Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 409 First Substitute (2015GS)

Sponsor

Rep. Snow, V. L.

Final action

Governor Signed 3/26/2015

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• modifies provisions relating to the procurement of the services of an architect or engineer;
• authorizes the head of a procurement unit with independent procurement authority to address a procurement or contract that is out of compliance;
• modifies a provision relating to exemptions from the procurement code;
• modifies a provision relating to thresholds for small purchases;
• modifies a provision relating to a multiple stage bidding process;
• enacts a provision relating to changes in contract price;
• modifies procurement appeal provisions relating to local government procurement units; and
• modifies provisions relating to the forfeiture of a security deposit or bond.

Every vote on this bill

Bill text

AMENDMENTS TO THE PROCUREMENT CODE
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: V. Lowry Snow
Senate Sponsor: 
Ralph Okerlund
LONG TITLE
General Description:
This bill modifies the Utah Procurement Code.
Highlighted Provisions:
This bill:
▸ modifies provisions relating to the procurement of the services of an architect or
engineer;
▸ authorizes the head of a procurement unit with independent procurement authority
to address a procurement or contract that is out of compliance;
▸ modifies a provision relating to exemptions from the procurement code;
▸ modifies a provision relating to thresholds for small purchases;
▸ modifies a provision relating to a multiple stage bidding process;
▸ enacts a provision relating to changes in contract price;
▸ modifies procurement appeal provisions relating to local government procurement
units; and
▸ modifies provisions relating to the forfeiture of a security deposit or bond.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
17B-1-108
, as last amended by Laws of Utah 2012, Chapter 347
63G-6a-103
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-104
, as last amended by Laws of Utah 2014, Chapters 63 and 196
63G-6a-105
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-106
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-107
, as last amended by Laws of Utah 2014, Chapters 180, 196, and 313
63G-6a-204
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-303
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-402
, as last amended by Laws of Utah 2014, Chapters 179 and 196
63G-6a-408
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-609
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-707
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1203
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-1501
, as enacted by Laws of Utah 2012, Chapter 347
63G-6a-1502
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1503
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1504
, as renumbered and amended by Laws of Utah 2012, Chapter 347
63G-6a-1505
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1506
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-1603
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1702
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1703
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1802
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1903
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1904
, as last amended by Laws of Utah 2014, Chapter 196
ENACTS:
63G-6a-1206.5
, Utah Code Annotated 1953
63G-6a-1502.5
, Utah Code Annotated 1953
63G-6a-1503.5
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
17B-1-108
 is amended to read:
17B-1-108.
Provisions applicable to the procurement of design professional
services.
(1) As used in this section[
:
]
, "design professional services" means the same as that
term is defined in Section 
63G-6a-103
.
[
(a) "Architect-engineer services" means those professional services within the scope
of the practice of architecture as defined in Section 
58-3a-102
.
]
[
(b) "Engineer services" means those professional services within the scope of the
practice of professional engineering as defined in Section 
58-22-102
.
]
[
(2) When a local district elects to obtain architect services or engineering services by
using a competitive procurement process and has provided public notice of its competitive
procurement process:
]
[
(a) a higher education entity, or any part of one, may not submit a proposal in response
to the local district's competitive procurement process; and
]
[
(b) the local district may not award a contract to perform the architect services or
engineering services solicited in the competitive procurement process to a higher education
entity or any part of one.
]
[
(3) Notwithstanding Subsection 
63G-6a-105
(3), each local district board that engages
the services of a professional architect, engineer, or surveyor and considers more than one such
professional for the engagement:
]
[
(a) shall consider, as a minimum, in the selection process:
]
[
(i) the qualifications, experience, and background of each firm submitting a proposal;
]
[
(ii) the specific individuals assigned to the project and the time commitments of each
to the project; and
]
[
(iii) the project schedule and the approach to the project that the firm will take; and
]
[
(b) may engage the services of a professional architect, engineer, or surveyor based on
the criteria under Subsection (3)(a) rather than solely on lowest cost.
]
(2) The procurement of design professional services is governed by Title 63G, Chapter
6a, Part 15, Design Professional Services.
Section 2. Section 
63G-6a-103
 is amended to read:
63G-6a-103.
Definitions.
As used in this chapter:
[
(1) "Architect-engineer services" means:
]
[
(a) professional services within the scope of the practice of architecture as defined in
Section 
58-3a-102
;
]
[
(b) professional engineering as defined in Section 
58-22-102
; or
]
[
(c) master planning and programming services.
]
[
(2)
] 
(1)
 "Bidder" means a person who responds to an invitation for bids.
[
(3)
] 
(2)
 "Change directive" means a written order signed by the procurement officer
that directs the contractor to suspend work or make changes, as authorized by contract, without
the consent of the contractor.
[
(4)
] 
(3)
 "Change order" means a written alteration in specifications, delivery point,
rate of delivery, period of performance, price, quantity, or other provisions of a contract, upon
mutual agreement of the parties to the contract.
[
(5)
] 
(4)
 "Chief procurement officer" means the chief procurement officer appointed
under Subsection 
63G-6a-302
(1).
[
(6)
] 
(5)
 "Conducting procurement unit" means a procurement unit that conducts all
aspects of a procurement:
(a) except:
(i) reviewing a solicitation to verify that it is in proper form; and
(ii) causing the publication of a notice of a solicitation; and
(b) including:
(i) preparing any solicitation document;
(ii) appointing an evaluation committee;
(iii) conducting the evaluation process, except as provided in Subsection
63G-6a-707
(5)(b) relating to scores calculated for costs of proposals;
(iv) selecting and recommending the person to be awarded a contract;
(v) negotiating the terms and conditions of a contract, subject to the issuing
procurement unit's approval; and
(vi) administering a contract.
[
(7)
] 
(6)
 (a) "Construction" means the process of building, renovating, altering,
improving, or repairing a public building or public work.
(b) "Construction" does not include the routine operation, routine repair, or routine
maintenance of an existing structure, building, or real property.
[
(8)
] 
(7)
 (a) "Construction manager/general contractor" means a contractor who enters
into a contract for the management of a construction project when the contract allows the
contractor to subcontract for additional labor and materials that are not included in the
contractor's cost proposal submitted at the time of the procurement of the contractor's services.
(b) "Construction manager/general contractor" does not include a contractor whose
only subcontract work not included in the contractor's cost proposal submitted as part of the
procurement of the contractor's services is to meet subcontracted portions of change orders
approved within the scope of the project.
[
(9)
] 
(8)
 "Contract" means an agreement for the procurement or disposal of a
procurement item.
[
(10)
] 
(9)
 "Contractor" means a person who is awarded a contract with a procurement
unit.
[
(11)
] 
(10)
 "Cooperative procurement" means procurement conducted by, or on behalf
of:
(a) more than one procurement unit; or
(b) a procurement unit and a cooperative purchasing organization.
[
(12)
] 
(11)
 "Cost-plus-a-percentage-of-cost contract" means a contract where the
contractor is paid a percentage over and above the contractor's actual expenses or costs.
[
(13)
] 
(12)
 "Cost-reimbursement contract" means a contract under which a contractor
is reimbursed for costs which are allowed and allocated in accordance with the contract terms
and the provisions of this chapter, and a fee, if any.
[
(14)
] 
(13)
 "Days" means calendar days, unless expressly provided otherwise.
[
(15)
] 
(14)
 "Definite quantity contract" means a fixed price contract that provides for
the supply of a specified amount of goods over a specified period, with deliveries scheduled
according to a specified schedule.
[
(16)
] 
(15)
 "Design-build" means the procurement of [
architect-engineer
] 
design
professional
 services and construction by the use of a single contract with the design-build
provider.
(16) "Design professional" means:
(a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
Licensing Act; or
(b) an individual licensed as a professional engineer or professional land surveyor
under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing
Act.
(17) "Design professional services" means:
(a) professional services within the scope of the practice of architecture as defined in
Section 
58-3a-102
;
(b) professional engineering as defined in Section 
58-22-102
; or
(c) master planning and programming services.
[
(17)
] 
(18)
 "Director" means the director of the division.
[
(18)
] 
(19)
 "Established catalogue price" means the price included in a catalogue, price
list, schedule, or other form that:
(a) is regularly maintained by a manufacturer or contractor;
(b) is either published or otherwise available for inspection by customers; and
(c) states prices at which sales are currently or were last made to a significant number
of any category of buyers or buyers constituting the general buying public for the supplies or
services involved.
[
(19)
] 
(20)
 "Fixed price contract" means a contract that provides a price, for each
procurement item obtained under the contract, that is not subject to adjustment except to the
extent that:
(a) the contract provides, under circumstances specified in the contract, for an
adjustment in price that is not based on cost to the contractor; or
(b) an adjustment is required by law.
[
(20)
] 
(21)
 "Fixed price contract with price adjustment" means a fixed price contract
that provides for an upward or downward revision of price, precisely described in the contract,
that:
(a) is based on the consumer price index or another commercially acceptable index,
source, or formula; and
(b) is not based on a percentage of the cost to the contractor.
[
(21)
] 
(22)
 (a) "Grant" means furnishing, by a public entity or by any other public or
private source, financial or other assistance to a person to support a program authorized by law.
(b) "Grant" does not include:
(i) an award whose primary purpose is to procure an end product or procurement item;
or
(ii) a contract that is awarded as a result of a procurement or a procurement process.
[
(22)
] 
(23)
 "Head of a procurement unit" means:
(a) as it relates to a legislative procurement unit, any person designated by rule made
by the applicable rulemaking authority;
(b) as it relates to an executive branch procurement unit:
(i) the director of a division; or
(ii) any other person designated by the board, by rule;
(c) as it relates to a judicial procurement unit:
(i) the Judicial Council; or
(ii) any other person designated by the Judicial Council, by rule;
(d) as it relates to a local government procurement unit:
(i) the legislative body of the local government procurement unit; or
(ii) any other person designated by the local government procurement unit;
(e) as it relates to a local district, the board of trustees of the local district or a designee
of the board of trustees;
(f) as it relates to a special service district, the governing body of the special service
district or a designee of the governing body;
(g) as it relates to a local building authority, the board of directors of the local building
authority or a designee of the board of directors;
(h) as it relates to a conservation district, the board of supervisors of the conservation
district or a designee of the board of supervisors;
(i) as it relates to a public corporation, the board of directors of the public corporation
or a designee of the board of directors;
(j) as it relates to a school district or any school or entity within a school district, the
board of the school district, or the board's designee;
(k) as it relates to a charter school, the individual or body with executive authority over
the charter school, or the individual's or body's designee;
(l) as it relates to an institution of higher education of the state, the president of the
institution of higher education, or the president's designee; or
(m) as it relates to a public transit district, the board of trustees or a designee of the
board of trustees.
[
(23)
] 
(24)
 "Indefinite quantity contract" means a fixed price contract that:
(a) is for an indefinite amount of procurement items to be supplied as ordered by a
procurement unit; and
(b) (i) does not require a minimum purchase amount; or
(ii) provides a maximum purchase limit.
[
(24)
] 
(25)
 "Independent procurement authority" means authority granted to a
procurement unit under Subsection 
63G-6a-106
(4)(a).
[
(25)
] 
(26)
 "Invitation for bids" includes all documents, including documents that are
attached or incorporated by reference, used for soliciting bids to provide a procurement item to
a procurement unit.
[
(26)
] 
(27)
 "Issuing procurement unit" means a procurement unit that:
(a) reviews a solicitation to verify that it is in proper form;
(b) causes the notice of a solicitation to be published; and
(c) negotiates the terms and conditions of a contract.
[
(27)
] 
(28)
 "Labor hour contract" is a contract where:
(a) the supplies and materials are not provided by, or through, the contractor; and
(b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
profit for a specified number of labor hours or days.
[
(28)
] 
(29)
 "Multiple award contracts" means the award of a contract for an indefinite
quantity of a procurement item to more than one bidder or offeror.
[
(29)
] 
(30)
 "Multiyear contract" means a contract that extends beyond a one-year
period, including a contract that permits renewal of the contract, without competition, beyond
the first year of the contract.
[
(30)
] 
(31)
 "Municipality" means a city or a town.
[
(31)
] 
(32)
 "Offeror" means a person who responds to a request for proposals.
[
(32)
] 
(33)
 "Preferred bidder" means a bidder that is entitled to receive a reciprocal
preference under the requirements of this chapter.
[
(33)
] 
(34)
 (a) "Procure" or "procurement" means buying, purchasing, renting, leasing,
leasing with an option to purchase, or otherwise acquiring a procurement item.
(b) "Procure" or "procurement" includes all functions that pertain to the obtaining of a
procurement item, including:
(i) the description of requirements;
(ii) the selection process;
(iii) solicitation of sources;
(iv) the preparation for soliciting a procurement item; and
(v) the award of a contract.
[
(34)
] 
(35)
 "Procurement item" means a supply, a service, construction, or technology.
[
(35)
] 
(36)
 "Procurement officer" means:
(a) as it relates to a procurement unit with independent procurement authority:
(i) the head of the procurement unit;
(ii) a designee of the head of the procurement unit; or
(iii) a person designated by rule made by the applicable rulemaking authority; or
(b) as it relates to the division or a procurement unit without independent procurement
authority, the chief procurement officer.
[
(36)
] 
(37)
 "Professional service" means a service that requires a high degree of
specialized knowledge and discretion in the performance of the service, including:
(a) legal services;
(b) consultation services;
(c) architectural services;
(d) engineering;
(e) design;
(f) underwriting;
(g) bond counsel;
(h) financial advice;
(i) construction management;
(j) medical services;
(k) psychiatric services; or
(l) counseling services.
[
(37)
] 
(38)
 "Protest officer" means:
(a) as it relates to the division or a procurement unit with independent procurement
authority:
(i) the head of the procurement unit;
(ii) a designee of the head of the procurement unit; or
(iii) a person designated by rule made by the applicable rulemaking authority; or
(b) as it relates to a procurement unit without independent procurement authority, the
chief procurement officer or the chief procurement officer's designee.
[
(38)
] 
(39)
 "Request for information" means a nonbinding process where a
procurement unit requests information relating to a procurement item.
[
(39)
] 
(40)
 "Request for proposals" includes all documents, including documents that
are attached or incorporated by reference, used for soliciting proposals to provide a
procurement item to a procurement unit.
[
(40)
] 
(41)
 "Request for statement of qualifications" means all documents used to
solicit information about the qualifications of the person interested in responding to a potential
procurement, including documents attached or incorporated by reference.
[
(41)
] 
(42)
 "Requirements contract" means a contract:
(a) where a contractor agrees to provide a procurement unit's entire requirements for
certain procurement items at prices specified in the contract during the contract period; and
(b) that:
(i) does not require a minimum purchase amount; or
(ii) provides a maximum purchase limit.
[
(42)
] 
(43)
 "Responsible" means being capable, in all respects, of:
(a) meeting all the requirements of a solicitation; and
(b) fully performing all the requirements of the contract resulting from the solicitation,
including being financially solvent with sufficient financial resources to perform the contract.
[
(43)
] 
(44)
 "Responsive" means conforming in all material respects to the invitation for
bids or request for proposals.
[
(44)
] 
(45)
 "Sealed" means manually or electronically sealed and submitted bids or
proposals.
[
(45)
] 
(46)
 (a) "Services" means the furnishing of labor, time, or effort by a contractor,
not involving the delivery of a specific end product other than a report that is incidental to the
required performance.
(b) "Services" does not include an employment agreement or a collective bargaining
agreement.
[
(46)
] 
(47)
 "Sole source contract" means a contract resulting from a sole source
procurement.
[
(47)
] 
(48)
 "Sole source procurement" means a procurement without competition
pursuant to a determination under Subsection 
63G-6a-802
(2)(a) that there is only one source
for the procurement item.
[
(48)
] 
(49)
 "Solicitation" means an invitation for bids, request for proposals, notice of a
sole source procurement, request for statement of qualifications, request for information, or any
document used to obtain bids, proposals, pricing, qualifications, or information for the purpose
of entering into a procurement contract.
[
(49)
] 
(50)
 "Specification" means any description of the physical or functional
characteristics, or nature of a procurement item included in an invitation for bids or a request
for proposals, or otherwise specified or agreed to by a procurement unit, including a description
of:
(a) a requirement for inspecting or testing a procurement item; or
(b) preparing a procurement item for delivery.
[
(50)
] 
(51)
 "Standard procurement process" means one of the following methods of
obtaining a procurement item:
(a) bidding, as described in Part 6, Bidding;
(b) request for proposals, as described in Part 7, Request for Proposals; or
(c) small purchases, in accordance with the requirements established under Section
63G-6a-408
.
[
(51)
] 
(52)
 "State cooperative contract" means a contract awarded by the division for
and in behalf of all public entities.
[
(52)
] 
(53)
 "Statement of qualifications" means a written statement submitted to a
procurement unit in response to a request for statement of qualifications.
[
(53)
] 
(54)
 (a) "Subcontractor" means a person under contract with a contractor or
another subcontractor to provide services or labor for design or construction.
(b) "Subcontractor" includes a trade contractor or specialty contractor.
(c) "Subcontractor" does not include a supplier who provides only materials,
equipment, or supplies to a contractor or subcontractor.
[
(54)
] 
(55)
 "Supplies" means all property, including equipment, materials, and printing.
[
(55)
] 
(56)
 "Tie bid" means that the lowest responsive and responsible bids are
identical in price.
[
(56)
] 
(57)
 "Time and materials contract" means a contract where the contractor is
paid:
(a) the actual cost of direct labor at specified hourly rates;
(b) the actual cost of materials and equipment usage; and
(c) an additional amount, expressly described in the contract, to cover overhead and
profit, that is not based on a percentage of the cost to the contractor.
Section 3. Section 
63G-6a-104
 is amended to read:
63G-6a-104.
Definitions relating to governmental bodies.
As used in this chapter:
(1) "Applicable rulemaking authority" means:
(a) as it relates to a legislative procurement unit, the Legislative Management
Committee, which shall adopt a policy establishing requirements applicable to a legislative
procurement unit;
(b) as it relates to a judicial procurement unit, the Judicial Council;
(c) as it relates to an executive branch procurement unit, except to the extent provided
in Subsections (1)(d) through (g), the board;
(d) as it relates to the State Building Board, created in Section 
63A-5-101
, the State
Building Board, but only to the extent that the rules relate to procurement authority expressly
granted to the State Building Board by statute;
(e) as it relates to the Division of Facilities Construction and Management, created in
Section 
63A-5-201
, the director of the Division of Facilities Construction and Management,
but only to the extent that the rules relate to procurement authority expressly granted to the
Division of Facilities Construction and Management by statute;
(f) as it relates to the Office of the Attorney General, the attorney general, but only to
the extent that the rules relate to procurement authority expressly granted to the attorney
general by statute;
(g) as it relates to the Department of Transportation, created in Section 
72-1-201
, the
executive director of the Department of Transportation, but only to the extent that the rules
relate to procurement authority expressly granted to the Department of Transportation by
statute;
(h) as it relates to a local government procurement unit, the legislative body of the local
government procurement unit, not as a delegation of authority from the Legislature, but under
the local government procurement unit's own legislative authority;
(i) as it relates to a school district or a public school, the Utah State Procurement Policy
Board, except to the extent that a school district makes its own nonadministrative rules, with
respect to a particular subject, that do not conflict with the provisions of this chapter;
(j) as it relates to a state institution of higher education, the State Board of Regents;
(k) as it relates to a public transit district, the chief executive of the public transit
district;
(l) as it relates to a local district or a special service district:
(i) before January 1, 2015, the board of trustees of the local district or the governing
body of the special service district; or
(ii) on or after January 1, 2015, the board, except to the extent that the board of trustees
of the local district or the governing body of the special service district makes its own rules:
(A) with respect to a subject addressed by board rules; or
(B) that are in addition to board rules; or
(m) as it relates to a procurement unit, other than a procurement unit described in
Subsections (1)(a) through (l), the board.
(2) "Board" means the Utah State Procurement Policy Board, created in Section
63G-6a-202
.
(3) "Building board" means the State Building Board created in Section 
63A-5-101
.
(4) "Conservation district" is as defined in Section 
17D-3-102
.
(5) "Cooperative purchasing organization" means an organization, association, or
alliance of purchasers established to combine purchasing power in order to obtain the best
value for the purchasers by engaging in procurements in accordance with Section 
63G-6a-2105
.
(6) "Division" means the Division of Purchasing and General Services.
(7) "Educational procurement unit" means:
(a) a school district;
(b) a public school, including a local school board or a charter school;
(c) Utah Schools for the Deaf and Blind;
(d) the Utah Education and Telehealth Network; or
(e) an institution of higher education of the state.
(8) "Executive branch procurement unit" means each department, division, office,
bureau, agency, or other organization within the state executive branch, including the division
and the attorney general's office.
(9) "Judicial procurement unit" means:
(a) the Utah Supreme Court;
(b) the Utah Court of Appeals;
(c) the Judicial Council;
(d) a state judicial district; or
(e) each office, committee, subcommittee, or other organization within the state
judicial branch.
(10) "Legislative procurement unit" means:
(a) the Legislature;
(b) the Senate;
(c) the House of Representatives;
(d) a staff office of an entity described in Subsection (10)(a), (b), or (c); or
(e) each office, committee, subcommittee, or other organization within the state
legislative branch.
(11) "Local building authority" is as defined in Section 
17D-2-102
.
(12) "Local district" is as defined in Section 
17B-1-102
.
(13) "Local government procurement unit" means:
(a) a county or municipality, and each office or agency of the county or municipality,
unless the county or municipality adopts its own procurement code by ordinance;
(b) a county or municipality, and each office or agency of the county or municipality,
that has adopted this entire chapter by ordinance; or
(c) a county or municipality, and each office or agency of the county or municipality,
that has adopted a portion of this chapter by ordinance, to the extent that the term is used in the
adopted portion of this chapter.
(14) "Nonadopting local government procurement unit" means:
(a) a county or municipality that has not adopted Part 16, Controversies and Protests,
Part 17, Procurement Appeals Board, Part 18, Appeals to Court and Court Proceedings, and
Part 19, General Provisions Related to Protest or Appeal; and
(b) each office or agency of a county or municipality described in Subsection (14)(a).
[
(14)
] 
(15)
 (a) "Procurement unit" means:
(i) a legislative procurement unit;
(ii) an executive branch procurement unit;
(iii) a judicial procurement unit;
(iv) an educational procurement unit;
(v) a local government procurement unit;
(vi) a local district;
(vii) a special service district;
(viii) a local building authority;
(ix) a conservation district;
(x) a public corporation; or
(xi) a public transit district.
(b) "Procurement unit" does not include a political subdivision created under Title 11,
Chapter 13, Interlocal Cooperation Act.
[
(15)
] 
(16)
 "Public corporation" is as defined in Section 
63E-1-102
.
[
(16)
] 
(17)
 "Public entity" means any state government entity or a political subdivision
of the state, including:
(a) a procurement unit;
(b) a municipality or county, regardless of whether the municipality or county has
adopted this chapter or any part of this chapter; and
(c) any other government entity located in Utah that expends public funds.
[
(17)
] 
(18)
 "Public transit district" means a public transit district organized under Title
17B, Chapter 2a, Part 8, Public Transit District Act.
[
(18)
] 
(19)
 "Special service district" is as defined in Section 
17D-1-102
.
Section 4. Section 
63G-6a-105
 is amended to read:
63G-6a-105.
Application of chapter.
(1) The provisions of this chapter that are enacted on May 1, 2013, apply only to a
procurement advertised, or begun on or after May 1, 2013, unless the parties agree to have the
provisions apply with respect to a procurement that was advertised or begun before May 1,
2013, but is not completed before May 1, 2013.
(2) (a) Except as provided in Section 
63G-6a-107
, this chapter shall apply to every
expenditure of public funds irrespective of the source of the funds, including federal assistance,
by any procurement unit, under any contract.
(b) The provisions of this chapter do not apply to a public entity that is not a
procurement unit.
(3) [
Except as provided in Subsection 
17B-1-108
(3) relating to local districts, the
] 
The
following procurement units shall adopt ordinances or resolutions relating to the procurement
of [
architect-engineer
] 
design professional
 services not inconsistent with the provisions of Part
15, [
Architect-Engineer
] 
Design Professional
 Services:
(a) an educational procurement unit;
(b) a conservation district;
(c) a local building authority;
(d) a local district;
(e) a public corporation; or
(f) a special service district.
(4) Any section of this chapter, or its implementing regulations, may be adopted by:
(a) a county;
(b) a municipality; or
(c) the Utah Housing Corporation.
(5) Rules adopted under this chapter shall be consistent with the provisions of this
chapter.
(6) An applicable rulemaking authority or a procurement unit may not adopt rules,
policies, or regulations that are inconsistent with this chapter.
(7) Unless otherwise provided by statute, this chapter does not apply to procurement of
real property.
Section 5. Section 
63G-6a-106
 is amended to read:
63G-6a-106.
Procurement units with specific statutory procurement authority --
Independent procurement authority.
(1) A procurement unit with procurement authority under the following provisions has
independent procurement authority to the extent of the applicable provisions and for the
procurement items specified in the applicable provisions:
(a) Title 53B, State System of Higher Education;
(b) Title 63A, Chapter 5, State Building Board - Division of Facilities Construction
and Management;
(c) Title 67, Chapter 5, Attorney General;
(d) Title 72, Transportation Code; and
(e) Title 78A, Chapter 5, District Court.
(2) Except as otherwise provided in Sections 
63G-6a-105
 and 
63G-6a-107
, a
procurement unit shall conduct a procurement in accordance with this chapter.
(3) (a) The Department of Transportation may make rules governing the procurement
of highway construction or improvement.
(b) The applicable rulemaking authority for a public transit district may make rules
governing the procurement of a transit construction project or a transit improvement project.
(c) This Subsection (3) supersedes Subsections (1) and (2).
(4) (a) A procurement unit listed in Subsection (4)(b) may, without the supervision,
interference, oversight, control, or involvement of the division or the chief procurement officer,
but in accordance with the requirements of this chapter:
(i) engage in a standard procurement process;
(ii) procure an item under an exception, as provided in this chapter, to the requirement
to use a standard procurement process; or
(iii) otherwise engage in an act authorized or required by this chapter.
(b) The procurement units to which Subsection (4)(a) applies are:
(i) a legislative procurement unit;
(ii) a judicial procurement unit;
(iii) an educational procurement unit;
(iv) a local government procurement unit;
(v) a conservation district;
(vi) a local building authority;
(vii) a local district;
(viii) a public corporation;
(ix) a special service district;
(x) a public transit district; and
(xi) a procurement unit referred to in Subsection (1), to the extent authorized in
Subsection (1).
(c) A procurement unit with independent procurement authority shall comply with the
requirements of this chapter.
(d) Notwithstanding Subsection (4)(a), a procurement unit with independent
procurement authority may agree in writing with the division to extend the authority of the
division or the chief procurement officer to the procurement unit, as provided in the agreement.
(e) At any stage of the procurement process, a head of a procurement unit with
independent procurement authority who determines that a procurement over which the
procurement unit has authority is out of compliance with this chapter or applicable rules may:
(i) correct or amend the procurement to bring it into compliance; or
(ii) cancel the procurement, if the head of the procurement unit determines that it is:
(A) not feasible to bring the procurement into compliance; or
(B) in the best interest of the procurement unit to cancel the procurement.
(f) If, at any time during the term of a contract awarded by a procurement unit with
independent procurement authority, the head of the procurement unit determines that the
contract is out of compliance with this chapter or applicable rules, the head of the procurement
unit may correct or amend the contract to bring it into compliance or cancel the contract:
(i) if the head of the procurement unit determines that correcting, amending, or
canceling the contract is in the best interest of the procurement unit; and
(ii) after consulting with legal counsel.
(5) (a) The attorney general may, in accordance with the provisions of this chapter, but
without involvement by the division or the chief procurement officer:
(i) retain outside counsel; or
(ii) procure litigation support services, including retaining an expert witness.
(b) A procurement unit with independent procurement authority that is not represented
by the attorney general's office may, in accordance with the provisions of this chapter, but
without involvement by the division or the chief procurement officer:
(i) retain outside counsel; or
(ii) procure litigation support services, including retaining an expert witness.
(6) The state auditor's office may, in accordance with the provisions of this chapter, but
without involvement by the division or the chief procurement officer, procure audit services.
(7) The state treasurer may, in accordance with the provisions of this chapter, but
without involvement by the division or the chief procurement officer, procure:
(a) deposit [
and investment
] services; and
(b) services related to issuing bonds.
Section 6. Section 
63G-6a-107
 is amended to read:
63G-6a-107.
Exemptions from chapter -- Compliance with other provisions.
(1) Except for Part 24, Unlawful Conduct and Penalties, the provisions of this chapter
do not apply to:
(a) funds administered under the Percent-for-Art Program of the Utah Percent-for-Art
Act;
(b) [
grants
] 
a grant
 awarded by the state [
or contracts between the state and any of the
following:
]
;
[
(i) an educational procurement unit;
]
[
(ii) a conservation district;
]
[
(iii) a local building authority;
]
[
(iv) a local district;
]
[
(v) a public corporation;
]
[
(vi) a special service district;
]
[
(vii) a public transit district; or
]
[
(viii) two or more of the entities described in Subsections (1)(b)(i) through (vii),
acting under legislation that authorizes intergovernmental cooperation;
]
(c) a contract between procurement units;
[
(c)
] 
(d)
 medical supplies or medical equipment, including service agreements for
medical equipment, obtained through a purchasing consortium by the Utah State Hospital, the
Utah State Developmental Center, the University of Utah Hospital, or any other hospital owned
by the state or a political subdivision of the state, if:
(i) the consortium uses a competitive procurement process; and
(ii) the chief administrative officer of the hospital makes a written finding that the
prices for purchasing medical supplies and medical equipment through the consortium are
competitive with market prices;
[
(d)
] 
(e)
 the purchase of firefighting supplies or equipment by the Division of Forestry,
Fire, and State Lands, created in Section 
65A-1-4
, through the federal General Services
Administration or the National Fire Cache system;
[
(e)
] 
(f)
 goods purchased for resale to the public; [
or
]
[
(f)
] 
(g)
 the Division of Parks and Recreation, during a fiscal emergency, as defined by
Subsection 
79-4-1102
(1), if the division is acting under the authority described in Sections
79-4-1101
 through 
79-4-1103
[
.
]
; or
(h) activities related to the management of investments by a public entity granted
investment authority by law.
(2) This chapter does not prevent a procurement unit from complying with the terms
and conditions of any grant, gift, or bequest that is otherwise consistent with law.
[
(3) This chapter does not apply to any action taken by a majority of both houses of the
Legislature.
]
[
(4)
] 
(3)
 Notwithstanding any conflicting provision of this chapter, when a
procurement involves the expenditure of federal 
or state
 assistance, federal contract funds,
local matching funds, or federal financial participation funds, the procurement unit shall
comply with mandatory applicable federal 
or state
 law and regulations not reflected in this
chapter.
[
(5)
] 
(4)
 This chapter does not supersede the requirements for retention or withholding
of construction proceeds and release of construction proceeds as provided in Section 
13-8-5
.
Section 7. Section 
63G-6a-204
 is amended to read:
63G-6a-204.
Applicability of rules and regulations of Utah State Procurement
Policy Board and State Building Board -- Report to interim committee.
(1) Except as provided in Subsection (2), rules made by the board under this chapter
shall govern all procurement units for which the board is the applicable rulemaking authority.
(2) The building board rules governing procurement of construction,
[
architect-engineer
] 
design professional
 services, and leases apply to the procurement of
construction, [
architect-engineer
] 
design professional
 services, and leases of real property by
the Division of Facilities Construction and Management.
(3) An applicable rulemaking authority may make its own rules, consistent with this
chapter, governing procurement by a person over which the applicable rulemaking authority
has rulemaking authority.
(4) The board shall make a report on or before July 1 of each year to a legislative
interim committee, designated by the Legislative Management Committee created under
Section 
36-12-6
, on the establishment, implementation, and enforcement of the rules made
under Section 
63G-6a-203
.
(5) Notwithstanding Subsection 
63G-3-301
(13)(b), an applicable rulemaking authority
is required to initiate rulemaking proceedings, for rules required to be made under this chapter,
on or before:
(a) May 13, 2014, if the applicable rulemaking authority is the board; or
(b) January 1, 2015, for each other applicable rulemaking authority.
Section 8. Section 
63G-6a-303
 is amended to read:
63G-6a-303.
Duties and authority of chief procurement officer.
(1) Except as otherwise specifically provided in this chapter, the chief procurement
officer serves as the central procurement officer of the state and shall:
(a) adopt office policies governing the internal functions of the division;
(b) procure or supervise each procurement over which the chief procurement officer
has authority;
(c) establish and maintain programs for the inspection, testing, and acceptance of each
procurement item over which the chief procurement officer has authority;
(d) prepare statistical data concerning each procurement and procurement usage of a
state procurement unit;
(e) ensure that:
(i) before approving a procurement not covered by an existing statewide contract for
information technology or telecommunications supplies or services, the chief information
officer and the agency have stated in writing to the division that the needs analysis required in
Section 
63F-1-205
 was completed, unless the procurement is approved in accordance with
Title 63M, Chapter 1, Part 26, Government Procurement Private Proposal Program; and
(ii) the oversight authority required by Subsection [
(5)(a)
] 
(1)(e)(i)
 is not delegated
outside the division;
(f) provide training to procurement units and to persons who do business with
procurement units;
(g) if the chief procurement officer determines that a procurement over which the chief
procurement officer has authority is out of compliance with this chapter or board rules:
(i) correct or amend the procurement to bring it into compliance; or
(ii) cancel the procurement, if:
(A) it is not feasible to bring the procurement into compliance; or
(B) the chief procurement officer determines that it is in the best interest of the state to
cancel the procurement; and
(h) if the chief procurement officer determines that a contract over which the chief
procurement officer has authority is out of compliance with this chapter or board rules, correct
or amend the contract to bring it into compliance or cancel the contract:
(i) if the chief procurement officer determines that correcting, amending, or canceling
the contract is in the best interest of the state; and
(ii) after consultation with the attorney general's office.
(2) The chief procurement officer may:
(a) correct, amend, or cancel a procurement as provided in Subsection (1)(g) at any
stage of the procurement process; and
(b) correct, amend, or cancel a contract as provided in Subsection (1)(h) at any time
during the term of the contract.
Section 9. Section 
63G-6a-402
 is amended to read:
63G-6a-402.
Procurement unit required to comply with Utah Procurement Code
and applicable rules -- Rulemaking authority -- Reporting.
(1) Except as otherwise provided in Section 
63G-6a-107
, Section 
63G-6a-403
, Part 8,
Exceptions to Procurement Requirements, or elsewhere in this chapter, a procurement unit may
not obtain a procurement item, unless:
(a) if the procurement unit is the division or a procurement unit with independent
procurement authority, the procurement unit:
(i) uses a standard procurement process or an exception to a standard procurement
process, described in Part 8, Exceptions to Procurement Requirements; and
(ii) complies with:
(A) the requirements of this chapter; and
(B) the rules made pursuant to this chapter by the applicable rulemaking authority;
(b) if the procurement unit is a county, a municipality, or the Utah Housing
Corporation, the procurement unit complies with:
(i) the requirements of this chapter that are adopted by the procurement unit; and
(ii) all other procurement requirements that the procurement unit is required to comply
with; or
(c) if the procurement unit is not a procurement unit described in Subsection (1)(a) or
(b), the procurement unit:
(i) obtains the procurement item under the direction and approval of the division,
unless otherwise provided by a rule made by the board;
(ii) uses a standard procurement process; and
(iii) complies with:
(A) the requirements of this chapter; and
(B) the rules made pursuant to this chapter by the applicable rulemaking authority.
(2) Subject to Subsection (3), the applicable rulemaking authority shall make rules
relating to the management and control of procurements and procurement procedures by a
procurement unit.
(3) (a) Rules made under Subsection (2) shall ensure compliance with the federal
contract prohibition provisions of the Sudan Accountability and Divestment Act of 2007 (Pub.
L. No. 110-174) that prohibit contracting with a person doing business in Sudan.
(b) The State Building Board rules governing procurement of construction,
[
architect-engineer
] 
design professional
 services, and leases apply to the procurement of
construction, [
architect-engineer
] 
design professional
 services, and leases of real property by
the Division of Facilities Construction and Management.
(4) An applicable rulemaking authority that is subject to Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, shall make the rules described in this chapter in accordance
with the provisions of Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(5) The State Building Board shall make a report on or before July 1 of each year to a
legislative interim committee, designated by the Legislative Management Committee created
under Section 
36-12-6
, on the establishment, implementation, and enforcement of the rules
made by the State Building Board under this chapter.
(6) The rules of the applicable rulemaking authority for the executive branch
procurement unit shall require, for each contract and request for proposals, the inclusion of a
clause that requires the issuing procurement unit, for the duration of the contract, to make
available contact information of the winning contractor to the Department of Workforce
Services in accordance with Section 
35A-2-203
. This requirement does not preclude a
contractor from advertising job openings in other forums throughout the state.
Section 10. Section 
63G-6a-408
 is amended to read:
63G-6a-408.
Small purchases.
(1) As used in this section:
(a) "Annual cumulative threshold" means the maximum total annual amount,
established by the applicable rulemaking authority under Subsection (2)(a)(i), that a
procurement unit may expend to obtain procurement items from the same source under this
section.
(b) "Individual procurement threshold" means the maximum amount, established by
the applicable rulemaking authority under Subsection (2)(a)(ii), for which a procurement unit
may purchase a procurement item under this section.
(c) "Single procurement aggregate threshold" means the maximum total amount,
established by the applicable rulemaking authority under Subsection (2)(a)(iii), that a
procurement unit may expend to obtain multiple procurement items from one source at one
time under this section.
(2) 
(a)
 The applicable rulemaking authority may make rules governing small purchases
of any procurement item
, including[
:
] 
construction, job order contracting, design professional
services, other professional services, information technology, and goods.
(b) Rules under Subsection (2)(a) may include provisions:
[
(a)
] 
(i)
 establishing expenditure thresholds, including:
[
(i)
] 
(A)
 an annual cumulative threshold;
[
(ii)
] 
(B)
 an individual procurement threshold; and
[
(iii)
] 
(C)
 a single procurement aggregate threshold;
[
(b)
] 
(ii)
 establishing procurement requirements relating to the thresholds described in
Subsection (2)[
(a)
]
(b)(i)
; and
[
(c)
] 
(iii) providing for
 the use of electronic, telephone, or written quotes.
(3) Expenditures made under this section by a procurement unit may not exceed a
threshold established by the applicable rulemaking authority, unless the chief procurement
officer or the head of a procurement unit with independent procurement authority gives written
authorization to exceed the threshold that includes the reasons for exceeding the threshold.
(4) Except as provided in Subsection (5), an executive branch procurement unit may
not obtain a procurement item through a small purchase standard procurement process if the
procurement item may be obtained through a state cooperative contract or a contract awarded
by the chief procurement officer under Subsection 
63G-6a-2105
(1).
(5) Subsection (4) does not apply if:
(a) the procurement item is obtained for an unanticipated, urgent or unanticipated,
emergency condition, including:
(i) an item needed to avoid stopping a public construction project;
(ii) an immediate repair to a facility or equipment; or
(iii) another emergency condition; or
(b) the chief procurement officer or the head of a procurement unit that is an executive
branch procurement unit with independent procurement authority:
(i) determines in writing that it is in the best interest of the procurement unit to obtain
an individual procurement item outside of the state contract, comparing:
(A) the contract terms and conditions applicable to the procurement item under the
state contract with the contract terms and conditions applicable to the procurement item if the
procurement item is obtained outside of the state contract;
(B) the maintenance and service applicable to the procurement item under the state
contract with the maintenance and service applicable to the procurement item if the
procurement item is obtained outside of the state contract;
(C) the warranties applicable to the procurement item under the state contract with the
warranties applicable to the procurement item if the procurement item is obtained outside of
the state contract;
(D) the quality of the procurement item under the state contract with the quality of the
procurement item if the procurement item is obtained outside of the state contract; and
(E) the cost of the procurement item under the state contract with the cost of the
procurement item if the procurement item is obtained outside of the state contract;
(ii) for a procurement item that, if defective in its manufacture, installation, or
performance, may result in serious physical injury, death, or substantial property damage,
determines in writing that the terms and conditions, relating to liability for injury, death, or
property damage, available from the source other than the contractor who holds the state
contract, are similar to, or better than, the terms and conditions available under the state
contract; and
(iii) grants an exception, in writing, to the requirement described in Subsection (4).
(6) Except as otherwise expressly provided in this section, a procurement unit:
(a) may not use the small purchase standard procurement process described in this
section for ongoing, continuous, and regularly scheduled procurements that exceed the annual
cumulative threshold; and
(b) shall make its ongoing, continuous, and regularly scheduled procurements that
exceed the annual cumulative threshold through a contract awarded through another standard
procurement process described in this chapter or an applicable exception to another standard
procurement process, described in Part 8, Exceptions to Procurement Requirements.
(7) This section does not prohibit regularly scheduled payments for a procurement item
obtained under another provision of this chapter.
(8) (a) It is unlawful for a person to intentionally or knowingly divide a procurement
into one or more smaller procurements with the intent to make a procurement:
(i) qualify as a small purchase, if, before dividing the procurement, it would not have
qualified as a small purchase; or
(ii) meet a threshold established by rule made by the applicable rulemaking authority,
if, before dividing the procurement, it would not have met the threshold.
(b) A person who engages in the conduct made unlawful under Subsection (8)(a) is
guilty of:
(i) a second degree felony, if the value of the procurement before being divided is
$1,000,000 or more;
(ii) a third degree felony, if the value of the procurement before being divided is
$250,000 or more but less than $1,000,000;
(iii) a class A misdemeanor, if the value of the procurement before being divided is
$100,000 or more but less than $250,000; or
(iv) a class B misdemeanor, if the value of the procurement before being divided is less
than $100,000.
(9) A division of a procurement that is prohibited under Subsection (8) includes doing
any of the following with the intent or knowledge described in Subsection (8):
(a) making two or more separate purchases;
(b) dividing an invoice or purchase order into two or more invoices or purchase orders;
or
(c) making smaller purchases over a period of time.
(10) A person who violates Subsection (8) is subject to the criminal penalties described
in Section 
63G-6a-2405
.
(11) The Division of Finance within the Department of Administrative Services may
conduct an audit of an executive branch procurement unit to verify compliance with the
requirements of this section.
(12) An executive branch procurement unit may not make a small purchase after
January 1, 2014, unless the chief procurement officer certifies that the person responsible for
procurements in the procurement unit has satisfactorily completed training on this section and
the rules made under this section.
Section 11. Section 
63G-6a-609
 is amended to read:
63G-6a-609.
Multiple stage bidding process.
[
(1) A procurement unit that conducts a procurement using a bidding standard
procurement process may use multiple stages to:
]
[
(a) narrow the number of bidders who will progress to a subsequent stage;
]
[
(b) prequalify bidders for subsequent stages, in accordance with Section 
63G-6a-403
;
]
[
(c) enter into a contract for a single procurement; or
]
[
(d) award multiple contracts for a series of upcoming procurements.
]
[
(2)
] 
(1)
 The invitation for bids for a multiple stage bidding process shall:
(a) describe the requirements for, and purpose of, each stage of the process;
(b) indicate whether the procurement unit intends to award:
(i) a single contract; or
(ii) multiple contracts for a series of upcoming procurements; and
(c) state that:
(i) the first stage is for prequalification only;
(ii) a bidder may not submit any pricing information in the first stage of the process;
and
(iii) bids in the second stage will only be accepted from a person who prequalifies in
the first stage.
[
(3)
] 
(2)
 During the first stage, the conducting procurement unit:
(a) shall prequalify bidders to participate in subsequent stages, in accordance with
Section 
63G-6a-403
;
(b) shall prohibit the submission of pricing information until the final stage; and
(c) may, before beginning the second stage, request additional information to clarify
the qualifications of the bidders who submit timely responses.
[
(4)
] 
(3)
 Contracts may only be awarded for a procurement item described in stage one
of the invitation for bids.
[
(5)
] 
(4)
 The conducting procurement unit may use as many stages as it determines to
be appropriate.
[
(6)
] 
(5)
 Except as otherwise expressly provided in this section, a procurement unit
conducting a multiple stage bidding process under this section shall ensure compliance with
this part.
[
(7)
] 
(6)
 The applicable rulemaking authority may make rules governing the use of a
multiple stage process described in this section.
Section 12. Section 
63G-6a-707
 is amended to read:
63G-6a-707.
Evaluation of proposals -- Evaluation committee.
(1) To determine which proposal provides the best value to the procurement unit, the
evaluation committee shall evaluate each responsive and responsible proposal that has not been
disqualified from consideration under the provisions of this chapter, using the criteria described
in the request for proposals, which may include:
(a) experience;
(b) performance ratings;
(c) inspection;
(d) testing;
(e) quality;
(f) workmanship;
(g) time, manner, or schedule of delivery;
(h) references;
(i) financial solvency;
(j) suitability for a particular purpose;
(k) management plans;
(l) cost; or
(m) other subjective or objective criteria specified in the request for proposals.
(2) Criteria not described in the request for proposals may not be used to evaluate a
proposal.
(3) The conducting procurement unit shall:
(a) appoint an evaluation committee consisting of at least three individuals; and
(b) ensure that the evaluation committee and each member of the evaluation
committee:
(i) does not have a conflict of interest with any of the offerors;
(ii) can fairly evaluate each proposal;
(iii) does not contact or communicate with an offeror concerning the procurement
outside the official evaluation committee process; and
(iv) conducts the evaluation in a manner that ensures a fair and competitive process
and avoids the appearance of impropriety.
(4) The evaluation committee may, with the approval of the head of the conducting
procurement unit, enter into discussions or conduct interviews with, or attend presentations by,
the offerors.
(5) (a) Except as provided in Subsections (5)(b) and (8), each member of the evaluation
committee is prohibited from knowing, or having access to, any information relating to the
cost, or the scoring of the cost, of a proposal until after the evaluation committee submits its
final recommended scores on all other criteria to the issuing procurement unit.
(b) The issuing procurement unit shall:
(i) if applicable, assign an individual who is not a member of the evaluation committee
to calculate scores for cost based on the applicable scoring formula, weighting, and other
scoring procedures contained in the request for proposals;
(ii) review the evaluation committee's scores and correct any errors, scoring
inconsistencies, and reported noncompliance with this chapter;
(iii) add the scores calculated for cost, if applicable, to the evaluation committee's final
recommended scores on criteria other than cost to derive the total combined score for each
responsive and responsible proposal; and
(iv) provide to the evaluation committee the total combined score calculated for each
responsive and responsible proposal, including any applicable cost formula, weighting, and
scoring procedures used to calculate the total combined scores.
(c) The evaluation committee may not:
(i) change its final recommended scores described in Subsection (5)(a) after the
evaluation committee has submitted those scores to the issuing procurement unit; or
(ii) change cost scores calculated by the issuing procurement unit.
(6) (a) As used in this Subsection (6), "management fee" includes only the following
fees of the construction manager/general contractor:
(i) preconstruction phase services;
(ii) monthly supervision fees for the construction phase; and
(iii) overhead and profit for the construction phase.
(b) When selecting a construction manager/general contractor for a construction
project, the evaluation committee:
(i) may score a construction manager/general contractor based upon criteria contained
in the solicitation, including qualifications, performance ratings, references, management plan,
certifications, and other project specific criteria described in the solicitation;
(ii) may, as described in the solicitation, weight and score the management fee as a
fixed rate or as a fixed percentage of the estimated contract value;
(iii) may, at any time after the opening of the responses to the request for proposals,
have access to, and consider, the management fee proposed by the offerors; and
(iv) except as provided in Subsection [
(7)
] 
(8)
, may not know or have access to any
other information relating to the cost of construction submitted by the offerors, until after the
evaluation committee submits its final recommended scores on all other criteria to the issuing
procurement unit.
(7) (a) The deliberations of an evaluation committee may be held in private.
(b) If the evaluation committee is a public body, as defined in Section 
52-4-103
, the
evaluation committee shall comply with Section 
52-4-205
 in closing a meeting for its
deliberations.
(8) An issuing procurement unit is not required to comply with Subsection (5) if the
head of the issuing procurement unit or a person designated by rule made by the applicable
rulemaking authority:
(a) signs a written statement:
(i) indicating that, due to the nature of the proposal or other circumstances, it is in the
best interest of the procurement unit to waive compliance with Subsection (5); and
(ii) describing the nature of the proposal and the other circumstances relied upon to
waive compliance with Subsection (5); and
(b) makes the written statement available to the public, upon request.
Section 13. Section 
63G-6a-1203
 is amended to read:
63G-6a-1203.
Certain indemnification provisions forbidden -- Exceptions.
[
(1) As used in this section, "design professional" means:
]
[
(a) an architect, licensed under Title 58, Chapter 3a, Architects Licensing Act;
]
[
(b) a landscape architect, licensed under Title 58, Chapter 53, Landscape Architects
Licensing Act; or
]
[
(c) a professional engineer or professional land surveyor, licensed under Title 58,
Chapter 22, Professional Engineers and Professional Land Surveyors Licensing Act.
]
[
(2) (a)
]
(1)
 A contract, including an amendment to an existing contract, entered into
under this chapter may not require that a design professional indemnify another from liability
claims that arise out of the design professional's services, unless the liability claim arises from
the design professional's negligent act, wrongful act, error or omission, or other liability
imposed by law.
[
(b)
] 
(2)
 Subsection [
(2)(a)
] 
(1)
 may not be waived by contract.
[
(c)
] 
(3)
 Notwithstanding Subsections [
(2)(a)
] 
(1)
 and [
(b)
] 
(2)
, a design professional
may be required to indemnify a person for whom the design professional has direct or indirect
control or responsibility.
Section 14. Section 
63G-6a-1206.5
 is enacted to read:
 63G-6a-1206.5.
Change in contract price.
A contractor may increase the contract price only in accordance with the terms of the
contract.
Section 15. Section 
63G-6a-1501
 is amended to read:
Part 15. Design Professional Services
63G-6a-1501.
Title.
This part is known as "[
Architect-Engineer
] 
Design Professional
 Services."
Section 16. Section 
63G-6a-1502
 is amended to read:
63G-6a-1502.
Requirements regarding procurement of design professional
services.
[
(1) It is the policy of this state to
]
(1) A procurement unit seeking to procure design professional services shall:
(a)
 publicly announce all requirements for [
architect-engineer
] 
those
 services through a
request for statement of qualifications [
and to
]
, as provided in this part; and
(b)
 negotiate contracts for [
architect-engineer
] 
design professional
 services
:
(i)
 on the basis of demonstrated competence and qualification for the type of services
required[
,
]
;
 and
(ii)
 at fair and reasonable prices.
(2) [
Architect-engineer services shall be procured
] 
A procurement unit shall procure
design professional services
 as provided in this part
,
 except as otherwise provided in Sections
63G-6a-403
, 
63G-6a-404
, 
63G-6a-408
, 
63G-6a-802
, and 
63G-6a-803
.
(3) This part does not affect the authority of, and does not apply to procedures
undertaken by, a procurement unit to obtain the services of architects or engineers in the
capacity of employees of the procurement unit.
Section 17. Section 
63G-6a-1502.5
 is enacted to read:
 63G-6a-1502.5.
Request for statement of qualifications.
(1) A procurement unit may establish criteria in a request for statement of
qualifications by which the qualifications of a design professional, as set forth in a statement of
qualifications, will be evaluated, including:
(a) the design professional's work history and experience;
(b) performance ratings earned by the design professional or references for similar
work;
(c) any quality assurance or quality control plan;
(d) the quality of the design professional's past work product;
(e) the time, manner of delivery, and schedule of delivery of the design professional
services;
(f) the design professional's financial solvency;
(g) any management plan, including key personnel and subconsultants for the project;
and
(h) other project specific criteria that the procurement unit establishes.
(2) A request for statement of qualifications may not include a request for a price or a
cost component for the design professional services.
Section 18. Section 
63G-6a-1503
 is amended to read:
63G-6a-1503.
Evaluation committee for design professional services.
(1) In the procurement of [
architect-engineer
] 
design professional
 services, the
procurement officer or the head of an issuing procurement unit shall encourage [
firms
] 
design
professionals
 engaged in the lawful practice of their profession to submit a statement of
qualifications.
(2) 
(a)
 The director of the Division of Facilities Construction and Management shall
appoint an evaluation committee for [
architect-engineer
] 
design professional
 services
[
contracts
] 
procurements
 under its authority.
[
(3) An evaluation committee for architect-engineer services contracts not under the
authority of the Division of Facilities Construction and Management shall be established in
accordance with rules made by the applicable rulemaking authority.
]
(b) A conducting procurement unit, other than the Division of Facilities Construction
and Management, shall appoint an evaluation committee for design professional services
procurements under the authority of that procurement unit.
(3) (a) An evaluation committee appointed under Subsection (2) shall consist of at least
three members.
(b) A procurement unit appointing an evaluation committee under this section shall
ensure that each member of the evaluation committee:
(i) does not have a conflict of interest with any of the design professionals under
consideration;
(ii) can fairly evaluate each statement of qualifications;
(iii) does not contact or communicate with any of the design professionals under
consideration concerning the request for statement of qualifications outside the official
evaluation committee process, beginning the date that the request for statement of
qualifications is issued until the selection of the design professional has been made; and
(iv) conducts the evaluation in a manner that ensures a fair and competitive process
and avoids the appearance of impropriety.
(4) An evaluation committee 
appointed under this section
 shall:
(a) evaluate current statements of qualifications and performance data on file with the
procurement unit, together with those that may be submitted by other [
firms
] 
design
professionals
 in response to the announcement of a proposed contract;
(b) consider no [
less
] 
fewer
 than three [
firms
] 
design professionals
; and
(c) based upon criteria established and published by the [
issuing
] 
conducting
procurement unit, select no [
less
] 
fewer
 than three of the [
firms
] 
design professionals
considered to be the most highly qualified to provide the services required.
Section 19. Section 
63G-6a-1503.5
 is enacted to read:
 63G-6a-1503.5.
Evaluation of statements of qualifications.
(1) An evaluation committee appointed under Section 
63G-6a-1503
 shall evaluate and
score each responsive and responsible statement of qualifications that has not been disqualified
from consideration under this chapter, using the criteria described in the request for statement
of qualifications.
(2) Criteria not described in the request for statement of qualifications may not be used
to evaluate a statement of qualifications.
(3) An evaluation committee may enter into discussions or conduct interviews with, or
attend presentations by, the design professionals whose statements of qualifications are under
consideration.
(4) An evaluation committee shall rank the top three highest scoring design
professionals, in order of their scores, for the purpose of entering into fee negotiations as
provided in Section 
63G-6a-1505
.
(5) If fewer than three design professionals submit statements of qualifications or are
determined to be responsive and responsible, the chief procurement officer or head of a
procurement unit with independent procurement authority shall issue a written determination
explaining why it is in the best interest of the procurement unit to continue the fee negotiation
and the contracting process with less than three design professionals.
(6) (a) The deliberations of an evaluation committee may be held in private.
(b) If the evaluation committee is a public body, as defined in Section 
52-4-103
, the
evaluation committee shall comply with Section 
52-4-205
 in closing a meeting for its
deliberations.
Section 20. Section 
63G-6a-1504
 is amended to read:
63G-6a-1504.
Selection as part of design-build or lease.
Notwithstanding any other provision of this chapter, [
architect-engineer
] 
design
professional
 services may be procured under Title 63A, Chapter 5, State Building Board -
Division of Facilities Construction and Management, as part of the services obtained in a
design-build contract or as part of the services obtained in a lease contract for real property, if
the qualifications of those providing the [
architect-engineer
] 
design professional
 services are
part of the consideration in the selection process.
Section 21. Section 
63G-6a-1505
 is amended to read:
63G-6a-1505.
Determination of compensation for design professional services.
(1) The procurement officer shall award a contract to [
a
] 
the
 qualified [
firm
] 
design
professional whose statement of qualifications was awarded the highest score under Subsection
63G-6a-1503
(4) by the evaluation committee,
 at compensation that the procurement officer
determines, in writing, to be fair and reasonable to the procurement unit.
(2) In making the determination described in Subsection (1), the procurement officer
shall take into account [
the services'
]:
[
(a) estimated value
;
]
[
(b) scope;
]
[
(c) complexity; and
]
[
(d) professional nature.
]
(a) the estimated value, scope, and professional nature of the services; and
(b) the complexity of the project or services.
(3) If the procurement officer is unable to agree to a satisfactory contract with the [
firm
first selected
] 
highest scoring design professional
, at a price the procurement officer determines
to be fair and reasonable to the procurement unit, the procurement officer shall:
(a) formally terminate discussions with that [
firm
] 
design professional
; and
(b) undertake discussions with [
a
] 
the
 second 
highest scoring,
 qualified [
firm
] 
design
professional
.
(4) If the procurement officer is unable to agree to a satisfactory contract with the
second [
firm selected
] 
highest scoring design professional
, at a price the procurement officer
determines to be fair and reasonable to the procurement unit, the procurement officer shall:
(a) formally terminate discussions with that [
firm
] 
design professional
; and
(b) undertake discussions with [
a
] 
the
 third 
highest scoring,
 qualified [
firm
] 
design
professional
.
(5) If the procurement officer is unable to award a contract at a fair and reasonable
price to any of the [
selected firms
] 
highest scoring design professionals
, the procurement
officer shall:
(a) select additional [
firms
] 
design professionals
; and
(b) continue discussions in accordance with this part until an agreement is reached.
Section 22. Section 
63G-6a-1506
 is amended to read:
63G-6a-1506.
Restrictions on procurement of design professional services.
(1) Except as provided in Subsection (2), [
when
] 
if
 the division or a procurement unit
with independent procurement authority, in accordance with Section 
63G-6a-1502
, [
elects to
obtain architect or engineering services by using a competitive procurement process and has
provided public notice of its competitive procurement process
] 
issues a request for statement of
qualifications to procure design professional services and provides public notice of the request
for statement of qualifications
:
(a) a [
higher education entity, or any part of one,
] 
public entity inside or outside the
state
 may not submit a proposal in response to the procurement unit's [
competitive procurement
process
] 
request for statement of qualifications
; and
(b) the procurement unit may not award a contract [
to perform the architect or
engineering services solicited in the competitive procurement process to a higher education
entity or any part of one
] 
to a public entity inside or outside the state to perform the design
professional services solicited in the request for statement of qualifications
.
(2) Subsection (1) does not apply when the procurement unit is procuring [
architect or
engineer
] 
design professional
 services for contracts related to research activities and technology
transfer.
Section 23. Section 
63G-6a-1603
 is amended to read:
63G-6a-1603.
Protest officer responsibilities and authority -- Proceedings on
protest -- Effect of decision.
(1) After a protest is filed, the protest officer shall determine whether the protest is
timely filed and complies fully with the requirements of Section 
63G-6a-1602
.
(2) If the protest officer determines that the protest is not timely filed or that the protest
does not fully comply with Section 
63G-6a-1602
, the protest officer shall dismiss the protest.
(3) If the protest officer determines that the protest is timely filed and complies fully
with Section 
63G-6a-1602
, the protest officer shall:
(a) dismiss the protest if the protest officer determines that the protest alleges facts that,
if true, do not provide an adequate basis for the protest;
(b) uphold the protest without holding a hearing if the protest officer determines that
the undisputed facts of the protest indicate that the protest should be upheld; or
(c) hold a hearing on the protest if there is a genuine issue of material fact that needs to
be resolved in order to determine whether the protest should be upheld.
(4) (a) If a hearing is held on a protest, the protest officer may:
(i) subpoena witnesses and compel their attendance at the protest hearing;
(ii) subpoena documents for production at the protest hearing;
(iii) obtain additional factual information; and
(iv) obtain testimony from experts, the person filing the protest, representatives of the
procurement unit, or others to assist the protest officer to make a decision on the protest.
(b) The Rules of Evidence do not apply to a protest hearing.
(c) The applicable rulemaking authority shall make rules relating to intervention in a
protest, including designating:
(i) who may intervene; and
(ii) the time and manner of intervention.
(d) A protest officer shall:
(i) record each hearing held on a protest under this section;
(ii) regardless of whether a hearing on a protest is held under this section, preserve all
records and other evidence relied upon in reaching the protest officer's written decision until
the decision, and any appeal of the decision, becomes final; and
(iii) submit to the procurement policy board chair a copy of the protest officer's written
decision and all records and other evidence relied upon in reaching the decision, within seven
days after receiving:
(A) notice that an appeal of the protest officer's decision has been filed under Section
63G-6a-1702
; or
(B) a request from the chair of the procurement policy board.
(e) A protest officer's holding a hearing, considering a protest, or issuing a written
decision under this section does not affect a person's right to later question or challenge the
protest officer's jurisdiction to hold the hearing, consider the protest, or issue the decision.
(5) (a) The deliberations of a protest officer may be held in private.
(b) If the protest officer is a public body, as defined in Section 
52-4-103
, the protest
officer shall comply with Section 
52-4-205
 in closing a meeting for its deliberations.
(6) (a) A protest officer, or the protest officer's designee, shall promptly issue a written
decision regarding any protest, unless the protest is settled by mutual agreement.
(b) The decision shall:
(i) state the reasons for the action taken;
(ii) inform the protestor of the right to judicial or administrative review as provided in
this chapter; and
(iii) indicate the amount of the security deposit or bond required under Section
63G-6a-1703
.
(c) A person who issues a decision under Subsection (6)(a) shall mail, email, or
otherwise immediately furnish a copy of the decision to the protestor.
(7) A decision described in this section is effective until stayed or reversed on appeal,
except to the extent provided in Section 
63G-6a-1903
.
(8) (a) A decision described in Subsection (6)(a) that is issued in relation to a
procurement unit other than a legislative procurement unit, a judicial procurement unit, a
nonadopting
 local government procurement unit, or a public transit district is final and
conclusive unless the protestor files an appeal under Section 
63G-6a-1702
.
(b) A decision described in Subsection (6)(a) that is issued in relation to a legislative
procurement unit, a judicial procurement unit, a 
nonadopting
 local government procurement
unit, or a public transit district is final and conclusive unless the protestor files an appeal under
Section 
63G-6a-1802
.
(9) If the protest officer does not issue the written decision regarding a protest or a
contract controversy within 30 calendar days after the day on which a written request for a final
decision is filed with the protest officer, or within a longer period as may be agreed upon by the
parties, the protester, prospective contractor, or contractor may proceed as if an adverse
decision had been received.
(10) A determination under this section by the protest officer regarding an issue of fact
may not be overturned on appeal unless the decision is arbitrary and capricious or clearly
erroneous.
Section 24. Section 
63G-6a-1702
 is amended to read:
63G-6a-1702.
Appeal to Utah State Procurement Policy Board -- Appointment of
procurement appeals panel -- Proceedings.
(1) This part applies to all procurement units other than:
(a) a legislative procurement unit;
(b) a judicial procurement unit;
(c) a 
nonadopting
 local government procurement unit; or
(d) a public transit district.
(2) (a) Subject to Section 
63G-6a-1703
, a party to a protest involving a procurement
unit other than a procurement unit listed in Subsection (1)(a), (b), (c), or (d) may appeal the
protest decision to the board by filing a written notice of appeal with the chair of the board
within seven days after:
(i) the day on which the written decision described in Section 
63G-6a-1603
 is:
(A) personally served on the party or the party's representative; or
(B) emailed or mailed to the address or email address of record provided by the party
under Subsection 
63G-6a-1602
[
(3)
]
(2)
; or
(ii) the day on which the 30-day period described in Subsection 
63G-6a-1603
(7) ends,
if a written decision is not issued before the end of the 30-day period.
(b) A person appealing a debarment or suspension of a procurement unit other than a
procurement unit listed in Subsection (1)(a), (b), (c), or (d) shall file a written notice of appeal
with the chair of the board no later than seven days after the debarment or suspension.
(c) A notice of appeal under Subsection (2)(a) or (b) shall:
(i) include the address of record and email address of record of the party filing the
notice of appeal; and
(ii) be accompanied by a copy of any written protest decision or debarment or
suspension order.
(3) A person may not base an appeal of a protest under this section on a ground not
specified in the person's protest under Section 
63G-6a-1602
.
(4) A person may not appeal from a protest described in Section 
63G-6a-1602
, unless:
(a) a decision on the protest has been issued; or
(b) a decision is not issued and the 30-day period described in Subsection
63G-6a-1603
(7), or a longer period agreed to by the parties, has passed.
(5) The chair of the board or a designee of the chair who is not employed by the
procurement unit responsible for the solicitation, contract award, or other action complained of:
(a) shall, within seven days after the day on which the chair receives a timely written
notice of appeal under Subsection (2), and if all the requirements of Subsection (2) and Section
63G-6a-1703
 have been met, appoint:
(i) a procurement appeals panel to hear and decide the appeal, consisting of at least
three individuals, each of whom is:
(A) a member of the board; or
(B) a designee of a member appointed under Subsection [
(4)
] 
(5)
(a)(i)(A), if the
designee is approved by the chair; and
(ii) one of the members of the procurement appeals panel to be the chair of the panel;
(b) may:
(i) appoint the same procurement appeals panel to hear more than one appeal; or
(ii) appoint a separate procurement appeals panel for each appeal;
(c) may not appoint a person to a procurement appeals panel if the person is employed
by the procurement unit responsible for the solicitation, contract award, or other action
complained of; and
(d) shall, at the time the procurement appeals panel is appointed, provide appeals panel
members with a copy of the protest officer's written decision and all other records and other
evidence that the protest officer relied on in reaching the decision.
(6) A procurement appeals panel described in Subsection (5) shall:
(a) consist of an odd number of members;
(b) conduct an informal proceeding on the appeal within 60 days after the day on which
the procurement appeals panel is appointed:
(i) unless all parties stipulate to a later date; and
(ii) subject to Subsection (8);
(c) at least seven days before the proceeding, mail, email, or hand-deliver a written
notice of the proceeding to the parties to the appeal; and
(d) within seven days after the day on which the proceeding ends:
(i) issue a written decision on the appeal; and
(ii) mail, email, or hand-deliver the written decision on the appeal to the parties to the
appeal and to the protest officer.
(7) (a) The deliberations of a procurement appeals panel may be held in private.
(b) If the procurement appeals panel is a public body, as defined in Section 
52-4-103
,
the procurement appeals panel shall comply with Section 
52-4-205
 in closing a meeting for its
deliberations.
(8) A procurement appeals panel may continue a procurement appeals proceeding
beyond the 60-day period described in Subsection (6)(b) if the procurement appeals panel
determines that the continuance is in the interests of justice.
(9) A procurement appeals panel:
(a) shall, subject to Subsection (9)(c), consider the appeal based solely on:
(i) the protest decision;
(ii) the record considered by the person who issued the protest decision; and
(iii) if a protest hearing was held, the record of the protest hearing;
(b) may not take additional evidence;
(c) notwithstanding Subsection (9)(b), may, during an informal hearing, ask questions
and receive responses regarding the appeal, the protest decision, or the record in order to assist
the panel to understand the appeal, the protest decision, and the record; and
(d) shall uphold the decision of the protest officer, unless the decision is arbitrary and
capricious or clearly erroneous.
(10) If a procurement appeals panel determines that the decision of the protest officer is
arbitrary and capricious or clearly erroneous, the procurement appeals panel:
(a) shall remand the matter to the protest officer, to cure the problem or render a new
decision;
(b) may recommend action that the protest officer should take; and
(c) may not order that:
(i) a contract be awarded to a certain person;
(ii) a contract or solicitation be cancelled; or
(iii) any other action be taken other than the action described in Subsection (10)(a).
(11) The board shall make rules relating to the conduct of an appeals proceeding,
including rules that provide for:
(a) expedited proceedings; and
(b) electronic participation in the proceedings by panel members and participants.
(12) The Rules of Evidence do not apply to an appeals proceeding.
Section 25. Section 
63G-6a-1703
 is amended to read:
63G-6a-1703.
Requirement to pay a security deposit or post a bond -- Exceptions
-- Amount -- Forfeiture of security deposit or bond.
(1) Except as provided by rule made under Subsection (2)(a), a person who files a
notice of appeal under Section 
63G-6a-1702
 shall, before the expiration of the time provided
under Subsection 
63G-6a-1702
(2) for filing a notice of appeal, pay a security deposit or post a
bond with the office of the protest officer.
(2) The amount of a security deposit or bond required under Subsection (1) is:
(a) for an appeal relating to an invitation for bids or request for proposals and except as
provided in Subsection (2)(b)(ii):
(i) $20,000, if the total contract value is under $500,000;
(ii) $25,000, if the total contract value is $500,000 or more but less than $1,000,000;
(iii) $50,000, if the total contract value is $1,000,000 or more but less than $2,000,000;
(iv) $95,000, if the total contract value is $2,000,000 or more but less than $4,000,000;
(v) $180,000, if the total contract value is $4,000,000 or more but less than $8,000,000;
(vi) $320,000, if the total contract value is $8,000,000 or more but less than
$16,000,000;
(vii) $600,000, if the total contract value is $16,000,000 or more but less than
$32,000,000;
(viii) $1,100,000, if the total contract value is $32,000,000 or more but less than
$64,000,000;
(ix) $1,900,000, if the total contract value is $64,000,000 or more but less than
$128,000,000;
(x) $3,500,000, if the total contract value is $128,000,000 or more but less than
$256,000,000;
(xi) $6,400,000, if the total contract value is $256,000,000 or more but less than
$512,000,000; and
(xii) $10,200,000, if the total contract value is $512,000,000 or more; or
(b) $20,000, for an appeal:
(i) relating to any type of procurement process other than an invitation for bids or
request for proposals;
(ii) relating to an invitation for bids or request for proposals, if the estimated total
contract value cannot be determined; or
(iii) of a debarment or suspension.
(3) (a) For an appeal relating to an invitation for bids, the estimated total contract value 
shall be based on:
(i) the lowest responsible and responsive bid amount for the entire term of the contract,
excluding any renewal period, if the bid opening has occurred;
(ii) the total budget for the procurement item for the entire term of the contract,
excluding any renewal period, if bids are based on unit or rate pricing; or
(iii) if the contract is being rebid, the historical usage and amount spent on the contract
over the life of the contract.
(b) For an appeal relating to a request for proposals, the estimated total contract value
shall be based on:
(i) the lowest cost proposed in a response to a request for proposals, considering the
entire term of the contract, excluding any renewal period, if the opening of proposals has
occurred;
(ii) the total budget for the procurement item over the entire term of the contract,
excluding any renewal period, if opened cost proposals are based on unit or rate pricing; or
(iii) if the contract is being reissued, the historical usage and amount spent on the
contract over the life of the contract that is being reissued.
(4) The protest officer shall:
(a) retain the security deposit or bond until the protest and any appeal of the protest
decision is final;
(b) as it relates to a security deposit:
(i) deposit the security deposit into an interest-bearing account; and
(ii) after any appeal of the protest decision becomes final, return the security deposit
and the interest it accrues to the person who paid the security deposit, unless the security
deposit is forfeited to the [
General Fund
] 
general fund of the procurement unit
 under
Subsection (5); and
(c) as it relates to a bond:
(i) retain the bond until the protest and any appeal of the protest decision becomes
final; and
(ii) after the protest and any appeal of the protest decision becomes final, return the
bond to the person who posted the bond, unless the bond is forfeited to the [
General Fund
]
general fund of the procurement unit
 under Subsection (5).
(5) A security deposit that is paid, or a bond that is posted, under this section shall
forfeit to the [
General Fund
] 
general fund of the procurement unit
 if:
(a) the person who paid the security deposit or posted the bond fails to ultimately
prevail on appeal; and
(b) the procurement appeals panel finds that the protest or appeal is frivolous or that its
primary purpose is to harass or cause a delay.
Section 26. Section 
63G-6a-1802
 is amended to read:
63G-6a-1802.
Appeal to Utah Court of Appeals.
(1) (a) As provided in this part:
(i) a person may appeal a dismissal of an appeal by the board chair under Subsection
63G-6a-1706
(1);
(ii) a person who receives an adverse decision by a procurement appeals panel may
appeal that decision;
(iii) subject to Subsection (2), a procurement unit, other than a legislative procurement
unit, a judicial procurement unit, a 
nonadopting
 local government procurement unit, or a public
transit district, may appeal an adverse decision by a procurement appeals panel;
(iv) a person who receives an adverse decision in a protest relating to a legislative
procurement unit, a judicial procurement unit, a 
nonadopting
 local government procurement
unit, or a public transit district may appeal that decision; and
(v) a person who is debarred or suspended under Section 
63G-6a-904
 by a legislative
procurement unit, a judicial procurement unit, a 
nonadopting
 local government procurement
unit, or a public transit district may appeal the debarment or suspension.
(b) A person seeking to appeal a dismissal, decision, or debarment or suspension under
Subsection (1)(a) shall file a notice of appeal with the Utah Court of Appeals within seven days
after the dismissal, decision, or debarment or suspension.
(2) A procurement unit may not appeal the decision of a procurement appeals panel,
unless the appeal is:
(a) recommended by the protest officer involved; and
(b) except for a procurement unit that is not represented by the attorney general's
office, approved by the attorney general.
(3) A person appealing a dismissal, decision, protest, debarment, or suspension under
this section may not base the appeal on a ground not specified in the proceeding from which
the appeal is taken.
(4) The Utah Court of Appeals:
(a) shall consider the appeal as an appellate court;
(b) may not hear the matter as a trial de novo; and
(c) may not overturn a finding, dismissal, decision, or debarment or suspension, unless
the finding, dismissal, decision, or debarment or suspension is arbitrary and capricious or
clearly erroneous.
(5) The Utah Court of Appeals is encouraged to:
(a) give an appeal made under this section priority; and
(b) consider the appeal and render a decision in an expeditious manner.
Section 27. Section 
63G-6a-1903
 is amended to read:
63G-6a-1903.
Effect of timely protest or appeal.
A procurement unit, other than a legislative procurement unit, a judicial procurement
unit, a 
nonadopting
 local government procurement unit, or a public transit district, may not
proceed further with a solicitation or with the award of a contract:
(1) during the pendency of a timely:
(a) protest under Subsection 
63G-6a-1602
(1);
(b) appeal of a protest under Section 
63G-6a-1702
; or
(c) appeal of a procurement appeals panel decision under Section 
63G-6a-1802
; and
(2) until:
(a) all administrative and judicial remedies are exhausted;
(b) for a protest under Section 
63G-6a-1602
 or an appeal under Section 
63G-6a-1702
:
(i) the chief procurement officer, after consultation with the attorney general's office
and the head of the using agency, makes a written determination that award of the contract
without delay is in the best interest of the procurement unit or the state;
(ii) the head of a procurement unit with independent procurement authority, after
consultation with the procurement unit's attorney, makes a written determination that award of
the contract without delay is in the best interest of the procurement unit or the state; or
(iii) for a procurement unit that is not represented by the attorney general's office, the
procurement unit, after consulting with the attorney for the procurement unit, makes a written
determination that award of the contract without delay is in the best interest of the procurement
unit or the state; or
(c) for an appeal under Section 
63G-6a-1802
, or an appeal to a higher court than
district court:
(i) the chief procurement officer, after consultation with the attorney general's office
and the head of the using agency, makes a written determination that award of the contract
without delay is in the best interest of the procurement unit or the state;
(ii) the head of a procurement unit with independent procurement authority, after
consultation with the procurement unit's attorney, makes a written determination that award of
the contract without delay is in the best interest of the procurement unit or the state; or
(iii) for a procurement unit that is not represented by the attorney general's office, the
procurement unit, after consulting with the attorney for the procurement unit, makes a written
determination that award of the contract without delay is necessary to protect the best interest
of the procurement unit or the state.
Section 28. Section 
63G-6a-1904
 is amended to read:
63G-6a-1904.
Costs to or against protestor.
(1) [
When
] 
If
 a protest is sustained administratively or upon administrative or judicial
review and the protesting bidder or offeror should have been awarded the contract under the
solicitation but is not, the protestor [
shall be
] 
is
 entitled to the following relief as a claim
against the procurement unit:
(a) the reasonable costs incurred in connection with the solicitation, including bid
preparation and appeal costs; and
(b) any equitable relief determined to be appropriate by the reviewing administrative or
judicial body.
(2) [
When a protest is not sustained by a
] 
If the final determination of a
 procurement
appeals panel 
or other appellate body does not sustain the protest
, the protestor shall reimburse
the 
conducting or
 issuing procurement unit for 
all
 expenses 
that the conducting or issuing
procurement unit
 incurred in defending the appeal, including personnel costs, attorney fees,
other legal costs, [
expenses incurred by the attorney general's office,
] the per diem and
expenses paid by the 
conducting or
 issuing procurement unit to witnesses or appeals panel
members, and any additional expenses incurred by the staff of the 
conducting or
 issuing
procurement unit who have provided materials and administrative services to the procurement
appeals panel for that case.
(3) The provisions of Title 63G, Chapter 7, Part 4, Notice of Claim Against a
Governmental Entity or a Government Employee, and Section 
63G-7-601
 do not apply to
actions brought under this chapter by an aggrieved party for equitable relief or reasonable costs
incurred in preparing or appealing an unsuccessful bid or offer.