1     
LIBRARY CONTRACT AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Kathleen A. Riebe

5     
House Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill addresses government contracts for electronic library materials.
10     Highlighted Provisions:
11          This bill:
12          ▸     provides that when a procurement unit that operates a library enters a contract for
13     electronic library materials, the contract may not contain certain specified
14     provisions;
15          ▸     provides that any prohibited provision is unenforceable; and
16          ▸     makes technical changes.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          63G-6a-103, as last amended by Laws of Utah 2022, Chapters 421, 422
24          63G-6a-109, as last amended by Laws of Utah 2022, Chapter 421
25          63G-6a-303, as last amended by Laws of Utah 2022, Chapter 421
26     ENACTS:
27          63G-6a-1211, Utah Code Annotated 1953
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 63G-6a-103 is amended to read:
31          63G-6a-103. Definitions.
32          As used in this chapter:
33          (1) "Approved vendor" means a person who has been approved for inclusion on an
34     approved vendor list through the approved vendor list process.
35          (2) "Approved vendor list" means a list of approved vendors established under Section
36     63G-6a-507.
37          (3) "Approved vendor list process" means the procurement process described in
38     Section 63G-6a-507.
39          (4) "Bidder" means a person who submits a bid or price quote in response to an
40     invitation for bids.
41          (5) "Bidding process" means the procurement process described in Part 6, Bidding.
42          (6) "Board" means the Utah State Procurement Policy Board, created in Section
43     63G-6a-202.
44          (7) "Change directive" means a written order signed by the procurement officer that
45     directs the contractor to suspend work or make changes, as authorized by contract, without the
46     consent of the contractor.
47          (8) "Change order" means a written alteration in specifications, delivery point, rate of
48     delivery, period of performance, price, quantity, or other provisions of a contract, upon mutual
49     agreement of the parties to the contract.
50          (9) "Chief procurement officer" means the individual appointed under Section
51     63A-2-102.
52          (10) "Conducting procurement unit" means a procurement unit that conducts all
53     aspects of a procurement:
54          (a) except:
55          (i) reviewing a solicitation to verify that it is in proper form; and
56          (ii) causing the publication of a notice of a solicitation; and
57          (b) including:
58          (i) preparing any solicitation document;
59          (ii) appointing an evaluation committee;
60          (iii) conducting the evaluation process, except the process relating to scores calculated
61     for costs of proposals;
62          (iv) selecting and recommending the person to be awarded a contract;
63          (v) negotiating the terms and conditions of a contract, subject to the issuing
64     procurement unit's approval; and
65          (vi) contract administration.
66          (11) "Conservation district" means the same as that term is defined in Section
67     17D-3-102.
68          (12) "Construction project":
69          (a) means a project for the construction, renovation, alteration, improvement, or repair
70     of a public facility on real property, including all services, labor, supplies, and materials for the
71     project; and
72          (b) does not include services and supplies for the routine, day-to-day operation, repair,
73     or maintenance of an existing public facility.
74          (13) "Construction manager/general contractor":
75          (a) means a contractor who enters into a contract:
76          (i) for the management of a construction project; and
77          (ii) that allows the contractor to subcontract for additional labor and materials that are
78     not included in the contractor's cost proposal submitted at the time of the procurement of the
79     contractor's services; and
80          (b) does not include a contractor whose only subcontract work not included in the
81     contractor's cost proposal submitted as part of the procurement of the contractor's services is to
82     meet subcontracted portions of change orders approved within the scope of the project.
83          (14) "Construction subcontractor":
84          (a) means a person under contract with a contractor or another subcontractor to provide
85     services or labor for the design or construction of a construction project;
86          (b) includes a general contractor or specialty contractor licensed or exempt from
87     licensing under Title 58, Chapter 55, Utah Construction Trades Licensing Act; and
88          (c) does not include a supplier who provides only materials, equipment, or supplies to a
89     contractor or subcontractor for a construction project.
90          (15) "Contract" means an agreement for a procurement.
91          (16) "Contract administration" means all functions, duties, and responsibilities
92     associated with managing, overseeing, and carrying out a contract between a procurement unit
93     and a contractor, including:
94          (a) implementing the contract;
95          (b) ensuring compliance with the contract terms and conditions by the conducting
96     procurement unit and the contractor;
97          (c) executing change orders;
98          (d) processing contract amendments;
99          (e) resolving, to the extent practicable, contract disputes;
100          (f) curing contract errors and deficiencies;
101          (g) terminating a contract;
102          (h) measuring or evaluating completed work and contractor performance;
103          (i) computing payments under the contract; and
104          (j) closing out a contract.
105          (17) "Contractor" means a person who is awarded a contract with a procurement unit.
106          (18) "Cooperative procurement" means procurement conducted by, or on behalf of:
107          (a) more than one procurement unit; or
108          (b) a procurement unit and a cooperative purchasing organization.
109          (19) "Cooperative purchasing organization" means an organization, association, or
110     alliance of purchasers established to combine purchasing power in order to obtain the best
111     value for the purchasers by engaging in procurements in accordance with Section 63G-6a-2105.
112          (20) "Cost-plus-a-percentage-of-cost contract" means a contract under which the
113     contractor is paid a percentage of the total actual expenses or costs in addition to the
114     contractor's actual expenses or costs.
115          (21) "Cost-reimbursement contract" means a contract under which a contractor is
116     reimbursed for costs which are allowed and allocated in accordance with the contract terms and
117     the provisions of this chapter, and a fee, if any.
118          (22) "Days" means calendar days, unless expressly provided otherwise.
119          (23) "Definite quantity contract" means a fixed price contract that provides for a
120     specified amount of supplies over a specified period, with deliveries scheduled according to a
121     specified schedule.
122          (24) "Design professional" means:
123          (a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
124     Licensing Act;
125          (b) an individual licensed as a professional engineer or professional land surveyor
126     under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing
127     Act; or
128          (c) an individual certified as a commercial interior designer under Title 58, Chapter 86,
129     State Certification of Commercial Interior Designers Act.
130          (25) "Design professional procurement process" means the procurement process
131     described in Part 15, Design Professional Services.
132          (26) "Design professional services" means:
133          (a) professional services within the scope of the practice of architecture as defined in
134     Section 58-3a-102;
135          (b) professional engineering as defined in Section 58-22-102;
136          (c) master planning and programming services; or
137          (d) services within the scope of the practice of commercial interior design, as defined
138     in Section 58-86-102.
139          (27) "Design-build" means the procurement of design professional services and
140     construction by the use of a single contract.
141          (28) "Division" means the Division of Purchasing and General Services, created in
142     Section 63A-2-101.
143          (29) "Educational procurement unit" means:
144          (a) a school district;
145          (b) a public school, including a local school board or a charter school;
146          (c) the Utah Schools for the Deaf and the Blind;
147          (d) the Utah Education and Telehealth Network;
148          (e) an institution of higher education of the state described in Section 53B-1-102; or
149          (f) the State Board of Education.
150          (30) "Electronic library materials" means an audiobook, e-book, digital textbook, or
151     any other digital material available in a library.
152          [(30)] (31) "Established catalogue price" means the price included in a catalogue, price
153     list, schedule, or other form that:
154          (a) is regularly maintained by a manufacturer or contractor;
155          (b) is published or otherwise available for inspection by customers; and
156          (c) states prices at which sales are currently or were last made to a significant number
157     of any category of buyers or buyers constituting the general buying public for the supplies or
158     services involved.
159          [(31)] (32) (a) "Executive branch procurement unit" means a department, division,
160     office, bureau, agency, or other organization within the state executive branch.
161          (b) "Executive branch procurement unit" does not include the Colorado River
162     Authority of Utah as provided in Section 63M-14-210.
163          [(32)] (33) "Facilities division" means the Division of Facilities Construction and
164     Management, created in Section 63A-5b-301.
165          [(33)] (34) "Fixed price contract" means a contract that provides a price, for each
166     procurement item obtained under the contract, that is not subject to adjustment except to the
167     extent that:
168          (a) the contract provides, under circumstances specified in the contract, for an
169     adjustment in price that is not based on cost to the contractor; or
170          (b) an adjustment is required by law.
171          [(34)] (35) "Fixed price contract with price adjustment" means a fixed price contract
172     that provides for an upward or downward revision of price, precisely described in the contract,
173     that:
174          (a) is based on the consumer price index or another commercially acceptable index,
175     source, or formula; and
176          (b) is not based on a percentage of the cost to the contractor.
177          [(35)] (36) "Grant" means an expenditure of public funds or other assistance, or an
178     agreement to expend public funds or other assistance, for a public purpose authorized by law,
179     without acquiring a procurement item in exchange.
180          [(36)] (37) "Immaterial error":
181          (a) means an irregularity or abnormality that is:
182          (i) a matter of form that does not affect substance; or
183          (ii) an inconsequential variation from a requirement of a solicitation that has no, little,
184     or a trivial effect on the procurement process and that is not prejudicial to other vendors; and
185          (b) includes:
186          (i) a missing signature, missing acknowledgment of an addendum, or missing copy of a
187     professional license, bond, or insurance certificate;
188          (ii) a typographical error;
189          (iii) an error resulting from an inaccuracy or omission in the solicitation; and
190          (iv) any other error that the procurement official reasonably considers to be immaterial.
191          [(37)] (38) "Indefinite quantity contract" means a fixed price contract that:
192          (a) is for an indefinite amount of procurement items to be supplied as ordered by a
193     procurement unit; and
194          (b) (i) does not require a minimum purchase amount; or
195          (ii) provides a maximum purchase limit.
196          [(38)] (39) "Independent procurement unit" means:
197          (a) (i) a legislative procurement unit;
198          (ii) a judicial branch procurement unit;
199          (iii) an educational procurement unit;
200          (iv) a local government procurement unit;
201          (v) a conservation district;
202          (vi) a local building authority;
203          (vii) a local district;
204          (viii) a public corporation;
205          (ix) a special service district; or
206          (x) the Utah Communications Authority, established in Section 63H-7a-201;
207          (b) the facilities division, but only to the extent of the procurement authority provided
208     under Title 63A, Chapter 5b, Administration of State Facilities;
209          (c) the attorney general, but only to the extent of the procurement authority provided
210     under Title 67, Chapter 5, Attorney General;
211          (d) the Department of Transportation, but only to the extent of the procurement
212     authority provided under Title 72, Transportation Code; or
213          (e) any other executive branch department, division, office, or entity that has statutory
214     procurement authority outside this chapter, but only to the extent of that statutory procurement
215     authority.
216          [(39)] (40) "Invitation for bids":
217          (a) means a document used to solicit:
218          (i) bids to provide a procurement item to a procurement unit; or
219          (ii) quotes for a price of a procurement item to be provided to a procurement unit; and
220          (b) includes all documents attached to or incorporated by reference in a document
221     described in Subsection [(39)(a)] (40)(a).
222          [(40)] (41) "Issuing procurement unit" means a procurement unit that:
223          (a) reviews a solicitation to verify that it is in proper form;
224          (b) causes the notice of a solicitation to be published; and
225          (c) negotiates and approves the terms and conditions of a contract.
226          [(41)] (42) "Judicial procurement unit" means:
227          (a) the Utah Supreme Court;
228          (b) the Utah Court of Appeals;
229          (c) the Judicial Council;
230          (d) a state judicial district; or
231          (e) an office, committee, subcommittee, or other organization within the state judicial
232     branch.
233          [(42)] (43) "Labor hour contract" is a contract under which:
234          (a) the supplies and materials are not provided by, or through, the contractor; and
235          (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
236     profit for a specified number of labor hours or days.
237          [(43)] (44) "Legislative procurement unit" means:
238          (a) the Legislature;
239          (b) the Senate;
240          (c) the House of Representatives;
241          (d) a staff office of the Legislature, the Senate, or the House of Representatives; or
242          (e) a committee, subcommittee, commission, or other organization:
243          (i) within the state legislative branch; or
244          (ii) (A) that is created by statute to advise or make recommendations to the Legislature;
245          (B) the membership of which includes legislators; and
246          (C) for which the Office of Legislative Research and General Counsel provides staff
247     support.
248          [(44)] (45) "Local building authority" means the same as that term is defined in Section
249     17D-2-102.
250          [(45)] (46) "Local district" means the same as that term is defined in Section
251     17B-1-102.
252          [(46)] (47) "Local government procurement unit" means:
253          (a) a county, municipality, or project entity, and each office of the county, municipality,
254     or project entity, unless:
255          (i) the county or municipality adopts a procurement code by ordinance; or
256          (ii) the project entity adopts a procurement code through the process described in
257     Section 11-13-316;
258          (b) (i) a county or municipality that has adopted this entire chapter by ordinance, and
259     each office or agency of that county or municipality; and
260          (ii) a project entity that has adopted this entire chapter through the process described in
261     Subsection 11-13-316; or
262          (c) a county, municipality, or project entity, and each office of the county, municipality,
263     or project entity that has adopted a portion of this chapter to the extent that:
264          (i) a term in the ordinance is used in the adopted chapter; or
265          (ii) a term in the ordinance is used in the language a project entity adopts in its
266     procurement code through the process described in Section 11-13-316.
267          [(47)] (48) "Multiple award contracts" means the award of a contract for an indefinite
268     quantity of a procurement item to more than one person.
269          [(48)] (49) "Multiyear contract" means a contract that extends beyond a one-year
270     period, including a contract that permits renewal of the contract, without competition, beyond
271     the first year of the contract.
272          [(49)] (50) "Municipality" means a city, town, or metro township.
273          [(50)] (51) "Nonadopting local government procurement unit" means:
274          (a) a county or municipality that has not adopted Part 16, Protests, Part 17,
275     Procurement Appeals Board, Part 18, Appeals to Court and Court Proceedings, and Part 19,
276     General Provisions Related to Protest or Appeal; and
277          (b) each office or agency of a county or municipality described in Subsection [(50)(a)]
278     (51)(a).
279          [(51)] (52) "Offeror" means a person who submits a proposal in response to a request
280     for proposals.
281          [(52)] (53) "Preferred bidder" means a bidder that is entitled to receive a reciprocal
282     preference under the requirements of this chapter.
283          [(53)] (54) "Procure" means to acquire a procurement item through a procurement.
284          [(54)] (55) "Procurement" means the acquisition of a procurement item through an
285     expenditure of public funds, or an agreement to expend public funds, including an acquisition
286     through a public-private partnership.
287          [(55)] (56) "Procurement item" means an item of personal property, a technology, a
288     service, or a construction project.
289          [(56)] (57) "Procurement official" means:
290          (a) for a procurement unit other than an independent procurement unit, the chief
291     procurement officer;
292          (b) for a legislative procurement unit, the individual, individuals, or body designated in
293     a policy adopted by the Legislative Management Committee;
294          (c) for a judicial procurement unit, the Judicial Council or an individual or body
295     designated by the Judicial Council by rule;
296          (d) for a local government procurement unit:
297          (i) the legislative body of the local government procurement unit; or
298          (ii) an individual or body designated by the local government procurement unit;
299          (e) for a local district, the board of trustees of the local district or the board of trustees'
300     designee;
301          (f) for a special service district, the governing body of the special service district or the
302     governing body's designee;
303          (g) for a local building authority, the board of directors of the local building authority
304     or the board of directors' designee;
305          (h) for a conservation district, the board of supervisors of the conservation district or
306     the board of supervisors' designee;
307          (i) for a public corporation, the board of directors of the public corporation or the board
308     of directors' designee;
309          (j) for a school district or any school or entity within a school district, the board of the
310     school district or the board's designee;
311          (k) for a charter school, the individual or body with executive authority over the charter
312     school or the designee of the individual or body;
313          (l) for an institution of higher education described in Section 53B-2-101, the president
314     of the institution of higher education or the president's designee;
315          (m) for the State Board of Education, the State Board of Education or the State Board
316     of Education's designee;
317          (n) for the Utah Board of Higher Education, the Commissioner of Higher Education or
318     the designee of the Commissioner of Higher Education;
319          (o) for the Utah Communications Authority, established in Section 63H-7a-201, the
320     executive director of the Utah Communications Authority or the executive director's designee;
321     or
322          (p) (i) for the facilities division, and only to the extent of procurement activities of the
323     facilities division as an independent procurement unit under the procurement authority
324     provided under Title 63A, Chapter 5b, Administration of State Facilities, the director of the
325     facilities division or the director's designee;
326          (ii) for the attorney general, and only to the extent of procurement activities of the
327     attorney general as an independent procurement unit under the procurement authority provided
328     under Title 67, Chapter 5, Attorney General, the attorney general or the attorney general's
329     designee;
330          (iii) for the Department of Transportation created in Section 72-1-201, and only to the
331     extent of procurement activities of the Department of Transportation as an independent
332     procurement unit under the procurement authority provided under Title 72, Transportation
333     Code, the executive director of the Department of Transportation or the executive director's
334     designee; or
335          (iv) for any other executive branch department, division, office, or entity that has
336     statutory procurement authority outside this chapter, and only to the extent of the procurement
337     activities of the department, division, office, or entity as an independent procurement unit
338     under the procurement authority provided outside this chapter for the department, division,
339     office, or entity, the chief executive officer of the department, division, office, or entity or the
340     chief executive officer's designee.
341          [(57)] (58) "Procurement unit":
342          (a) means:
343          (i) a legislative procurement unit;
344          (ii) an executive branch procurement unit;
345          (iii) a judicial procurement unit;
346          (iv) an educational procurement unit;
347          (v) the Utah Communications Authority, established in Section 63H-7a-201;
348          (vi) a local government procurement unit;
349          (vii) a local district;
350          (viii) a special service district;
351          (ix) a local building authority;
352          (x) a conservation district; and
353          (xi) a public corporation; and
354          (b) except for a project entity, to the extent that a project entity is subject to this chapter
355     as described in Section 11-13-316, does not include a political subdivision created under Title
356     11, Chapter 13, Interlocal Cooperation Act.
357          [(58)] (59) "Professional service" means labor, effort, or work that requires specialized
358     knowledge, expertise, and discretion, including labor, effort, or work in the field of:
359          (a) accounting;
360          (b) administrative law judge service;
361          (c) architecture;
362          (d) construction design and management;
363          (e) engineering;
364          (f) financial services;
365          (g) information technology;
366          (h) the law;
367          (i) medicine;
368          (j) psychiatry; or
369          (k) underwriting.
370          [(59)] (60) "Protest officer" means:
371          (a) for the division or an independent procurement unit:
372          (i) the procurement official;
373          (ii) the procurement official's designee who is an employee of the procurement unit; or
374          (iii) a person designated by rule made by the rulemaking authority; or
375          (b) for a procurement unit other than an independent procurement unit, the chief
376     procurement officer or the chief procurement officer's designee who is an employee of the
377     division .
378          [(60)] (61) "Public corporation" means the same as that term is defined in Section
379     63E-1-102.
380          [(61)] (62) "Project entity" means the same as that term is defined in Section
381     11-13-103.
382          [(62)] (63) "Public entity" means the state or any other government entity within the
383     state that expends public funds.
384          [(63)] (64) "Public facility" means a building, structure, infrastructure, improvement,
385     or other facility of a public entity.
386          [(64)] (65) "Public funds" means money, regardless of its source, including from the
387     federal government, that is owned or held by a procurement unit.
388          [(65)] (66) "Public transit district" means a public transit district organized under Title
389     17B, Chapter 2a, Part 8, Public Transit District Act.
390          [(66)] (67) "Public-private partnership" means an arrangement or agreement, occurring
391     on or after January 1, 2017, between a procurement unit and one or more contractors to provide
392     for a public need through the development or operation of a project in which the contractor or
393     contractors share with the procurement unit the responsibility or risk of developing, owning,
394     maintaining, financing, or operating the project.
395          [(67)] (68) "Qualified vendor" means a vendor who:
396          (a) is responsible; and
397          (b) submits a responsive statement of qualifications under Section 63G-6a-410 that
398     meets the minimum mandatory requirements, evaluation criteria, and any applicable score
399     thresholds set forth in the request for statement of qualifications.
400          [(68)] (69) "Real property" means land and any building, fixture, improvement,
401     appurtenance, structure, or other development that is permanently affixed to land.
402          [(69)] (70) "Request for information" means a nonbinding process through which a
403     procurement unit requests information relating to a procurement item.
404          [(70)] (71) "Request for proposals" means a document used to solicit proposals to
405     provide a procurement item to a procurement unit, including all other documents that are
406     attached to that document or incorporated in that document by reference.
407          [(71)] (72) "Request for proposals process" means the procurement process described
408     in Part 7, Request for Proposals.
409          [(72)] (73) "Request for statement of qualifications" means a document used to solicit
410     information about the qualifications of a person interested in responding to a potential
411     procurement, including all other documents attached to that document or incorporated in that
412     document by reference.
413          [(73)] (74) "Requirements contract" means a contract:
414          (a) under which a contractor agrees to provide a procurement unit's entire requirements
415     for certain procurement items at prices specified in the contract during the contract period; and
416          (b) that:
417          (i) does not require a minimum purchase amount; or
418          (ii) provides a maximum purchase limit.
419          [(74)] (75) "Responsible" means being capable, in all respects, of:
420          (a) meeting all the requirements of a solicitation; and
421          (b) fully performing all the requirements of the contract resulting from the solicitation,
422     including being financially solvent with sufficient financial resources to perform the contract.
423          [(75)] (76) "Responsive" means conforming in all material respects to the requirements
424     of a solicitation.
425          [(76)] (77) "Rule" includes a policy or regulation adopted by the rulemaking authority,
426     if adopting a policy or regulation is the method the rulemaking authority uses to adopt
427     provisions that govern the applicable procurement unit.
428          [(77)] (78) "Rulemaking authority" means:
429          (a) for a legislative procurement unit, the Legislative Management Committee;
430          (b) for a judicial procurement unit, the Judicial Council;
431          (c) (i) only to the extent of the procurement authority expressly granted to the
432     procurement unit by statute:
433          (A) for the facilities division, the facilities division;
434          (B) for the Office of the Attorney General, the attorney general;
435          (C) for the Department of Transportation created in Section 72-1-201, the executive
436     director of the Department of Transportation; and
437          (D) for any other executive branch department, division, office, or entity that has
438     statutory procurement authority outside this chapter, the governing authority of the department,
439     division, office, or entity; and
440          (ii) for each other executive branch procurement unit, the board;
441          (d) for a local government procurement unit:
442          (i) the governing body of the local government unit; or
443          (ii) an individual or body designated by the local government procurement unit;
444          (e) for a school district or a public school, the board, except to the extent of a school
445     district's own nonadministrative rules that do not conflict with the provisions of this chapter;
446          (f) for a state institution of higher education, the Utah Board of Higher Education;
447          (g) for the State Board of Education or the Utah Schools for the Deaf and the Blind, the
448     State Board of Education;
449          (h) for a public transit district, the chief executive of the public transit district;
450          (i) for a local district other than a public transit district or for a special service district,
451     the board, except to the extent that the board of trustees of the local district or the governing
452     body of the special service district makes its own rules:
453          (i) with respect to a subject addressed by board rules; or
454          (ii) that are in addition to board rules;
455          (j) for the Utah Educational Savings Plan, created in Section 53B-8a-103, the Utah
456     Board of Higher Education;
457          (k) for the School and Institutional Trust Lands Administration, created in Section
458     53C-1-201, the School and Institutional Trust Lands Board of Trustees;
459          (l) for the School and Institutional Trust Fund Office, created in Section 53D-1-201,
460     the School and Institutional Trust Fund Board of Trustees;
461          (m) for the Utah Communications Authority, established in Section 63H-7a-201, the
462     Utah Communications Authority board, created in Section 63H-7a-203; or
463          (n) for any other procurement unit, the board.
464          [(78)] (79) "Service":
465          (a) means labor, effort, or work to produce a result that is beneficial to a procurement
466     unit;
467          (b) includes a professional service; and
468          (c) does not include labor, effort, or work provided under an employment agreement or
469     a collective bargaining agreement.
470          [(79)] (80) "Small purchase process" means the procurement process described in
471     Section 63G-6a-506.
472          [(80)] (81) "Sole source contract" means a contract resulting from a sole source
473     procurement.
474          [(81)] (82) "Sole source procurement" means a procurement without competition
475     pursuant to a determination under Subsection 63G-6a-802(1)(a) that there is only one source
476     for the procurement item.
477          [(82)] (83) "Solicitation" means an invitation for bids, request for proposals, or request
478     for statement of qualifications.
479          [(83)] (84) "Solicitation response" means:
480          (a) a bid submitted in response to an invitation for bids;
481          (b) a proposal submitted in response to a request for proposals; or
482          (c) a statement of qualifications submitted in response to a request for statement of
483     qualifications.
484          [(84)] (85) "Special service district" means the same as that term is defined in Section
485     17D-1-102.
486          [(85)] (86) "Specification" means any description of the physical or functional
487     characteristics or of the nature of a procurement item included in an invitation for bids or a
488     request for proposals, or otherwise specified or agreed to by a procurement unit, including a
489     description of:
490          (a) a requirement for inspecting or testing a procurement item; or
491          (b) preparing a procurement item for delivery.
492          [(86)] (87) "Standard procurement process" means:
493          (a) the bidding process;
494          (b) the request for proposals process;
495          (c) the approved vendor list process;
496          (d) the small purchase process; or
497          (e) the design professional procurement process.
498          [(87)] (88) "State cooperative contract" means a contract awarded by the division for
499     and in behalf of all public entities.
500          [(88)] (89) "Statement of qualifications" means a written statement submitted to a
501     procurement unit in response to a request for statement of qualifications.
502          [(89)] (90) "Subcontractor":
503          (a) means a person under contract to perform part of a contractual obligation under the
504     control of the contractor, whether the person's contract is with the contractor directly or with
505     another person who is under contract to perform part of a contractual obligation under the
506     control of the contractor; and
507          (b) includes a supplier, distributor, or other vendor that furnishes supplies or services
508     to a contractor.
509          [(90)] (91) "Technology" means the same as "information technology," as defined in
510     Section 63A-16-102.
511          [(91)] (92) "Tie bid" means that the lowest responsive bids of responsible bidders are
512     identical in price.
513          [(92)] (93) "Time and materials contract" means a contract under which the contractor
514     is paid:
515          (a) the actual cost of direct labor at specified hourly rates;
516          (b) the actual cost of materials and equipment usage; and
517          (c) an additional amount, expressly described in the contract, to cover overhead and
518     profit, that is not based on a percentage of the cost to the contractor.
519          [(93)] (94) "Transitional costs":
520          (a) means the costs of changing:
521          (i) from an existing provider of a procurement item to another provider of that
522     procurement item; or
523          (ii) from an existing type of procurement item to another type;
524          (b) includes:
525          (i) training costs;
526          (ii) conversion costs;
527          (iii) compatibility costs;
528          (iv) costs associated with system downtime;
529          (v) disruption of service costs;
530          (vi) staff time necessary to implement the change;
531          (vii) installation costs; and
532          (viii) ancillary software, hardware, equipment, or construction costs; and
533          (c) does not include:
534          (i) the costs of preparing for or engaging in a procurement process; or
535          (ii) contract negotiation or drafting costs.
536          [(94)] (95) "Vendor":
537          (a) means a person who is seeking to enter into a contract with a procurement unit to
538     provide a procurement item; and
539          (b) includes:
540          (i) a bidder;
541          (ii) an offeror;
542          (iii) an approved vendor;
543          (iv) a design professional; and
544          (v) a person who submits an unsolicited proposal under Section 63G-6a-712.
545          Section 2. Section 63G-6a-109 is amended to read:
546          63G-6a-109. Issuing procurement unit and conducting procurement unit.
547          (1) With respect to a procurement by an executive branch procurement unit, except for
548     a procurement by an executive branch procurement unit that, under Subsection
549     [63G-6a-103(38)(b)] 63G-6a-103(39)(b), (c), (d), or (e), is designated as an independent
550     procurement unit:
551          (a) the division is the issuing procurement unit; and
552          (b) the executive branch procurement unit is the conducting procurement unit and is
553     responsible to ensure that the procurement is conducted in compliance with this chapter.
554          (2) With respect to a procurement by any other procurement unit, the procurement unit
555     is both the issuing procurement unit and the conducting procurement unit.
556          (3) A conducting procurement unit is responsible for contract administration.
557          Section 3. Section 63G-6a-303 is amended to read:
558          63G-6a-303. Role, duties, and authority of chief procurement officer.
559          (1) The chief procurement officer:
560          (a) is the director of the division;
561          (b) serves as the central procurement officer of the state;
562          (c) serves as a voting member of the board; and
563          (d) serves as the protest officer for a protest relating to a procurement of an executive
564     branch procurement, except an executive branch procurement unit designated under Subsection
565     [63G-6a-103(38)(b)] 63G-6a-103(39)(b), (c), (d), or (e) as an independent procurement unit, or
566     a state cooperative contract procurement, unless the chief procurement officer designates
567     another to serve as protest officer, as authorized in this chapter.
568          (2) Except as otherwise provided in this chapter, the chief procurement officer shall:
569          (a) develop procurement policies and procedures supporting ethical procurement
570     practices, fair and open competition among vendors, and transparency within the state's
571     procurement process;
572          (b) administer the state's cooperative purchasing program, including state cooperative
573     contracts and associated administrative fees;
574          (c) enter into an agreement with a public entity for services provided by the division, if
575     the agreement is in the best interest of the state;
576          (d) ensure the division's compliance with any applicable law, rule, or policy, including
577     a law, rule, or policy applicable to the division's role as an issuing procurement unit or
578     conducting procurement unit, or as the state's central procurement organization;
579          (e) manage the division's electronic procurement system;
580          (f) oversee the recruitment, training, career development, certification requirements,
581     and performance evaluation of the division's procurement personnel;
582          (g) make procurement training available to procurement units and persons who do
583     business with procurement units;
584          (h) provide exemplary customer service and continually improve the division's
585     procurement operations;
586          (i) exercise all other authority, fulfill all other duties and responsibilities, and perform
587     all other functions authorized under this chapter; and
588          (j) ensure that any training described in this Subsection (2) complies with Title 63G,
589     Chapter 22, State Training and Certification Requirements.
590          (3) With respect to a procurement or contract over which the chief procurement officer
591     has authority under this chapter, the chief procurement officer, except as otherwise provided in
592     this chapter:
593          (a) shall:
594          (i) manage and supervise a procurement to ensure to the extent practicable that
595     taxpayers receive the best value;
596          (ii) prepare and issue standard specifications for procurement items;
597          (iii) review contracts, coordinate contract compliance, conduct contract audits, and
598     approve change orders;
599          (iv) in accordance with Section 63A-16-204, coordinate with the Division of
600     Technology Services, created in Section 63A-16-103, with respect to the procurement of
601     information technology services by an executive branch procurement unit;
602          (v) correct, amend, or cancel a procurement at any stage of the procurement process if
603     the procurement is out of compliance with this chapter or a board rule;
604          (vi) after consultation with the attorney general's office, correct, amend, or cancel a
605     contract at any time during the term of the contract if:
606          (A) the contract is out of compliance with this chapter or a board rule; and
607          (B) the chief procurement officer determines that correcting, amending, or canceling
608     the contract is in the best interest of the state; and
609          (vii) make a reasonable attempt to resolve a contract dispute, in coordination with the
610     attorney general's office; and
611          (b) may:
612          (i) delegate limited purchasing authority to a state agency, with appropriate oversight
613     and control to ensure compliance with this chapter;
614          (ii) delegate duties and authority to an employee of the division, as the chief
615     procurement officer considers appropriate;
616          (iii) negotiate and settle contract overcharges, undercharges, and claims, in accordance
617     with the law and after consultation with the attorney general's office;
618          (iv) authorize a procurement unit to make a procurement pursuant to a regional
619     solicitation, as defined in Subsection 63G-6a-2105(7), even if the procurement item is also
620     offered under a state cooperative contract, if the chief procurement officer determines that the
621     procurement pursuant to a regional solicitation is in the best interest of the acquiring
622     procurement unit; and
623          (v) remove an individual from the procurement process or contract administration for:
624          (A) having a conflict of interest or the appearance of a conflict of interest with a person
625     responding to a solicitation or with a contractor;
626          (B) having a bias or the appearance of bias for or against a person responding to a
627     solicitation or for or against a contractor;
628          (C) making an inconsistent or unexplainable score for a solicitation response;
629          (D) having inappropriate contact or communication with a person responding to a
630     solicitation;
631          (E) socializing inappropriately with a person responding to a solicitation or with a
632     contractor;
633          (F) engaging in any other action or having any other association that causes the chief
634     procurement officer to conclude that the individual cannot fairly evaluate a solicitation
635     response or administer a contract; or
636          (G) any other violation of a law, rule, or policy.
637          (4) The chief procurement officer may not delegate to an individual outside the
638     division the chief procurement officer's authority over a procurement described in Subsection
639     (3)(a)(iv).
640          (5) The chief procurement officer has final authority to determine whether an executive
641     branch procurement unit's anticipated expenditure of public funds, anticipated agreement to
642     expend public funds, or provision of a benefit constitutes a procurement that is subject to this
643     chapter.
644          (6) Except as otherwise provided in this chapter, the chief procurement officer shall
645     review, monitor, and audit the procurement activities and delegated procurement authority of
646     an executive branch procurement unit, except to the extent that an executive branch
647     procurement unit is designated under Subsection [63G-6a-103(38)(b)] 63G-6a-103(39)(b), (c),
648     (d), or (e) as an independent procurement unit, to ensure compliance with this chapter, rules
649     made by the applicable rulemaking authority, and division policies.
650          Section 4. Section 63G-6a-1211 is enacted to read:
651          63G-6a-1211. Procurement of electronic library materials.
652          (1) A procurement unit that operates a library may not enter into a contract for
653     electronic library materials if the contract:
654          (a) prohibits or restricts the procurement unit from licensing the procurement unit's
655     own materials;
656          (b) prohibits the procurement unit from loaning materials to a borrower;
657          (c) restricts a borrower from using technological protection measures when accessing
658     the electronic library materials;
659          (d) prevents the procurement unit from digitally displaying or reciting text from the
660     electronic library materials if allowed for a display or reciting of text in a library building;
661          (e) restricts the number of licenses the procurement unit may acquire after the
662     procurement unit makes the electronic library materials available to the public;
663          (f) requires the procurement unit to purchase a license for electronic library materials at
664     a higher price than the price available to the public;
665          (g) prohibits the procurement unit from setting the duration or frequency of an
666     electronic library materials loan; or
667          (h) prohibits the procurement unit from disclosing the terms of the contract to another
668     procurement unit.
669          (2) A contract provision that violates this section is unenforceable.