Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 184 Third Substitute (2016GS)

Sponsor

Sen. Jenkins, S.

Final action

Governor Signed 3/28/2016

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• modifies and adds definitions;
• rearranges some procurement provisions;
• modifies provisions relating to the head of a procurement unit with independent procurement authority;
• modifies exemptions from the procurement code;
• rewrites provisions relating to requests for statement of qualifications and approved vendor lists;
• authorizes a procurement unit to establish price based on specified established terms;
• modifies provisions relating to correcting immaterial errors in a solicitation and clarifying information in a solicitation response;
• modifies duties and responsibilities of the chief procurement officer;
• modifies provisions relating to a request for information;
• modifies provisions relating to standard procurement processes;
• modifies provisions relating to the evaluation process;
• modifies best and final offer provisions;
• modifies provisions relating to awarding and canceling a contract and the disqualification of offerors;

Every vote on this bill

Bill text

PROCUREMENT CODE MODIFICATIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Scott K. Jenkins
House Sponsor: 
____________
LONG TITLE
General Description:
This bill modifies provisions relating to the Utah Procurement Code.
Highlighted Provisions:
This bill:
▸ modifies and adds definitions;
▸ rearranges some procurement provisions;
▸ modifies provisions relating to the head of a procurement unit with independent
procurement authority;
▸ modifies exemptions from the procurement code;
▸ rewrites provisions relating to requests for statement of qualifications and approved
vendor lists;
▸ authorizes a procurement unit to establish price based on specified established
terms;
▸ modifies provisions relating to correcting immaterial errors in a solicitation and
clarifying information in a solicitation response;
▸ modifies duties and responsibilities of the chief procurement officer;
▸ modifies provisions relating to a request for information;
▸ modifies provisions relating to standard procurement processes;
▸ modifies provisions relating to the evaluation process;
▸ modifies best and final offer provisions;
▸ modifies provisions relating to awarding and canceling a contract and the
disqualification of offerors;
▸ modifies provisions relating to exceptions to standard procurement processes;
▸ modifies provisions relating to procurement protests;
▸ authorizes the attorney general to enforce procurement provisions and bring legal
action;
▸ modifies a provision relating to reporting unlawful conduct; 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-105
, as last amended by Laws of Utah 2015, Chapters 218 and 464
63G-6a-106
, as last amended by Laws of Utah 2015, Chapters 218 and 362
63G-6a-107
, as last amended by Laws of Utah 2015, Chapters 218, 306, and 464
63G-6a-109
, as last amended by Laws of Utah 2015, Chapter 464
63G-6a-401
, as enacted by Laws of Utah 2012, Chapter 347
63G-6a-501
, as enacted by Laws of Utah 2012, Chapter 347
63G-6a-604
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-605
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-703
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-706
, as enacted by Laws of Utah 2012, Chapter 347
63G-6a-707
, as last amended by Laws of Utah 2015, Chapters 97 and 218
63G-6a-707.5
, as renumbered and amended by Laws of Utah 2014, Chapter 196
63G-6a-709
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-802
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-803
, as enacted by Laws of Utah 2012, Chapter 347
63G-6a-806
, as enacted by Laws of Utah 2013, Chapter 445
63G-6a-1206
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1206.5
, as enacted by Laws of Utah 2015, Chapter 218
63G-6a-1601
, as enacted by Laws of Utah 2012, Chapter 347
63G-6a-1602
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1603
, as last amended by Laws of Utah 2015, Chapter 218
63G-6a-1703
, as last amended by Laws of Utah 2015, Chapter 218
63G-6a-2105
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-2404
, as enacted by Laws of Utah 2014, Chapter 196
63G-6a-2407
, as enacted by Laws of Utah 2014, Chapter 196
ENACTS:
63G-6a-106.5
, Utah Code Annotated 1953
63G-6a-113
, Utah Code Annotated 1953
63G-6a-114
, Utah Code Annotated 1953
63G-6a-115
, Utah Code Annotated 1953
63G-6a-410
, Utah Code Annotated 1953
63G-6a-507
, Utah Code Annotated 1953
63G-6a-802.3
, Utah Code Annotated 1953
63G-6a-802.7
, Utah Code Annotated 1953
63G-6a-906
, Utah Code Annotated 1953
63G-6a-1206.3
, Utah Code Annotated 1953
63G-6a-1601.5
, Utah Code Annotated 1953
63G-6a-2408
, Utah Code Annotated 1953
REPEALS AND REENACTS:
63G-6a-303
, as last amended by Laws of Utah 2015, Chapters 218, 258, and 283
RENUMBERS AND AMENDS:
63G-6a-110
, (Renumbered from 63G-6a-402, as last amended by Laws of Utah 2015,
Chapter 218)
63G-6a-111
, (Renumbered from 63G-6a-407, as last amended by Laws of Utah 2013,
Chapter 445)
63G-6a-112
, (Renumbered from 63G-6a-406, as last amended by Laws of Utah 2014,
Chapter 196)
63G-6a-409
, (Renumbered from 63G-6a-502, as enacted by Laws of Utah 2012,
Chapter 347)
63G-6a-506
, (Renumbered from 63G-6a-408, as last amended by Laws of Utah 2015,
Chapter 218)
REPEALS:
63G-6a-104
, as last amended by Laws of Utah 2015, Chapter 218
63G-6a-403
, as last amended by Laws of Utah 2015, Chapter 97
63G-6a-404
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-503
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-504
, as enacted by Laws of Utah 2012, Chapter 347
63G-6a-505
, as enacted by Laws of Utah 2013, Chapter 445
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) "Applicable rulemaking authority" means:
(a) for a legislative procurement unit, the Legislative Management Committee;
(b) for a judicial procurement unit, the Judicial Council;
(c) (i) only to the extent of the procurement authority expressly granted to the
procurement unit by statute:
(A) for the building board or the Division of Facilities Construction and Management,
created in Section 
63A-5-201
, the building board;
(B) for the Office of the Attorney General, the attorney general; and
(C) for the Department of Transportation created in Section 
72-1-201
, the executive
director of the Department of Transportation; and
(ii) for each other executive branch procurement unit, the board;
(d) for a local government procurement unit, the legislative body of the local
government procurement unit;
(e) for a school district or a public school, the board, except to the extent of a school
district's own nonadministrative rules that do not conflict with the provisions of this chapter;
(f) for a state institution of higher education, the State Board of Regents;
(g) for a public transit district, the chief executive of the public transit district;
(h) for a local district other than a public transit district or for 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
(i) for any other procurement unit, the board.
(2) "Approved vendor" means a vendor who has been approved through the approved
vendor list process.
(3) "Approved vendor list" means a list of approved vendors established under Section
63G-6a-507
.
(4) "Approved vendor list process" means the procurement process described in
Section 
63G-6a-507
.
[
(1)
] 
(5)
 "Bidder" means a person who [
responds
] 
submits a bid or price quote in
response
 to an invitation for bids.
(6) "Bidding process" means the procurement process described in Part 6, Bidding.
(7) "Board" means the Utah State Procurement Policy Board, created in Section
63G-6a-202
.
(8) "Building board" means the State Building Board, created in Section 
63A-5-101
.
[
(2)
] 
(9)
 "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)
] 
(10)
 "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)
] 
(11)
 "Chief procurement officer" means the chief procurement officer appointed
under Subsection 
63G-6a-302
(1).
[
(5)
] 
(12)
 "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 
administration
.
(13) "Conservation district" means the same as that term is defined in Section
17D-3-102
.
[
(6) (a)
] 
(14)
 "Construction"
:
(a)
 means the process of building, renovating, altering, improving, or repairing a public
building or public work[
.
]
; and
(b) [
"Construction"
] does not include the routine operation, routine repair, or routine
maintenance of an existing structure, building, or real property.
[
(7) (a)
] 
(15)
 "Construction manager/general contractor"
:
(a)
 means a contractor who enters into a contract
:
(i)
 for the management of a construction project [
when the contract
]
; and
(ii) that
 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[
.
]
; and
(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)
] 
(16)
 "Contract" means an agreement for the procurement or disposal of a
procurement item.
(17) "Contract administration" means all functions, duties, and responsibilities
associated with managing, overseeing, and carrying out a contract between a procurement unit
and a contractor, including:
(a) implementing the contract;
(b) ensuring compliance with the contract terms and conditions by the conducting
procurement unit and the contractor;
(c) executing change orders;
(d) processing contract amendments;
(e) resolving, to the extent practicable, contract disputes;
(f) curing contract errors and deficiencies;
(g) terminating a contract;
(h) measuring or evaluating completed work and contractor performance;
(i) computing payments under the contract; and
(j) closing out a contract.
[
(9)
] 
(18)
 "Contractor" means a person who is awarded a contract with a procurement
unit.
[
(10)
] 
(19)
 "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.
(20) "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
.
[
(11)
] 
(21)
 "Cost-plus-a-percentage-of-cost contract" means a contract [
where
] 
under
which
 the contractor is paid a percentage [
over and above
] 
of the total actual expenses or costs
in addition to
 the contractor's actual expenses or costs.
[
(12)
] 
(22)
 "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)
] 
(23)
 "Days" means calendar days, unless expressly provided otherwise.
[
(14)
] 
(24)
 "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)
] 
(25)
 "Design-build" means the procurement of design professional services and
construction by the use of a single contract with the design-build provider.
[
(16)
] 
(26)
 "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.
(27) "Design professional procurement process" means the procurement process
described in Part 15, Design Professional Services.
[
(17)
] 
(28)
 "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) "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)
] 
(29)
 "Director" means the director of the division.
(30) "Division" means the Division of Purchasing and General Services, created in
Section 
63A-2-101
.
(31) "Educational procurement unit" means:
(a) a school district;
(b) a public school, including a local school board or a charter school;
(c) the Utah Schools for the Deaf and Blind;
(d) the Utah Education and Telehealth Network; or
(e) an institution of higher education of the state.
[
(20)
] 
(32)
 "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.
(33) "Executive branch procurement unit" means a department, division, office,
bureau, agency, or other organization within the state executive branch.
[
(21)
] 
(34)
 "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)
] 
(35)
 "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)
] 
(36)
 "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)
] 
(37)
 "Head of a procurement unit" means:
(a) [
as it relates to
] 
for
 a legislative procurement unit, any person designated by rule
made by the applicable rulemaking authority;
(b) [
as it relates to
] 
for
 an executive branch procurement unit:
(i) the director of [
a
] 
the
 division; or
(ii) any other person designated by the board, by rule;
(c) [
as it relates to
] 
for
 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
] 
for
 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
] 
for
 a local district 
other than a public transit district
, the board of
trustees of the local district or a designee of the board of trustees;
(f) [
as it relates to
] 
for
 a special service district, the governing body of the special
service district or a designee of the governing body;
(g) [
as it relates to
] 
for
 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
] 
for
 a conservation district, the board of supervisors of the
conservation district or a designee of the board of supervisors;
(i) [
as it relates to
] 
for
 a public corporation, the board of directors of the public
corporation or a designee of the board of directors;
(j) [
as it relates to
] 
for
 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
] 
for
 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
] 
for
 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
] 
for
 a public transit district, the board of trustees or a designee of
the board of trustees.
(38) "Immaterial error":
(a) means an irregularity or abnormality that is:
(i) a matter of form that does not affect substance; or
(ii) an inconsequential variation from a requirement of a solicitation that has no, little,
or a trivial effect on the procurement process and that is not prejudicial to other vendors; and
(b) includes:
(i) a missing signature, missing acknowledgment of an addendum, missing copy of a
solicitation, or missing copy of or an incorrect form of a professional license, bond, or
insurance certificate;
(ii) a typographical error;
(iii) an error resulting from an inaccuracy or omission in the solicitation; and
(iv) any other error that the chief procurement officer or the head of a procurement unit
with independent procurement authority considers to be immaterial.
[
(25)
] 
(39)
 "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)
] 
(40)
 "Independent procurement authority" means authority granted to a
procurement unit under Subsection 
63G-6a-106
(4)(a).
[
(27)
] 
(41)
 "Invitation for bids" [
includes all documents, including documents that are
attached or incorporated by reference, used for soliciting
]
:
(a) means a document used to solicit:
(i)
 bids to provide a procurement item to a procurement unit
; or
(ii) quotes for a price of a procurement item to be provided to a procurement unit; and
(b) includes all documents attached to or incorporated by reference in a document
described in Subsection (41)(a)
.
[
(28)
] 
(42)
 "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 
and approves
 the terms and conditions of a contract.
(43) "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) an office, committee, subcommittee, or other organization within the state judicial
branch.
[
(29)
] 
(44)
 "Labor hour contract" is a contract [
where
] 
under which
:
(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.
(45) "Legislative procurement unit" means:
(a) the Legislature;
(b) the Senate;
(c) the House of Representatives;
(d) a staff office of the Legislature, the Senate, or the House of Representatives; or
(e) an office, committee, subcommittee, commission, or other organization within the
state legislative branch.
(46) "Local building authority" means the same as that term is defined in Section
17D-2-102
.
(47) "Local district" means the same as that term is defined in Section 
17B-1-102
.
(48) "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 that has adopted this entire chapter by ordinance, and each
office or agency of that county or municipality; or
(c) a county or municipality that has adopted a portion of this chapter by ordinance, to
the extent that a term in the ordinance is used in the adopted portion of this chapter, and each
office or agency of that county or municipality.
[
(30)
] 
(49)
 "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)
] 
(50)
 "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)
] 
(51)
 "Municipality" means a city or a town.
(52) "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 (52)(a).
[
(33)
] 
(53)
 "Offeror" means a person who [
responds
] 
submits a proposal in response
 to
a request for proposals.
(54) "Person" means the same as that term is defined in Section 
68-3-12.5
, excluding a
political subdivision and a government office, department, division, bureau, or other body of
government.
[
(34)
] 
(55)
 "Preferred bidder" means a bidder that is entitled to receive a reciprocal
preference under the requirements of this chapter.
[
(35)
] 
(56)
 "Procure" means to acquire a procurement item through a procurement.
[
(36)
] 
(57)
 "Procurement":
(a) means
:
(i) a procurement unit's acquisition of a procurement item through
 an expenditure of
public funds
, regardless of the source of the funds, including federal funds
, or an agreement to
expend public funds[
, in exchange for a procurement item
]; 
or
(ii) a procurement unit's engagement of a person:
(A) to provide a service or benefit to the public or to promote an interest or objective of
the procurement unit or state;
(B) that does not involve the expenditure of public funds or an agreement to expend
public funds; and
(C) that involves the person's use of the property, name, influence, or other thing of
value of the procurement unit or state;
(b) includes all functions that pertain to the acquisition of a procurement item
, as
described in Subsection (57)(a)(i), or the engagement of a person, as described in Subsection
(57)(a)(ii)
, 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
]
(i) preparing and issuing a solicitation;
(ii) conducting a standard procurement process; and
(iii) conducting a procurement process that is an exception to a standard procurement
process under Part 8, Exceptions to Procurement Requirements; and
(c) does not include a grant.
[
(37)
] 
(58)
 "Procurement item" means a supply, a service, construction, or technology.
[
(38)
] 
(59)
 "Procurement officer" means:
(a) [
as it relates to
] 
for
 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
] 
for
 the division or a procurement unit without independent
procurement authority, the chief procurement officer.
(60) "Procurement unit":
(a) 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; and
(b) does not include a political subdivision created under Title 11, Chapter 13,
Interlocal Cooperation Act.
[
(39)
] 
(61)
 "Professional service" means a service that requires a high degree of
specialized knowledge and discretion in the performance of [
the
] 
a
 service, including:
(a) legal [
services
] 
service
;
(b) consultation [
services
] 
service
;
(c) architectural [
services
] 
service
;
(d) engineering;
(e) design;
(f) underwriting;
(g) bond counsel;
(h) financial advice;
(i) construction management;
(j) medical [
services
] 
service
;
(k) psychiatric [
services
] 
service
; or
(l) counseling [
services
] 
service
.
[
(40)
] 
(62)
 "Protest officer" means:
(a) [
as it relates to
] 
for
 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
] 
for
 a procurement unit without independent procurement authority,
the chief procurement officer or the chief procurement officer's designee.
(63) "Public corporation" means the same as that term is defined in Section 
63E-1-102
.
(64) "Public entity" means any government entity of the state or 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 the state that expends public funds.
(65) "Public transit district" means a public transit district organized under Title 17B,
Chapter 2a, Part 8, Public Transit District Act.
(66) "Qualified vendor" means a vendor who:
(a) is responsible; and
(b) submits a responsive statement of qualifications under Section 
63G-6a-410
 that
meets the minimum mandatory requirements, evaluation criteria, and any applicable score
thresholds set forth in the request for statement of qualifications.
[
(41)
] 
(67)
 "Request for information" means a nonbinding process [
where
] 
through
which
 a procurement unit requests information relating to a procurement item.
[
(42)
] 
(68)
 "Request for proposals" [
includes all documents, including documents that
are attached or incorporated by reference, used for soliciting
] 
means a document used to solicit
proposals to provide a procurement item to a procurement unit
, including all other documents
that are attached to that document or incorporated in that document by reference
.
(69) "Request for proposals process" means the procurement process described in Part
7, Request for Proposals.
[
(43)
] 
(70)
 "Request for statement of qualifications" means [
all documents
] 
a document
used to solicit information about the qualifications of [
the
] 
a
 person interested in responding to
a potential procurement, including 
all other
 documents attached 
to that document
 or
incorporated 
in that document
 by reference.
[
(44)
] 
(71)
 "Requirements contract" means a contract:
(a) [
where
] 
under which
 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)
] 
(72)
 "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)
] 
(73)
 "Responsive" means conforming in all material respects to the [
invitation
for bids or request for proposals
] 
requirements of a solicitation
.
[
(47)
] 
(74)
 "Sealed" means manually or electronically [
sealed and submitted bids or
proposals
] 
secured to prevent disclosure
.
[
(48) (a)
] 
(75)
 "Services"
:
(a)
 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[
.
]
; and
(b) [
"Services"
] does not include an employment agreement or a collective bargaining
agreement.
(76) "Small purchase process" means the procurement process described in Section
63G-6a-506
.
[
(49)
] 
(77)
 "Sole source contract" means a contract resulting from a sole source
procurement.
[
(50)
] 
(78)
 "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)
] 
(79)
 "Solicitation" means an invitation for bids, request for proposals, notice of a
sole source procurement, request for statement of qualifications, 
or
 request for information[
, or
any document used to obtain bids, proposals, pricing, qualifications, or information for the
purpose of entering into a procurement contract
].
(80) "Solicitation response" means:
(a) a bid submitted in response to an invitation for bids;
(b) a proposal submitted in response to a request for proposals; or
(c) a statement of qualifications submitted in response to a request for statement of
qualifications.
(81) "Special service district" means the same as that term is defined in Section
17D-1-102
.
[
(52)
] 
(82)
 "Specification" means any description of the physical or functional
characteristics[
,
] or 
of the
 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)
] 
(83)
 "Standard procurement process" means [
one of the following methods of
obtaining a procurement item
]:
(a) 
the
 bidding[
, as described in Part 6, Bidding
] 
process
;
(b) 
the
 request for proposals[
, as described in Part 7, Request for Proposals
] 
process
;
[
or
]
[
(c) small purchases, in accordance with the requirements established under Section
63G-6a-408
.
]
(c) the approved vendor list process;
(d) the small purchase process; or
(e) the design professional procurement process.
[
(54)
] 
(84)
 "State cooperative contract" means a contract awarded by the division for
and in behalf of all public entities.
[
(55)
] 
(85)
 "Statement of qualifications" means a written statement submitted to a
procurement unit in response to a request for statement of qualifications.
[
(56) (a)
] 
(86)
 "Subcontractor"
:
(a)
 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[
.
]
; and
(c) [
"Subcontractor"
] does not include a supplier who provides only materials,
equipment, or supplies to a contractor or subcontractor.
[
(57)
] 
(87)
 "Supplies" means all property, including equipment, materials, and printing.
[
(58)
] 
(88)
 "Tie bid" means that the lowest responsive [
and
] 
bids of
 responsible [
bids
]
bidders
 are identical in price.
[
(59)
] 
(89)
 "Time and materials contract" means a contract [
where
] 
under which
 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.
(90) "Transitional costs":
(a) means the costs of changing:
(i) from an existing provider of a procurement item to another provider of that
procurement item; or
(ii) from an existing type of procurement item to another type;
(b) includes:
(i) training costs;
(ii) conversion costs;
(iii) compatibility costs;
(iv) costs associated with system downtime;
(v) disruption of service costs;
(vi) staff time necessary to implement the change;
(vii) installation costs; and
(viii) ancillary software, hardware, equipment, or construction costs; and
(c) does not include:
(i) the costs of preparing for or engaging in a procurement process; or
(ii) contract negotiation or drafting costs.
(91) "Trial use contract" means a contract for a procurement item that the procurement
unit acquires for a trial use or testing to determine whether the procurement item will benefit
the procurement unit.
(92) "Vendor":
(a) means a person who is seeking to enter into a contract with a procurement unit to
provide a procurement item; and
(b) includes:
(i) a bidder;
(ii) an offeror;
(iii) an approved vendor; and
(iv) a design professional.
Section 2. 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)
] 
(1)
 (a) Except as provided in Section 
63G-6a-107
, this chapter [
shall apply
]
applies
 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)
] 
(2)
 The following procurement units shall adopt ordinances or resolutions relating
to the procurement of design professional services not inconsistent with the provisions of Part
15, 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)
] 
(3)
 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)
] 
(4)
 Rules adopted under this chapter shall be consistent with the provisions of this
chapter.
[
(6)
] 
(5)
 An applicable rulemaking authority or a procurement unit may not adopt rules,
policies, or regulations that are inconsistent with this chapter.
[
(7)
] 
(6)
 Unless otherwise provided by statute, this chapter does not apply to
procurement of real property.
[
(8)
] 
(7)
 Notwithstanding any provision of this chapter, a procurement unit may
administer a [
direct
] procurement in accordance with the requirements imposed by the source
of the funds used to procure the procurement item.
Section 3. 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.
]
(e) With respect to a procurement or contract over which the head of a procurement
unit with independent procurement authority has authority, the head of the procurement unit
with independent procurement authority may:
(i) manage and supervise the procurement to ensure to the extent practicable that
taxpayers receive the best value;
(ii) prepare and issue standard specifications for procurement items;
(iii) review contracts, coordinate contract compliance, conduct contract audits, and
approve change orders;
(iv) delegate duties and authority to an employee of the procurement unit, as the head
of the procurement unit with independent procurement authority considers appropriate;
(v) for an executive branch procurement unit, coordinate with the executive director of
the Department of Technology Services, created in Section 
63F-1-103
, with respect to the
procurement unit's procurement of information technology services;
(vi) correct, amend, or cancel a procurement at any stage of the procurement process if
the procurement is out of compliance with this chapter or a board rule;
(vii) after consultation with, as applicable, the attorney general's office or the
procurement unit's legal counsel, correct, amend, or cancel a contract at any time during the
term of the contract if:
(A) the contract is out of compliance with this chapter or a board rule; and
(B) the head of the procurement unit with independent procurement authority
determines that correcting, amending, or canceling the contract is in the best interest of the
state; and
(viii) attempt to resolve a contract dispute in coordination with the legal counsel of the
procurement unit with independent procurement authority.
(f) The head of a procurement unit with independent procurement authority serves as
the protest officer for a protest involving the procurement unit.
[
(f)
] 
(g)
 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, subject to Section 
67-5-33
 if the attorney general retains
outside counsel under a contingent fee contract, as defined in that section; 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 services; and
(b) services related to issuing bonds.
Section 4. Section 
63G-6a-106.5
 is enacted to read:
 63G-6a-106.5.
Policy for legislative procurement units.
The Legislative Management Committee shall adopt a policy establishing requirements
applicable to a legislative procurement unit.
Section 5. 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) a grant;
(c) a contract between procurement units;
(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,
] 
by
 the University of Utah Hospital[
, or any other hospital owned
by the state or a political subdivision of the state,
] 
through a purchasing consortium
 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;
(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;
(f) goods purchased for resale to the public; or
(g) 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)
] 
(2)
 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.
[
(4)
] 
(3)
 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
.
(4) This chapter does not apply to a procurement unit's hiring a mediator, arbitrator, or
arbitration panel member to participate in the procurement unit's dispute resolution efforts.
Section 6. Section 
63G-6a-109
 is amended to read:
63G-6a-109.
Issuing procurement unit and conducting procurement unit.
(1) [
(a) Except as provided in Subsection (1)(b), with
] 
With
 respect to a procurement
by an executive branch procurement unit:
[
(i)
] 
(a)
 the division is the issuing procurement unit; and
[
(ii)
] 
(b)
 the executive branch procurement unit is the conducting procurement unit and
is responsible to ensure that the procurement is conducted in compliance with this chapter.
[
(b) An executive branch procurement unit administering a directed procurement is
both the issuing procurement unit and the conducting procurement unit.
]
(2) With respect to a procurement by any other procurement unit, the procurement unit
is both the issuing procurement unit and the conducting procurement unit.
(3) A conducting procurement unit is responsible for contract administration.
Section 7. Section 
63G-6a-110
, which is renumbered from Section 63G-6a-402 is
renumbered and amended to read:
[
63G-6a-402
].
 63G-6a-110.
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
]
63G-6a-410
, 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)
 a standard procurement process
;
 or
(B)
 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)
] 
(3)
 The State Building Board rules governing procurement of construction, design
professional services, and leases apply to the procurement of construction, 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 8. Section 
63G-6a-111
, which is renumbered from Section 63G-6a-407 is
renumbered and amended to read:
[
63G-6a-407
].
 63G-6a-111.
Purpose of specifications.
(1) All specifications shall seek to promote the overall economy and best use for the
purposes intended and encourage competition in satisfying the needs of the procurement unit,
and may not be unduly restrictive.
(2) The requirements of this part regarding the purposes and nonrestrictiveness of
specifications shall apply to all specifications, including those prepared by architects,
engineers, designers, and draftsmen for public contracts.
Section 9. Section 
63G-6a-112
, which is renumbered from Section 63G-6a-406 is
renumbered and amended to read:
[
63G-6a-406
].
 63G-6a-112.
Public notice of certain solicitations.
(1) The division or a procurement unit with independent procurement authority that
issues a solicitation required to be published in accordance with this section, shall provide
public notice that includes:
(a) the name of the conducting procurement unit;
(b) the name of the procurement unit acquiring the procurement item;
(c) information on how to contact the issuing procurement unit;
(d) the date of the opening and closing of the solicitation;
(e) information on how to obtain a copy of the procurement documents;
(f) a general description of the procurement items that will be obtained through the
standard procurement process or sole source procurement; and
(g) for a notice of a sole source procurement:
(i) contact information and other information relating to contesting or obtaining
additional information relating to the sole source procurement; and
(ii) the earliest date that the procurement unit may make the sole source procurement.
(2) Except as provided in Subsection (4), the issuing procurement unit shall publish the
notice described in Subsection (1):
(a) at least seven days before the day of the deadline for submission of a bid or other
response; and
(b) (i) in a newspaper of general circulation in the state;
(ii) in a newspaper of local circulation in the area:
(A) directly impacted by the procurement; or
(B) over which the procurement unit has jurisdiction;
(iii) on the main website for the issuing procurement unit or the procurement unit
acquiring the procurement item; or
(iv) on a state website that is owned, managed by, or provided under contract with, the
division for posting a public procurement notice.
(3) Except as provided in Subsection (4), for a sole source procurement for which
notice is required to be published in accordance with this section, the issuing procurement unit
shall publish the notice described in Subsection (1):
(a) at least seven days before the acquisition of the sole source procurement item; and
(b) (i) in a newspaper of general circulation in the state;
(ii) in a newspaper of local circulation in the area:
(A) directly impacted by the procurement; or
(B) over which the procurement unit has jurisdiction;
(iii) on the main website for the procurement unit acquiring the procurement item; or
(iv) on a state website that is owned by, managed by, or provided under contract with,
the division for posting a procurement notice.
(4) An issuing procurement unit may reduce the seven-day period described in
Subsection (2) or (3), if the procurement officer or the procurement officer's designee signs a
written statement that:
(a) states that a shorter time is needed; and
(b) determines that competition from multiple sources may be obtained within the
shorter period of time.
(5) (a) An issuing procurement unit shall make a copy of the solicitation documents
available for public inspection at the main office of the issuing procurement unit or on the
website described in Subsection (2)(b) until the award of the contract or the cancellation of the
procurement.
(b) A procurement unit issuing a sole source procurement shall make a copy of
information related to the sole source procurement available for public inspection at the main
office of the procurement unit or on the website described in Subsection (3)(b) until the award
of the contract or the cancellation of the procurement.
(c) A procurement unit shall maintain all records in accordance with Part 20, Records.
(6) A procurement unit that issues a request for statement of qualifications as part of an
approved vendor list process that results in the establishment of an open-ended vendor list, as
defined in Section 
63G-6a-507
, shall keep the request for statement of qualifications posted on
a website described in Subsection (2)(b)(iii) or (iv) during the entire period of the open-ended
vendor list.
Section 10. Section 
63G-6a-113
 is enacted to read:
 63G-6a-113.
Contract price may be based on established terms.
A procurement unit acquiring a procurement item may establish the price of the
procurement item based on:
(1) a price list, rate schedule, or price catalog:
(a) submitted by a vendor and accepted by the procurement unit; or
(b) mandated by the procurement unit or a federal agency; or
(2) a federal regulation for a health and human services program.
Section 11. Section 
63G-6a-114
 is enacted to read:
 63G-6a-114.
Correcting an immaterial error in a solicitation response.
(1) The chief procurement officer or the head of a procurement unit with independent
procurement authority:
(a) may allow a vendor to correct an immaterial error in a solicitation response as
provided in this section; and
(b) may not allow a vendor to:
(i) correct a deficiency, inaccuracy, or mistake in a solicitation response that is not an
immaterial error;
(ii) correct an incomplete submission of documents that the solicitation required to be
submitted with the solicitation response;
(iii) correct a failure to submit a timely solicitation response;
(iv) substitute or alter a required form or other document specified in the solicitation;
(v) remedy a cause for a vendor being considered to be not responsible or a solicitation
response not responsive; or
(vi) correct a defect or inadequacy resulting in a determination that a vendor's
solicitation response does not meet the mandatory minimum requirements, evaluation criteria,
or applicable score thresholds established in the solicitation.
(2) A chief procurement officer who allows a vendor to correct an immaterial error
under this section:
(a) shall establish a deadline by which the vendor is required to submit the correction;
and
(b) may not allow the vendor to correct an immaterial error in a solicitation response if
the vendor submits the correction after the deadline.
(3) A chief procurement officer or the head of a procurement unit with independent
procurement authority who allows a vendor to correct an immaterial error in a solicitation
response shall prepare and sign a written document supporting the reason for allowing the
correction.
Section 12. Section 
63G-6a-115
 is enacted to read:
 63G-6a-115.
Clarifying information in a solicitation response.
(1) A procurement unit may at any time request a vendor to clarify information
contained in a solicitation response.
(2) A procurement unit may allow a vendor to respond to a request under Subsection
(1):
(a) in writing;
(b) by submitting a printed document; or
(c) by an oral discussion or presentation.
(3) A procurement unit that requests a vendor to clarify information contained in a
solicitation response under this section:
(a) shall establish a deadline by which the vendor is required to submit the clarifying
information; and
(b) may not allow the vendor to submit clarifying information after the deadline.
(4) A vendor's response to a request under Subsection (2)(a):
(a) may only explain, illustrate, or interpret the contents of the vendor's original
solicitation response;
(b) if presented orally, shall be confirmed in writing;
(c) may not be used to address criteria or specifications not contained in the vendor's
original solicitation response; and
(d) may not be used to:
(i) correct a deficiency, inaccuracy, or mistake in a solicitation response that is not an
immaterial error;
(ii) correct an incomplete submission of documents that the solicitation required to be
submitted with the solicitation response;
(iii) correct a failure to submit a timely solicitation response;
(iv) substitute or alter a required form or other document specified in the solicitation;
(v) remedy a cause for a vendor being considered to be not responsible or a solicitation
response not responsive; or
(vi) correct a defect or inadequacy resulting in a determination that a vendor does not
meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
established in the solicitation.
Section 13. Section 
63G-6a-303
 is repealed and reenacted to read:
 63G-6a-303.
Duties and authority of chief procurement officer.
(1) The chief procurement officer:
(a) is the director of the division;
(b) serves as the central procurement officer of the state;
(c) serves as a voting member of the board; and
(d) serves as the protest officer for a protest relating to a procurement of an executive
branch procurement unit without independent procurement authority or a state cooperative
contract procurement.
(2) Except as otherwise provided in this chapter, the chief procurement officer shall:
(a) develop procurement policies and procedures supporting ethical procurement
practices, fair and open competition among vendors, and transparency within the state's
procurement process;
(b) administer the state's cooperative purchasing program, including state cooperative
contracts and associated administrative fees;
(c) enter into an agreement with a public entity for services provided by the division, if
the agreement is in the best interest of the state;
(d) ensure the division's compliance with any applicable law, rule, or policy, including
a law, rule, or policy applicable to the division's role as an issuing procurement unit or
conducting procurement unit, or as the state's central procurement organization;
(e) manage the division's electronic procurement system;
(f) oversee the recruitment, training, career development, certification requirements,
and performance evaluation of the division's procurement personnel;
(g) make procurement training available to procurement units and persons who do
business with procurement units;
(h) provide exemplary customer service and continually improve the division's
procurement operations; and
(i) exercise all other authority, fulfill all other duties and responsibilities, and perform
all other functions authorized under this chapter.
(3) With respect to a procurement or contract over which the chief procurement officer
has authority under this chapter, the chief procurement officer, except as otherwise provided in
this chapter:
(a) shall:
(i) manage and supervise a procurement to ensure to the extent practicable that
taxpayers receive the best value;
(ii) prepare and issue standard specifications for procurement items;
(iii) review contracts, coordinate contract compliance, conduct contract audits, and
approve change orders;
(iv) coordinate with the executive director of the Department of Technology Services,
created in Section 
63F-1-103
, with respect to the procurement of information technology
services by an executive branch procurement unit;
(v) correct, amend, or cancel a procurement at any stage of the procurement process if
the procurement is out of compliance with this chapter or a board rule;
(vi) after consultation with the attorney general's office, correct, amend, or cancel a
contract at any time during the term of the contract if:
(A) the contract is out of compliance with this chapter or a board rule; and
(B) the chief procurement officer determines that correcting, amending, or canceling
the contract is in the best interest of the state; and
(vii) make a reasonable attempt to resolve a contract dispute, in coordination with the
attorney general's office; and
(b) may:
(i) delegate limited purchasing authority to a state agency, with appropriate oversight
and control to ensure compliance with this chapter;
(ii) delegate duties and authority to an employee of the division, as the chief
procurement officer considers appropriate;
(iii) negotiate and settle contract overcharges, undercharges, and claims, in accordance
with the law and after consultation with the attorney general's office;
(iv) authorize a procurement unit to make a procurement pursuant to a regional
solicitation, as defined in Subsection 
63G-6a-2105
(2), even if the procurement item is also
offered under a state cooperative contract, if the chief procurement officer determines that the
procurement pursuant to a regional solicitation is in the best interest of the acquiring
procurement unit; and
(v) remove an individual from the procurement process or contract administration for:
(A) having a conflict of interest or the appearance of a conflict of interest with a person
responding to a solicitation or with a contractor;
(B) having a bias or the appearance of bias for or against a person responding to a
solicitation or for or against a contractor;
(C) making an inconsistent or unexplainable score for a solicitation response;
(D) having inappropriate contact or communication with a person responding to a
solicitation;
(E) socializing inappropriately with a person responding to a solicitation or with a
contractor;
(F) engaging in any other action or having any other association that causes the chief
procurement officer to conclude that the individual cannot fairly evaluate a solicitation
response or administer a contract; or
(G) any other violation of a law, rule, or policy.
(4) The chief procurement officer has final authority to determine whether an executive
branch procurement unit's anticipated expenditure of public funds, anticipated agreement to
expend public funds, or provision of a benefit constitutes a procurement that is subject to this
chapter.
(5) Except as otherwise provided in this chapter, the chief procurement officer shall
review, monitor, and audit the procurement activities and delegated procurement authority of
an executive branch procurement unit without independent procurement authority to ensure
compliance with this chapter, rules made by the applicable rulemaking authority, and division
policies.
Section 14. Section 
63G-6a-401
 is amended to read:
Part 4. Supplemental Procurement Procedures
63G-6a-401.
Title.
This part is known as [
"General Procurement Provisions."
] 
"Supplemental Procurement
Procedures."
Section 15. Section 
63G-6a-409
, which is renumbered from Section 63G-6a-502 is
renumbered and amended to read:
[
63G-6a-502
].
 63G-6a-409.
Request for information.
(1) The purpose of a request for information is to:
(a) obtain information, comments, or suggestions from potential bidders or offerors
before issuing an invitation for bids or request for proposals;
(b) determine whether to issue an invitation for bids or a request for proposals; and
(c) generate interest in a potential invitation for bids or [
a
] request for proposals.
(2) A request for information may be useful in order to:
(a) prepare to issue an invitation for bids or request for proposals for an unfamiliar or
complex procurement;
(b) determine the market availability of a procurement item; or
(c) determine best practices, industry standards, performance standards, product
specifications, and innovations relating to a procurement item.
(3) (a) A request for information is not a procurement process and may not be used to:
(i) solicit cost, pricing, or rate information;
(ii) negotiate fees;
(iii) make a purchase; or
(iv) enter into a contract.
(b) To make a purchase or enter into a contract, a procurement unit is required to:
(i) use a standard procurement process; or
(ii) comply with an exception to the requirement to use a standard procurement
process, as described in Part 8, Exceptions to Procurement Requirements.
(4) A response to a request for information is not an offer and may not be accepted to
form a binding contract.
(5) A request for information may seek a wide range of information, including:
(a) availability of a procurement item;
(b) delivery schedules;
(c) industry standards and practices;
(d) product specifications;
(e) training;
(f) new technologies;
(g) capabilities of potential providers of a procurement item; and
(h) alternate solutions.
(6) A record containing information submitted to or by a governmental entity in
response to a request for information is a protected record under Section 
63G-2-305
.
Section 16. Section 
63G-6a-410
 is enacted to read:
 63G-6a-410.
Request for statement of qualifications -- Process.
(1) (a) A procurement unit may use the process described in this section:
(i) as one of the stages of a multiple-stage:
(A) bidding process;
(B) request for proposals process; or
(C) design professional procurement process; and
(ii) to identify qualified vendors to participate in other stages of the multiple-stage
procurement process.
(b) A procurement unit shall use the process described in this section as part of the
approved vendor list process, if the procurement unit intends to establish an approved vendor
list.
(2) A procurement unit may not:
(a) award a contract based solely on the process described in this section; or
(b) solicit costs, pricing, or rates or negotiate fees through the process described in this
section.
(3) The process of identifying qualified vendors in a multiple-stage procurement
process or of establishing an approved vendor list under Section 
63G-6a-507
 is initiated by a
procurement unit issuing a request for statement of qualifications.
(4) A request for statement of qualifications in a multiple-stage procurement process
shall include:
(a) a statement indicating that participation in other stages of the multiple-stage
procurement process will be limited to qualified vendors;
(b) the minimum mandatory requirements, evaluation criteria, and applicable score
thresholds that will be used to identify qualified vendors, including, as applicable:
(i) experience and work history;
(ii) management and staff requirements or standards;
(iii) licenses, certifications, and other qualifications;
(iv) performance ratings or references;
(v) financial stability; and
(vi) other information pertaining to vendor qualifications that the chief procurement
officer or the head of a procurement unit with independent procurement authority considers
relevant or important; and
(c) the deadline by which a vendor is required to submit a statement of qualifications.
(5) A request for statement of qualifications in an approved vendor list process under
Section 
63G-6a-507
 shall include:
(a) a general description of, as applicable:
(i) the procurement item that the procurement unit seeks to acquire;
(ii) the type of project or scope or category of work that will be the subject of a
procurement by the procurement unit;
(iii) the procurement process the procurement unit will use to acquire the procurement
item; and
(iv) the type of vendor the procurement unit seeks to provide the procurement item;
(b) the minimum mandatory requirements, evaluation criteria, and applicable score
thresholds that vendors are required to meet to be included on the approved vendor list;
(c) a statement indicating that the approved vendor list will include only responsible
vendors that:
(i) submit a responsive statement of qualifications; and
(ii) meet the minimum mandatory requirements, evaluation criteria, and applicable
score thresholds described in the request for statement of qualifications;
(d) a statement indicating that only vendors on the approved vendor list will be able to
participate in the procurements identified in the request for statement of qualifications;
(e) a statement indicating whether the procurement unit will use a performance rating
system for evaluating the performance of vendors on the approved vendor list, including
whether a vendor on the approved vendor list may be disqualified and removed from the list;
(f) (i) a statement indicating whether the procurement unit uses a closed-ended
approved vendor list, as defined in Section 
63G-6a-507
, or an open-ended approved vendor
list, as defined in Section 
63G-6a-507
; and
(ii) (A) if the procurement unit uses a closed-ended approved vendor list, the deadline
by which a vendor is required to submit a statement of qualifications and a specified period of
time after which the approved vendor list will expire; or
(B) if the procurement unit uses an open-ended approved vendor list, the deadline by
which a vendor is required to submit a statement of qualifications to be considered for the
initial approved vendor list, a schedule indicating when a vendor not on the initial approved
vendor list may submit a statement of qualifications to be considered to be added to the
approved vendor list, and the specified period of time after which a vendor is required to
submit a new statement of qualifications for evaluation before the vendor's status as an
approved vendor on the approved vendor list may be renewed; and
(g) a description of any other criteria or requirements specific to the procurement item
or scope of work that is the subject of the procurement.
(6) A procurement unit issuing a request for statement of qualifications shall publish
the request as provided in Section 
63G-6a-112
.
(7) After the deadline for submitting a statement of qualifications, the chief
procurement officer or the head of a procurement unit with independent procurement authority
may correct an immaterial error in a statement of qualifications, as provided in Subsection
63G-6a-114
(1).
(8) The conducting procurement unit may reject a statement of qualifications if the
conducting procurement unit determines that:
(a) the person submitting the statement of qualifications is not responsible; or
(b) the statement of qualifications:
(i) is not responsive; or
(ii) does not meet mandatory minimum requirements, evaluation criteria, or applicable
score thresholds stated in the request for statement of qualifications.
(9) (a) (i) After the issuance of a request for statement of qualifications, the conducting
procurement unit shall appoint an evaluation committee consisting of at least three individuals
with at least a general familiarity with or basic understanding of:
(A) the technical requirements relating to the type of procurement item that is the
subject of the request for statement of qualifications; or
(B) the need that the procurement item is intended to address.
(ii) The conducting procurement unit shall ensure that each member of the evaluation
committee and each individual participating in the evaluation committee process:
(A) does not have a conflict of interest with any vendor that submits a statement of
qualifications;
(B) can fairly evaluate each statement of qualifications;
(C) does not contact or communicate with a vendor concerning the evaluation process
or procurement outside the official evaluation committee process; and
(D) conducts or participates in the evaluation in a manner that ensures a fair and
competitive process and avoids the appearance of impropriety.
(b) A conducting procurement unit may authorize an evaluation committee to receive
assistance:
(i) from an expert or consultant who:
(A) is not a member of the evaluation committee; and
(B) does not participate in the evaluation scoring; and
(ii) to better understand a technical issue involved in the procurement.
(c) An evaluation committee appointed under this Subsection (9):
(i) shall evaluate and score statements of qualifications submitted in response to a
request for statement of qualifications using the minimum mandatory requirements, evaluation
criteria, and applicable score thresholds set forth in the request for statement of qualifications;
(ii) may not evaluate or score a statement of qualifications using criteria not included in
the request for statement of qualifications; and
(iii) may, with the approval of the head of the conducting procurement unit, request the
vendor to clarify the vendor's statement of qualifications, as provided in Section 
63G-6a-115
.
(d) After the evaluation committee completes its evaluation and scoring of the
statements of qualifications, the evaluation committee shall submit the statements of
qualifications and evaluation scores to the head of the procurement unit for review and final
determination of:
(i) qualified vendors, if the request for statement of qualifications process is used as
one of the stages of a multiple-stage process; or
(ii) vendors to be included on an approved vendor list, if the request for statement of
qualifications process is used as part of the approved vendor list process.
(e) The issuing procurement unit shall review the evaluation committee's scores and
correct any errors, scoring inconsistencies, and reported noncompliance with this chapter.
(f) (i) The deliberations of an evaluation committee under this Subsection (9) may be
held in private.
(ii) 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.
(10) A procurement unit may at any time request a vendor to clarify information
contained in a statement of qualifications, as provided in Section 
63G-6a-115
.
(11) A vendor may voluntarily withdraw a statement of qualifications at any time
before a contract is awarded with respect to which the statement of qualifications was
submitted.
(12) (a) A procurement unit may at any time:
(i) take steps to confirm the accuracy of a statement of qualifications; or
(ii) allow the voluntary withdrawal of an unintentionally erroneous statement of
qualifications.
(b) If a vendor fails to respond to a procurement unit's request to confirm the accuracy
of the vendor's statement of qualifications by the deadline established by the procurement unit,
the procurement unit shall consider the statement of qualifications to be accurate and may
proceed with the procurement process.
(13) (a) A conducting procurement unit may disqualify a vendor for:
(i) a violation of this chapter;
(ii) not being responsible or for filing a statement of qualifications that is not
responsive;
(iii) a violation of a requirement contained in the request for statement of
qualifications;
(iv) unlawful or unethical conduct;
(v) a change in the vendor's circumstances after the vendor submits a statement of
qualifications that, if the change had been known at the time the statement of qualifications was
submitted, would have caused the vendor not to have a qualifying score; or
(vi) a performance rating below the satisfactory performance threshold specified in the
request for statement of qualifications.
(b) A procurement unit that disqualifies a vendor under Subsection (13)(a) shall:
(i) make a written finding, stating the reasons for the disqualification; and
(ii) provide a copy of the written finding to the disqualified vendor.
(14) If only one vendor meets the minimum qualifications, evaluation criteria, and
applicable score thresholds set forth in the request for statement of qualifications that the
procurement unit is using as part of an approved vendor list process, the conducting
procurement unit:
(a) shall cancel the request for statement of qualifications; and
(b) may not establish an approved vendor list based on the canceled request for
statement of qualifications or on statements of qualifications submitted in response to the
request for statement of qualifications.
(15) If a conducting procurement unit cancels a request for statement of qualifications,
the conducting procurement unit shall make available for public inspection a written
justification for the cancellation.
(16) After receiving and reviewing the statements of qualifications and evaluation
scores submitted by the evaluation committee, as provided in Subsection (9)(c), the head of the
procurement unit using the request for statement of qualifications process under this section as
one of the stages of a multiple-stage procurement process shall identify those vendors meeting
the minimum mandatory requirements, evaluation criteria, and applicable score thresholds as
qualified vendors who are allowed to participate in the remaining stages of the multiple-stage
procurement process.
(17) The applicable rulemaking authority may make rules in accordance with the
provisions of Chapter 3, Utah Administrative Rulemaking Act, pertaining to the request for
statement of qualifications and the process described in this section.
Section 17. Section 
63G-6a-501
 is amended to read:
Part 5. Other Standard Procurement Processes
63G-6a-501.
Title.
This part is known as [
"Request for Information."
] 
"Other Standard Procurement
Processes."
Section 18. Section 
63G-6a-506
, which is renumbered from Section 63G-6a-408 is
renumbered and amended to read:
[
63G-6a-408
].
 63G-6a-506.
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.
(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
], 
or
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 19. Section 
63G-6a-507
 is enacted to read:
 63G-6a-507.
Approved vendor list procurement process.
(1) As used in this section:
(a) "Closed-ended approved vendor list" means an approved vendor list that is subject
to:
(i) a short period of time, specified by the procurement unit, during which vendors may
be added to the list; and
(ii) a specified period of time after which the list will expire.
(b) "Open-ended approved vendor list" means an approved vendor list that is subject
to:
(i) an indeterminate period of time during which vendors may be added to the list;
(ii) the addition of vendors to the list throughout the term of the list; and
(iii) a specified period of time after which a vendor on the list is required to submit the
vendor's qualifications for evaluation before the vendor may be renewed as an approved
vendor.
(2) A procurement unit may not establish an approved vendor list unless the
procurement unit has first completed the statement of qualifications process described in
Section 
63G-6a-410
.
(3) (a) A procurement unit may establish an approved vendor list for:
(i) a project or procurement item with an identified, fully defined scope of work; or
(ii) a future project or procurement item that does not have an identified, fully defined
scope of work at the time the request for statement of qualifications is issued, if the request for
statement of qualifications contains a general description of the:
(A) scope or category of work;
(B) type of vendor that the procurement unit seeks to provide the procurement item;
and
(C) project or procurement item.
(b) A procurement unit may not award a contract to a vendor on an approved vendor
list for work that is outside the scope of the general description of the work contained in the
request for statement of qualifications.
(4) After receiving the statements of qualifications and evaluation scores submitted by
the evaluation committee, as provided in Subsection 
63G-6a-410
(9)(c), the head of the
conducting procurement unit using the request for statement of qualifications process under
Section 
63G-6a-410
 as part of an approved vendor list process shall:
(a) include on an approved vendor list those vendors meeting the minimum mandatory
requirements, evaluation criteria, and applicable score thresholds; and
(b) reject any vendor not meeting the minimum mandatory requirements, evaluation
criteria, and applicable score thresholds as ineligible for inclusion on the approved vendor list.
(5) (a) A procurement unit shall include approved vendors on a closed-ended approved
vendor list or an open-ended approved vendor list.
(b) (i) A closed-ended approved vendor list shall expire no later than 18 months after
the publication of the closed-ended approved vendor list.
(ii) A procurement unit shall require a vendor on an open-ended approved vendor list,
in order to remain on the approved vendor list, to submit an updated statement of qualifications
for evaluation no later than 18 months after the vendor was added to the list as an approved
vendor.
(6) A procurement unit may:
(a) (i) using a standard procurement process, award a contract to a vendor on an
approved vendor list for any procurement item or type of procurement item specified by the
procurement unit in the request for statement of qualifications, including procurement items
that the procurement unit intends to acquire in a series of upcoming procurements described in
the request for statement of qualifications; and
(ii) limit participation in a standard procurement process to vendors on an approved
vendor list; or
(b) award a contract to a vendor on an approved vendor list at a price established as
provided in Section 
63G-6a-113
.
(7) After establishing an approved vendor list as provided in this section, the
conducting procurement unit shall, before using the approved vendor list, submit the approved
vendor list to the issuing procurement unit for publication by the issuing procurement unit.
(8) A conducting procurement unit administering an open-ended approved vendor list
shall:
(a) require a vendor seeking inclusion on the approved vendor list to submit a
statement of qualifications that complies with all requirements applicable at the time of the
initial request for statement of qualifications;
(b) if modifying the requirements for inclusion on the approved vendor list, apply any
new or additional requirement to all vendors equally, whether a vendor is seeking inclusion on
the approved vendor list for the first time or is already included on the approved vendor list;
and
(c) keep the request for statement of qualifications posted on a website as required
under Subsection 
63G-6a-112
(6).
(9) The applicable rulemaking authority shall, in accordance with the provisions of
Chapter 3, Utah Administrative Rulemaking Act, make rules pertaining to an approved vendor
list process, including:
(a) procedures to ensure that all vendors on an approved vendor list have a fair and
equitable opportunity to compete for a contract or be assigned to provide work or a
procurement item; and
(b) requirements for using an approved vendor list with the small purchase process.
Section 20. Section 
63G-6a-604
 is amended to read:
63G-6a-604.
Bid opening and acceptance.
(1) Bids shall be opened:
(a) publicly, except as provided in Section 
63G-6a-611
;
(b) in the presence of one or more witnesses, unless an electronic bid opening process
is used where bidders may see the opening of the bid electronically; and
(c) at the time and place indicated in the invitation for bids.
(2) Bids shall be accepted unconditionally, without alteration or correction, except as
otherwise authorized by this chapter.
(3) (a) The procurement officer shall reject a bid [
that
] 
if the bid
 is not responsive or
the bid is submitted by a bidder who is not
 responsible.
(b) A bid that is not responsive includes a bid that:
(i) is conditional;
(ii) attempts to modify the bid requirements;
(iii) contains additional terms or conditions; or
(iv) fails to conform with the requirements or specifications of the invitation for bids.
(c) A bid that is 
submitted by a bidder who is
 not responsible includes a bid where the
procurement officer reasonably concludes that the bidder or an employee, agent, or
subcontractor of the bidder, at any tier, is unable to satisfactorily fulfill the bid requirements.
(4) An issuing procurement unit may not accept a bid after the time for submission of a
bid has expired.
(5) The procurement officer shall:
(a) record the name of each bidder and the amount of each bid; and
(b) after the bid is awarded, make the information described in Subsection (5)(a)
available for public disclosure.
Section 21. Section 
63G-6a-605
 is amended to read:
63G-6a-605.
Correction or clarification of bids.
The chief procurement officer or the head of a procurement unit with independent
procurement authority may:
(1) allow a vendor to correct an immaterial error in a bid, as provided in Section
63G-6a-114
; and
(2) request a vendor to clarify information contained in a bid, as provided in Section
63G-6a-115
.
[
(1) Correction or withdrawal of inadvertently erroneous bids, or the cancellation of an
award or a contract that is based on an unintentionally erroneous bid, may be made in
accordance with the rules of the applicable rulemaking authority.
]
[
(2) Notwithstanding Subsection (1), the following changes may not be made to a bid
after the bid opening:
]
[
(a) changes in bid pricing;
]
[
(b) changes in the cost evaluation formula; or
]
[
(c) changes in other provisions that are prejudicial to fair competition or to the interest
of the procurement unit.
]
[
(3) A decision to permit the correction or withdrawal of a bid or the cancellation of an
award or a contract under Subsection (1) shall be supported in a written document, signed by
the chief procurement officer, the procurement officer, or the head of the procurement unit with
independent procurement authority.
]
Section 22. Section 
63G-6a-703
 is amended to read:
63G-6a-703.
Request for proposals -- Requirements -- Publication of request.
(1) The request for proposals standard procurement process begins when the division
or a procurement unit with independent procurement authority issues a request for proposals.
(2) A request for proposals shall:
(a) state the period of time during which a proposal will be accepted;
(b) describe the manner in which a proposal shall be submitted;
(c) state the place where a proposal shall be submitted;
(d) include, or incorporate by reference:
(i) a description of the procurement items sought;
(ii) a description of the subjective and objective criteria that will be used to evaluate
the proposal; and
(iii) the standard contractual terms and conditions required by the authorized
purchasing entity;
(e) state the relative weight that will be given to each score for the criteria described in
Subsection (2)(d)(ii), including cost;
(f) state the formula that will be used to determine the score awarded for the cost of
each proposal;
(g) if the request for proposals will be conducted in multiple stages, as described in
Section 
63G-6a-710
, include a description of the stages and the criteria and scoring that will be
used to screen offerors at each stage; and
[
(h) state that discussions may be conducted with offerors who submit proposals
determined to be reasonably susceptible of being selected for award, followed by an
opportunity to make best and final offers, but that proposals may be accepted without
discussions.
]
(h) state that best and final offers may be allowed from responsible offerors who
submit responsive proposals that meet minimum qualifications, evaluation criteria, or
applicable score thresholds identified in the request for proposals.
(3) The division or a procurement unit with independent procurement authority shall
publish a request for proposals in accordance with the requirements of Section [
63G-6a-406
]
63G-6a-112
.
Section 23. Section 
63G-6a-706
 is amended to read:
63G-6a-706.
Correction or clarification of proposal.
The chief procurement officer or the head of a procurement unit with independent
procurement authority may:
(1) allow a vendor to correct an immaterial error in a proposal, as provided in Section
63G-6a-114
; and
(2) request a vendor to clarify information contained in a proposal, as provided in
Section 
63G-6a-115
.
[
(1) Correction or withdrawal of an unintentionally erroneous proposal, or the
cancellation of an award or contract that is based on an unintentionally erroneous proposal,
may be made in accordance with the rules of the applicable rulemaking authority.
]
[
(2) A decision to permit the correction or withdrawal of a proposal or the cancellation
of an award or a contract under Subsection (1) shall be supported in a written document, signed
by the procurement officer.
]
Section 24. 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 conducting procurement unit shall:
(a) appoint an evaluation committee consisting of at least three individuals 
with at least
a general familiarity with or basic understanding of:
(i) the technical requirements relating to the type of procurement item that is the
subject of the procurement; or
(ii) the need that the procurement item is intended to address
; and
(b) ensure that the evaluation committee and each [
member of the evaluation
committee
] 
individual participating in the evaluation committee process
:
(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 
or participates in
 the evaluation in a manner that ensures a fair and
competitive process and avoids the appearance of impropriety.
(4) A conducting procurement unit may authorize an evaluation committee to receive
assistance:
(a) from an expert or consultant who:
(i) is not a member of the evaluation committee; and
(ii) does not participate in the evaluation scoring; and
(b) to better understand a technical issue involved in the procurement.
[
(4)
] 
(5)
 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)
] 
(6)
 (a) Except as provided in Subsections [
(5)(b) and (8)
] 
(6)(b) and (9)
, 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)
] 
(6)
(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)
] 
(7)
 (a) As used in this Subsection [
(6)
] 
(7)
, "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)
] 
(9)
, 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)
] 
(8)
 (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)
] 
(9)
 An issuing procurement unit is not required to comply with Subsection [
(5)
]
(6)
 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)
] 
(6)
; and
(ii) describing the nature of the proposal and the other circumstances relied upon to
waive compliance with Subsection [
(5)
] 
(6)
; and
(b) makes the written statement available to the public, upon request.
Section 25. Section 
63G-6a-707.5
 is amended to read:
63G-6a-707.5.
Best and final offers.
(1) At any time during the evaluation process, the evaluation committee, with the
approval of the director or 
the
 head of the issuing procurement unit, may:
(a) request best and final offers from responsible [
and
] 
offerors who have submitted
responsive [
offerors
] 
proposals that meet the minimum qualifications, evaluation criteria, or
applicable score thresholds identified in the request for proposals, if:
(i) no single proposal addresses all the specifications stated in the request for
proposals;
(ii) all or a significant number of the proposals are ambiguous on a material point and
the evaluation committee requires further clarification in order to conduct a fair evaluation of
proposals;
(iii) the evaluation committee needs additional information from all offerors to
complete the evaluation of proposals;
(iv) the differences between proposals in one or more material aspects are too slight to
allow the evaluation committee to distinguish between proposals;
(v) all cost proposals are too high or over budget; or
(vi) another reason exists supporting a request for best and final offers, as provided in
rules established by the applicable rulemaking authority
; and
(b) evaluate those 
best and final
 offers.
(2) In requesting and evaluating best and final offers under Subsection (1), the
evaluation committee shall:
(a) ensure that each offeror receives fair and equal treatment with respect to the other
offerors;
(b) establish a schedule and procedures for conducting discussions;
(c) ensure that information in each proposal and information gathered during
discussions is not shared with other offerors until the contract is awarded;
(d) ensure that auction tactics are not used in the discussion process, including
discussing and comparing the costs and features of other proposals; and
(e) set a common date and time for the submission of best and final offers.
(3) In a best and final offer, an offeror:
(a) may address only the issues described in the request for best and final offers; and
(b) may not correct a material error or deficiency in the offeror's proposal or address
any other issue not described in the request for best and final offers.
[
(3)
] 
(4)
 If an offeror chooses not to participate in a discussion or does not make a
timely best and final offer, the offer submitted by the offeror before the conduct of discussions
shall be treated as the offeror's best and final offer.
(5) An applicable rulemaking authority shall make rules governing best and final offers
under this section.
Section 26. Section 
63G-6a-709
 is amended to read:
63G-6a-709.
Award of contract -- Cancellation -- Disqualification.
(1) After the completion of the evaluation and scoring of proposals and the justification
statement, including any required cost-benefit analysis, the evaluation committee shall submit
the proposals, evaluation scores, and justification statement to the head of the procurement unit
or designee for review and final determination of a contract award.
(2) After reviewing the proposals, evaluation scores, and justification statement,
including any required cost-benefit analysis, the head of the issuing procurement unit [
or
designee
] shall:
(a) 
(i)
 award the contract as soon as practicable to[
: (i)
] the [
responsive and
]
responsible offeror with the 
responsive proposal receiving the
 highest total score; or
[
(ii) if, in accordance with Subsection (3), the procurement officer or the head of the
issuing procurement unit disqualifies the offeror described in Subsection (2)(a)(i), the
responsive and responsible offeror with the next highest total score; or
]
(ii) (A) if the head of the issuing procurement unit disqualifies an offeror under
Subsection (3) who would otherwise have been awarded a contract, award the contract to the
responsible offeror with the responsive proposal receiving the next highest total score; and
(B) if the head of the issuing procurement unit disqualifies an offeror under Subsection
(3) who would otherwise have been awarded a contract under Subsection (2)(a)(ii)(A), repeat
the process described in Subsection (2)(a)(ii)(A) as many times as necessary until a contract is
awarded to a responsible offeror who is not disqualified; or
(b) cancel the request for proposals without awarding a contract.
(3) [
In accordance with Subsection (4), the procurement officer or the
] 
The
 head of the
issuing procurement unit may disqualify an offeror for:
(a) a violation of this chapter;
(b) not being responsive or responsible;
(c) a violation of a requirement of the request for proposals;
(d) unlawful or unethical conduct; [
or
]
(e) a failure to sign a contract within:
(i) (A) the time specified in the solicitation; or
(B) 90 days after the contract award, if no time is specified in the solicitation; or
(ii) a time authorized in writing by the head of the issuing procurement unit; or
[
(e)
] 
(f)
 a change in circumstance that, had the change been known at the time the
proposal was submitted, would have caused the proposal to not have the highest score.
(4) A [
procurement officer or
] head of an issuing procurement unit who disqualifies an
offeror under Subsection (3) shall:
(a) make a written finding, stating the reasons for disqualification; and
(b) provide a copy of the written finding to the disqualified offeror.
(5) If an issuing procurement unit cancels a request for proposals without awarding a
contract, the issuing procurement unit shall make available for public inspection a written
justification for the cancellation.
Section 27. Section 
63G-6a-802
 is amended to read:
63G-6a-802.
Award of contract without competition -- Notice -- Duty to negotiate
contract terms in best interest of procurement unit.
[
(1) As used in this section:
]
[
(a) "Transitional costs" mean the costs of changing from an existing provider of, or
type of, a procurement item to another provider of, or type of, procurement item.
]
[
(b) "Transitional costs" include:
]
[
(i) training costs;
]
[
(ii) conversion costs;
]
[
(iii) compatibility costs;
]
[
(iv) system downtime;
]
[
(v) disruption of service;
]
[
(vi) staff time necessary to put the transition into effect;
]
[
(vii) installation costs; and
]
[
(viii) ancillary software, hardware, equipment, or construction costs.
]
[
(c) "Transitional costs" do not include:
]
[
(i) the costs of preparing for or engaging in a procurement process; or
]
[
(ii) contract negotiation or contract drafting costs.
]
[
(d) "Trial use contract" means a contract between a procurement unit and a vendor for
a procurement item that the procurement unit acquires for trial use or testing to determine
whether the procurement item will benefit the procurement unit.
]
[
(2) The division or
] 
(1) (a) The chief procurement officer or the head of
 a
procurement unit with independent procurement authority may award a contract for a
procurement item without competition if the 
chief
 procurement officer[
,
] 
or
 the head of the
procurement unit[
, or a designee of either who is senior to the procurement officer or the head
of the procurement unit,
] determines in writing that:
[
(a)
] 
(i)
 there is only one source for the procurement item;
[
(b) the award to a specific supplier, service provider, or contractor is a condition of a
donation that will fund the full cost of the supply, service, or construction item; or
]
[
(c) the procurement item is needed for trial use or testing to determine whether the
procurement item will benefit the procurement unit.
]
[
(3) Circumstances under which there is only one source for a procurement item may
include:
]
[
(a) where the most important consideration in obtaining a procurement item is the
compatibility of equipment, technology, software, accessories, replacement parts, or service;
]
[
(b) where transitional costs are unreasonable or cost prohibitive; or
]
[
(c) procurement of public utility services.
]
(ii) (A) transitional costs are a significant consideration in selecting a procurement
item; and
(B) the results of a cost-benefit analysis demonstrate that transitional costs are
unreasonable or cost-prohibitive, and that the award of a contract without competition is in the
best interest of the procurement unit; or
(iii) the award of a contract is under circumstances, described in rules adopted by the
applicable rulemaking authority, that make awarding the contract with competition impractical
and not in the best interest of the procurement unit.
(b) Circumstances supporting a determination under Subsection (1)(a)(i) that there is
only one source for a procurement item include:
(i) a donor imposed condition, on a donation funding the full cost of a procurement
item, that the procurement unit award the contract for the procurement item to a vendor
specified by the donor; and
(ii) the procurement of a public utility service.
(2) Transitional costs associated with a trial use or testing of a procurement item under
a trial use contract may not be included in a consideration of transitional costs under
Subsection (1)(a)(ii).
[
(4)
] 
(3)
 (a) Subject to Subsection [
(4)
] 
(3)
(b), the applicable rulemaking authority
shall make rules regarding the publication of notice for a [
sole source
] procurement 
under
Subsection (1)(a)(i)
 that, at a minimum, require publication of notice of [
a sole source
] 
the
procurement, in accordance with Section [
63G-6a-406
] 
63G-6a-112
, if the cost of the
procurement exceeds $50,000.
(b) Publication of notice under Section [
63G-6a-406
] 
63G-6a-112
 is not required for:
(i) the procurement of public utility services pursuant to a sole source contract; or
(ii) other sole source procurements provided by rule.
[
(5) The division or
] 
(4) The chief procurement officer or the head of
 a procurement
unit with independent procurement authority who awards a [
sole source contract on behalf of
another procurement unit
] 
contract without competition under this section
 shall negotiate with
the contractor to ensure that the terms of the contract, including price and delivery, are in the
best interest of the procurement unit.
[
(6) (a) The period of trial use or testing of a procurement item under a trial use
contract may not exceed 18 months, unless the procurement officer provides a written
exception documenting the reason for a longer period.
]
[
(b) A trial use contract shall:
]
[
(i) state that the purpose of the contract is strictly for the purpose of the trial use or
testing of a procurement item;
]
[
(ii) state that the contract terminates upon completion of the trial use or testing
period;
]
[
(iii) state that, after the trial use or testing period, the procurement unit is not obligated
to purchase or enter into a contract for the procurement item, regardless of the trial use or
testing result;
]
[
(iv) state that any purchase of the procurement item beyond the terms of the trial use
contract will be made in accordance with this chapter; and
]
[
(v) include, as applicable:
]
[
(A) test schedules;
]
[
(B) deadlines and a termination date;
]
[
(C) measures that will be used to evaluate the performance of the procurement item;
]
[
(D) any fees and associated expenses or an explanation of the circumstances
warranting a waiver of those fees and expenses;
]
[
(E) the obligations of the procurement unit and vendor;
]
[
(F) provisions regarding the ownership of the procurement item during and after the
trial use or testing period;
]
[
(G) an explanation of the grounds upon which the contract may be terminated;
]
[
(H) a limitation of liability;
]
[
(I) a consequential damage waiver provision;
]
[
(J) a statement regarding the confidentiality or nondisclosure of information;
]
[
(K) a provision relating to any required bond or security deposit; and
]
[
(L) other requirements unique to the procurement item for trial use or testing.
]
[
(c) Publication of notice under Section 
63G-6a-406
 is not required for a procurement
pursuant to a trial use contract.
]
[
(7) The division or a procurement unit with independent procurement authority may
extend a contract for a reasonable period of time without engaging in a standard procurement
process, if:
]
[
(a) the award of a new contract for the procurement item is delayed due to a protest or
appeal;
]
[
(b) the standard procurement process is delayed due to unintentional error;
]
[
(c) changes in industry standards require significant changes to specifications for the
procurement item;
]
[
(d) the extension is necessary to prevent the loss of federal funds;
]
[
(e) the extension is necessary to address a circumstance where the appropriation of
state or federal funds has been delayed;
]
[
(f) the extension covers the period of time during which contract negotiations with a
new provider are being conducted; or
]
[
(g) the extension is necessary to avoid a lapse in critical governmental services that
may negatively impact public health, safety, or welfare.
]
Section 28. Section 
63G-6a-802.3
 is enacted to read:
 63G-6a-802.3.
Trial use contracts.
(1) A procurement unit may award a trial use contract without competition if the
contract is:
(a) awarded for a procurement item that is not already available to the procurement unit
under an existing contract;
(b) restricted to the procurement of a procurement item in the minimum quantity and
for the minimum period of time necessary to test the procurement item;
(c) the only trial use contract for that procurement unit for the same procurement item;
and
(d) not used to circumvent the purposes and policies of this chapter as set forth in
Section 
63G-6a-102
.
(2) The period of trial use or testing of a procurement item under a trial use contract
may not exceed 18 months, unless the procurement officer provides a written exception
documenting the reason for a longer period.
(3) A trial use contract shall:
(a) state that the contract is strictly for the trial use or testing of a procurement item;
(b) state that the contract terminates upon completion of the trial use or testing period;
(c) state that the procurement unit is not obligated to purchase or enter into a contract
for the procurement item, regardless of the trial use or testing result;
(d) state that any purchase of the procurement item that is the subject of the trial use
contract will be made in accordance with this chapter; and
(e) include, as applicable:
(i) test schedules;
(ii) deadlines and a termination date;
(iii) measures that will be used to evaluate the performance of the procurement item;
(iv) any fees and associated expenses or an explanation of the circumstances
warranting a waiver of those fees and expenses;
(v) the obligations of the procurement unit and vendor;
(vi) provisions regarding the ownership of the procurement item during and after the
trial use or testing period;
(vii) an explanation of the grounds upon which the contract may be terminated;
(viii) a provision relating to any required bond or security deposit; and
(ix) other requirements unique to the procurement item for trial use or testing.
(4) Publication of notice under Section 
63G-6a-112
 is not required for a trial use
contract.
(5) The applicable rulemaking authority may make rules pertaining to a trial use
contract.
Section 29. Section 
63G-6a-802.7
 is enacted to read:
 63G-6a-802.7.
Extension of a contract without engaging in a standard
procurement process.
The chief procurement officer or the head of a procurement unit with independent
procurement authority may extend an existing contract without engaging in a standard
procurement process:
(1) for a period of time not to exceed 90 days, if:
(a) an extension of the contract is necessary to:
(i) avoid a lapse in a critical government service; or
(ii) to mitigate a circumstance that is likely to have a negative impact on public health,
safety, welfare, or property; and
(b) (i) (A) the procurement unit is engaged in a standard procurement process for a
procurement item that is the subject of the contract being extended; and
(B) the standard procurement process is delayed due to an unintentional error;
(ii) a change in an industry standard requires one or more significant changes to
specifications for the procurement item; or
(iii) an extension is necessary:
(A) to prevent the loss of federal funds;
(B) to mitigate the effects of a delay of a state or federal appropriation;
(C) to enable the procurement unit to continue to receive a procurement item during a
delay in the implementation of a contract awarded pursuant to a procurement that has already
been conducted; or
(D) to enable the procurement unit to continue to receive a procurement item during a
period of time during which negotiations with a vendor under a new contract for the
procurement item are being conducted;
(2) for the period of a protest, appeal, or court action, if the protest, appeal, or court
action is the reason for delaying the award of a new contract; or
(3) for a period of time exceeding 90 days, if the attorney general or the procurement
unit's attorney determines in writing that the contract extension does not violate this chapter or
state or federal antitrust laws.
Section 30. Section 
63G-6a-803
 is amended to read:
63G-6a-803.
Emergency procurement.
(1) Notwithstanding any other provision of this chapter, [
a
] 
the chief
 procurement
officer or the [
procurement officer's designee may authorize
] 
head of a procurement unit with
independent procurement authority may authorize a procurement unit to engage in
 an
emergency procurement without using a standard procurement process [
when an emergency
condition exists
] 
if the procurement is necessary to:
(a) avoid a lapse in a critical government service;
(b) mitigate a circumstance that is likely to have a negative impact on public health,
safety, welfare, or property; or
(c) protect the legal interests of a public entity
.
(2) A procurement [
officer who authorizes
] 
unit conducting
 an emergency procurement
under Subsection (1) shall[
: (a) make the authorization in writing, stating the emergency
condition upon which the emergency procurement is made; and (b)
] ensure that the
procurement is made with as much competition as reasonably practicable while
:
(a) avoiding a lapse in a critical government service;
(b)
 avoiding harm, or a risk of harm, to the public health, safety, welfare, or
property[
.
]
; or
(c) protecting the legal interests of a public entity.
Section 31. Section 
63G-6a-806
 is amended to read:
63G-6a-806.
Exception for public transit district contracting with a county or
municipality.
A public transit district, organized under Title 17B, Chapter 2a, Part 8, Public Transit
District Act, may, without going through a standard procurement process or [
an
] 
another
exception to a standard procurement process described in [
Part 8, Exception to Procurement
Requirements
] 
this part
:
(1) contract with a county or municipality to receive money from the county or
municipality; and
(2) use the money described in Subsection (1) to fund a transportation project or a
transit-related program in accordance with rules made by the applicable rulemaking authority.
Section 32. Section 
63G-6a-906
 is enacted to read:
 63G-6a-906.
Attorney general enforcement.
The attorney general may enforce a remedy available under this part to a procurement
unit with independent procurement authority to the same extent as if the attorney general were
the head of the procurement unit.
Section 33. Section 
63G-6a-1206
 is amended to read:
63G-6a-1206.
Rules and regulations to determine allowable incurred costs --
Required information.
(1) (a) The applicable rulemaking authority may, by rule, establish the cost principles
to be included in a cost-reimbursement contract to determine incurred costs for the purpose of
calculating a reimbursement.
(b) The cost principles established by rule under Subsection (1)(a) may be modified, by
contract, if the procurement officer or 
the
 head of the issuing procurement unit approves the
modification.
(2) Except as provided in Subsection (5), a person who seeks to be, or is, a party in a
cost-based contract with a procurement unit shall:
(a) submit cost or pricing data relating to determining the cost or pricing amount; and
(b) certify that, to the best of the contractor's knowledge and belief, the cost or pricing
data submitted is accurate and complete as of the date specified by the procurement unit.
(3) The procurement officer shall ensure that the date specified under Subsection (2)(b)
is before:
(a) the pricing of any contract awarded by a standard procurement process or pursuant
to a sole source procurement, if the total contract price is expected to exceed an amount
established by rule made by the applicable rulemaking authority; or
(b) the pricing of any change order that is expected to exceed an amount established by
rule made by the applicable rulemaking authority.
(4) A contract or change order that requires a certification described in Subsection (2)
shall include a provision that the price to the procurement unit, including profit or fee, shall be
adjusted to exclude any significant sums by which the procurement unit finds that the price was
increased because the contractor provided cost or pricing data that was inaccurate, incomplete,
or not current as of the date specified by the procurement officer.
(5) A procurement unit is not required to comply with Subsection (2) if:
(a) the contract price is based on adequate price competition;
(b) the contract price is based on established catalogue prices or market prices;
(c) the contract price is set by law or rule; or
(d) the procurement states, in writing:
(i) that, in accordance with rules made by the applicable rulemaking authority, the
requirements of Subsection (2) may be waived; and
(ii) the reasons for the waiver.
[
(6) The procurement officer or audit entity under contract with the procurement unit
may, at reasonable times and places, only to the extent that the books and records relate to the
applicable cost or pricing data, audit the books and records of:
]
[
(a) a person who has submitted cost or pricing data pursuant to this section; or
]
[
(b) a contractor or subcontractor under a contract or subcontract other than a firm
fixed price contract.
]
[
(7) Unless a shorter time is provided for by contract:
]
[
(a) a person described in Subsection (6)(a) shall maintain the books and records
described in Subsection (6) for three years after the day on which the fiscal year in which final
payment is made under the contract ends;
]
[
(b) a contractor shall maintain the books and records described in Subsection (6) for
three years after the day on which the fiscal year in which final payment under the prime
contract ends; and
]
[
(c) a subcontractor shall maintain the books and records described in Subsection (6)
for three years after the day on which the fiscal year in which final payment is made under the
subcontract ends.
]
Section 34. Section 
63G-6a-1206.3
 is enacted to read:
 63G-6a-1206.3.
Auditing of books.
(1) The procurement officer or audit entity under contract with the procurement unit
may, at reasonable times and places, and only to the extent that the books and records relate to
the applicable contract, audit the books and records of:
(a) a person who has submitted cost or pricing data pursuant to Section 
63G-6a-1206
;
or
(b) a contractor or subcontractor under a contract or subcontract other than a firm fixed
price contract.
(2) Unless a shorter time is provided for by contract:
(a) a person described in Subsection (1)(a) shall maintain all records related to a
contract described in Subsection (1) for six years after the day on which the fiscal year in which
final payment is made under the contract ends, or until all audits initiated within the six-year
period have been completed, whichever is later;
(b) a contractor shall maintain all records related to a contract described in Subsection
(1) for six years after the day on which the fiscal year in which final payment under the prime
contract ends, or until all audits initiated within the six-year period have been completed,
whichever is later; and
(c) a subcontractor shall maintain all records related to the contract described in
Subsection (1) for six years after the day on which the fiscal year in which final payment is
made under the subcontract ends, or until all audits initiated within the six-year period have
been completed, whichever is later.
Section 35. Section 
63G-6a-1206.5
 is amended to read:
63G-6a-1206.5.
Change in contract price.
A contractor may
:
(1)
 increase the contract price only in accordance with the terms of the contract[
.
]
; and
(2) lower the contract price at any time during the time a contract is in effect.
Section 36. Section 
63G-6a-1601
 is amended to read:
Part 16. Protests
63G-6a-1601.
Title.
This part is known as "[
Controversies and
] Protests."
Section 37. Section 
63G-6a-1601.5
 is enacted to read:
 63G-6a-1601.5.
Definitions.
As used in this part:
(1) "Constructive knowledge":
(a) means knowledge or information that:
(i) a protestor should have if the protestor exercises reasonable care or diligence,
regardless of whether the protestor actually has the knowledge or information; or
(ii) the law presumes a protestor to have, regardless of whether the protestor actually
has the knowledge or information; and
(b) includes knowledge of:
(i) applicable provisions of this chapter and other law and administrative rule;
(ii) instructions, criteria, deadlines, and requirements contained in the solicitation or in
other documents made available to persons interested in the solicitation or provided in a
mandatory pre-solicitation meeting;
(iii) relevant facts and evidence supporting the protest or leading the protestor to
contend that the protestor has been aggrieved in connection with a procurement;
(iv) communications or actions, pertaining to the procurement, of all persons within the
protestor's organization or under the supervision of the protestor; and
(v) any other applicable information discoverable by the exercise of reasonable care or
diligence.
(2) "Protest deadline" means:
(a) (i) (A) for a protest relating to a procurement under a bidding process, the opening
of bids;
(B) for a protest relating to another standard procurement process, the deadline for
submitting responses to the solicitation; or
(C) for a protest relating to a multiple-stage procurement, the closing of the stage of the
procurement that is the subject of the protest; or
(ii) if the protestor did not know and did not have constructive knowledge of the facts
giving rise to the protest before, as applicable, the opening of bids, the deadline for submitting
responses, or the closing of the stage of the procurement that is the subject of the protest, the
day that is seven days after the day on which the person knows or first had constructive
knowledge of the facts giving rise to the protest; and
(b) for a protest relating to a procurement process not described in Subsection (1)(a)(i),
the day that is seven days after the day on which the protestor knows or first has constructive
knowledge of the facts giving rise to the protest.
(3) "Protestor" means a person who files a protest under this part.
(4) "Standing" means to have suffered an injury or harm or to be about to suffer
imminent injury or harm, if:
(a) the cause of the injury or harm is:
(i) an infringement of the protestor's own right and not the right of another person who
is not a party to the procurement;
(ii) reasonably connected to the procurement unit's conduct; and
(iii) the sole reason the protestor is not considered, or is no longer considered, for an
award of a contract under the procurement that is the subject of the protest;
(b) a decision on the protest in favor of the protestor:
(i) is likely to redress the injury or harm; and
(ii) would give the protestor a reasonable likelihood of being awarded a contract; and
(c) the protestor has the legal authority to file the protest on behalf of the actual or
prospective bidder or offeror or prospective contractor involved in the procurement that is the
subject of the protest.
Section 38. Section 
63G-6a-1602
 is amended to read:
63G-6a-1602.
Protest -- Time for filing -- Authority to resolve protest.
(1) [
(a)
] A protest may be filed with the protest officer by[
: (i) an actual or prospective
bidder or offeror
] 
a person
 who
:
(a) has standing; and
(b)
 is aggrieved in connection with a procurement[
;
] or 
an award of a contract.
[
(ii) a prospective contractor who
]
[
is aggrieved in connection with an award of a contract.
]
[
(b) (i) A protest under Subsection (1)(a) relating to an invitation for bids or a request
for proposals shall be filed:
]
[
(A) before the opening of bids or the closing date for proposals; or
]
[
(B) if the person filing the protest did not know and should not have known of the
facts giving rise to the protest before the bid opening or the closing date for proposals, within
seven days after the day on which the person knows or should have known of the facts giving
rise to the protest.
]
[
(ii) A protest under Subsection (1)(a) relating to a form of procurement not described
in Subsection (1)(b)(i) but involving a deadline established for the submission of a price or
response shall be filed:
]
[
(A) before the deadline for the submission of a price or response; or
]
[
(B) if the person filing the protest did not know and reasonably should not have
known of the facts giving rise to the protest before the deadline for the submission of a price or
response, within seven days after the day on which the person knows or reasonably should have
known of the facts giving rise to the protest.
]
[
(iii) A protest under Subsection (1)(a) relating to a form of procurement not described
in Subsection (1)(b)(i) or (ii) shall be filed within seven days after the day on which the person
filing the protest knows or should have known of the facts giving rise to the protest.
]
[
(2) A person who files a protest under this section shall include in the filing
document:
]
(2) A protest may not be filed after the protest deadline.
(3) (a) A protestor shall include in a protest:
[
(a)
] 
(i)
 the [
person's
] 
protestor's mailing
 address [
of record
] and email address [
of
record
]; and
[
(b)
] 
(ii)
 a concise statement of the [
grounds upon which the protest is made.
] 
facts and
evidence:
(A) leading the protestor to claim that the protestor has been aggrieved in connection
with a procurement and providing the grounds for the protestor's protest; and
(B) supporting the protestor's claim of standing.
(b) A protest may not be considered unless it contains facts and evidence that, if true,
would establish:
(i) a violation of this chapter or applicable administrative rule;
(ii) the procurement unit's failure to follow a provision of a solicitation;
(iii) an error made by an evaluation committee or conducting procurement unit;
(iv) a bias exercised by an evaluation committee or an individual committee member,
unless the bias is based on the review of a response to a solicitation in regard to criteria in the
solicitation;
(v) a failure to correctly apply or calculate a scoring criterion; or
(vi) other grounds that the chief procurement officer or the head of a procurement unit
with independent procurement authority considers appropriate.
(4) A protest may not be based on a vague or unsubstantiated allegation.
(5) A protest may not include a request for:
(a) an explanation of the rationale or scoring of evaluation committee members;
(b) the disclosure of a protected record or protected information in addition to the
information provided under the disclosure provisions of this chapter; or
(c) other information, documents, or explanations not explicitly provided for in this
chapter.
[
(3)
] 
(6)
 A person [
described in Subsection (1)
] who fails to file a protest [
within the
time prescribed in Subsection (1)(b)
] 
by the protest deadline
 may not:
(a) protest to the protest officer a solicitation or award of a contract; or
(b) file an action or appeal challenging a solicitation or award of a contract before an
appeals panel, a court, or any other forum.
[
(4)
] 
(7)
 Subject to the applicable requirements of Section 
63G-10-403
, a protest
officer or the head of a procurement unit may enter into a settlement agreement to resolve a
protest.
Section 39. 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
] 
the protest was
 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 40. 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
] 
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 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 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 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 41. Section 
63G-6a-2105
 is amended to read:
63G-6a-2105.
Cooperative procurements -- Contracts with federal government --
Regional solicitations.
(1) The chief procurement officer may, in accordance with the requirements of this
chapter, enter into a cooperative procurement, and a contract that is awarded as a result of a
cooperative procurement, with:
(a) another state;
(b) a cooperative purchasing organization; or
(c) a public entity inside or outside the state.
(2) A public entity, nonprofit organization, or, as permitted under federal law, an
agency of the federal government, may obtain a procurement item from a state cooperative
contract or a contract awarded by the chief procurement officer under Subsection (1), without
signing a participating addendum if the solicitation issued by the chief procurement officer to
obtain the contract includes a statement indicating that the resulting contract will be issued for
the benefit of public entities and, as applicable, nonprofit organizations and agencies of the
federal government.
(3) Except as provided in Section 
63G-6a-408
, or as otherwise provided in this chapter,
an executive branch procurement unit may not obtain a procurement item from a source other
than a state cooperative contract or a contract awarded by the chief procurement officer under
Subsection (1), if the procurement item is available under a state cooperative contract or a
contract awarded by the chief procurement officer under Subsection (1).
(4) A Utah procurement unit may:
(a) contract with the federal government without going through a standard procurement
process or an exception to a standard procurement process, described in Part 8, Exceptions to
Procurement Requirements, if the procurement item obtained under the contract is provided:
(i) directly by the federal government and not by a person contracting with the federal
government; or
(ii) by a person under contract with the federal government that obtained the contract in
a manner that substantially complies with the provisions of this chapter;
(b) participate in, sponsor, conduct, or administer a cooperative procurement with
another Utah procurement unit or another public entity in Utah, if:
(i) each party unit involved in the cooperative procurement enters into an agreement
describing the rights and duties of each party;
(ii) the procurement is conducted, and the contract awarded, in accordance with the
requirements of this chapter;
(iii) the solicitation:
(A) clearly indicates that the procurement is a cooperative procurement; and
(B) identifies each party that may purchase under the resulting contract; and
(iv) each party involved in the cooperative procurement signs a participating addendum
describing its rights and obligations in relation to the resulting contract; or
(c) purchase under, or otherwise participate in, an agreement or contract of a
cooperative purchasing organization, if:
(i) each party involved in the cooperative procurement enters into an agreement
describing the rights and duties of each party;
(ii) the procurement was conducted in accordance with the requirements of this
chapter;
(iii) the solicitation:
(A) clearly indicates that the procurement is a cooperative procurement; and
(B) identifies each party that may purchase under the resulting contract; and
(iv) each party involved in the cooperative procurement signs a participating addendum
describing its rights and obligations in relation to the resulting contract.
(5) A procurement unit may not obtain a procurement item under a contract that results
from a cooperative procurement described in Subsection (4), [
if
] 
unless
 the procurement unit:
(a) is [
not
] identified under Subsection (4)(b)(iii)(B) or (4)(c)(iii)(B); [
or
] 
and
(b) [
does not sign
] 
signs
 a participating addendum to the contract as required by this
section.
(6) A procurement unit, other than a legislative procurement unit or a judicial
procurement unit, may not obtain a procurement item under a contract held by the United
States General Services Administration, unless, based upon documentation provided by the
procurement unit, the Director of the State Division of Purchasing and General Services
determines in writing that the United States General Services Administration procured the
contract in a manner that substantially complies with the provisions of this chapter.
(7) (a) As used in this Subsection (7), "regional solicitation" means a solicitation issued
by the chief procurement officer for the procurement of a procurement item within a specified
geographical region of the state.
(b) In addition to any other duty or authority under this section, the chief procurement
officer shall:
(i) after considering board recommendations, develop a plan for issuing regional
solicitations;
(ii) present the plan to the Government Operations Interim Committee by September 1,
2014; and
(iii) after developing a plan, issue regional solicitations for procurement items in
accordance with the plan and this chapter.
(c) A plan under Subsection (7)(b) shall:
(i) define the proposed regional boundaries for regional solicitations;
(ii) specify the types of procurement items for which a regional solicitation may be
issued; and
(iii) identify the regional solicitations that the chief procurement officer plans to issue.
(d) A regional solicitation shall require that a person responding to the solicitation offer
similar warranties and submit to similar obligations as are standard under other state
cooperative contracts.
(e) [
A
] 
Except as authorized by the chief procurement officer, a
 procurement item that
is available under a state cooperative contract may not be provided under a contract pursuant to
a regional solicitation until after the expiration of the state cooperative contract.
Section 42. Section 
63G-6a-2404
 is amended to read:
63G-6a-2404.
Unlawful conduct -- Exceptions -- Classification of offenses.
(1) (a) It is unlawful for a person who has or is seeking a contract with or a grant from
a public entity knowingly to give, or offer, promise, or pledge to give, a gratuity or kickback to:
(i) the public entity;
(ii) a procurement professional or contract administration professional; or
(iii) an individual who the person knows is a family member of an individual described
in Subsection (1)(a)(ii).
(b) It is not unlawful for a public agency to give, offer, promise, or pledge to give a
contribution to another public agency.
(c) A person is not guilty of unlawful conduct under Subsection (1)(a) for:
(i) giving or offering, promising, or pledging to give a contribution to a public entity,
unless done with the intent to induce the public entity, in exchange, to:
(A) award a contract or grant;
(B) make a procurement decision; or
(C) take an action relating to the administration of a contract or grant; or
(ii) giving or offering, promising, or pledging to give something of value to an
organization to which a procurement professional or contract administration professional
belongs, unless done with the intent to induce a public entity, in exchange, to:
(A) award a contract or grant;
(B) make a procurement decision; or
(C) take an action relating to the administration of a contract or grant.
(2) (a) It is unlawful for a procurement professional or contract administration
professional, or a family member of either, knowingly to receive or accept, offer or agree to
receive or accept, or ask for a promise or pledge of, a gratuity or kickback from a person who
has or is seeking a contract with or a grant from a public entity.
(b) An individual is not guilty of unlawful conduct under Subsection (2)(a) for
receiving or accepting, offering or agreeing to receive or accept, or asking for a promise or
pledge of a contribution on behalf of a public entity, unless done with the intent that the public
entity, in exchange:
(i) award a contract or grant;
(ii) make a procurement decision; or
(iii) take an action relating to the administration of a contract or grant.
(3) Notwithstanding Subsections (1) and (2), it is not unlawful for a person to give or
receive, offer to give or receive, or promise or pledge to give or ask for a promise or pledge of,
a hospitality gift, if:
(a) the total value of the hospitality gift is less than $10; and
(b) the aggregate value of all hospitality gifts from the person to the recipient in a
calendar year is less than $50.
(4) A person who engages in the conduct made unlawful under Subsection (1) or (2) is
guilty of:
(a) a second degree felony, if the total value of the gratuity or kickback is $1,000 or
more;
(b) a third degree felony, if the total value of the gratuity or kickback is $250 or more
but less than $1,000;
(c) a class A misdemeanor, if the total value of the gratuity or kickback is $100 or more
but less than $250; and
(d) a class B misdemeanor, if the total value of the gratuity or kickback is less than
$100.
(5) The criminal sanctions described in Subsection (4) do not preclude the imposition
of other penalties for conduct made unlawful under this part, in accordance with other
applicable law, including:
(a) dismissal from employment or other disciplinary action;
(b) for an elected officer listed in Section 
77-6-1
, removal from office as provided in
Title 77, Chapter 6, Removal by Judicial Proceedings;
(c) requiring the public officer or employee to return the value of the unlawful gratuity
or kickback; and
(d) any other civil penalty provided by law.
(6) The attorney general may prosecute a person for conduct made unlawful under this
section.
Section 43. Section 
63G-6a-2407
 is amended to read:
63G-6a-2407.
Duty to report unlawful conduct.
[
(1) A procurement professional shall notify the attorney general or other appropriate
prosecuting attorney if the procurement professional has actual knowledge that a person has
engaged in:
]
(1) As used in this section, "unlawful conduct" means:
(a) conduct made unlawful under this part; or
(b) conduct, including bid rigging, improperly steering a contract to a favored vendor,
exercising undue influence on an individual involved in the procurement process, or
participating in collusion or other anticompetitive practices, made unlawful under other
applicable law.
(2) (a) A procurement professional with actual knowledge that a person has engaged in
unlawful conduct shall report the person's unlawful conduct to:
(i) the state auditor; or
(ii) the attorney general or other appropriate prosecuting attorney.
(b) An individual not subject to the requirement of Subsection (2)(a) who has actual
knowledge that a person has engaged in unlawful conduct may report the person's unlawful
conduct to:
(i) the state auditor; or
(ii) the attorney general or other appropriate prosecuting attorney.
[
(2)
] 
(3)
 A procurement professional who fails to comply with the requirement of
Subsection [
(1)
] 
(2)(a)
 is subject to any applicable disciplinary action or civil penalty identified
in Subsection 
63G-6a-2404
(5).
Section 44. Section 
63G-6a-2408
 is enacted to read:
 63G-6a-2408.
Enforcement by attorney general or other attorney.
(1) The attorney general or other appropriate prosecuting attorney may:
(a) enforce a remedy available under this part to a procurement unit with independent
procurement authority to the same extent as if the attorney general or other appropriate
prosecuting attorney were the head of the procurement unit;
(b) bring a civil action or enter into a binding consent agreement to remedy past harm
or prevent future harm; and
(c) bring a civil action to enforce:
(i) a provision of this chapter; or
(ii) a consent decree.
(2) In an action under this section, the attorney general may be awarded:
(a) (i) three times the actual damages; or
(ii) a civil penalty not exceeding $10,000 per violation;
(b) costs of suit;
(c) reasonable attorney fees;
(d) injunctive relief; and
(e) any other remedy available under other applicable law.
(3) The attorney general shall disburse any money recovered in an action under this
section in accordance with Section 
76-10-3114
.
Section 45. 
Repealer.
This bill repeals:
Section 
63G-6a-104
,
Definitions relating to governmental bodies.
Section 
63G-6a-403
,
Prequalification of potential vendors.
Section 
63G-6a-404
,
Approved vendor list.
Section 
63G-6a-503
,
Request for information and response nonbinding.
Section 
63G-6a-504
,
Contents of request for information.
Section 
63G-6a-505
,
Protected information.
Legislative Review Note
Office of Legislative Research and General Counsel