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7 LONG TITLE
8 General Description:
9 This bill amends code provisions relating to certain independent entities to specify
10 exemption from, or the requirement to comply with, certain code provisions.
11 Highlighted Provisions:
12 This bill:
13 ▸ amends code provisions relating to certain independent entities to specify
14 exemption from, or the requirement to comply with, the Open and Public Meetings
15 Act, the Government Records Access and Management Act, the Utah Procurement
16 Code, and other code provisions; and
17 ▸ specifies the "applicable rulemaking authority" for certain independent entities in
18 relation to the Utah Procurement Code.
19 Money Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 None
23 Utah Code Sections Affected:
24 AMENDS:
25 4-21-106, as enacted by Laws of Utah 2018, Chapter 393
26 4-22-107, as last amended by Laws of Utah 2017, Chapter 221 and renumbered and
27 amended by Laws of Utah 2017, Chapter 345
28 53B-8a-103, as last amended by Laws of Utah 2018, Chapter 306
29 53C-1-201, as last amended by Laws of Utah 2018, Chapters 13 and 469
30 53D-1-103, as last amended by Laws of Utah 2017, Chapter 221
31 63G-6a-103, as last amended by Laws of Utah 2018, Second Special Session, Chapter
32 4
33 63H-4-108, as last amended by Laws of Utah 2017, Chapter 221
34 63H-5-108, as last amended by Laws of Utah 2017, Chapter 221
35 63H-6-103, as last amended by Laws of Utah 2017, Chapter 221
36 ENACTS:
37 63H-7a-104, Utah Code Annotated 1953
38
39 Be it enacted by the Legislature of the state of Utah:
40 Section 1. Section 4-21-106 is amended to read:
41 4-21-106. Exemption from certain operational requirements.
42 (1) The council is exempt from:
43 (a) Title 51, Chapter 5, Funds Consolidation Act;
44 (b) Title 63A, Utah Administrative Services Code, except as provided in Subsection
45 (2)(c);
46 (c) Title 63G, Chapter 6a, Utah Procurement Code, but the council shall adopt
47 procedures to ensure that the council makes purchases:
48 (i) in a manner that provides for fair competition between providers; and
49 (ii) at competitive prices;
50 [
51 [
52 (2) The council is subject to:
53 (a) Title 51, Chapter 7, State Money Management Act;
54 (b) Title 52, Chapter 4, Open and Public Meetings Act;
55 (c) Title 63A, Chapter 3, Part 4, Utah Public Finance Website;
56 (d) Title 63G, Chapter 2, Government Records Access and Management Act;
57 (e) other Utah Code provisions not specifically exempted under Subsection
58 4-21-106(1); and
59 (f) audit by the state auditor pursuant to Title 67, Chapter 3, Auditor, and by the
60 legislative auditor pursuant to Section 36-12-15.
61 Section 2. Section 4-22-107 is amended to read:
62 4-22-107. Exemption from certain operational requirements.
63 (1) The commission is exempt from:
64 (a) Title 51, Chapter 5, Funds Consolidation Act;
65 (b) Title 51, Chapter 7, State Money Management Act;
66 (c) except as provided in Subsection (2)(b), Title 63A, Utah Administrative Services
67 Code;
68 (d) Title 63G, Chapter 6a, Utah Procurement Code, but the commission shall adopt
69 procedures to ensure that the commission makes purchases:
70 (i) in a manner that provides for fair competition between providers; and
71 (ii) at competitive prices;
72 [
73 [
74 (2) The commission is subject to:
75 (a) Title 52, Chapter 4, Open and Public Meetings Act;
76 (b) Title 63A, Chapter 3, Part 4, Utah Public Finance Website[
77 (c) Title 63G, Chapter 2, Government Records Access and Management Act.
78 Section 3. Section 53B-8a-103 is amended to read:
79 53B-8a-103. Creation of Utah Educational Savings Plan -- Powers and duties of
80 plan -- Certain exemptions.
81 (1) There is created the Utah Educational Savings Plan, which may also be known and
82 do business as:
83 (a) the Utah Educational Savings Plan Trust; or
84 (b) another related name.
85 (2) The plan:
86 (a) is a non-profit, self-supporting agency that administers a public trust;
87 (b) shall administer the various programs, funds, trusts, plans, functions, duties, and
88 obligations assigned to the plan:
89 (i) consistent with sound fiduciary principles; and
90 (ii) subject to review of the board; and
91 (c) shall be known as and managed as a qualified tuition program in compliance with
92 Section 529, Internal Revenue Code, that is sponsored by the state.
93 (3) The plan may:
94 (a) make and enter into contracts necessary for the administration of the plan payable
95 from plan money, including:
96 (i) contracts for goods and services; and
97 (ii) contracts to engage personnel, with demonstrated ability or expertise, including
98 consultants, actuaries, managers, counsel, and auditors for the purpose of rendering
99 professional, managerial, and technical assistance and advice;
100 (b) adopt a corporate seal and change and amend the corporate seal;
101 (c) invest money within the program, administrative, and endowment funds in
102 accordance with the provisions under Section 53B-8a-107;
103 (d) enter into agreements with account owners, any institution of higher education, any
104 federal or state agency, or other entity as required to implement this chapter;
105 (e) solicit and accept any grants, gifts, legislative appropriations, and other money from
106 the state, any unit of federal, state, or local government, or any other person, firm, partnership,
107 or corporation for deposit to the administrative fund, endowment fund, or the program fund;
108 (f) make provision for the payment of costs of administration and operation of the plan;
109 (g) carry out studies and projections to advise account owners regarding:
110 (i) present and estimated future higher education costs; and
111 (ii) levels of financial participation in the plan required to enable account owners to
112 achieve their educational funding objective;
113 (h) participate in federal, state, local governmental, or private programs;
114 (i) create public and private partnerships, including investment or management
115 relationships with other 529 plans or entities;
116 (j) promulgate, impose, and collect administrative fees and charges in connection with
117 transactions of the plan, and provide for reasonable service charges;
118 (k) procure insurance:
119 (i) against any loss in connection with the property, assets, or activities of the plan; and
120 (ii) indemnifying any member of the board from personal loss or accountability arising
121 from liability resulting from a member's action or inaction as a member of the plan's board;
122 (l) administer outreach efforts to:
123 (i) market and publicize the plan and the plan's products to existing and prospective
124 account owners; and
125 (ii) encourage economically challenged populations to save for post-secondary
126 education;
127 (m) adopt, trademark, and copyright names and materials for use in marketing and
128 publicizing the plan and the plan's products;
129 (n) administer the funds of the plan;
130 (o) sue and be sued in the plan's own name;
131 (p) own institutional accounts in the plan to establish and administer:
132 (i) scholarship programs; or
133 (ii) other college savings incentive programs, including programs designed to enhance
134 the savings of low income account owners investing in the plan; and
135 (q) have and exercise any other powers or duties that are necessary or appropriate to
136 carry out and effectuate the purposes of this chapter.
137 (4) (a) Except as provided in Subsection (4)(b), the plan is exempt from the provisions
138 of Title 63G, Chapter 2, Government Records Access and Management Act.
139 (b) (i) The annual audited financial statements of the plan described in Section
140 53B-8a-111 are public records.
141 (ii) Financial information that is provided by the plan to the Division of Finance and
142 posted on the Utah Public Finance Website in accordance with Section 63A-3-402 is a public
143 record.
144 (5) The plan is subject to:
145 (a) Title 52, Chapter 4, Open and Public Meetings Act; and
146 (b) Title 63G, Chapter 6a, Utah Procurement Code.
147 Section 4. Section 53C-1-201 is amended to read:
148 53C-1-201. Creation of administration -- Purpose -- Director -- Participation in
149 Risk Management Fund.
150 (1) (a) There is established within state government the School and Institutional Trust
151 Lands Administration.
152 (b) The administration shall manage all school and institutional trust lands and assets
153 within the state, except as otherwise provided in Title 53C, Chapter 3, Deposit and Allocation
154 of Revenue from Trust Lands, and Title 53D, Chapter 1, School and Institutional Trust Fund
155 Management Act.
156 (2) The administration is an independent state agency and not a division of any other
157 department.
158 (3) (a) It is subject to the usual legislative and executive department controls except as
159 provided in this Subsection (3).
160 (b) (i) The director may make rules as approved by the board that allow the
161 administration to classify a business proposal submitted to the administration as protected
162 under Section 63G-2-305, for as long as is necessary to evaluate the proposal.
163 (ii) The administration shall return the proposal to the party who submitted the
164 proposal, and incur no further duties under Title 63G, Chapter 2, Government Records Access
165 and Management Act, if the administration determines not to proceed with the proposal.
166 (iii) The administration shall classify the proposal pursuant to law if it decides to
167 proceed with the proposal.
168 (iv) Section 63G-2-403 does not apply during the review period.
169 (c) The director shall make rules in compliance with Title 63G, Chapter 3, Utah
170 Administrative Rulemaking Act, except that the administration is not subject to Subsections
171 63G-3-301(5), (6), and (7) and Section 63G-3-601, and the director, with the board's approval,
172 may establish a procedure for the expedited approval of rules, based on written findings by the
173 director showing:
174 (i) the changes in business opportunities affecting the assets of the trust;
175 (ii) the specific business opportunity arising out of those changes which may be lost
176 without the rule or changes to the rule;
177 (iii) the reasons the normal procedures under Section 63G-3-301 cannot be met without
178 causing the loss of the specific opportunity;
179 (iv) approval by at least five board members; and
180 (v) that the director has filed a copy of the rule and a rule analysis, stating the specific
181 reasons and justifications for its findings, with the Office of Administrative Rules and notified
182 interested parties as provided in Subsection 63G-3-301(10).
183 (d) (i) The administration shall comply with Title 67, Chapter 19, Utah State Personnel
184 Management Act, except as provided in this Subsection (3)(d).
185 (ii) The board may approve, upon recommendation of the director, that exemption for
186 specific positions under Subsections 67-19-12(2) and 67-19-15(1) is required in order to enable
187 the administration to efficiently fulfill its responsibilities under the law. The director shall
188 consult with the executive director of the Department of Human Resource Management prior
189 to making such a recommendation.
190 (iii) The positions of director, deputy director, associate director, assistant director,
191 legal counsel appointed under Section 53C-1-305, administrative assistant, and public affairs
192 officer are exempt under Subsections 67-19-12(2) and 67-19-15(1).
193 (iv) Salaries for exempted positions, except for the director, shall be set by the director,
194 after consultation with the executive director of the Department of Human Resource
195 Management, within ranges approved by the board. The board and director shall consider
196 salaries for similar positions in private enterprise and other public employment when setting
197 salary ranges.
198 (v) The board may create an annual incentive and bonus plan for the director and other
199 administration employees designated by the board, based upon the attainment of financial
200 performance goals and other measurable criteria defined and budgeted in advance by the board.
201 (e) The administration shall comply with:
202 (i) Title 52, Chapter 4, Open and Public Meetings Act;
203 (ii) Title 63G, Chapter 2, Government Records Access and Management Act; and
204 (iii) Title 63G, Chapter 6a, Utah Procurement Code, except where the board approves,
205 upon recommendation of the director, exemption from the Utah Procurement Code, and
206 simultaneous adoption of rules under Title 63G, Chapter 3, Utah Administrative Rulemaking
207 Act, for procurement, which enable the administration to efficiently fulfill its responsibilities
208 under the law.
209 (f) (i) Except as provided in Subsection (3)(f)(ii), the administration is not subject to
210 the fee agency requirements of Section 63J-1-504.
211 (ii) The following fees of the administration are subject to the requirements of Section
212 63J-1-504: application, assignment, amendment, affidavit for lost documents, name change,
213 reinstatement, grazing nonuse, extension of time, partial conveyance, patent reissue, collateral
214 assignment, electronic payment, and processing.
215 (g) (i) Notwithstanding Subsection 63J-1-206(2)(c), the administration may transfer
216 funds between its line items.
217 (ii) Before transferring appropriated funds between line items, the administration shall
218 submit a proposal to the board for its approval.
219 (iii) If the board gives approval to a proposal to transfer appropriated funds between
220 line items, the administration shall submit the proposal to the Legislative Executive
221 Appropriations Committee for its review and recommendations.
222 (iv) The Legislative Executive Appropriations Committee may recommend:
223 (A) that the administration transfer the appropriated funds between line items;
224 (B) that the administration not transfer the appropriated funds between line items; or
225 (C) to the governor that the governor call a special session of the Legislature to
226 supplement the appropriated budget for the administration.
227 (4) The administration is managed by a director of school and institutional trust lands
228 appointed by a majority vote of the board of trustees with the consent of the governor.
229 (5) (a) The board of trustees shall provide policies for the management of the
230 administration and for the management of trust lands and assets.
231 (b) The board shall provide policies for the ownership and control of Native American
232 remains that are discovered or excavated on school and institutional trust lands in consultation
233 with the Division of Indian Affairs and giving due consideration to Title 9, Chapter 9, Part 4,
234 Native American Grave Protection and Repatriation Act. The director may make rules in
235 accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement
236 policies provided by the board regarding Native American remains.
237 (6) In connection with joint ventures and other transactions involving trust lands and
238 minerals approved under Sections 53C-1-303 and 53C-2-401, the administration, with board
239 approval, may become a member of a limited liability company under Title 48, Chapter 3a,
240 Utah Revised Uniform Limited Liability Company Act, as appropriate pursuant to Section
241 48-3a-1405 and is considered a person under Section 48-3a-102.
242 (7) Subject to the requirements of Subsection 63E-1-304(2), the administration may
243 participate in coverage under the Risk Management Fund created by Section 63A-4-201.
244 Section 5. Section 53D-1-103 is amended to read:
245 53D-1-103. Application of other law.
246 (1) The office, board, and nominating committee are subject to:
247 (a) Title 52, Chapter 4, Open and Public Meetings Act; and
248 (b) Title 63A, Chapter 3, Part 4, Utah Public Finance Website.
249 (2) Subject to Subsection 63E-1-304(2), the office may participate in coverage under
250 the Risk Management Fund, created in Section 63A-4-201.
251 (3) The office and board are subject to:
252 (a) Title 63G, Chapter 2, Government Records Access and Management Act[
253 for records relating to investment activities; and
254 (b) Title 63G, Chapter 6a, Utah Procurement Code.
255 (4) (a) In making rules under this chapter, the director is subject to and shall comply
256 with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, except as provided in
257 Subsection (4)(b).
258 (b) Subsections 63G-3-301(6) and (7) and Section 63G-3-601 do not apply to the
259 director's making of rules under this chapter.
260 (5) Title 63G, Chapter 7, Governmental Immunity Act of Utah, applies to a board
261 member to the same extent as it applies to an employee, as defined in Section 63G-7-102.
262 (6) (a) A board member, the director, and an office employee or agent are subject to:
263 (i) Title 67, Chapter 16, Utah Public Officers' and Employees' Ethics Act; and
264 (ii) other requirements that the board establishes.
265 (b) In addition to any restrictions or requirements imposed under Subsection (6)(a), a
266 board member, the director, and an office employee or agent may not directly or indirectly
267 acquire an interest in the trust fund or receive any direct benefit from any transaction dealing
268 with trust fund money.
269 (7) (a) Except as provided in Subsection (7)(b), the office shall comply with Title 67,
270 Chapter 19, Utah State Personnel Management Act.
271 (b) (i) Upon a recommendation from the director after the director's consultation with
272 the executive director of the Department of Human Resource Management, the board may
273 provide that specified positions in the office are exempt from Section 67-19-12 and the career
274 service provisions of Title 67, Chapter 19, Utah State Personnel Management Act, as provided
275 in Subsection 67-19-15(1), if the board determines that exemption is required for the office to
276 fulfill efficiently its responsibilities under this chapter.
277 (ii) The director position is exempt from Section 67-19-12 and the career service
278 provisions of Title 67, Chapter 19, Utah State Personnel Management Act, as provided in
279 Subsection 67-19-15(1).
280 (iii) (A) After consultation with the executive director of the Department of Human
281 Resource Management, the director shall set salaries for positions that are exempted under
282 Subsection (7)(b)(i), within ranges that the board approves.
283 (B) In approving salary ranges for positions that are exempted under Subsection
284 (7)(b)(i), the board shall consider salaries for similar positions in private enterprise and other
285 public employment.
286 (8) The office is subject to legislative appropriation, to executive branch budgetary
287 review and recommendation, and to legislative and executive branch review.
288 Section 6. Section 63G-6a-103 is amended to read:
289 63G-6a-103. Definitions.
290 As used in this chapter:
291 (1) "Applicable rulemaking authority" means:
292 (a) for a legislative procurement unit, the Legislative Management Committee;
293 (b) for a judicial procurement unit, the Judicial Council;
294 (c) (i) only to the extent of the procurement authority expressly granted to the
295 procurement unit by statute:
296 (A) for the building board or the Division of Facilities Construction and Management,
297 created in Section 63A-5-201, the building board;
298 (B) for the Office of the Attorney General, the attorney general; and
299 (C) for the Department of Transportation created in Section 72-1-201, the executive
300 director of the Department of Transportation; and
301 (ii) for each other executive branch procurement unit, the board;
302 (d) for a local government procurement unit:
303 (i) the legislative body of the local government procurement unit; or
304 (ii) an individual or body designated by the legislative body of the local government
305 procurement unit;
306 (e) for a school district or a public school, the board, except to the extent of a school
307 district's own nonadministrative rules that do not conflict with the provisions of this chapter;
308 (f) for a state institution of higher education described in:
309 (i) Subsections 53B-1-102(1)(a) and (c), the State Board of Regents; or
310 (ii) Subsection 53B-1-102(1)(b), the Utah System of Technical Colleges Board of
311 Trustees;
312 (g) for the State Board of Education, the State Board of Education;
313 (h) for a public transit district, the chief executive of the public transit district;
314 (i) for a local district other than a public transit district or for a special service district:
315 (i) before January 1, 2015, the board of trustees of the local district or the governing
316 body of the special service district; or
317 (ii) on or after January 1, 2015, the board, except to the extent that the board of trustees
318 of the local district or the governing body of the special service district makes its own rules:
319 (A) with respect to a subject addressed by board rules; or
320 (B) that are in addition to board rules;
321 (j) for the Utah Educational Savings Plan, created in Section 53B-8a-103, the board of
322 directors of the Utah Educational Savings Plan;
323 (k) for the School and Institutional Trust Lands Administration, created in Section
324 53C-1-201, the School and Institutional Trust Lands Board of Trustees;
325 (l) for the School and Institutional Trust Fund Office, created in Section 53D-1-201,
326 the School and Institutional Trust Fund Board of Trustees;
327 [
328 the Utah Communications Authority Board, created in Section 63H-7a-203; or
329 [
330 (2) "Approved vendor" means a person who has been approved for inclusion on an
331 approved vendor list through the approved vendor list process.
332 (3) "Approved vendor list" means a list of approved vendors established under Section
333 63G-6a-507.
334 (4) "Approved vendor list process" means the procurement process described in
335 Section 63G-6a-507.
336 (5) "Bidder" means a person who submits a bid or price quote in response to an
337 invitation for bids.
338 (6) "Bidding process" means the procurement process described in Part 6, Bidding.
339 (7) "Board" means the Utah State Procurement Policy Board, created in Section
340 63G-6a-202.
341 (8) "Building board" means the State Building Board, created in Section 63A-5-101.
342 (9) "Change directive" means a written order signed by the procurement officer that
343 directs the contractor to suspend work or make changes, as authorized by contract, without the
344 consent of the contractor.
345 (10) "Change order" means a written alteration in specifications, delivery point, rate of
346 delivery, period of performance, price, quantity, or other provisions of a contract, upon mutual
347 agreement of the parties to the contract.
348 (11) "Chief procurement officer" means the chief procurement officer appointed under
349 Subsection 63G-6a-302(1).
350 (12) "Conducting procurement unit" means a procurement unit that conducts all
351 aspects of a procurement:
352 (a) except:
353 (i) reviewing a solicitation to verify that it is in proper form; and
354 (ii) causing the publication of a notice of a solicitation; and
355 (b) including:
356 (i) preparing any solicitation document;
357 (ii) appointing an evaluation committee;
358 (iii) conducting the evaluation process, except as provided in Subsection
359 63G-6a-707(6)(b) relating to scores calculated for costs of proposals;
360 (iv) selecting and recommending the person to be awarded a contract;
361 (v) negotiating the terms and conditions of a contract, subject to the issuing
362 procurement unit's approval; and
363 (vi) contract administration.
364 (13) "Conservation district" means the same as that term is defined in Section
365 17D-3-102.
366 (14) "Construction":
367 (a) means services, including work, and supplies for a project for the construction,
368 renovation, alteration, improvement, or repair of a public facility on real property; and
369 (b) does not include services and supplies for the routine, day-to-day operation, repair,
370 or maintenance of an existing public facility.
371 (15) "Construction manager/general contractor":
372 (a) means a contractor who enters into a contract:
373 (i) for the management of a construction project; and
374 (ii) that allows the contractor to subcontract for additional labor and materials that are
375 not included in the contractor's cost proposal submitted at the time of the procurement of the
376 contractor's services; and
377 (b) does not include a contractor whose only subcontract work not included in the
378 contractor's cost proposal submitted as part of the procurement of the contractor's services is to
379 meet subcontracted portions of change orders approved within the scope of the project.
380 (16) "Construction subcontractor":
381 (a) means a person under contract with a contractor or another subcontractor to provide
382 services or labor for the design or construction of a construction project;
383 (b) includes a general contractor or specialty contractor licensed or exempt from
384 licensing under Title 58, Chapter 55, Utah Construction Trades Licensing Act; and
385 (c) does not include a supplier who provides only materials, equipment, or supplies to a
386 contractor or subcontractor for a construction project.
387 (17) "Contract" means an agreement for a procurement.
388 (18) "Contract administration" means all functions, duties, and responsibilities
389 associated with managing, overseeing, and carrying out a contract between a procurement unit
390 and a contractor, including:
391 (a) implementing the contract;
392 (b) ensuring compliance with the contract terms and conditions by the conducting
393 procurement unit and the contractor;
394 (c) executing change orders;
395 (d) processing contract amendments;
396 (e) resolving, to the extent practicable, contract disputes;
397 (f) curing contract errors and deficiencies;
398 (g) terminating a contract;
399 (h) measuring or evaluating completed work and contractor performance;
400 (i) computing payments under the contract; and
401 (j) closing out a contract.
402 (19) "Contractor" means a person who is awarded a contract with a procurement unit.
403 (20) "Cooperative procurement" means procurement conducted by, or on behalf of:
404 (a) more than one procurement unit; or
405 (b) a procurement unit and a cooperative purchasing organization.
406 (21) "Cooperative purchasing organization" means an organization, association, or
407 alliance of purchasers established to combine purchasing power in order to obtain the best
408 value for the purchasers by engaging in procurements in accordance with Section 63G-6a-2105.
409 (22) "Cost-plus-a-percentage-of-cost contract" means a contract under which the
410 contractor is paid a percentage of the total actual expenses or costs in addition to the
411 contractor's actual expenses or costs.
412 (23) "Cost-reimbursement contract" means a contract under which a contractor is
413 reimbursed for costs which are allowed and allocated in accordance with the contract terms and
414 the provisions of this chapter, and a fee, if any.
415 (24) "Days" means calendar days, unless expressly provided otherwise.
416 (25) "Definite quantity contract" means a fixed price contract that provides for a
417 specified amount of supplies over a specified period, with deliveries scheduled according to a
418 specified schedule.
419 (26) "Design professional" means:
420 (a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
421 Licensing Act; or
422 (b) an individual licensed as a professional engineer or professional land surveyor
423 under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing
424 Act.
425 (27) "Design professional procurement process" means the procurement process
426 described in Part 15, Design Professional Services.
427 [
428
429 [
430 (a) professional services within the scope of the practice of architecture as defined in
431 Section 58-3a-102;
432 (b) professional engineering as defined in Section 58-22-102; or
433 (c) master planning and programming services.
434 (29) "Design-build" means the procurement of design professional services and
435 construction by the use of a single contract.
436 (30) "Director" means the director of the division.
437 (31) "Division" means the Division of Purchasing and General Services, created in
438 Section 63A-2-101.
439 (32) "Educational procurement unit" means:
440 (a) a school district;
441 (b) a public school, including a local school board or a charter school;
442 (c) the Utah Schools for the Deaf and Blind;
443 (d) the Utah Education and Telehealth Network;
444 (e) an institution of higher education of the state described in Section 53B-1-102; or
445 (f) the State Board of Education.
446 (33) "Established catalogue price" means the price included in a catalogue, price list,
447 schedule, or other form that:
448 (a) is regularly maintained by a manufacturer or contractor;
449 (b) is published or otherwise available for inspection by customers; and
450 (c) states prices at which sales are currently or were last made to a significant number
451 of any category of buyers or buyers constituting the general buying public for the supplies or
452 services involved.
453 (34) "Executive branch procurement unit" means a department, division, office,
454 bureau, agency, or other organization within the state executive branch.
455 (35) "Fixed price contract" means a contract that provides a price, for each
456 procurement item obtained under the contract, that is not subject to adjustment except to the
457 extent that:
458 (a) the contract provides, under circumstances specified in the contract, for an
459 adjustment in price that is not based on cost to the contractor; or
460 (b) an adjustment is required by law.
461 (36) "Fixed price contract with price adjustment" means a fixed price contract that
462 provides for an upward or downward revision of price, precisely described in the contract, that:
463 (a) is based on the consumer price index or another commercially acceptable index,
464 source, or formula; and
465 (b) is not based on a percentage of the cost to the contractor.
466 (37) "Grant" means an expenditure of public funds or other assistance, or an agreement
467 to expend public funds or other assistance, for a public purpose authorized by law, without
468 acquiring a procurement item in exchange.
469 (38) "Head of a procurement unit" means:
470 (a) for a legislative procurement unit, any person designated by rule made by the
471 applicable rulemaking authority;
472 (b) for an executive branch procurement unit:
473 (i) the director of the division; or
474 (ii) any other person designated by the board, by rule;
475 (c) for a judicial procurement unit:
476 (i) the Judicial Council; or
477 (ii) any other person designated by the Judicial Council, by rule;
478 (d) for a local government procurement unit:
479 (i) the legislative body of the local government procurement unit; or
480 (ii) any other person designated by the local government procurement unit;
481 (e) for a local district other than a public transit district, the board of trustees of the
482 local district or a designee of the board of trustees;
483 (f) for a special service district, the governing body of the special service district or a
484 designee of the governing body;
485 (g) for a local building authority, the board of directors of the local building authority
486 or a designee of the board of directors;
487 (h) for a conservation district, the board of supervisors of the conservation district or a
488 designee of the board of supervisors;
489 (i) for a public corporation, the board of directors of the public corporation or a
490 designee of the board of directors;
491 (j) for a school district or any school or entity within a school district, the board of the
492 school district, or the board's designee;
493 (k) for a charter school, the individual or body with executive authority over the charter
494 school, or the individual's or body's designee;
495 (l) for an institution of higher education described in Section 53B-2-101, the president
496 of the institution of higher education, or the president's designee;
497 (m) for a public transit district, the board of trustees or a designee of the board of
498 trustees;
499 (n) for the State Board of Education, the State Board of Education or a designee of the
500 State Board of Education; or
501 (o) for the Utah Communications Authority, established in Section 63H-7a-201, the
502 executive director of the Utah Communications Authority or a designee of the executive
503 director.
504 (39) "Immaterial error":
505 (a) means an irregularity or abnormality that is:
506 (i) a matter of form that does not affect substance; or
507 (ii) an inconsequential variation from a requirement of a solicitation that has no, little,
508 or a trivial effect on the procurement process and that is not prejudicial to other vendors; and
509 (b) includes:
510 (i) a missing signature, missing acknowledgment of an addendum, or missing copy of a
511 professional license, bond, or insurance certificate;
512 (ii) a typographical error;
513 (iii) an error resulting from an inaccuracy or omission in the solicitation; and
514 (iv) any other error that the chief procurement officer or the head of a procurement unit
515 with independent procurement authority reasonably considers to be immaterial.
516 (40) "Indefinite quantity contract" means a fixed price contract that:
517 (a) is for an indefinite amount of procurement items to be supplied as ordered by a
518 procurement unit; and
519 (b) (i) does not require a minimum purchase amount; or
520 (ii) provides a maximum purchase limit.
521 (41) "Independent procurement authority" means authority granted to a procurement
522 unit under Subsection 63G-6a-106(4)(a).
523 (42) "Invitation for bids":
524 (a) means a document used to solicit:
525 (i) bids to provide a procurement item to a procurement unit; or
526 (ii) quotes for a price of a procurement item to be provided to a procurement unit; and
527 (b) includes all documents attached to or incorporated by reference in a document
528 described in Subsection (42)(a).
529 (43) "Issuing procurement unit" means a procurement unit that:
530 (a) reviews a solicitation to verify that it is in proper form;
531 (b) causes the notice of a solicitation to be published; and
532 (c) negotiates and approves the terms and conditions of a contract.
533 (44) "Judicial procurement unit" means:
534 (a) the Utah Supreme Court;
535 (b) the Utah Court of Appeals;
536 (c) the Judicial Council;
537 (d) a state judicial district; or
538 (e) an office, committee, subcommittee, or other organization within the state judicial
539 branch.
540 (45) "Labor hour contract" is a contract under which:
541 (a) the supplies and materials are not provided by, or through, the contractor; and
542 (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
543 profit for a specified number of labor hours or days.
544 (46) "Legislative procurement unit" means:
545 (a) the Legislature;
546 (b) the Senate;
547 (c) the House of Representatives;
548 (d) a staff office of the Legislature, the Senate, or the House of Representatives; or
549 (e) a committee, subcommittee, commission, or other organization:
550 (i) within the state legislative branch; or
551 (ii) (A) that is created by statute to advise or make recommendations to the Legislature;
552 (B) the membership of which includes legislators; and
553 (C) for which the Office of Legislative Research and General Counsel provides staff
554 support.
555 (47) "Local building authority" means the same as that term is defined in Section
556 17D-2-102.
557 (48) "Local district" means the same as that term is defined in Section 17B-1-102.
558 (49) "Local government procurement unit" means:
559 (a) a county or municipality, and each office or agency of the county or municipality,
560 unless the county or municipality adopts its own procurement code by ordinance;
561 (b) a county or municipality that has adopted this entire chapter by ordinance, and each
562 office or agency of that county or municipality; or
563 (c) a county or municipality that has adopted a portion of this chapter by ordinance, to
564 the extent that a term in the ordinance is used in the adopted portion of this chapter, and each
565 office or agency of that county or municipality.
566 (50) "Multiple award contracts" means the award of a contract for an indefinite
567 quantity of a procurement item to more than one person.
568 (51) "Multiyear contract" means a contract that extends beyond a one-year period,
569 including a contract that permits renewal of the contract, without competition, beyond the first
570 year of the contract.
571 (52) "Municipality" means a city, town, or metro township.
572 (53) "Nonadopting local government procurement unit" means:
573 (a) a county or municipality that has not adopted Part 16, Protests, Part 17,
574 Procurement Appeals Board, Part 18, Appeals to Court and Court Proceedings, and Part 19,
575 General Provisions Related to Protest or Appeal; and
576 (b) each office or agency of a county or municipality described in Subsection (53)(a).
577 (54) "Offeror" means a person who submits a proposal in response to a request for
578 proposals.
579 (55) "Preferred bidder" means a bidder that is entitled to receive a reciprocal preference
580 under the requirements of this chapter.
581 (56) "Procure" means to acquire a procurement item through a procurement.
582 (57) "Procurement":
583 (a) means a procurement unit's acquisition of a procurement item through an
584 expenditure of public funds, or an agreement to expend public funds, including an acquisition
585 through a public-private partnership;
586 (b) includes all functions that pertain to the acquisition of a procurement item,
587 including:
588 (i) preparing and issuing a solicitation; and
589 (ii) (A) conducting a standard procurement process; or
590 (B) conducting a procurement process that is an exception to a standard procurement
591 process under Part 8, Exceptions to Procurement Requirements; and
592 (c) does not include a grant.
593 (58) "Procurement item" means a supply, a service, or construction.
594 (59) "Procurement officer" means:
595 (a) for a procurement unit with independent procurement authority:
596 (i) the head of the procurement unit;
597 (ii) a designee of the head of the procurement unit; or
598 (iii) a person designated by rule made by the applicable rulemaking authority; or
599 (b) for the division or a procurement unit without independent procurement authority,
600 the chief procurement officer.
601 (60) "Procurement unit":
602 (a) means:
603 (i) a legislative procurement unit;
604 (ii) an executive branch procurement unit;
605 (iii) a judicial procurement unit;
606 (iv) an educational procurement unit;
607 (v) the Utah Communications Authority, established in Section 63H-7a-201;
608 (vi) a local government procurement unit;
609 (vii) a local district;
610 (viii) a special service district;
611 (ix) a local building authority;
612 (x) a conservation district;
613 (xi) a public corporation; or
614 (xii) a public transit district; and
615 (b) does not include a political subdivision created under Title 11, Chapter 13,
616 Interlocal Cooperation Act.
617 (61) "Professional service" means labor, effort, or work that requires an elevated
618 degree of specialized knowledge and discretion, including labor, effort, or work in the field of:
619 (a) accounting;
620 (b) administrative law judge service;
621 (c) architecture;
622 (d) construction design and management;
623 (e) engineering;
624 (f) financial services;
625 (g) information technology;
626 (h) the law;
627 (i) medicine;
628 (j) psychiatry; or
629 (k) underwriting.
630 (62) "Protest officer" means:
631 (a) for the division or a procurement unit with independent procurement authority:
632 (i) the head of the procurement unit;
633 (ii) the head of the procurement unit's designee who is an employee of the procurement
634 unit; or
635 (iii) a person designated by rule made by the applicable rulemaking authority; or
636 (b) for a procurement unit without independent procurement authority, the chief
637 procurement officer or the chief procurement officer's designee who is an employee of the
638 division .
639 (63) "Public corporation" means the same as that term is defined in Section 63E-1-102.
640 (64) "Public entity" means any government entity of the state or political subdivision of
641 the state, including:
642 (a) a procurement unit;
643 (b) a municipality or county, regardless of whether the municipality or county has
644 adopted this chapter or any part of this chapter; and
645 (c) any other government entity located in the state that expends public funds.
646 (65) "Public facility" means a building, structure, infrastructure, improvement, or other
647 facility of a public entity.
648 (66) "Public funds" means money, regardless of its source, including from the federal
649 government, that is owned or held by a procurement unit.
650 (67) "Public transit district" means a public transit district organized under Title 17B,
651 Chapter 2a, Part 8, Public Transit District Act.
652 (68) "Public-private partnership" means an arrangement or agreement, occurring on or
653 after January 1, 2017, between a procurement unit and one or more contractors to provide for a
654 public need through the development or operation of a project in which the contractor or
655 contractors share with the procurement unit the responsibility or risk of developing, owning,
656 maintaining, financing, or operating the project.
657 (69) "Qualified vendor" means a vendor who:
658 (a) is responsible; and
659 (b) submits a responsive statement of qualifications under Section 63G-6a-410 that
660 meets the minimum mandatory requirements, evaluation criteria, and any applicable score
661 thresholds set forth in the request for statement of qualifications.
662 (70) "Real property" means land and any building, fixture, improvement, appurtenance,
663 structure, or other development that is permanently affixed to land.
664 (71) "Request for information" means a nonbinding process through which a
665 procurement unit requests information relating to a procurement item.
666 (72) "Request for proposals" means a document used to solicit proposals to provide a
667 procurement item to a procurement unit, including all other documents that are attached to that
668 document or incorporated in that document by reference.
669 (73) "Request for proposals process" means the procurement process described in Part
670 7, Request for Proposals.
671 (74) "Request for statement of qualifications" means a document used to solicit
672 information about the qualifications of a person interested in responding to a potential
673 procurement, including all other documents attached to that document or incorporated in that
674 document by reference.
675 (75) "Requirements contract" means a contract:
676 (a) under which a contractor agrees to provide a procurement unit's entire requirements
677 for certain procurement items at prices specified in the contract during the contract period; and
678 (b) that:
679 (i) does not require a minimum purchase amount; or
680 (ii) provides a maximum purchase limit.
681 (76) "Responsible" means being capable, in all respects, of:
682 (a) meeting all the requirements of a solicitation; and
683 (b) fully performing all the requirements of the contract resulting from the solicitation,
684 including being financially solvent with sufficient financial resources to perform the contract.
685 (77) "Responsive" means conforming in all material respects to the requirements of a
686 solicitation.
687 (78) "Sealed" means manually or electronically secured to prevent disclosure.
688 (79) "Service":
689 (a) means labor, effort, or work to produce a result that is beneficial to a procurement
690 unit;
691 (b) includes a professional service; and
692 (c) does not include labor, effort, or work provided under an employment agreement or
693 a collective bargaining agreement.
694 (80) "Small purchase process" means the procurement process described in Section
695 63G-6a-506.
696 (81) "Sole source contract" means a contract resulting from a sole source procurement.
697 (82) "Sole source procurement" means a procurement without competition pursuant to
698 a determination under Subsection 63G-6a-802(1)(a) that there is only one source for the
699 procurement item.
700 (83) "Solicitation" means an invitation for bids, request for proposals, request for
701 statement of qualifications, or request for information.
702 (84) "Solicitation response" means:
703 (a) a bid submitted in response to an invitation for bids;
704 (b) a proposal submitted in response to a request for proposals; or
705 (c) a statement of qualifications submitted in response to a request for statement of
706 qualifications.
707 (85) "Special service district" means the same as that term is defined in Section
708 17D-1-102.
709 (86) "Specification" means any description of the physical or functional characteristics
710 or of the nature of a procurement item included in an invitation for bids or a request for
711 proposals, or otherwise specified or agreed to by a procurement unit, including a description of:
712 (a) a requirement for inspecting or testing a procurement item; or
713 (b) preparing a procurement item for delivery.
714 (87) "Standard procurement process" means:
715 (a) the bidding process;
716 (b) the request for proposals process;
717 (c) the approved vendor list process;
718 (d) the small purchase process; or
719 (e) the design professional procurement process.
720 (88) "State cooperative contract" means a contract awarded by the division for and in
721 behalf of all public entities.
722 (89) "Statement of qualifications" means a written statement submitted to a
723 procurement unit in response to a request for statement of qualifications.
724 (90) "Subcontractor":
725 (a) means a person under contract to perform part of a contractual obligation under the
726 control of the contractor, whether the person's contract is with the contractor directly or with
727 another person who is under contract to perform part of a contractual obligation under the
728 control of the contractor; and
729 (b) includes a supplier, distributor, or other vendor that furnishes supplies or services
730 to a contractor.
731 (91) "Supply" means a good, material, technology, piece of equipment, or any other
732 item of personal property.
733 (92) "Tie bid" means that the lowest responsive bids of responsible bidders are
734 identical in price.
735 (93) "Time and materials contract" means a contract under which the contractor is paid:
736 (a) the actual cost of direct labor at specified hourly rates;
737 (b) the actual cost of materials and equipment usage; and
738 (c) an additional amount, expressly described in the contract, to cover overhead and
739 profit, that is not based on a percentage of the cost to the contractor.
740 (94) "Transitional costs":
741 (a) means the costs of changing:
742 (i) from an existing provider of a procurement item to another provider of that
743 procurement item; or
744 (ii) from an existing type of procurement item to another type;
745 (b) includes:
746 (i) training costs;
747 (ii) conversion costs;
748 (iii) compatibility costs;
749 (iv) costs associated with system downtime;
750 (v) disruption of service costs;
751 (vi) staff time necessary to implement the change;
752 (vii) installation costs; and
753 (viii) ancillary software, hardware, equipment, or construction costs; and
754 (c) does not include:
755 (i) the costs of preparing for or engaging in a procurement process; or
756 (ii) contract negotiation or drafting costs.
757 (95) "Trial use contract" means a contract for a procurement item that the procurement
758 unit acquires for a trial use or testing to determine whether the procurement item will benefit
759 the procurement unit.
760 (96) "Vendor":
761 (a) means a person who is seeking to enter into a contract with a procurement unit to
762 provide a procurement item; and
763 (b) includes:
764 (i) a bidder;
765 (ii) an offeror;
766 (iii) an approved vendor;
767 (iv) a design professional; and
768 (v) a person who submits an unsolicited proposal under Section 63G-6a-712.
769 Section 7. Section 63H-4-108 is amended to read:
770 63H-4-108. Relation to certain acts -- Participation in Risk Management Fund.
771 (1) The authority is exempt from:
772 (a) Title 51, Chapter 5, Funds Consolidation Act;
773 (b) except as provided in Subsection (2)(b), Title 63A, Utah Administrative Services
774 Code;
775 [
776 [
777 [
778 (2) The authority is subject to:
779 (a) Title 52, Chapter 4, Open and Public Meetings Act;
780 (b) Title 63A, Chapter 3, Part 4, Utah Public Finance Website[
781 (c) Title 63G, Chapter 2, Government Records Access and Management Act; and
782 (d) Title 63G, Chapter 6a, Utah Procurement Code.
783 (3) The authority is subject to audit by the state auditor pursuant to Title 67, Chapter 3,
784 Auditor, and by the legislative auditor general pursuant to Section 36-12-15.
785 (4) Subject to the requirements of Subsection 63E-1-304(2), the authority may
786 participate in coverage under the Risk Management Fund created by Section 63A-4-201.
787 Section 8. Section 63H-5-108 is amended to read:
788 63H-5-108. Relation to certain acts.
789 (1) The authority is exempt from:
790 (a) Title 51, Chapter 5, Funds Consolidation Act;
791 (b) except as provided in Subsection (2)(b), Title 63A, Utah Administrative Services
792 Code;
793 [
794 [
795 [
796 (2) The authority is subject to:
797 (a) Title 52, Chapter 4, Open and Public Meetings Act;
798 [
799 (c) Title 63G, Chapter 2, Government Records Access and Management Act;
800 (d) Title 63G, Chapter 6a, Utah Procurement Code; and
801 [
802 legislative auditor general pursuant to Section 36-12-15.
803 Section 9. Section 63H-6-103 is amended to read:
804 63H-6-103. Utah State Fair Corporation -- Legal status -- Powers.
805 (1) There is created an independent public nonprofit corporation known as the "Utah
806 State Fair Corporation."
807 (2) The board shall file articles of incorporation for the corporation with the Division
808 of Corporations and Commercial Code.
809 (3) The corporation, subject to this chapter, has all powers and authority permitted
810 nonprofit corporations by law.
811 (4) The corporation shall:
812 (a) manage, supervise, and control:
813 (i) all activities relating to the annual exhibition described in Subsection (4)(j); and
814 (ii) except as otherwise provided by statute, all state expositions, including setting the
815 time, place, and purpose of any state exposition;
816 (b) for public entertainment, displays, and exhibits or similar events:
817 (i) provide, sponsor, or arrange the events;
818 (ii) publicize and promote the events; and
819 (iii) secure funds to cover the cost of the exhibits from:
820 (A) private contributions;
821 (B) public appropriations;
822 (C) admission charges; and
823 (D) other lawful means;
824 (c) acquire and designate exposition sites;
825 (d) use generally accepted accounting principles in accounting for the corporation's
826 assets, liabilities, and operations;
827 (e) seek corporate sponsorships for the state fair park or for individual buildings or
828 facilities within the fair park;
829 (f) work with county and municipal governments, the Salt Lake Convention and
830 Visitor's Bureau, the Utah Travel Council, and other entities to develop and promote
831 expositions and the use of the state fair park;
832 (g) develop and maintain a marketing program to promote expositions and the use of
833 the state fair park;
834 (h) in accordance with provisions of this part, operate and maintain the state fair park,
835 including the physical appearance and structural integrity of the state fair park and the
836 buildings located at the state fair park;
837 (i) prepare an economic development plan for the state fair park;
838 (j) hold an annual exhibition that:
839 (i) is called the state fair or a similar name;
840 (ii) promotes and highlights agriculture throughout the state;
841 (iii) includes expositions of livestock, poultry, agricultural, domestic science,
842 horticultural, floricultural, mineral and industrial products, manufactured articles, and domestic
843 animals that, in the corporation's opinion will best stimulate agricultural, industrial, artistic, and
844 educational pursuits and the sharing of talents among the people of Utah;
845 (iv) includes the award of premiums for the best specimens of the exhibited articles
846 and animals;
847 (v) permits competition by livestock exhibited by citizens of other states and territories
848 of the United States; and
849 (vi) is arranged according to plans approved by the board;
850 (k) fix the conditions of entry to the annual exhibition described in Subsection (4)(j);
851 and
852 (l) publish a list of premiums that will be awarded at the annual exhibition described in
853 Subsection (4)(j) for the best specimens of exhibited articles and animals.
854 (5) In addition to the annual exhibition described in Subsection (4)(j), the corporation
855 may hold other exhibitions of livestock, poultry, agricultural, domestic science, horticultural,
856 floricultural, mineral and industrial products, manufactured articles, and domestic animals that,
857 in the corporation's opinion, will best stimulate agricultural, industrial, artistic, and educational
858 pursuits and the sharing of talents among the people of Utah.
859 (6) The corporation may:
860 (a) employ advisers, consultants, and agents, including financial experts and
861 independent legal counsel, and fix their compensation;
862 (b) (i) participate in the state's Risk Management Fund created under Section
863 63A-4-201; or
864 (ii) procure insurance against any loss in connection with the corporation's property
865 and other assets, including mortgage loans;
866 (c) receive and accept aid or contributions of money, property, labor, or other things of
867 value from any source, including any grants or appropriations from any department, agency, or
868 instrumentality of the United States or Utah;
869 (d) hold, use, loan, grant, and apply that aid and those contributions to carry out the
870 purposes of the corporation, subject to the conditions, if any, upon which the aid and
871 contributions were made;
872 (e) enter into management agreements with any person or entity for the performance of
873 the corporation's functions or powers;
874 (f) establish whatever accounts and procedures as necessary to budget, receive, and
875 disburse, account for, and audit all funds received, appropriated, or generated;
876 (g) subject to Subsection (8), lease any of the facilities at the state fair park;
877 (h) sponsor events as approved by the board; and
878 (i) enter into one or more agreements to develop the state fair park.
879 (7) (a) Except as provided in Subsection (7)(c), as an independent agency of Utah, the
880 corporation is exempt from:
881 (i) Title 51, Chapter 5, Funds Consolidation Act;
882 (ii) Title 51, Chapter 7, State Money Management Act;
883 (iii) Title 63A, Utah Administrative Services Code;
884 [
885 [
886 [
887 (b) The board shall adopt policies parallel to and consistent with:
888 (i) Title 51, Chapter 5, Funds Consolidation Act;
889 (ii) Title 51, Chapter 7, State Money Management Act;
890 (iii) Title 63A, Utah Administrative Services Code; and
891 [
892 [
893 (c) The corporation shall comply with:
894 (i) Title 52, Chapter 4, Open and Public Meetings Act;
895 (ii) Title 63G, Chapter 2, Government Records Access and Management Act;
896 [
897 [
898 (iv) Title 63G, Chapter 6a, Utah Procurement Code, except for a procurement for:
899 (A) entertainment provided at the state fair park;
900 (B) judges for competitive exhibits; or
901 (C) sponsorship of an event at the state fair park; and
902 [
903 Subsection 63A-5-104(3).
904 (8) (a) Before the corporation executes a lease described in Subsection (6)(g) with a
905 term of 10 or more years, the corporation shall:
906 (i) submit the proposed lease to the State Building Board for the State Building Board's
907 approval or rejection; and
908 (ii) if the State Building Board approves the proposed lease, submit the proposed lease
909 to the Executive Appropriations Committee for the Executive Appropriation Committee's
910 review and recommendation in accordance with Subsection (8)(b).
911 (b) The Executive Appropriations Committee shall review a proposed lease submitted
912 in accordance with Subsection (8)(a) and recommend to the corporation that the corporation:
913 (i) execute the proposed sublease; or
914 (ii) reject the proposed sublease.
915 Section 10. Section 63H-7a-104 is enacted to read:
916 63H-7a-104. Relation to certain acts.
917 (1) The authority is exempt from:
918 (a) Title 51, Chapter 5, Funds Consolidation Act;
919 (b) except as provided in Subsection (2)(b), Title 63A, Utah Administrative Services
920 Code;
921 (c) Title 63J, Chapter 1, Budgetary Procedures Act; and
922 (d) Title 67, Chapter 19, Utah State Personnel Management Act.
923 (2) The authority is subject to:
924 (a) Title 52, Chapter 4, Open and Public Meetings Act;
925 (b) Title 63A, Chapter 3, Part 4, Utah Public Finance Website;
926 (c) Title 63G, Chapter 2, Government Records Access and Management Act; and
927 (d) Title 63G, Chapter 6a, Utah Procurement Code.