation.
1134 (4) A conducting procurement unit may authorize an evaluation committee to receive
1135 assistance:
1136 (a) from an expert or consultant who:
1137 (i) is not a member of the evaluation committee; and
1138 (ii) does not participate in the evaluation scoring; and
1139 (b) to better understand a technical issue involved in the procurement.
1140 (5) (a) An evaluation committee may, with the approval of the head of the conducting
1141 procurement unit, enter into discussions or conduct interviews with, or attend presentations by,
1142 the offerors, for the purpose of clarifying information contained in proposals.
1143 (b) In a discussion, interview, or presentation under Subsection (5)(a), an offeror:
1144 (i) may only explain, illustrate, or interpret the contents of the offeror's original
1145 proposal; and
1146 (ii) may not:
1147 (A) address criteria or specifications not contained in the offeror's original proposal;
1148 (B) correct a deficiency, inaccuracy, or mistake in a proposal that is not an immaterial
1149 error;
1150 (C) correct an incomplete submission of documents that the solicitation required to be
1151 submitted with the proposal;
1152 (D) correct a failure to submit a timely proposal;
1153 (E) substitute or alter a required form or other document specified in the solicitation;
1154 (F) remedy a cause for an offeror being considered to be not responsible or a proposal
1155 not responsive; or
1156 (G) correct a defect or inadequacy resulting in a determination that an offeror does not
1157 meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
1158 established in the solicitation.
1159 (6) (a) Except as provided in Subsection (7)(b) relating to access to management fee
1160 information, and except as provided in Subsection (9), each member of the evaluation
1161 committee is prohibited from knowing, or having access to, any information relating to the
1162 cost, or the scoring of the cost, of a proposal until after the evaluation committee submits its
1163 final recommended scores on all other criteria to the issuing procurement unit.
1164 (b) The issuing procurement unit shall:
1165 (i) if applicable, assign an individual who is not a member of the evaluation committee
1166 to calculate scores for cost based on the applicable scoring formula, weighting, and other
1167 scoring procedures contained in the request for proposals;
1168 (ii) review the evaluation committee's scores and correct any errors, scoring
1169 inconsistencies, and reported noncompliance with this chapter;
1170 (iii) add the scores calculated for cost, if applicable, to the evaluation committee's final
1171 recommended scores on criteria other than cost to derive the total combined score for each
1172 responsive proposal from a responsible offeror; and
1173 (iv) provide to the evaluation committee the total combined score calculated for each
1174 responsive proposal from a responsible offeror, including any applicable cost formula,
1175 weighting, and scoring procedures used to calculate the total combined scores.
1176 (c) The evaluation committee may not:
1177 (i) change its final recommended scores described in Subsection (6)(a) after the
1178 evaluation committee has submitted those scores to the issuing procurement unit; or
1179 (ii) change cost scores calculated by the issuing procurement unit.
1180 (7) (a) As used in this Subsection (7), "management fee" includes only the following
1181 fees of the construction manager/general contractor:
1182 (i) preconstruction phase services;
1183 (ii) monthly supervision fees for the construction phase; and
1184 (iii) overhead and profit for the construction phase.
1185 (b) When selecting a construction manager/general contractor for a construction
1186 project, the evaluation committee:
1187 (i) may score a construction manager/general contractor based upon criteria contained
1188 in the solicitation, including qualifications, performance ratings, references, management plan,
1189 certifications, and other project specific criteria described in the solicitation;
1190 (ii) may, as described in the solicitation, weight and score the management fee as a
1191 fixed rate or as a fixed percentage of the estimated contract value;
1192 (iii) may, at any time after the opening of the responses to the request for proposals,
1193 have access to, and consider, the management fee proposed by the offerors; and
1194 (iv) except as provided in Subsection (9), may not know or have access to any other
1195 information relating to the cost of construction submitted by the offerors, until after the
1196 evaluation committee submits its final recommended scores on all other criteria to the issuing
1197 procurement unit.
1198 (8) (a) The deliberations of an evaluation committee may be held in private.
1199 (b) If the evaluation committee is a public body, as defined in Section 52-4-103, the
1200 evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
1201 deliberations.
1202 (9) An issuing procurement unit is not required to comply with Subsection (6) or
1203 (7)(b)(iv), as applicable, if the head of the issuing procurement unit or a person designated by
1204 rule made by the applicable rulemaking authority:
1205 (a) signs a written statement:
1206 (i) indicating that, due to the nature of the proposal or other circumstances, it is in the
1207 best interest of the procurement unit to waive compliance with Subsection (6) or (7)(b)(iv), as
1208 the case may be; and
1209 (ii) describing the nature of the proposal and the other circumstances relied upon to
1210 waive compliance with Subsection (6) or (7)(b)(iv); and
1211 (b) makes the written statement available to the public, upon request.
1212 Section 10. Section 63G-6a-708 is amended to read:
1213 63G-6a-708. Justification statement.
1214 (1) [
1215 procurement unit, the evaluation committee [
1216 (a) recommend to the chief procurement officer or head of the procurement unit with
1217 independent procurement authority the proposal with the highest total combined score; and
1218 (b) prepare a written justification statement about the proposal with the highest total
1219 combined score that:
1220 (i) explains the score assigned [
1221 (ii) explains how the proposal [
1222 value to the procurement unit in comparison to the other proposals[
1223 [
1224
1225 [
1226 [
1227 within each category.
1228 [
1229
1230
1231
1232
1233
1234 [
1235
1236 [
1237 [
1238
1239 [
1240
1241
1242 [
1243
1244
1245 [
1246 [
1247 [
1248
1249
1250 [
1251
1252 [
1253
1254
1255 [
1256 [
1257
1258 [
1259 [
1260 [
1261
1262
1263
1264 [
1265 [
1266 [
1267
1268 [
1269
1270 [
1271 [
1272
1273
1274
1275 [
1276
1277 [
1278 [
1279 Section 11. Section 63G-6a-708.5 is enacted to read:
1280 63G-6a-708.5. Cost-benefit analysis.
1281 (1) Except as provided in Subsection (5), the evaluation committee shall prepare an
1282 informal, written cost-benefit analysis if:
1283 (a) the proposal that the evaluation committee recommends under Section 63G-6a-708
1284 is not the proposal with the lowest cost; and
1285 (b) the difference between the cost of the recommended proposal and the cost of the
1286 proposal with the lowest cost exceeds:
1287 (i) $10,000; and
1288 (ii) 5% of the cost of the proposal with the lowest cost.
1289 (2) In a cost-benefit analysis under Subsection (1), the evaluation committee shall, for
1290 each evaluation category identified in the solicitation:
1291 (a) explain in general terms the advantage to the procurement unit of the recommended
1292 proposal over the proposal with the lowest cost; and
1293 (b) except as provided in Subsection (4):
1294 (i) estimate the added financial value to the procurement unit of the recommended
1295 proposal over the proposal with the lowest cost; and
1296 (ii) demonstrate that the estimated added financial value exceeds the difference
1297 between the cost of the recommended proposal and the cost of the proposal with the lowest
1298 cost.
1299 (3) (a) If a cost-benefit analysis under this section does not demonstrate that the
1300 estimated added financial value of the recommended proposal exceeds the difference between
1301 the cost of the recommended proposal and the cost of the proposal with the lowest cost, the
1302 procurement unit:
1303 (i) may not award a contract to the offeror that submitted the recommended proposal;
1304 and
1305 (ii) shall:
1306 (A) cancel the solicitation; or
1307 (B) direct the evaluation committee to prepare a justification statement and, if
1308 applicable, a cost-benefit analysis for the proposal that received the next highest score.
1309 (b) Unless the solicitation is canceled under Subsection (3)(a)(ii)(A), the evaluation
1310 committee may repeat the process described in Subsection (3)(a) until the procurement unit:
1311 (i) cancels the solicitation; or
1312 (ii) awards a contract to the offeror that submitted the proposal recommended by the
1313 evaluation committee under the repeated process.
1314 (4) An evaluation committee may waive, in whole or in part, a requirement under
1315 Subsection (2)(b) if the evaluation committee:
1316 (a) makes a written determination that estimating the added financial value to the
1317 procurement unit of the recommended proposal over the proposal with the lowest cost is not
1318 practicable;
1319 (b) provides the written determination to the chief procurement officer or head of the
1320 procurement unit with independent procurement authority; and
1321 (c) receives approval of the written determination from the chief procurement officer or
1322 head of the procurement unit with independent procurement authority.
1323 (5) (a) An evaluation committee is not required to make a cost-benefit analysis
1324 described in this section for a proposal submitted by a construction manager/general contractor
1325 if the proposal is recommended based solely on the qualifications of the construction
1326 manager/general contractor and the management fee described in Subsection 63G-6a-707(7).
1327 (b) The applicable rulemaking authority shall make rules that establish procedures and
1328 criteria for awarding a contract described in Subsection (5)(a) to ensure that:
1329 (i) a competitive process is maintained; and
1330 (ii) the contract awarded is in the best interest of the procurement unit.
1331 Section 12. Section 63G-6a-802 is amended to read:
1332 63G-6a-802. Award of contract without engaging in a standard procurement
1333 process -- Notice -- Duty to negotiate contract terms in best interest of procurement unit.
1334 (1) The chief procurement officer or the head of a procurement unit with independent
1335 procurement authority may award a contract for a procurement item without engaging in a
1336 standard procurement process if the chief procurement officer or the head of the procurement
1337 unit with independent procurement authority determines in writing that:
1338 (a) there is only one source for the procurement item;
1339 (b) (i) transitional costs are a significant consideration in selecting a procurement item;
1340 and
1341 (ii) the results of a cost-benefit analysis demonstrate that transitional costs are
1342 unreasonable or cost-prohibitive, and that the award of a contract without engaging in a
1343 standard procurement process is in the best interest of the procurement unit; or
1344 (c) the award of a contract is under circumstances, described in rules adopted by the
1345 applicable rulemaking authority, that make awarding the contract through a standard
1346 procurement process impractical and not in the best interest of the procurement unit.
1347 (2) Transitional costs associated with a trial use or testing of a procurement item under
1348 a trial use contract awarded under Section 63G-6a-802.3 may not be included in a
1349 consideration of transitional costs under Subsection (1)(b).
1350 (3) (a) Subject to Subsection (3)(b), the applicable rulemaking authority shall make
1351 rules regarding the publication of notice for a procurement under this section that, at a
1352 minimum, require publication of notice of the procurement, in accordance with Section
1353 63G-6a-112, if the cost of the procurement exceeds $50,000.
1354 (b) Publication of notice under Section 63G-6a-112 is not required for:
1355 (i) the procurement of public utility services pursuant to a sole source contract; or
1356 (ii) other procurements under this section for which an applicable rule provides that
1357 notice is not required.
1358 (4) The chief procurement officer or the head of a procurement unit with independent
1359 procurement authority who awards a contract under this section shall negotiate with the
1360 contractor to ensure that the terms of the contract, including price and delivery, are in the best
1361 interest of the procurement unit.
1362 Section 13. Section 63G-6a-802.3 is amended to read:
1363 63G-6a-802.3. Trial use contracts.
1364 (1) A procurement unit may award a short-term trial use contract without engaging in a
1365 standard procurement process if:
1366 (a) the purpose of the contract is to:
1367 (i) determine whether the procurement item will benefit the procurement unit;
1368 (ii) assess the feasibility of a procurement item that:
1369 (A) is new or innovative; or
1370 (B) has a proposed use or application that is novel or unproven; or
1371 (iii) evaluate whether to conduct a standard procurement process for the procurement
1372 item being tested; and
1373 (b) the contract is:
1374 [
1375 procurement unit under an existing contract;
1376 [
1377 and for the minimum period of time necessary to test the procurement item;
1378 [
1379 item; and
1380 [
1381 Section 63G-6a-102.
1382 (2) The period of trial use or testing of a procurement item under a trial use contract
1383 may not exceed 18 months, unless the procurement officer provides a written exception
1384 documenting the reason for a longer period.
1385 (3) A trial use contract shall:
1386 (a) state that the contract is strictly for the trial use or testing of a procurement item;
1387 (b) state that the contract terminates upon completion of the trial use or testing period;
1388 (c) state that the procurement unit is not obligated to purchase or enter into a contract
1389 for the procurement item, regardless of the trial use or testing result;
1390 (d) state that any purchase of the procurement item that is the subject of the trial use
1391 contract will be made in accordance with this chapter; and
1392 (e) include, as applicable:
1393 (i) test schedules;
1394 (ii) deadlines and a termination date;
1395 (iii) measures that will be used to evaluate the performance of the procurement item;
1396 (iv) any fees and associated expenses or an explanation of the circumstances
1397 warranting a waiver of those fees and expenses;
1398 (v) the obligations of the procurement unit and vendor;
1399 (vi) provisions regarding the ownership of the procurement item during and after the
1400 trial use or testing period;
1401 (vii) an explanation of the grounds upon which the contract may be terminated;
1402 (viii) a provision relating to any required bond or security deposit; and
1403 (ix) other requirements unique to the procurement item for trial use or testing.
1404 (4) Publication of notice under Section 63G-6a-112 is not required for a trial use
1405 contract.
1406 (5) The applicable rulemaking authority may make rules pertaining to a trial use
1407 contract.
1408 Section 14. Section 63G-6a-804 is amended to read:
1409 63G-6a-804. Purchase of prison industry goods.
1410 (1) As used in this section:
1411 (a) "Correctional industries division" means the Division of Correctional Industries,
1412 created in Section 64-13a-4.
1413 (b) "Correctional industries director" means the director of the correctional industries
1414 division, appointed under Section 64-13a-4.
1415 [
1416 and services produced by the [
1417 division as provided in this section.
1418 (b) A political subdivision of the state may, and is encouraged to, purchase goods and
1419 services under this section.
1420 (c) A procurement unit is not required to use a standard procurement process to
1421 purchase goods or services under this section.
1422 [
1423
1424 (a) publish and distribute to all procurement units and other interested public entities a
1425 catalog of goods and services provided by the [
1426 industries division, including a description and price of each item offered for sale; and
1427 (b) update and revise the catalog described in Subsection [
1428 the correctional industries director considers necessary.
1429 [
1430 purchase any goods or services provided by the [
1431 industries division from any other source unless [
1432
1433 procurement officer, head of the procurement unit with independent procurement authority, or,
1434 in the case of institutions of higher education, the institutional procurement officer, determine
1435 in writing that purchase from the [
1436 division is not feasible due to one of the following circumstances:
1437 (i) the good or service offered by the correctional industries division does not meet the
1438 reasonable requirements of the procurement unit;
1439 (ii) the good or service cannot be supplied within a reasonable time by the correctional
1440 industries division; or
1441 (iii) the cost of the good or service, including basic price, transportation costs, and
1442 other expenses of acquisition, is not competitive with the cost of procuring the item from
1443 another source.
1444 (b) In cases of disagreement under Subsection [
1445 (i) the decision may be appealed to a board consisting of:
1446 (A) the director of the Department of Corrections;
1447 (B) the director of Administrative Services; and
1448 (C) a neutral third party agreed upon by the other two members of the board;
1449 (ii) in the case of an institution of higher education of the state, the president of the
1450 institution, or the president's designee, shall make the final decision; or
1451 (iii) in the case of any of the following entities, a person designated by the applicable
1452 rulemaking authority shall make the final decision:
1453 (A) a legislative procurement unit;
1454 (B) a judicial procurement unit; or
1455 (C) a public transit district.
1456 Section 15. Section 63G-6a-2002 is amended to read:
1457 63G-6a-2002. Records -- Retention.
1458 (1) All procurement records shall be retained and disposed of in accordance with Title
1459 63G, Chapter 2, Government Records Access and Management Act.
1460 (2) Written determinations required by this chapter shall be retained in the appropriate
1461 official contract file of:
1462 (a) the division;
1463 (b) the procurement unit with independent procurement authority; or
1464 (c) for a legislative procurement unit or a judicial procurement unit, the person
1465 designated by rule made by the applicable rulemaking authority.
1466 (3) A procurement unit shall keep, and make available to the public, upon request,
1467 written records of procurements for which an expenditure of [
1468 the longer of:
1469 (a) six years;
1470 (b) the time otherwise required by law; or
1471 (c) the time period provided by rule made by the applicable rulemaking authority.
1472 (4) The written record described in Subsection (3) shall include:
1473 (a) the name of the provider from whom the procurement was made;
1474 (b) a description of the procurement item;
1475 (c) the date of the procurement; and
1476 (d) the expenditure made for the procurement.
1477 Section 16. Section 63G-6a-2102 is amended to read:
1478 63G-6a-2102. Agreements between public entities.
1479 A [
1480 [
1481 (1) sponsor, conduct, or administer a cooperative agreement for:
1482 (a) the procurement of a procurement item, in accordance with the requirements of
1483 Section 63G-6a-2105; or
1484 (b) the disposal of a procurement item;
1485 (2) cooperatively use a procurement item;
1486 (3) commonly use or share warehousing facilities, capital equipment, and other
1487 facilities;
1488 (4) provide personnel, if the receiving [
1489 [
1490 providing the personnel, in accordance with the agreement; or
1491 [
1492 [
1493
1494 [
1495
1496 (5) purchase from, contribute to, or otherwise participate in a pooled governmental
1497 funds program for the purpose of acquiring or sharing information, data, reports, and other
1498 services in accordance with the terms of the agreement.
1499 Section 17. Section 63G-6a-2103 is amended to read:
1500 63G-6a-2103. Purchases between public entities.
1501 (1) (a) [
1502
1503 entity a procurement item that the other [
1504 provides.
1505 (b) A purchase under Subsection (1)(a) is not subject to the procurement requirements
1506 of this chapter.
1507 [
1508 obtain a procurement item under a contract of another [
1509 (ii) Subsection (1)[
1510 entity relating to a cooperative procurement under Subsection 63G-6a-2105(4)(b).
1511 (2) A [
1512 procurement items available for purchase by another [
1513 Section 18. Section 72-1-202 is amended to read:
1514 72-1-202. Executive director of department -- Appointment -- Qualifications --
1515 Term -- Responsibility -- Power to bring suits -- Salary.
1516 (1) (a) The governor, after consultation with the commission and with the consent of
1517 the Senate, shall appoint an executive director to be the chief executive officer of the
1518 department.
1519 (b) The executive director shall be a qualified executive with technical and
1520 administrative experience and training appropriate for the position.
1521 (c) The executive director shall remain in office until a successor is appointed.
1522 (d) The executive director may be removed by the governor.
1523 (2) In addition to the other functions, powers, duties, rights, and responsibilities
1524 prescribed in this chapter, the executive director shall:
1525 (a) have responsibility for the administrative supervision of the state transportation
1526 systems and the various operations of the department;
1527 (b) have the responsibility for the implementation of rules, priorities, and policies
1528 established by the department and the commission;
1529 (c) have full power to bring suit in courts of competent jurisdiction in the name of the
1530 department as the executive director considers reasonable and necessary for the proper
1531 attainment of the goals of this chapter;
1532 (d) receive a salary, to be established by the governor within the salary range fixed by
1533 the Legislature in Title 67, Chapter 22, State Officer Compensation, together with actual
1534 traveling expenses while away from the executive director's office on official business; and
1535 (e) purchase all necessary equipment, services, and supplies for the department to
1536 fulfill its responsibilities under Subsection 72-1-201(1).