Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 135 (2016GS)

Sponsor

Sen. Harper, W.

Final action

Governor Signed 3/23/2016

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines terms;
• addresses the process by which a procurement unit may obtain administrative law judge services;
• provides that a conducting procurement unit shall notify the Department of Human Resource Management when the conducting procurement unit awards a contract for administrative law judge services;
• provides that each new administrative law judge shall be hired by means of a hiring panel;
• modifies the content of the administrative law judge performance survey to include questions regarding the elements of procedural fairness;
• requires the Department of Human Resource Management to establish a procedural fairness training program for administrative law judges; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

This document includes Senate Committee Amendments incorporated into the bill on Tue, Feb 16, 2016 at 6:21 PM by lpoole.
ADMINISTRATIVE LAW JUDGE AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Wayne A. Harper
House Sponsor: 
 V. Lowry Snow
LONG TITLE
General Description:
This bill modifies provisions relating to administrative law judges. 
Highlighted Provisions:
This bill:
▸ defines terms;
▸ addresses the process by which a procurement unit may obtain administrative law
judge services;
▸ provides that a conducting procurement unit shall notify the Department of Human
Resource Management when the conducting procurement unit awards a contract for
administrative law judge services; 
▸ provides that each new administrative law judge shall be hired by means of a hiring
panel;
▸ modifies the content of the administrative law judge performance survey to include
questions regarding the elements of procedural fairness;
▸ requires the Department of Human Resource Management to establish a procedural
fairness training program for administrative law judges; and
▸ makes technical and conforming changes. 
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-6a-103
, as last amended by Laws of Utah 2015, Chapters 218 and 464
63G-6a-403
, as last amended by Laws of Utah 2015, Chapter 97
63G-6a-408
, as last amended by Laws of Utah 2015, Chapter 218
63G-6a-707
, as last amended by Laws of Utah 2015, Chapters 97 and 218
67-19e-102
, as enacted by Laws of Utah 2013, Chapter 165
67-19e-103
, as enacted by Laws of Utah 2013, Chapter 165
67-19e-104
, as enacted by Laws of Utah 2013, Chapter 165
67-19e-106
, as enacted by Laws of Utah 2013, Chapter 165
67-19e-108
, as enacted by Laws of Utah 2013, Chapter 165
ENACTS:
63G-6a-409
, Utah Code Annotated 1953
67-19e-104.5
, Utah Code Annotated 1953
67-19e-110
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
63G-6a-103
 is amended to read:
63G-6a-103.
Definitions.
As used in this chapter:
(1) "Administrative law judge" means the same as that term is defined in Section
67-19e-102
.
(2) "Administrative law judge services" means services provided by an administrative
law judge.
[
(1)
] 
(3)
 "Bidder" means a person who responds to an invitation for bids.
[
(2)
] 
(4)
 "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.
[
(3)
] 
(5)
 "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.
[
(4)
] 
(6)
 "Chief procurement officer" means the chief procurement officer appointed
under Subsection 
63G-6a-302
(1).
[
(5)
] 
(7)
 "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.
[
(6)
] 
(8)
 (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.
[
(7)
] 
(9)
 (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.
[
(8)
] 
(10)
 "Contract" means an agreement for the procurement or disposal of a
procurement item.
[
(9)
] 
(11)
 "Contractor" means a person who is awarded a contract with a procurement
unit.
[
(10)
] 
(12)
 "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.
[
(11)
] 
(13)
 "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.
[
(12)
] 
(14)
 "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.
[
(13)
] 
(15)
 "Days" means calendar days, unless expressly provided otherwise.
[
(14)
] 
(16)
 "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.
[
(15)
] 
(17)
 "Design-build" means the procurement of design professional services and
construction by the use of a single contract with the design-build provider.
[
(16)
] 
(18)
 "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)
] 
(19)
 "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.
[
(18)
] 
(20)
 "Directed procurement" means a procurement of a procurement item in
which the source of the funds used to procure the procurement item:
(a) directs from whom the procurement item is to be procured; or
(b) imposes requirements on how the procurement is to be administered.
[
(19)
] 
(21)
 "Director" means the director of the division.
[
(20)
] 
(22)
 "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.
[
(21)
] 
(23)
 "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.
[
(22)
] 
(24)
 "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.
[
(23)
] 
(25)
 "Grant" means an expenditure of public funds or other assistance, or an
agreement to expend public funds or other assistance, for a public purpose authorized by law,
without acquiring a procurement item in exchange.
[
(24)
] 
(26)
 "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.
[
(25)
] 
(27)
 "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.
[
(26)
] 
(28)
 "Independent procurement authority" means authority granted to a
procurement unit under Subsection 
63G-6a-106
(4)(a).
[
(27)
] 
(29)
 "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.
[
(28)
] 
(30)
 "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.
[
(29)
] 
(31)
 "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.
[
(30)
] 
(32)
 "Multiple award contracts" means the award of a contract for an indefinite
quantity of a procurement item to more than one bidder or offeror.
[
(31)
] 
(33)
 "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.
[
(32)
] 
(34)
 "Municipality" means a city or a town.
[
(33)
] 
(35)
 "Offeror" means a person who responds to a request for proposals.
[
(34)
] 
(36)
 "Preferred bidder" means a bidder that is entitled to receive a reciprocal
preference under the requirements of this chapter.
[
(35)
] 
(37)
 "Procure" means to acquire a procurement item through a procurement.
[
(36)
] 
(38)
 "Procurement":
(a) means an expenditure of public funds, or an agreement to expend public funds, in
exchange for a procurement item;
(b) includes all functions that pertain to the acquisition 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; and
(c) does not include a grant.
[
(37)
] 
(39)
 "Procurement item" means a supply, a service, construction, or technology.
[
(38)
] 
(40)
 "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.
[
(39)
] 
(41)
 "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[
.
]
; or
(m) administrative law judge services.
[
(40)
] 
(42)
 "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.
[
(41)
] 
(43)
 "Request for information" means a nonbinding process where a
procurement unit requests information relating to a procurement item.
[
(42)
] 
(44)
 "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.
[
(43)
] 
(45)
 "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.
[
(44)
] 
(46)
 "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.
[
(45)
] 
(47)
 "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.
[
(46)
] 
(48)
 "Responsive" means conforming in all material respects to the invitation for
bids or request for proposals.
[
(47)
] 
(49)
 "Sealed" means manually or electronically sealed and submitted bids or
proposals.
[
(48)
] 
(50)
 (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.
[
(49)
] 
(51)
 "Sole source contract" means a contract resulting from a sole source
procurement.
[
(50)
] 
(52)
 "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.
[
(51)
] 
(53)
 "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.
[
(52)
] 
(54)
 "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.
[
(53)
] 
(55)
 "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
.
[
(54)
] 
(56)
 "State cooperative contract" means a contract awarded by the division for
and in behalf of all public entities.
[
(55)
] 
(57)
 "Statement of qualifications" means a written statement submitted to a
procurement unit in response to a request for statement of qualifications.
[
(56)
] 
(58)
 (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.
[
(57)
] 
(59)
 "Supplies" means all property, including equipment, materials, and printing.
[
(58)
] 
(60)
 "Tie bid" means that the lowest responsive and responsible bids are
identical in price.
[
(59)
] 
(61)
 "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 2. Section 
63G-6a-403
 is amended to read:
63G-6a-403.
Prequalification of potential vendors.
(1) As used in this section:
(a) "Closed-ended prequalification process" means a process to prequalify potential
vendors under this section that is characterized by:
(i) a short, specified period of time during which potential vendors may be
prequalified; and
(ii) a specified date at which prequalifications expire.
(b) "Open-ended prequalification process" means a process to prequalify vendors and
potential vendors under this section that is characterized by an indeterminate period of time
during any part of which vendors or potential vendors may be prequalified and the
prequalification of previously prequalified vendors or potential vendors may be periodically
renewed.
(c) "Vendor" means:
(i) a bidder;
(ii) an offeror; or
(iii) a contractor, including an architect or an engineer.
(2) A procurement unit may, in accordance with this section:
(a) using a closed-ended prequalification process or an open-ended prequalification
process:
(i) prequalify potential vendors to provide any procurement item or type of
procurement item specified by the procurement unit; or
(ii) rank architects, engineers, or other professional service providers to begin the fee
negotiation process, as provided in this chapter; and
(b) limit participation in a standard procurement process to the prequalified potential
vendors for the specified procurement item or type of procurement item.
(3) To prequalify potential vendors or rank professional service providers, a
procurement unit shall issue a request for statement of qualifications.
(4) A procurement unit that issues a request for statement of qualifications:
(a) shall:
(i) publish the request for statement of qualifications in accordance with the
requirements of Section 
63G-6a-406
; and
(ii) state in the request for statement of qualifications:
(A) the procurement item or type of procurement item to which the request for
statement of qualifications relates;
(B) the scope of work to be performed;
(C) the instructions and deadline for submitting a statement of qualifications;
(D) the criteria by which the procurement unit will evaluate statements of
qualifications;
(E) whether the prequalification process is a closed-ended prequalification process or
an open-ended prequalification process;
(F) if the prequalification process is a closed-ended prequalification process, the period
of time during which the list of prequalified potential vendors will remain in effect, which may
not be longer than 18 months after the list of prequalified potential vendors is made available to
the public under Subsection (11)(b);
(G) if the prequalification process is an open-ended prequalification process, when a
potential vendor may submit a statement of qualifications for the potential vendor to be
considered for inclusion on the list of prequalified potential vendors; and
(H) that a procurement unit may limit participation in an invitation for bids or a request
for proposals to the potential vendors that are prequalified to provide the specified procurement
item or type of procurement item; and
(b) may request the person submitting a statement of qualifications to provide:
(i) basic information about the person;
(ii) the person's experience and work history;
(iii) information about the person's management and staff;
(iv) information about the person's licenses, certifications, and other qualifications;
(v) any applicable performance ratings;
(vi) financial statements reporting the person's financial condition;
(vii) information about the person's work site safety program, including any
requirement that the person imposes on subcontractors for a work site safety program; and
(viii) any other pertinent information.
(5) (a) In order to renew a prequalification, a vendor or potential vendor that has been
previously prequalified through an open-ended prequalification process shall submit a
statement of qualifications no more than 18 months after the previous prequalification of that
vendor or potential vendor.
(b) A previously prequalified vendor or potential vendor submitting a statement of
qualifications under Subsection (5)(a) shall comply with all requirements applicable at that
time to a potential vendor seeking prequalification for the first time.
(6) A procurement unit may at any time modify prequalification requirements of an
open-ended prequalification process.
(7) The criteria described in Subsection (4)(a)(ii)(D):
(a) shall include the prequalification requirements unique to the procurement;
(b) may include performance rating criteria; and
(c) may not be so restrictive that the criteria unreasonably limit competition.
(8) A procurement unit may, before making a final list of prequalified vendors, request
additional information to clarify responses made to the request for statement of qualifications.
(9) A potential vendor shall be included on the list of prequalified potential vendors if
the potential vendor:
(a) submits a timely, responsive response to the request for statement of qualifications;
and
(b) meets the criteria for qualification described in Subsection (4)(a)(ii)(D).
(10) If a request for statement of qualifications will result in only one potential vendor
being placed on the list of prequalified potential vendors:
(a) the procurement unit shall cancel the request for statement of qualifications; and
(b) the list may not be used by the procurement unit.
(11) The procurement unit shall:
(a) before making the list of prequalified potential vendors available to the public,
provide each potential vendor who provided information in response to the request, but who
did not meet the minimum qualifications for placement on the list, a written justification
statement describing why the potential vendor did not meet the criteria for inclusion on the list;
and
(b) make the list of prequalified potential vendors available to the public within 30
days after:
(i) completing the evaluation process, if the prequalification process is a closed-ended
prequalification process; or
(ii) updating the list of prequalified potential vendors, if the prequalification process is
an open-ended prequalification process.
(12) For the procurement of administrative law judge services, a procurement unit shall
review and evaluate each statement of qualifications received under this section by means of an
evaluation committee described in Section 
63G-6a-409
.
Section 3. 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:
(i) establishing expenditure thresholds, including:
(A) an annual cumulative threshold;
(B) an individual procurement threshold; and
(C) a single procurement aggregate threshold;
(ii) establishing procurement requirements relating to the thresholds described in
Subsection (2)(b)(i); and
(iii) providing for the use of electronic, telephone, or written quotes.
(c) If a procurement unit obtains administrative law judge services through a small
purchase standard procurement process, rules made under Subsection (2)(a) shall provide that
the process for the procurement of administrative law judge services include an evaluation
committee described in Section 
63G-6a-409
.
(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 4. Section 
63G-6a-409
 is enacted to read:
 63G-6a-409.
Procurement of administrative law judge services. 
(1) Subject to the provisions of this section, a procurement unit shall use a standard
procurement process under this chapter for the procurement of administrative law judge
services.
(2) For the procurement of administrative law judge services, the evaluation committee
shall consist of:
(a) the head of the conducting procurement unit, or the head's designee;
(b) the head of an executive branch procurement unit other than the conducting
procurement unit, appointed by the executive director of the Department of Human Resource
Management, or the head's designee; and
(c) the executive director of the Department of Human Resource Management, or the
executive director's designee.
(3) Within 30 days after the day on which a conducting procurement unit awards a
contract for administrative law judge services, the conducting procurement unit shall give
written notice to the Department of Human Resource Management that states:
(a) that the conducting procurement unit awarded a contract for administrative law
judge services;
(b) the name of the conducting procurement unit; and
(c) the expected term of the contract.
Section 5. 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) the presence and quality of a work site safety program, including any requirement
that the offeror imposes on subcontractors for a work site safety program;
(m) cost; or
(n) 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
] 
Except as provided in Subsection 
63G-6a-409
(2), 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 (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 6. Section 
67-19e-102
 is amended to read:
67-19e-102.
Definitions.
[
(1)
] In addition to the definitions found in Section 
67-19-3
, the following definitions
apply to this chapter[
.
]
:
(1)
 (a) "Administrative law judge" means an individual who is employed or contracted
by a state agency [
that
] 
who
:
(i) presides over or conducts formal administrative hearings on behalf of an agency;
(ii) has the power to administer oaths, rule on the admissibility of evidence, take
testimony, evaluate evidence, and make determinations of fact; and
(iii) issues written orders, rulings, or final decisions on behalf of an agency.
(b) "Administrative law judge" does not mean:
(i) an individual who reviews an order or ruling of an administrative law judge; or
(ii) the executive director of a state agency.
[
(c)
] 
(2)
 "Committee" means the Administrative Law Judge Conduct Committee
created in Section 
67-19e-108
.
(3) "Department" means the Department of Human Resource Management created in
Section 
67-19-5
.
(4) "Executive director" means the executive director of the department.
[
(2) This chapter applies to all agencies of the state except the:
]
[
(a) Board of Pardons and Parole;
]
[
(b) Department of Corrections; and
]
[
(c) State Tax Commission.
]
Section 7. Section 
67-19e-103
 is amended to read:
67-19e-103.
Administrative law judges -- Applicability -- Destruction of evidence.
[
(1) All agency administrative law judges who conduct formal administrative hearings
are subject to this chapter.
]
[
(2) All administrative law judges are subject to the code of conduct promulgated by
the department in accordance with Section 
67-19e-104
.
]
(1) (a) Except as provided in Subsections (1)(b) and (2), the provisions of this chapter
apply to an administrative law judge who conducts formal adjudicative proceedings.
(b) Except as provided in Subsection (2), the provisions of this chapter do not apply to
an administrative law judge who is employed by or contracts with:
(i) the Board of Pardons and Parole;
(ii) the Department of Corrections; or
(iii) the State Tax Commission.
(2) The code of conduct established by the department under Subsection 
67-19e-104
(4)
applies to all administrative law judges.
(3) An administrative law judge who tampers with or destroys evidence submitted to
the administrative law judge is subject to the provisions of Section 
76-8-510.5
. This section
does not apply to documents destroyed in accordance with Title 63G, Chapter 2, Government
Records Access and Management Act.
Section 8. Section 
67-19e-104
 is amended to read:
67-19e-104.
Rulemaking authority.
The department shall make rules, in accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act:
(1) establishing minimum performance standards for all administrative law judges;
(2) providing procedures for filing, addressing, and reviewing complaints against
administrative law judges;
(3) providing standards for complaints against administrative law judges; [
and
]
(4) promulgating a code of conduct for all administrative law judges in all state
agencies[
.
]
; and
(5) establishing a procedural fairness training program as described in Section
67-19e-109
.
Section 9. Section 
67-19e-104.5
 is enacted to read:
 67-19e-104.5.
Hiring of administrative law judges.
(1)
Ŝ→ [
Each
] 
Except as provided in Subsection (6), each
 ←Ŝ
administrative law judge
682a 
hired on or after May 10, 2016, shall be hired in
accordance with this section.
(2) If an applicant for an administrative law judge position is selected for an interview
in accordance with applicable law and department rule, the agency shall interview the applicant
by means of a hiring panel.
(3) The hiring panel described in Subsection (2) shall consist of:
(a) the head of the hiring agency;
(b) the head of another agency, appointed by the executive director; and
(c) the executive director.
(4) Each individual described in Subsection (3) may designate another individual to
serve on the hiring panel on the individual's behalf.
(5) After the hiring panel completes the interviews for an administrative law judge
position:
(a) the hiring panel shall select the top three applicants for the administrative law judge
position; and
(b) the head of the hiring agency shall:
(i) consider any opinions or feedback from the other members of the hiring panel with
respect to the top three applicants; and
(ii) (A) hire an applicant from the top three applicants to fill the administrative law
judge position; or
(B) decide not to hire any of the top three applicants and restart the hiring process to
fill the administrative law judge position.
703a 
Ŝ→ 
(6) This section does not apply to an administrative law judge who is appointed by the
703b 
governor.
 ←Ŝ
Section 10. Section 
67-19e-106
 is amended to read:
67-19e-106.
Performance surveys.
(1) For administrative law judges contracted or employed before July 1, 2013,
performance surveys shall be conducted initially at either the two-, three-, or four-year mark
beginning January 1, 2014. By July 1, 2018, all administrative law judges shall be on a
four-year staggered cycle for performance evaluations.
(2) The performance survey shall include as respondents a sample of each of the
following groups as applicable:
(a) attorneys who have appeared before the administrative law judge as counsel; and
(b) staff who have worked with the administrative law judge.
(3) The department may include an additional classification of respondents if the
department:
(a) considers a survey of that classification of respondents helpful to the department;
and
(b) establishes the additional classification of respondents by rule made in accordance
with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(4) A survey response is anonymous, including any comment included with a survey
response.
(5) If the department provides any information to an administrative law judge or the
committee, the information shall be provided in such a way as to protect the confidentiality of a
survey respondent.
(6) If the department establishes an additional classification, in accordance with
Subsection (3), a survey shall be provided to a potential survey respondent within 30 days of
the day on which the case in which the person appeared before the administrative law judge is
closed, exclusive of any appeal. Staff and attorneys may be surveyed at any time during the
survey period.
(7) The performance survey shall include questions relating to whether the
administrative law judge's behavior furthers the following elements of procedural fairness:
(a) neutrality, including:
(i) consistent and equal treatment of the individuals who appear before the
administrative law judge;
(ii) concern for the individual needs of the individuals who appear before the
administrative law judge; and
(iii) careful deliberation;
(b) respectful treatment of others; and
(c) providing individuals a voice and opportunity to be heard.
[
(7) Survey categories
]
(8) The performance survey
 may include questions concerning an administrative law
judge's:
(a) legal ability, including the following:
(i) demonstration of understanding of the substantive law and any relevant rules of
procedure and evidence;
(ii) attentiveness to factual and legal issues before the administrative law judge;
(iii) adherence to precedent and ability to clearly explain departures from precedent;
(iv) grasp of the practical impact on the parties of the administrative law judge's
rulings, including the effect of delay and increased litigation expense;
(v) ability to write clear opinions and decisions; and
(vi) ability to clearly explain the legal basis for opinions;
(b) temperament and integrity, including the following:
(i) demonstration of courtesy toward attorneys, staff, and others in the administrative
law judge's department;
(ii) maintenance of decorum in the courtroom;
(iii) demonstration of judicial demeanor and personal attributes that promote public
trust and confidence in the administrative law judge system;
(iv) preparedness for oral argument;
(v) avoidance of impropriety or the appearance of impropriety;
(vi) display of fairness and impartiality toward all parties; and
(vii) ability to clearly communicate, including the ability to explain the basis for
written rulings, court procedures, and decisions; and
(c) administrative performance, including the following:
(i) management of workload;
(ii) sharing proportionally the workload within the department; and
(iii) issuance of opinions and orders without unnecessary delay.
[
(8)
] 
(9)
 If the department determines that a certain survey question or category of
questions is not appropriate for a respondent group, the department may omit that question or
category of questions from the survey provided to that respondent group.
[
(9)
] 
(10)
 (a) The survey shall allow respondents to indicate responses in a manner
determined by the department, which shall be:
(i) on a numerical scale from one to five; or
(ii) in the affirmative or negative, with an option to indicate the respondent's inability
to respond in the affirmative or negative.
(b) To supplement the responses to questions on either a numerical scale or in the
affirmative or negative, the department may allow respondents to provide written comments.
[
(10)
] 
(11)
 The department shall compile and make available to each administrative
law judge that administrative law judge's survey results with each of the administrative law
judge's performance evaluations.
Section 11. Section 
67-19e-108
 is amended to read:
67-19e-108.
Administrative Law Judge Conduct Committee.
(1) There is created the Administrative Law Judge Conduct Committee to investigate,
review, and hear complaints filed against administrative law judges.
(2) The committee shall be composed of:
(a) the executive director [
of the department
], or the executive director's designee, as
chair; and
(b) four executive directors, or their designees, of agencies that employ or contract with
administrative law judges, to be selected by the executive director as needed.
(3) The department shall provide staff for the committee as needed.
Section 12. Section 
67-19e-110
 is enacted to read:
 67-19e-110.
Required training.
(1) Each year that an administrative law judge receives a performance evaluation
conducted by the department under this chapter, the administrative law judge shall complete
the procedural fairness training program described in this section.
(2) The department shall establish a procedural fairness training program that includes
training on how an administrative law judge's actions and behavior influence others'
perceptions of the fairness of the adjudicative process.
(3) The procedural fairness training program shall include discussion of the following
elements of procedural fairness:
(a) neutrality, including:
(i) consistent and equal treatment of the individuals who appear before the
administrative law judge;
(ii) concern for the individual needs of the individuals who appear before the
administrative law judge; and
(iii) unhurried and careful deliberation;
(b) respectful treatment of others; and
(c) providing individuals a voice and opportunity to be heard.
(4) The department may contract with a public or private person to develop or provide
the procedural fairness training program.
Legislative Review Note
Office of Legislative Research and General Counsel