Representative Gage Froerer proposes the following substitute bill:


1     
PROCUREMENT AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Gage Froerer

5     
Senate Sponsor: David G. Buxton

6     

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; [or]
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          [(j)] (k) for any other procurement unit, the board.
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"[:(a) means a procurement unit's] means the acquisition of a
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          [(b) includes all functions that pertain to the acquisition of a procurement item,
345     including:]
346          [(i) preparing and issuing a solicitation; and]
347          [(ii) (A) conducting a standard procurement process; or]
348          [(B) conducting a procurement process that is an exception to a standard procurement
349     process under Part 8, Exceptions to Procurement Requirements; and]
350          [(c) does not include a grant.]
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          [(v)] (vi) a local government procurement unit;

367          [(vi)] (vii) a local district;
368          [(vii)] (viii) a special service district;
369          [(viii)] (ix) a local building authority;
370          [(ix)] (x) a conservation district;
371          [(x)] (xi) a public corporation; or
372          [(xi)] (xii) a public transit district; and
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 [of the state or political subdivision
399     of the state, including:] that expends public funds.
400          [(a) a procurement unit;]
401          [(b) a municipality or county, regardless of whether the municipality or county has
402     adopted this chapter or any part of this chapter; and]
403          [(c) any other government entity located in the state that expends public funds.]
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          [(83) "Solicitation" means an invitation for bids, request for proposals, request for
459     statement of qualifications, or request for information.]

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[:] a document or set of documents submitted in
463     response to a solicitation.
464          [(a) a bid submitted in response to an invitation for bids;]
465          [(b) a proposal submitted in response to a request for proposals; or]
466          [(c) a statement of qualifications submitted in response to a request for statement of
467     qualifications.]
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          [(95) "Trial use contract" means a contract for a procurement item that the procurement
519     unit acquires for a trial use or testing to determine whether the procurement item will benefit
520     the procurement unit.]
521          [(96)] (95) "Vendor":

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          [(a) Title 53B, State System of Higher Education;]
537          [(b)] (a) Title 63A, Chapter 5, State Building Board - Division of Facilities
538     Construction and Management;
539          [(c)] (b) Title 67, Chapter 5, Attorney General;
540          [(d)] (c) Title 72, Transportation Code; and
541          [(e)] (d) Title 78A, Chapter 5, District Court.
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          [(vii) after consultation with, as applicable, the attorney general's office or the
591     procurement unit's legal counsel, correct, amend, or cancel a contract at any time during the
592     term of the contract if:]
593          [(A) the contract is out of compliance with this chapter or a board rule; and]
594          [(B) the head of the procurement unit with independent procurement authority
595     determines that correcting, amending, or canceling the contract is in the best interest of the
596     procurement unit; and]
597          [(viii)] (vii) attempt to resolve a contract dispute in coordination with the legal counsel
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          [(c) a contract between procurement units;]
632          [(d)] (c) medical supplies or medical equipment, including service agreements for
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          [(e)] (d) the purchase of firefighting supplies or equipment by the Division of Forestry,
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          [(f)] (e) supplies purchased for resale to the public; [or]
643          [(g)] (f) activities related to the management of investments by a public entity granted
644     investment authority by law[.]; or
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[:] standard procurement process; and
671          [(A) bidding process;]
672          [(B) request for proposals process; or]
673          [(C) design professional procurement process; and]
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          [(b)] (c) A conducting procurement unit may authorize an evaluation committee to
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          [(c)] (d) An evaluation committee appointed under this Subsection (9):
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          [(d)] (e) In a discussion, interview, or presentation under Subsection (9)[(c)](d)(iii), a
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          [(e)] (f) After the evaluation committee completes its evaluation and scoring of the
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          [(f)] (g) The issuing procurement unit shall review the evaluation committee's scores
829     and correct any errors, scoring inconsistencies, and reported noncompliance with this chapter.
830          [(g)] (h) (i) The deliberations of an evaluation committee under this Subsection (9)
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) [shall] cancel the request for statement of qualifications; [and] or
845          [(b) may not establish an approved vendor list based on the canceled request for
846     statement of qualifications or on statements of qualifications submitted in response to the
847     request for statement of qualifications.]
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 [cost of the procurement item] ability of the vendor under the state contract
924     [with the] to match the quoted cost of the procurement item if the procurement item is obtained

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 [a]:
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          [(1) Bids shall be opened:]
1048          [(a) publicly, except as provided in Section 63G-6a-611;]

1049          [(b) in the presence of one or more witnesses, unless an electronic bid opening process
1050     is used where bidders may see the opening of the bid electronically; and]
1051          [(c) at the time and place indicated in the invitation for bids.]
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          [(c) A bid that is submitted by a bidder who is not responsible includes a bid where the
1074     procurement officer]
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          [(a)] (i) appoint an evaluation committee consisting, subject to Subsection (3)(b), of at
1116     least three individuals with at least a general familiarity with or basic understanding of:
1117          [(i)] (A) the technical requirements relating to the type of procurement item that is the
1118     subject of the procurement; or
1119          [(ii)] (B) the need that the procurement item is intended to address; and
1120          [(b)] (ii) ensure that the evaluation committee and each individual participating in the
1121     evaluation committee process:
1122          [(i)] (A) does not have a conflict of interest with any of the offerors;
1123          [(ii)] (B) can fairly evaluate each proposal;
1124          [(iii)] (C) does not contact or communicate with an offeror concerning the procurement
1125     outside the official evaluation committee process; and
1126          [(iv)] (D) conducts or participates in the evaluation in a manner that ensures a fair and
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) [(a) In] After determining which proposal provides the best value to the
1215     procurement unit, the evaluation committee [and the conducting procurement unit] shall:
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 [to] for each evaluation category; and
1221          (ii) explains how the proposal [with the highest total combined score] provides the best
1222     value to the procurement unit in comparison to the other proposals[;].
1223          [(iii) if applicable, includes the cost-benefit analysis described in Subsection (2) and
1224     how the cost-benefit analysis relates to the best value to the procurement unit; and]
1225          [(iv) if applicable, includes the written determination described in Subsection (5).]
1226          [(b)] (2) An explanation under Subsection (1)[(a)](b)(i) need not address each criterion
1227     within each category.
1228          [(2) If, in determining the best value to the procurement unit, the evaluation committee
1229     awards the highest score, including the score for cost, to a proposal other than the lowest cost
1230     proposal, and the difference between the cost of the highest scored proposal and the lowest cost
1231     proposal exceeds the greater of $10,000 or 5% of the lowest cost proposal, the evaluation
1232     committee and the conducting procurement unit shall prepare an informal written cost-benefit
1233     analysis that:]
1234          [(a) explains, in general terms, the advantage to the procurement unit of awarding the

1235     contract to the higher cost offeror; and]
1236          [(b) except as provided in Subsection (5):]
1237          [(i) includes the estimated added financial value to the procurement unit of each
1238     criterion that justifies awarding the contract to the higher cost offeror; and]
1239          [(ii) demonstrates that the value of the advantage to the procurement unit of awarding
1240     the contract to the higher cost offeror exceeds the value of the difference between the cost of
1241     the higher cost proposal and the cost of the lower cost proposals.]
1242          [(3) If the informal cost-benefit analysis described in Subsection (2) does not justify
1243     awarding the contract to the offeror that received the highest score, the issuing procurement
1244     unit:]
1245          [(a) may not award the contract to the offeror that received the highest score; and]
1246          [(b) may award the contract to the offeror that received the next highest score, unless:]
1247          [(i) an informal cost-benefit analysis is required, because the difference between the
1248     cost proposed by the offeror that received the next highest score and the lowest cost proposal
1249     exceeds the greater of $10,000 or 5% of the lowest cost proposal; and]
1250          [(ii) the informal cost-benefit analysis does not justify award of the contract to the
1251     offeror that received the next highest score.]
1252          [(4) If the informal cost-benefit analysis described in Subsection (2) does not justify
1253     award of the contract to the offeror, described in Subsection (3), that received the next highest
1254     score, the issuing procurement unit:]
1255          [(a) may not award the contract to the offeror that received the next highest score; and]
1256          [(b) shall continue with the process described in Subsection (3) for each offeror that
1257     received the next highest score, until the issuing procurement unit:]
1258          [(i) awards the contract in accordance with the provisions of this section; or]
1259          [(ii) cancels the request for proposals.]
1260          [(5) (a) The evaluation committee, with the issuing procurement unit's approval, may
1261     waive, in whole or in part, a requirement under Subsection (2)(b) if the evaluation committee
1262     determines in writing that assigning a financial value to a particular procurement item or
1263     evaluation criterion is not practicable.]
1264          [(b) A written determination under Subsection (5)(a):]
1265          [(i) shall explain:]

1266          [(A) why it is not practicable to assign a financial value to the procurement item or
1267     evaluation criterion; and]
1268          [(B) in nonfinancial terms, why awarding the contract to the higher cost offeror
1269     provides the best value to the procurement unit; and]
1270          [(ii) may be included as part of the justification statement.]
1271          [(6) (a) An issuing procurement unit is not required to make the cost-benefit analysis
1272     described in this section for a contract with a construction manager/general contractor if the
1273     contract is awarded based solely on the qualifications of the construction manager/general
1274     contractor and the management fee described in Subsection 63G-6a-707(7).]
1275          [(b) The applicable rulemaking authority shall make rules that establish procedures and
1276     criteria for awarding a contract described in Subsection (6)(a) to ensure that:]
1277          [(i) a competitive process is maintained; and]
1278          [(ii) the contract awarded is in the best interest of the procurement unit.]
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          [(a)] (i) awarded for a procurement item that is not already available to the
1375     procurement unit under an existing contract;
1376          [(b)] (ii) restricted to the procurement of a procurement item in the minimum quantity
1377     and for the minimum period of time necessary to test the procurement item;
1378          [(c)] (iii) the only trial use contract for that procurement unit for the same procurement
1379     item; and
1380          [(d)] (iv) not used to circumvent the purposes and policies of this chapter as set forth in
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          [(1)] (2) (a) A procurement unit that is not a political subdivision shall purchase goods
1416     and services produced by the [Utah Correctional Industries Division] correctional industries
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          [(2)] (3) On or before July 1 of each year, the correctional industries director [of the
1423     Utah Correctional Industries] shall:
1424          (a) publish and distribute to all procurement units and other interested public entities a
1425     catalog of goods and services provided by the [Correctional Industries Division] correctional
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 [(2)] (3)(a) during the year as
1428     the correctional industries director considers necessary.
1429          [(3)] (4) (a) A procurement unit that is not a political subdivision of the state may not
1430     purchase any goods or services provided by the [Correctional Industries Division] correctional
1431     industries division from any other source unless [it has been determined in writing by the
1432     director of Correctional Industries and by the] the correctional industries director and the chief
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 [Correctional Industries Division] correctional industries
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 [(3)] (4)(a):
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 [$50] $100 or more is made, for
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 [procurement unit] public entity may enter into an agreement with one or more other
1480     [procurement units] public entities to:
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 [procurement unit] public entity pays the
1489     [procurement unit] public entity providing the personnel the direct and indirect cost of
1490     providing the personnel, in accordance with the agreement; or
1491          [(5) make available informational, technical, and other services, if:]
1492          [(a) the requirements of the procurement unit tendering the services have precedence
1493     over the procurement unit that receives the services; and]
1494          [(b) the receiving procurement unit pays the expenses of the services provided, in
1495     accordance with the agreement.]
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) [A procurement unit may, without using a standard procurement process,
1502     purchase from another procurement unit] A public entity may purchase from another public
1503     entity a procurement item that the other [procurement unit] public entity itself produces or
1504     provides.
1505          (b) A purchase under Subsection (1)(a) is not subject to the procurement requirements
1506     of this chapter.
1507          [(b)] (c) (i) Subsection (1)(a) does not authorize a [procurement unit] public entity to
1508     obtain a procurement item under a contract of another [procurement unit] public entity.
1509          (ii) Subsection (1)[(b)](c)(i) does not affect the authority of a [procurement unit] public
1510     entity relating to a cooperative procurement under Subsection 63G-6a-2105(4)(b).
1511          (2) A [procurement unit] public entity may publish a schedule of costs or fees for
1512     procurement items available for purchase by another [procurement unit] public entity.
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).