Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 398 Second Substitute (2017GS)

Sponsor

Rep. Froerer, G.

Final action

Governor Signed 3/24/2017

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• modifies the stated purposes of the Utah Procurement Code;
• enacts and modifies definitions applicable to the Utah Procurement Code;
• modifies a provision relating to public notice;
• provides that it is the responsibility of a person seeking information provided by a public notice to seek out, find, and respond to the public notice;
• modifies minimum experience requirements for the chief procurement officer;
• modifies language relating to the bidding process and request for proposals process;
• clarifies the use of multiple award contracts in the bidding process and request for proposals process;
• clarifies provisions involving the terms "responsible" and "responsive";
• modifies language relating to the situations where the use of a request for proposals process is appropriate;
• repeals and reenacts a provision relating to best and final offers;
• modifies a provision relating to a determination concerning a contract extension;
• modifies a provision relating to a determination of nonresponsibility;
• eliminates an appeal to the procurement appeals panel for a debarment or suspension and modifies the process of obtaining judicial review of a suspension or debarment;

Every vote on this bill

Bill text

PROCUREMENT CODE AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Gage Froerer
Senate Sponsor: 
D. Gregg Buxton
LONG TITLE
General Description:
This bill modifies provisions of the Utah Procurement Code.
Highlighted Provisions:
This bill:
▸ modifies the stated purposes of the Utah Procurement Code;
▸ enacts and modifies definitions applicable to the Utah Procurement Code;
▸ modifies a provision relating to public notice;
▸ provides that it is the responsibility of a person seeking information provided by a
public notice to seek out, find, and respond to the public notice;
▸ modifies minimum experience requirements for the chief procurement officer;
▸ modifies language relating to the bidding process and request for proposals process;
▸ clarifies the use of multiple award contracts in the bidding process and request for
proposals process;
▸ clarifies provisions involving the terms "responsible" and "responsive";
▸ modifies language relating to the situations where the use of a request for proposals
process is appropriate;
▸ repeals and reenacts a provision relating to best and final offers;
▸ modifies a provision relating to a determination concerning a contract extension;
▸ modifies a provision relating to a determination of nonresponsibility;
▸ eliminates an appeal to the procurement appeals panel for a debarment or
suspension and modifies the process of obtaining judicial review of a suspension or
debarment;
▸ modifies provisions relating to protests and appeals of protest decisions;
▸ makes it unlawful for a person to divide a single procurement in order to avoid the
use of a standard procurement process and for a person to take certain action against
a public officer or employee involved in the procurement process;
▸ exempts taxed interlocal entities and their directors, officers, and employees from
provisions relating to unlawful conduct and penalties;
▸ modifies language relating to the consequence of failing to report unlawful conduct;
and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides a coordination clause.
Utah Code Sections Affected:
AMENDS:
63G-6a-102
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-103
, as last amended by Laws of Utah 2016, Chapters 176, 237, 355 and last
amended by Coordination Clause, Laws of Utah 2016, Chapter 355
63G-6a-112
, as renumbered and amended by Laws of Utah 2016, Chapter 355
63G-6a-116
, as enacted by Laws of Utah 2016, Chapter 355 and last amended by
Coordination Clause, Laws of Utah 2016, Chapter 355
63G-6a-302
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-410
, as enacted by Laws of Utah 2016, Chapter 355
63G-6a-506
, as last amended by Laws of Utah 2016, Chapters 237, 348 and
renumbered and amended by Laws of Utah 2016, Chapter 355
63G-6a-507
, as enacted by Laws of Utah 2016, Chapter 355
63G-6a-602
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-603
, as last amended by Laws of Utah 2016, Chapter 355
63G-6a-606
, as last amended by Laws of Utah 2016, Chapter 355
63G-6a-607
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-608
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-612
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-702
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-703
, as last amended by Laws of Utah 2016, Chapter 355
63G-6a-707
, as last amended by Laws of Utah 2016, Chapters 237 and 355
63G-6a-709
, as last amended by Laws of Utah 2016, Chapter 355
63G-6a-802.7
, as enacted by Laws of Utah 2016, Chapter 355
63G-6a-903
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-904
, as last amended by Laws of Utah 2015, Chapter 258
63G-6a-1002
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-1003
, as last amended by Laws of Utah 2013, Chapter 445
63G-6a-1204.5
, as renumbered and amended by Laws of Utah 2013, Chapter 445
63G-6a-1402
, as last amended by Laws of Utah 2014, Chapter 196
63G-6a-1403
, as renumbered and amended by Laws of Utah 2012, Chapter 347
63G-6a-1601.5
, as enacted by Laws of Utah 2016, Chapter 355
63G-6a-1602
, as last amended by Laws of Utah 2016, Chapter 355
63G-6a-1603
, as last amended by Laws of Utah 2016, Chapter 355
63G-6a-1702
, as last amended by Laws of Utah 2016, Chapter 355
63G-6a-1703
, as last amended by Laws of Utah 2016, Chapter 355
63G-6a-1802
, as last amended by Laws of Utah 2015, Chapter 218
63G-6a-2403
, as enacted by Laws of Utah 2014, Chapter 196
63G-6a-2407
, as last amended by Laws of Utah 2016, Chapter 355
63G-10-403
, as last amended by Laws of Utah 2016, Chapter 355
ENACTS:
63G-6a-1701.5
, Utah Code Annotated 1953
63G-6a-2404.3
, Utah Code Annotated 1953
63G-6a-2404.7
, Utah Code Annotated 1953
REPEALS AND REENACTS:
63G-6a-707.5
, as last amended by Laws of Utah 2016, Chapter 355
REPEALS:
63G-6a-1604
, as enacted by Laws of Utah 2012, Chapter 347 and last amended by
Coordination Clause, Laws of Utah 2012, Chapter 347
63G-6a-1706
, as last amended by Laws of Utah 2014, Chapter 196
Utah Code Sections Affected by Coordination Clause:
63G-6a-702
, as last amended by Laws of Utah 2014, Chapter 196
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
63G-6a-102
 is amended to read:
63G-6a-102.
Purpose of chapter.
The underlying purposes and policies of this chapter are:
[
(1) to simplify, clarify, and modernize the law governing procurement in the state;
]
(1) to ensure transparency in the public procurement process;
(2) to ensure the fair and equitable treatment of all persons who [
deal with the
]
participate in the public
 procurement [
system
] 
process
;
(3) to provide increased economy in state procurement activities; and
(4) to foster effective broad-based competition within the free enterprise system.
Section 2. Section 
63G-6a-103
 is amended to read:
63G-6a-103.
Definitions.
As used in this chapter:
[
(1) "Administrative law judge" means the same as that term is defined in Section
67-19e-102
.
]
[
(2) "Administrative law judge service" means service provided by an administrative
law judge.
] 
[
(3)
] 
(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:
(i) the legislative body of the local government procurement unit; or
(ii) an individual or body designated by 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 an applied technology college within the Utah College of Applied Technology,
the Utah College of Applied Technology board of trustees; or
[
(i)
] 
(j)
 for any other procurement unit, the board.
[
(4)
] 
(2)
 "Approved vendor" means a vendor who has been approved through the
approved vendor list process.
[
(5)
] 
(3)
 "Approved vendor list" means a list of approved vendors established under
Section 
63G-6a-507
.
[
(6)
] 
(4)
 "Approved vendor list process" means the procurement process described in
Section 
63G-6a-507
.
[
(7)
] 
(5)
 "Bidder" means a person who submits a bid or price quote in response to an
invitation for bids.
[
(8)
] 
(6)
 "Bidding process" means the procurement process described in Part 6,
Bidding.
[
(9)
] 
(7)
 "Board" means the Utah State Procurement Policy Board, created in Section
63G-6a-202
.
[
(10)
] 
(8)
 "Building board" means the State Building Board, created in Section
63A-5-101
.
[
(11)
] 
(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.
[
(12)
] 
(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.
[
(13)
] 
(11)
 "Chief procurement officer" means the chief procurement officer appointed
under Subsection 
63G-6a-302
(1).
[
(14)
] 
(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
(6)(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) contract administration.
[
(15)
] 
(13)
 "Conservation district" means the same as that term is defined in Section
17D-3-102
.
[
(16)
] 
(14)
 "Construction":
(a) means services, including work, and supplies for a project for the construction,
renovation, alteration, improvement, or repair of a public facility on real property; and
(b) does not include services and supplies for the routine, day-to-day operation, repair,
or maintenance of an existing public facility.
[
(17)
] 
(15)
 "Construction manager/general contractor":
(a) means a contractor who enters into a contract:
(i) for the management of a construction project; 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) 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.
(16) "Construction subcontractor":
(a) means a person under contract with a contractor or another subcontractor to provide
services or labor for the design or construction of a construction project;
(b) includes a general contractor or specialty contractor licensed or exempt from
licensing under Title 58, Chapter 55, Utah Construction Trades Licensing Act; and
(c) does not include a supplier who provides only materials, equipment, or supplies to a
contractor or subcontractor for a construction project.
[
(18)
] 
(17)
 "Contract" means an agreement for a procurement.
[
(19)
] 
(18)
 "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.
[
(20)
] 
(19)
 "Contractor" means a person who is awarded a contract with a procurement
unit.
[
(21)
] 
(20)
 "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.
[
(22)
] 
(21)
 "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
.
[
(23)
] 
(22)
 "Cost-plus-a-percentage-of-cost contract" means a contract under which the
contractor is paid a percentage of the total actual expenses or costs in addition to the
contractor's actual expenses or costs.
[
(24)
] 
(23)
 "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.
[
(25)
] 
(24)
 "Days" means calendar days, unless expressly provided otherwise.
[
(26)
] 
(25)
 "Definite quantity contract" means a fixed price contract that provides for a
specified amount of supplies over a specified period, with deliveries scheduled according to a
specified schedule.
[
(27)
] 
(26)
 "Design-build" means the procurement of design professional services and
construction by the use of a single contract.
[
(28)
] 
(27)
 "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.
[
(29)
] 
(28)
 "Design professional procurement process" means the procurement process
described in Part 15, Design Professional Services.
[
(30)
] 
(29)
 "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.
[
(31)
] 
(30)
 "Director" means the director of the division.
[
(32)
] 
(31)
 "Division" means the Division of Purchasing and General Services, created
in Section 
63A-2-101
.
[
(33)
] 
(32)
 "Educational procurement unit" means:
(a) a school district;
(b) a public school, including a local school board and 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[
.
]
; or
(f) an applied technology college within the Utah College of Applied Technology.
[
(34)
] 
(33)
 "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 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.
[
(35)
] 
(34)
 "Executive branch procurement unit" means a department, division, office,
bureau, agency, or other organization within the state executive branch.
[
(36)
] 
(35)
 "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.
[
(37)
] 
(36)
 "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.
[
(38)
] 
(37)
 "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.
[
(39)
] 
(38)
 "Head of a procurement unit" means:
(a) for a legislative procurement unit, any person designated by rule made by the
applicable rulemaking authority;
(b) for an executive branch procurement unit:
(i) the director of the division; or
(ii) any other person designated by the board, by rule;
(c) for a judicial procurement unit:
(i) the Judicial Council; or
(ii) any other person designated by the Judicial Council, by rule;
(d) 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) 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) for a special service district, the governing body of the special service district or a
designee of the governing body;
(g) for a local building authority, the board of directors of the local building authority or
a designee of the board of directors;
(h) for a conservation district, the board of supervisors of the conservation district or a
designee of the board of supervisors;
(i) for a public corporation, the board of directors of the public corporation or a
designee of the board of directors;
(j) 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) for a charter school, the individual or body with executive authority over the charter
school, or the individual's or body's designee;
(l) for an institution of higher education of the state, the president of the institution of
higher education, or the president's designee; [
or
]
(m) for an applied technology college within the Utah College of Applied Technology,
the president of the applied technology college or the president's designee; or
[
(m)
] 
(n)
 for a public transit district, the board of trustees or a designee of the board of
trustees.
[
(40)
] 
(39)
 "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, or missing copy 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 reasonably considers to be immaterial.
[
(41)
] 
(40)
 "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.
[
(42)
] 
(41)
 "Independent procurement authority" means authority granted to a
procurement unit under Subsection 
63G-6a-106
(4)(a).
[
(43)
] 
(42)
 "Invitation for bids":
(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 [
(43)
] 
(42)
(a).
[
(44)
] 
(43)
 "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.
[
(45)
] 
(44)
 "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.
[
(46)
] 
(45)
 "Labor hour contract" is a contract 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.
[
(47)
] 
(46)
 "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,
] 
a
 committee, subcommittee, commission, or other organization
:
(i)
 within the state legislative branch[
.
]
; or
(ii) (A) that is created by statute to advise or make recommendations to the Legislature;
(B) the membership of which includes legislators; and
(C) for which the Office of Legislative Research and General Counsel provides staff
support.
[
(48)
] 
(47)
 "Local building authority" means the same as that term is defined in Section
17D-2-102
.
[
(49)
] 
(48)
 "Local district" means the same as that term is defined in Section
17B-1-102
.
[
(50)
] 
(49)
 "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.
[
(51)
] 
(50)
 "Multiple award contracts" means the award of a contract for an indefinite
quantity of a procurement item to more than one [
bidder or offeror
] 
person
.
[
(52)
] 
(51)
 "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.
[
(53)
] 
(52)
 "Municipality" means a city, town, or metro township.
[
(54)
] 
(53)
 "Nonadopting local government procurement unit" means:
(a) a county or municipality that has not adopted Part 16, 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 (54)(a).
[
(55)
] 
(54)
 "Offeror" means a person who submits a proposal in response to a request
for proposals.
[
(56) "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.
]
[
(57)
] 
(55)
 "Preferred bidder" means a bidder that is entitled to receive a reciprocal
preference under the requirements of this chapter.
[
(58)
] 
(56)
 "Procure" means to acquire a procurement item through a procurement.
[
(59)
] 
(57)
 "Procurement":
(a) means a procurement unit's acquisition of a procurement item through an
expenditure of public funds, or an agreement to expend public funds;
(b) includes all functions that pertain to the acquisition of a procurement item,
including:
(i) preparing and issuing a solicitation; and
(ii) (A) conducting a standard procurement process; or
(B) 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.
[
(60)
] 
(58)
 "Procurement item" means a supply, a service, or construction.
[
(61)
] 
(59)
 "Procurement officer" means:
(a) 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) for the division or a procurement unit without independent procurement authority,
the chief procurement officer.
[
(62)
] 
(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.
[
(63)
] 
(61)
 "Professional service" means labor, effort, or work that requires an elevated
degree of specialized knowledge and discretion, including labor, effort, or work in the field of:
(a) accounting;
(b) architecture;
(c) construction design and management;
(d) engineering;
(e) financial services;
(f) information technology;
(g) the law;
(h) medicine;
(i) psychiatry; or
(j) underwriting.
[
(64)
] 
(62)
 "Protest officer" means:
(a) 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's designee who is an employee of
the procurement
 unit; or
(iii) a person designated by rule made by the applicable rulemaking authority; or
(b) for a procurement unit without independent procurement authority, the chief
procurement officer or the chief procurement officer's designee 
who is an employee of the
division
 .
[
(65)
] 
(63)
 "Public corporation" means the same as that term is defined in Section
63E-1-102
.
[
(66)
] 
(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.
[
(67)
] 
(65)
 "Public facility" means a building, structure, infrastructure, improvement,
or other facility of a public entity.
[
(68)
] 
(66)
 "Public funds" means money, regardless of its source, including from the
federal government, that is owned or held by a procurement unit.
[
(69)
] 
(67)
 "Public transit district" means a public transit district organized under Title
17B, Chapter 2a, Part 8, Public Transit District Act.
[
(70)
] 
(68)
 "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.
[
(71)
] 
(69)
 "Real property" means land and any building, fixture, improvement,
appurtenance, structure, or other development that is permanently affixed to land.
[
(72)
] 
(70)
 "Request for information" means a nonbinding process through which a
procurement unit requests information relating to a procurement item.
[
(73)
] 
(71)
 "Request for proposals" 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.
[
(74)
] 
(72)
 "Request for proposals process" means the procurement process described
in Part 7, Request for Proposals.
[
(75)
] 
(73)
 "Request for statement of qualifications" means a document used to solicit
information about the qualifications of a person interested in responding to a potential
procurement, including all other documents attached to that document or incorporated in that
document by reference.
[
(76)
] 
(74)
 "Requirements contract" means a contract:
(a) 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.
[
(77)
] 
(75)
 "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.
[
(78)
] 
(76)
 "Responsive" means conforming in all material respects to the requirements
of a solicitation.
[
(79)
] 
(77)
 "Sealed" means manually or electronically secured to prevent disclosure.
[
(80)
] 
(78)
 "Service":
(a) means labor, effort, or work to produce a result that is beneficial to a procurement
unit;
(b) includes a professional service; and
(c) does not include labor, effort, or work provided under an employment agreement or
a collective bargaining agreement.
[
(81)
] 
(79)
 "Small purchase process" means the procurement process described in
Section 
63G-6a-506
.
[
(82)
] 
(80)
 "Sole source contract" means a contract resulting from a sole source
procurement.
[
(83)
] 
(81)
 "Sole source procurement" means a procurement without competition
pursuant to a determination under Subsection 
63G-6a-802
(1)(a) that there is only one source
for the procurement item.
[
(84)
] 
(82)
 "Solicitation" means an invitation for bids, request for proposals, request
for statement of qualifications, or request for information.
[
(85)
] 
(83)
 "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.
[
(86)
] 
(84)
 "Special service district" means the same as that term is defined in Section
17D-1-102
.
[
(87)
] 
(85)
 "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.
[
(88)
] 
(86)
 "Standard procurement process" means:
(a) the bidding process;
(b) the request for proposals process;
(c) the approved vendor list process;
(d) the small purchase process; or
(e) the design professional procurement process.
[
(89)
] 
(87)
 "State cooperative contract" means a contract awarded by the division for
and in behalf of all public entities.
[
(90)
] 
(88)
 "Statement of qualifications" means a written statement submitted to a
procurement unit in response to a request for statement of qualifications.
[
(91)
] 
(89)
 "Subcontractor":
[
(a) means a person under contract with a contractor or another subcontractor to
provide services or labor for design or construction;
]
[
(b) includes a trade contractor or specialty contractor; and
]
[
(c) does not include a supplier who provides only materials, equipment, or supplies to
a contractor or subcontractor.
]
(a) means a person under contract to perform part of a contractual obligation under the
control of the contractor, whether the person's contract is with the contractor directly or with
another person who is under contract to perform part of a contractual obligation under the
control of the contractor; and
(b) includes a supplier, distributor, or other vendor that furnishes supplies or services
to a contractor.
[
(92)
] 
(90)
 "Supply" means a good, material, technology, piece of equipment, or any
other item of personal property.
[
(93)
] 
(91)
 "Tie bid" means that the lowest responsive bids of responsible bidders are
identical in price.
[
(94)
] 
(92)
 "Time and materials contract" means a contract 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.
[
(95)
] 
(93)
 "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.
[
(96)
] 
(94)
 "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.
[
(97)
] 
(95)
 "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 3. Section 
63G-6a-112
 is amended to read:
63G-6a-112.
Required public notice.
(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)
] 
(a)
 the name of the procurement unit acquiring the procurement item;
[
(c)
] 
(b)
 information on how to contact the issuing procurement unit;
[
(d)
] 
(c)
 the date of the opening and closing of the solicitation;
[
(e)
] 
(d)
 information on how to obtain a copy of the procurement documents;
[
(f)
] 
(e)
 a general description of the procurement items that will be obtained through
the standard procurement process or procurement under Section 
63G-6a-802
; and
[
(g)
] 
(f)
 for a notice of a procurement under Section 
63G-6a-802
:
(i) contact information and other information relating to contesting or obtaining
additional information relating to the procurement; and
(ii) the earliest date that the procurement unit may make the 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 procurement under Section 
63G-6a-802
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 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 procurement under Section 
63G-6a-802
 shall make a
copy of information related to the 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.
(7) (a) It is the responsibility of a person seeking information provided by a public
notice under this section to seek out, find, and respond to a public notice issued by a
procurement unit.
(b) As a courtesy and in order to promote competition, a procurement unit may
provide, but is not required to provide, individual notice.
Section 4. Section 
63G-6a-116
 is amended to read:
63G-6a-116.
Procurement of administrative law judge service.
(1) As used in this section:
(a) "Administrative law judge" means the same as that term is defined in Section
67-19e-102
.
(b) "Administrative law judge service" means service provided by an administrative
law judge.
[
(1)
] 
(2)
 A procurement unit shall use a standard procurement process under this
chapter for the procurement of administrative law judge service.
(3) For a procurement of administrative law judge service, an evaluation committee
shall consist of:
(a) the head of the conducting procurement unit, or the head's designee;
(b) the head of an executive branch procurement unit other than the conducting
procurement unit, appointed by the executive director of the Department of Human Resource
Management, or the head's designee; and
(c) the executive director of the Department of Human Resource Management, or the
executive director's designee.
[
(2)
] 
(4)
 Within 30 days after the day on which a conducting procurement unit awards a
contract for administrative law judge service, the conducting procurement unit shall give
written notice to the Department of Human Resource Management that states:
(a) that the conducting procurement unit awarded a contract for administrative law
judge service;
(b) the name of the conducting procurement unit; and
(c) the expected term of the contract.
(5) A procurement of administrative law judge service using a small purchase process
is subject to rules made pursuant to Subsection 
63G-6a-506
(2)(c).
Section 5. Section 
63G-6a-302
 is amended to read:
63G-6a-302.
Chief procurement officer -- Appointment -- Qualifications --
Authority.
(1) The executive director of the Department of Administrative Services, with the
consent of the governor, shall appoint the chief procurement officer after considering
recommendations from the board.
(2) The chief procurement officer shall:
(a) have a minimum of eight years' experience
:
(i) (A)
 in the large-scale procurement of supplies [
and
]
,
 services
,
 or [
services and
]
construction[
,
]
; or
(B) negotiating contract terms and conditions; and
(ii)
 at least five years of which shall have been in public or comparable private
procurement within 12 years preceding the date of appointment; and
(b) be a person with demonstrated executive and organizational ability.
(3) The chief procurement officer appointed under Subsection (1) is also the director of
the Division of Purchasing and General Services.
(4) The chief procurement officer has authority over a procurement by a procurement
unit, except:
(a) a procurement unit with independent procurement authority; or
(b) as otherwise expressly provided in this chapter.
Section 6. Section 
63G-6a-410
 is amended 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 allow a vendor to correct an immaterial error in a statement of qualifications, as provided
in Section 
63G-6a-114
.
(8) (a) A conducting procurement unit may reject a statement of qualifications if the
conducting procurement unit determines that:
(i) the vendor who submitted the statement of qualifications:
(A) is not responsible;
(B) is in violation of a provision of this chapter;
(C) has engaged in unethical conduct; or
(D) receives a performance rating below the satisfactory performance threshold
specified in the request for statement of qualifications;
(ii) there has been 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 evaluated, would have caused the statement of qualifications not to have
received a qualifying score; or
(iii) the statement of qualifications:
(A) is not responsive; or
(B) does not meet the mandatory minimum requirements, evaluation criteria, or
applicable score thresholds stated in the request for statement of qualifications.
(b) A procurement unit that rejects a statement of qualifications under Subsection
(8)(a) shall:
(i) make a written finding, stating the reasons for the rejection; and
(ii) provide a copy of the written finding to the vendor that submitted the rejected
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 [
membership as provided
in Subsection (9)(a)(ii) or (iii), as applicable. (ii) An evaluation committee for a procurement of
administrative law judge service shall consist of: (A) the head of the conducting procurement
unit, or the head's designee; (B) the head of an executive branch procurement unit other than
the conducting procurement unit, appointed by the executive director of the Department of
Human Resource Management, or the head's designee; and (C) the executive director of the
Department of Human Resource Management, or the executive director's designee. (iii) An
evaluation committee for each other procurement shall consist 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.
[
(iv)
] 
(ii)
 The conducting procurement unit shall ensure that each member of [
the
] 
an
evaluation committee [
under Subsection (9)(a)(iii)
] 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, enter into
discussions or conduct interviews with or attend presentations by vendors, for the purpose of
clarifying information contained in statements of qualifications.
(d) In a discussion, interview, or presentation under Subsection (9)(c)(iii), a vendor:
(i) may only explain, illustrate, or interpret the contents of the vendor's original
statement of qualifications; and
(ii) may not:
(A) address criteria or specifications not contained in the vendor's original statement of
qualifications;
(B) correct a deficiency, inaccuracy, or mistake in a statement of qualifications that is
not an immaterial error;
(C) correct an incomplete submission of documents that the request for statement of
qualifications required to be submitted with the statement of qualifications;
(D) correct a failure to submit a timely statement of qualifications;
(E) substitute or alter a required form or other document specified in the statement of
qualifications;
(F) remedy a cause for a vendor being considered to be not responsible or a statement
of qualifications not responsive; or
(G) 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 statement of qualifications.
(e) 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.
(f) The issuing procurement unit shall review the evaluation committee's scores and
correct any errors, scoring inconsistencies, and reported noncompliance with this chapter.
(g) (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) 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.
(13) 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.
(14) After receiving and reviewing the statements of qualifications and evaluation
scores submitted by the evaluation committee [
under Subsection (9)(d)
], 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.
(15) The applicable rulemaking authority may make rules pertaining to the request for
statement of qualifications and the process described in this section.
Section 7. Section 
63G-6a-506
 is amended to read:
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), 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), 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), that a procurement
unit may expend to obtain multiple procurement items from one source at one time under this
section.
(2) (a) The applicable rulemaking authority may make rules governing small purchases
of any procurement item, including construction, job order contracting, design professional
services, other professional services, information technology, and goods.
(b) Rules under Subsection (2)(a) may include provisions:
(i) establishing expenditure thresholds, including:
(A) an annual cumulative threshold;
(B) an individual procurement threshold; and
(C) a single procurement aggregate threshold;
(ii) establishing procurement requirements relating to the thresholds described in
Subsection (2)(b)(i); and
(iii) providing for the use of electronic, telephone, or written quotes.
(c) If a procurement unit obtains administrative law judge service through a small
purchase standard procurement process, rules made under Subsection (2)(a) shall provide that
the process for the procurement of administrative law judge service include an evaluation
committee described in Subsection [
63G-6a-707
(3)(a)
] 
63G-6a-116
(3)
. 
(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 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 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.
]
(8) (a) It is unlawful for a person knowingly to divide a single procurement into
multiple smaller procurements, including by dividing an invoice or purchase order into
multiple invoices or purchase orders, if:
(i) the single procurement would not have qualified as a small purchase under this
section;
(ii) one or more of the multiple smaller procurements qualify as a small purchase under
this section; and
(iii) the division is done with the intent to:
(A) avoid having to use a standard procurement process, other than the small purchase
process, that the person would otherwise be required to use for the single procurement; or
(B) make one or more of the multiple smaller procurements fall below a small
purchase expenditure threshold established by rule under Subsection (2)(b) that the single
procurement would not have fallen below without the division.
(b) A violation of Subsection (8)(a) is subject to penalties as provided in Subsection
63G-6a-2404.3
(2).
[
(10)
] 
(9)
 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.
[
(11)
] 
(10)
 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 8. Section 
63G-6a-507
 is amended 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 specific, fully defined procurement item; or
(ii) a future procurement item that is not specifically and fully defined, if the request
for statement of qualifications contains a general description of:
(A) the procurement item; and
(B) the type of vendor that the procurement unit seeks to provide the procurement item.
(b) A procurement unit may not award a contract to a vendor on an approved vendor
list for a procurement item that is outside the scope of the general description of the
procurement item contained in the request for statement of qualifications.
(4) After receiving the statements of qualifications and evaluation scores submitted by
the evaluation committee under Subsection 
63G-6a-410
(9)[
(d)
]
(e)
, 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 bidding process, request for proposals process, small purchase process,
or design professional 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 future procurements described in the request
for statement of qualifications; and
(ii) limit participation in a bidding process, request for proposals process, small
purchase process, or design professional 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 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 for a procurement item; and
(b) requirements for using an approved vendor list with the small purchase process.
Section 9. Section 
63G-6a-602
 is amended to read:
63G-6a-602.
Contracts awarded by bidding.
(1) [
Except as otherwise provided in this chapter, the
] 
The
 division or a procurement
unit with independent procurement authority [
shall
] 
may
 award a contract for a procurement
item
 by 
the
 bidding 
process
, in accordance with the rules of the applicable rulemaking
authority.
(2) The bidding standard procurement process is appropriate to use when cost is the
major factor in determining the award of a procurement.
Section 10. Section 
63G-6a-603
 is amended to read:
63G-6a-603.
Invitation for bids -- Requirements -- Publication.
(1) The bidding standard procurement process begins when the issuing procurement
unit issues an invitation for bids.
(2) An invitation for bids shall:
(a) state the period of time during which bids will be accepted;
(b) describe the manner in which a bid shall be submitted;
(c) state the place where a bid shall be submitted; and
(d) include, or incorporate by reference:
(i) 
to the extent practicable,
 a 
full
 description of the procurement items sought 
and the
full scope of work
 ;
(ii) the objective criteria that will be used to evaluate the bids; and
(iii) the required contractual terms and conditions.
(3) An issuing procurement unit shall publish an invitation for bids in accordance with
the requirements of Section 
63G-6a-112
.
Section 11. Section 
63G-6a-606
 is amended to read:
63G-6a-606.
Evaluation of bids -- Award -- Cancellation -- Rejecting a bid.
(1) A procurement unit that conducts a procurement using a bidding [
standard
procurement
] process shall evaluate each bid using the objective criteria described in the
invitation for bids, which may include:
(a) experience;
(b) performance ratings;
(c) inspection;
(d) testing;
(e) quality;
(f) workmanship;
(g) time and manner of delivery;
(h) references;
(i) financial stability;
(j) cost;
(k) suitability for a particular purpose;
(l) the contractor's work site safety program, including any requirement that the
contractor imposes on subcontractors for a work site safety program; or
(m) other objective criteria specified in the invitation for bids.
(2) Criteria not described in the invitation for bids may not be used to evaluate a bid.
(3) The conducting procurement unit shall:
(a) 
subject to the provisions of Section 
63G-6a-1204.5
 for multiple award contracts,
award the contract as soon as practicable to:
(i) the responsible bidder who submits the lowest responsive bid that meets the
objective criteria described in the invitation for bids; or
(ii) if, in accordance with Subsection (4), the procurement officer or the head of the
conducting procurement unit rejects a bid described in Subsection (3)(a)(i), the responsible
bidder who submits the next lowest responsive bid that meets the objective criteria described in
the invitation for bids; or
(b) cancel the invitation for bids without awarding a contract.
(4) In accordance with Subsection (5), the procurement officer or the head of the
conducting procurement unit may reject a bid for:
(a) a violation of this chapter by the bidder who submitted the bid;
(b) a violation of a requirement of the invitation for bids;
(c) unlawful or unethical conduct by the bidder who submitted the bid; or
(d) a change in a bidder's circumstance that, had the change been known at the time the
bid was submitted, would have caused the bid to be rejected.
(5) A procurement officer or head of a conducting procurement unit who rejects a bid
under Subsection (4) shall:
(a) make a written finding, stating the reasons for the rejection; and
(b) provide a copy of the written finding to the bidder who submitted the rejected bid.
(6) If a conducting procurement unit cancels an invitation for bids without awarding a
contract, the conducting procurement unit shall make available for public inspection a written
justification for the cancellation.
Section 12. Section 
63G-6a-607
 is amended to read:
63G-6a-607.
Action if all bids exceed available funds -- Exemption.
(1) Except as provided in Subsection (2) or (3), if the fiscal officer for the conducting
procurement unit certifies that all accepted bids exceed available funds and that the lowest
responsive [
and
] 
bid from a
 responsible bidder does not exceed the available funds by more
than 5%, the procurement officer may negotiate an adjustment of the bid price and bid
requirements with the 
responsible bidder who submitted the
 lowest responsive [
and responsible
bidder
] 
bid
 in order to bring the bid within the amount of available funds.
(2) A procurement officer may not adjust the bid requirements under Subsection (1) if
there is a substantial likelihood that, had the adjustment been included in the invitation for
bids, a person that did not submit a bid would have submitted a responsive[
, responsible,
] and
competitive bid.
(3) The Division of Facilities Construction and Management is exempt from the
requirements of this section if:
(a) the building board adopts rules governing procedures when all accepted bids exceed
available funds; and
(b) the Division of Facilities Construction and Management complies with the rules
described in Subsection (3)(a).
Section 13. Section 
63G-6a-608
 is amended to read:
63G-6a-608.
Tie bids -- Resolution -- Copies provided to attorney general.
(1) A procurement officer shall resolve a tie bid in accordance with a method
established by rule made by the applicable rulemaking authority. The method may include
awarding the tie bid:
(a) to the tie bidder who:
(i) is a provider of state products, if no other tie bidder is a [
responsive
] provider of
state products;
(ii) is closest to the point of delivery;
(iii) received the previous award; or
(iv) will provide the earliest delivery date;
(b) by drawing lots; or
(c) by any other reasonable method of resolving a tie bid.
(2) The method chosen by the procurement officer to resolve a tie bid shall be at the
sole discretion of the procurement officer, subject to the rules established under Subsection (1).
(3) A procurement unit in the state executive branch shall provide a copy of the
procurement to the attorney general if an award of a contract to a tie bidder exceeds $100,000
in expenditures.
Section 14. Section 
63G-6a-612
 is amended to read:
63G-6a-612.
Conduct of reverse auction.
(1) A procurement unit conducting a reverse auction:
(a) may conduct the reverse auction at a physical location or by electronic means;
(b) shall permit all prequalified bidders to participate in the reverse auction;
(c) may not permit a bidder to participate in the reverse auction if the bidder did not
prequalify to participate in the reverse auction;
(d) may not accept a bid after the time for submission of a bid has expired;
(e) shall update the bids on a real time basis; and
(f) shall conduct the reverse auction in a manner that permits each bidder to:
(i) bid against each other; and
(ii) lower the bidder's price below the lowest bid before the reverse auction closes.
(2) At the end of the reverse auction, the conducting procurement unit shall:
(a) award the contract as soon as practicable to the [
lowest responsive and
] responsible
bidder who
:
(i)
 meets the objective criteria described in the invitation for bids; [
or
] 
and
(ii) submitted the lowest responsive bid; or
(b) cancel the reverse auction without awarding a contract.
(3) After the reverse auction is finished, the conducting procurement unit shall make
publicly available:
(a) (i) the amount of the final bid submitted by each bidder during the reverse auction;
and
(ii) the identity of the bidder that submitted each final bid; and
(b) if practicable:
(i) the amount of each bid submitted during the reverse auction; and
(ii) the identity of the bidder that submitted each bid.
Section 15. Section 
63G-6a-702
 is amended to read:
63G-6a-702.
Contracts awarded by request for proposals.
[
(1) A request for proposals standard procurement process may be used instead of
bidding if the procurement officer determines, in writing, that the request for proposals
standard procurement process will provide the best value to the procurement unit.
]
(1) The division or a procurement unit with independent procurement authority may
award a contract for a procurement item by the request for proposals process, in accordance
with the rules of the applicable rulemaking authority.
(2) 
(a)
 The request for proposals [
standard procurement
] process is appropriate 
for a
procurement unit
 to use [
for
] 
in selecting the proposal that provides the best value or is the
most advantageous to the procurement unit, including when
 :
[
(a) the procurement of professional services;
]
[
(b) a design-build procurement;
]
(i) the procurement involves a contract whose terms and conditions are to be negotiated
in order to achieve the result that is the most advantageous to the procurement unit;
[
(c) when
] 
(ii)
 cost is not the most important factor to be considered in making the
selection that is most advantageous to the procurement unit; or
[
(d) when
] 
(iii)
 factors, 
apart from or
 in addition to cost, are highly significant in
making the selection that is most advantageous to the procurement unit.
(b) The types of procurements for which it is appropriate to use the request for
proposals process include:
(i) a procurement of professional services; and
(ii) a procurement of design-build or construction manager/general contractor services.
(3) The procurement of architect-engineer services is governed by Part 15,
[
Architect-Engineer Services
] 
Design Professional Services
.
Section 16. 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) 
to the extent practicable,
 a 
full
 description of the procurement items sought 
and the
full scope of work
;
(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 best and final offers may be allowed, as provided in Section
63G-6a-707.5
, 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-112
.
Section 17. 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 
responsible offeror's
 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) (a) For a procurement of administrative law judge service, an evaluation
committee shall consist of:
]
[
(i) the head of the conducting procurement unit, or the head's designee;
]
[
(ii) the head of an executive branch procurement unit other than the conducting
procurement unit, appointed by the executive director of the Department of Human Resource
Management, or the head's designee; and
]
[
(iii) the executive director of the Department of Human Resource Management, or the
executive director's designee.
]
[
(b) For every other procurement requiring an evaluation by an evaluation committee,
the
]
(3) The
 conducting procurement unit shall:
[
(i)
] 
(a)
 appoint an evaluation committee consisting of at least three individuals with at
least a general familiarity with or basic understanding of:
[
(A)
] 
(i)
 the technical requirements relating to the type of procurement item that is the
subject of the procurement; or
[
(B)
] 
(ii)
 the need that the procurement item is intended to address; and
[
(ii)
] 
(b)
 ensure that the evaluation committee and each individual participating in the
evaluation committee process:
[
(A)
] 
(i)
 does not have a conflict of interest with any of the offerors;
[
(B)
] 
(ii)
 can fairly evaluate each proposal;
[
(C)
] 
(iii)
 does not contact or communicate with an offeror concerning the procurement
outside the official evaluation committee process; and
[
(D)
] 
(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.
(5) (a) An 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, for the purpose of clarifying information contained in proposals.
(b) In a discussion, interview, or presentation under Subsection (5)(a), an offeror:
(i) may only explain, illustrate, or interpret the contents of the offeror's original
proposal; and
(ii) may not:
(A) address criteria or specifications not contained in the offeror's original proposal;
(B) correct a deficiency, inaccuracy, or mistake in a proposal that is not an immaterial
error;
(C) correct an incomplete submission of documents that the solicitation required to be
submitted with the proposal;
(D) correct a failure to submit a timely proposal;
(E) substitute or alter a required form or other document specified in the solicitation;
(F) remedy a cause for an offeror being considered to be not responsible or a proposal
not responsive; or
(G) correct a defect or inadequacy resulting in a determination that an offeror does not
meet the mandatory minimum requirements, evaluation criteria, or applicable score thresholds
established in the solicitation.
(6) (a) Except as provided in Subsection (7)(b) relating to access to management fee
information, and except as provided in Subsection (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 
from a responsible offeror
; and
(iv) provide to the evaluation committee the total combined score calculated for each
responsive [
and responsible
] proposal 
from a responsible offeror
, 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 (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.
(7) (a) As used in this Subsection (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 (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.
(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.
(9) An issuing procurement unit is not required to comply with Subsection (6) or
(7)(b)(iv), as applicable, 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 (6) or (7)(b)(iv), as
the case may be; and
(ii) describing the nature of the proposal and the other circumstances relied upon to
waive compliance with Subsection (6) or (7)(b)(iv); and
(b) makes the written statement available to the public, upon request.
Section 18. Section 
63G-6a-707.5
 is repealed and reenacted to read:
 63G-6a-707.5.
Best and final offers.
(1) The best and final offer process described in this section:
(a) may be used only in a request for proposals process, whether the request for
proposals process is used independently or after the establishment of an approved vendor list
through the approved vendor list process; and
(b) may not be used in any other standard procurement process, whether the other
standard procurement process is used independently or after the establishment of an approved
vendor list through the approved vendor list process.
(2) Subject to Subsection (3), a conducting procurement unit may request best and final
offers from responsible offerors:
(a) only with the approval of the chief procurement officer or the head of the issuing
procurement unit; and
(b) if:
(i) no single proposal adequately addresses all the specifications stated in the request
for proposals;
(ii) all proposals are unclear or deficient in one or more respects;
(iii) all cost proposals exceed the identified budget or the procurement unit's available
funding; or
(iv) two or more proposals receive an identical evaluation score that is the highest
score.
(3) A conducting procurement unit may request a best and final offer from, and a best
and final offer may be submitted to the conducting procurement unit by, only a responsible
offeror that has submitted a responsive proposal that meets the minimum mandatory criteria
stated in the request for proposals required to be considered in the stage of the procurement
process at which best and final offers are being requested.
(4) The best and final offer process may not be used to change:
(a) a determination that an offeror is not responsible to a determination that the offeror
is responsible; or
(b) a determination that a proposal is not responsive to a determination that the
proposal is responsive.
(5) (a) This Subsection (5) applies if a request for best and final offers is issued
because all cost proposals exceed the identified budget or the procurement unit's available
funding.
(b) (i) The conducting procurement unit may, in the request for best and final offers:
(A) specify the scope of work reductions the procurement unit is making in order to
generate proposals that are within the identified budget or the procurement unit's available
funding; or
(B) invite offerors submitting best and final offers to specify the scope of work
reductions being made so that the reduced cost proposal is within the identified budget or the
procurement unit's available funding.
(ii) The conducting procurement unit is not required to accept a scope of work
reduction that an offeror has specified in the offeror's best and final offer.
(c) A best and final offer submitted with a reduced cost proposal shall include an
itemized list identifying specific reductions in the offeror's proposed scope of work that
correspond to the offeror's reduced cost proposal.
(d) A reduction in the scope of work may not:
(i) eliminate a component identified in the request for proposals as a minimum
mandatory requirement; or
(ii) alter the nature of the original request for proposals to the extent that a request for
proposals for the reduced scope of work would have likely attracted a significantly different set
of offerors submitting proposals in response to the request for proposals.
(6) If a request for best and final offers is issued because two or more proposals
received an identical evaluation score that is the highest score:
(a) the request may be issued only to offerors who submitted a proposal receiving the
highest score; and
(b) an offeror submitting a best and final offer may revise:
(i) the technical aspects of the offeror's proposal;
(ii) the offeror's cost proposal, as provided in Subsection (5); or
(iii) both the technical aspects of the offeror's proposal and, as provided in Subsection
(5), the offeror's cost proposal.
(7) In a request for best and final offers, the conducting procurement unit shall:
(a) clearly specify:
(i) the issues that the procurement unit requests the offerors to address in their best and
final offers; and
(ii) how best and final offers will be evaluated and scored in accordance with Section
63G-6a-707
;
(b) establish a deadline for an offeror to submit a best and final offer; and
(c) if applicable, establish a schedule and procedure for conducting discussions with
offerors concerning the best and final offers.
(8) In conducting a best and final offer process under this section, a conducting
procurement unit shall:
(a) maintain confidential the information the procurement unit receives from an
offeror, including any cost information, until a contract has been awarded or the request for
proposals canceled;
(b) ensure that each offeror receives fair and equal treatment; and
(c) safeguard the integrity of the scope of the original request for proposals, except as
specifically provided otherwise in this section.
(9) 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 issue not described in the request for best and final offers.
(10) If an offeror fails to submit a best and final offer, the conducting procurement unit
shall treat the offeror's original proposal as the offeror's best and final offer.
(11) After the deadline for submitting best and final offers has passed, the evaluation
committee shall evaluate the best and final offers submitted using the criteria described in the
request for proposals.
(12) An offeror may not make and a conducting procurement unit may not consider a
best and final offer that the conducting procurement unit has not requested under this section.
(13) To implement the best and final offer process described in this section, an
applicable rulemaking authority may make rules consistent with this section and the other
provisions of this chapter.
Section 19. Section 
63G-6a-709
 is amended to read:
63G-6a-709.
Award of contract -- Cancellation -- Rejection of proposal.
(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 
or an award of multiple
contracts as provided in Section 
63G-6a-1204.5
.
(2) After reviewing the proposals, evaluation scores, and justification statement,
including any required cost-benefit analysis, the head of the issuing procurement unit shall:
(a) (i) award the contract as soon as practicable to the responsible offeror with the
responsive proposal receiving the highest total score; or
(ii) (A) if the head of the issuing procurement unit [
disqualifies an offeror
] 
rejects a
proposal
 under Subsection (3) 
of an offeror
 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
] 
rejects a
proposal
 under Subsection (3) 
of an offeror
 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
]
whose proposal is not rejected
; or
(b) cancel the request for proposals without awarding a contract.
(3) The head of an issuing procurement unit may reject a proposal if:
(a) the offeror who submitted the proposal:
(i) is not responsible;
(ii) is in violation of a provision of this chapter;
(iii) has engaged in unethical conduct; or
(iv) fails to sign a contract within:
(A) 90 days after the contract award, if no time is specified in the solicitation; or
(B) a time authorized in writing by the head of the issuing procurement unit;
(b) there is a change in the offeror's circumstances that, if the change had been known
at the time the offeror's proposal was evaluated, would have caused the proposal not to have
received the highest score; or
(c) the proposal:
(i) is not responsive; or
(ii) does not meet the mandatory minimum requirements, evaluation criteria, or
applicable score thresholds stated in the solicitation.
(4) A head of an issuing procurement unit who rejects a proposal under Subsection (3)
shall:
(a) make a written finding, stating the reasons for the rejection; and
(b) provide a copy of the written finding to the offeror whose proposal is rejected.
(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 20. Section 
63G-6a-802.7
 is amended 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 120 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 120 days, if
, after consulting with
 the attorney
general or the procurement unit's attorney
, the chief procurement officer or head of a
procurement unit with independent procurement authority
 determines in writing that the
contract extension does not violate state or federal antitrust laws and is consistent with the
purpose of ensuring the fair and equitable treatment of all persons who deal with the
procurement system.
Section 21. Section 
63G-6a-903
 is amended to read:
63G-6a-903.
Determination of nonresponsibility.
(1) A determination of nonresponsibility of a [
bidder or offeror
] 
person
 made by an
issuing procurement unit shall be made in writing, in accordance with the rules of the
applicable rulemaking authority.
(2) [
The
] 
A person's
 unreasonable failure [
of a bidder or offeror
] to promptly supply
information in connection with an inquiry with respect to responsibility may be grounds for a
determination of nonresponsibility with respect to the [
bidder or offeror
] 
person
.
(3) Subject to Title 63G, Chapter 2, Government Records Access and Management
Act, information furnished by a [
bidder or offeror
] 
person
 pursuant to this section may not be
disclosed outside of a procurement unit without 
the person's
 prior written consent [
by the
bidder or offeror
].
Section 22. Section 
63G-6a-904
 is amended to read:
63G-6a-904.
Debarment or suspension from consideration for award of contracts
-- Process -- Causes for debarment -- Judicial review.
(1) (a) Subject to Subsection (1)(b), the chief procurement officer or the head of a
procurement unit with independent procurement authority may:
(i) debar a person for cause from consideration for award of contracts for a period not
to exceed three years; or
(ii) suspend a person from consideration for award of contracts if there is [
probable
]
cause to believe that the person has engaged in any activity that might lead to debarment.
(b) Before debarring or suspending a person under Subsection (1)(a), the chief
procurement officer or head of a procurement unit with independent procurement authority
shall:
(i) consult with:
(A) the procurement unit involved in the matter for which debarment or suspension is
sought; and
(B) the attorney general, if the procurement unit is in the state executive branch, or the
procurement unit's attorney, if the procurement unit is not in the state executive branch;
(ii) give the person at least 10 days' prior written notice of:
(A) the reasons for which debarment or suspension is being considered; and
(B) the hearing under Subsection (1)(b)(iii); and
(iii) hold [
a
] 
an informal
 hearing in accordance with Subsection (1)(c).
(c) (i) At [
a
] 
an informal
 hearing under Subsection (1)(b)(iii), the chief procurement
officer or head of a procurement unit with independent procurement authority may:
(A) subpoena witnesses and compel their attendance at the hearing;
(B) subpoena documents for production at the hearing;
(C) obtain additional factual information; and
(D) obtain testimony from experts, the person who is the subject of the proposed
debarment or suspension, representatives of the procurement unit, or others to assist the chief
procurement officer or head of a procurement unit with independent procurement authority to
make a decision on the proposed debarment or suspension.
(ii) The Rules of Evidence do not apply to [
a
] 
an informal
 hearing under Subsection
(1)(b)(iii).
(iii) The chief procurement officer or head of a procurement unit with independent
procurement authority shall:
(A) record a hearing under Subsection (1)(b)(iii); 
and
(B) preserve all records and other evidence relied upon in reaching a decision until the
decision becomes final[
;
]
.
[
(C) for an appeal of a debarment or suspension by a procurement unit other than a
legislative procurement unit, a judicial procurement unit, a local government procurement unit,
or a public transit district, submit to the procurement policy board chair a copy of the 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 a debarment or suspension has been filed under
Section 
63G-6a-1702
 or after receiving a request from the procurement policy board chair;
and
]
[
(D) for an appeal of a debarment or suspension by a legislative procurement unit, a
judicial procurement unit, a local government procurement unit, or a public transit district,
submit to the Utah Court of Appeals a copy of the 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 a debarment or suspension has been filed under Section 
63G-6a-1802
.
]
(iv) The holding of [
a
] 
an informal
 hearing under Subsection (1)(b)(iii) or the issuing
of a decision under Subsection (1)(c)(v) does not affect a person's right to later question or
challenge the jurisdiction of the chief procurement officer or head of a procurement unit with
independent procurement authority to hold a hearing or issue a decision.
(v) The chief procurement officer or head of a procurement unit with independent
procurement authority shall:
(A) promptly issue a written decision regarding a proposed debarment or suspension,
unless the matter is settled by mutual agreement; and
(B) mail, email, or otherwise immediately furnish a copy of the decision to the person
who is the subject of the decision.
(vi) A written decision under Subsection (1)(c)(v) shall:
(A) state the reasons for the debarment or suspension, if debarment or suspension is
ordered; 
and
(B) inform the person who is debarred or suspended of the right to judicial [
or
administrative
] review as provided in this chapter[
; and
]
.
[
(C) indicate the amount of the security deposit or bond required under Section
63G-6a-1703
 and how that amount was calculated.
]
[
(vii) (A) A decision of debarment or suspension issued by a procurement unit other
than a legislative procurement unit, a judicial procurement unit, a local government
procurement unit, or a public transit district is final and conclusive unless the person who is
debarred or suspended files an appeal of the decision under Section 
63G-6a-1702
.
]
[
(B)
] 
(vii)
 A decision of debarment or suspension [
issued by a legislative procurement
unit, a judicial procurement unit, a local government procurement unit, or a public transit
district
] is final and conclusive unless [
the person who is debarred or suspended files an appeal
of
] the decision 
is overturned by a court
 under [
Section 
63G-6a-1802
] 
Subsection (4)
.
(2) A suspension under this section may not be for a period exceeding three months,
unless an indictment has been issued for an offense which would be a cause for debarment
under Subsection (3), in which case the suspension shall, at the request of the attorney general,
if the procurement unit is in the state executive branch, or the procurement unit's attorney, if
the procurement unit is not in the state executive branch, remain in effect until after the trial of
the suspended person.
(3) The causes for debarment include the following:
(a) conviction of a criminal offense as an incident to obtaining or attempting to obtain a
public or private contract or subcontract or in the performance of a public or private contract or
subcontract;
(b) conviction under state or federal statutes of embezzlement, theft, forgery, bribery,
falsification or destruction of records, receiving stolen property, or any other offense indicating
a lack of business integrity or business honesty which currently, seriously, and directly affects
responsibility as a contractor for the procurement unit;
(c) conviction under state or federal antitrust statutes;
(d) failure without good cause to perform in accordance with the terms of the contract;
(e) a violation of this chapter; or
(f) any other cause that the chief procurement officer or the head of a procurement unit
with independent procurement authority determines to be so serious and compelling as to affect
responsibility as a contractor for the procurement unit, including debarment by another
governmental entity.
(4) 
(a)
 A person who is debarred or suspended under this section may [
appeal
] 
seek
judicial review of
 the debarment or suspension[
:
] 
by filing a petition for judicial review in
district court.
[
(a) as provided in Section 
63G-6a-1702
, if the debarment or suspension is by a
procurement unit other than a legislative procurement unit, a judicial procurement unit, a local
government procurement unit, or a public transit district; or (b) as provided in Section
63G-6a-1802
, if the debarment or suspension is by a legislative procurement unit, a judicial
procurement unit, a local government procurement unit, or a public transit district.
]
(b) A petition under Subsection (4)(a):
(i) is a complaint governed by the Utah Rules of Civil Procedure;
(ii) shall name the procurement unit as respondent;
(iii) shall be accompanied by a copy of the written decision as to which judicial review
is sought; and
(iv) is barred unless filed in district court within 30 days after the date of the issuance
of the written decision of suspension or debarment under Subsection (1)(c)(v).
(c) A district court's review of a petition under Subsection (4)(a) shall be de novo.
(d) A district court shall, without a jury, determine all questions of fact and law,
including any constitutional issue, presented in the pleadings.
(5) A procurement unit may consider a cause for debarment under Subsection (3) as the
basis for determining that a person responding to a solicitation is not responsible:
(a) independent of any effort or proceeding under this section to debar or suspend the
person; and
(b) even if the procurement unit does not choose to seek debarment or suspension.
(6) An applicable rulemaking authority may make rules pertaining to the suspension
and debarment process under this section, including rules governing an informal hearing under
Subsection (1)(b)(iii).
Section 23. Section 
63G-6a-1002
 is amended to read:
63G-6a-1002.
Reciprocal preference for providers of state products.
(1) (a) An issuing procurement unit shall, for all procurements, give a reciprocal
preference to those bidders offering procurement items that are produced, manufactured,
mined, grown, or performed in Utah over those bidders offering procurement items that are
produced, manufactured, mined, grown, or performed in any state that gives or requires a
preference to procurement items that are produced, manufactured, mined, grown, or performed
in that state.
(b) The amount of reciprocal preference shall be equal to the amount of the preference
applied by the other state for that particular procurement item.
(c) In order to receive a reciprocal preference under this section, the bidder shall certify
on the bid that the procurement items offered are produced, manufactured, mined, grown, or
performed in Utah.
(d) The reciprocal preference is waived if the certification described in Subsection
(1)(c) does not appear on the bid.
(2) (a) If the 
responsible
 bidder submitting the lowest responsive [
and responsible
] bid
offers procurement items that are produced, manufactured, mined, grown, or performed in a
state that gives or requires a preference, and if another 
responsible
 bidder has submitted a
responsive [
and responsible
] bid offering procurement items that are produced, manufactured,
mined, grown, or performed in Utah, and with the benefit of the reciprocal preference, the bid
of the other bidder is equal to or less than the original lowest bid, the issuing procurement unit
shall:
(i) give notice to the bidder offering procurement items that are produced,
manufactured, mined, grown, or performed in Utah that the bidder qualifies as a preferred
bidder; and
(ii) make the purchase from the preferred bidder if the bidder agrees, in writing, to
meet the low bid within 72 hours after notification that the bidder is a preferred bidder.
(b) The issuing procurement unit shall include the exact price submitted by the lowest
bidder in the notice the issuing procurement unit submits to the preferred bidder.
(c) The issuing procurement unit may not enter into a contract with any other bidder for
the purchase until 72 hours have elapsed after notification to the preferred bidder.
(3) (a) If there is more than one preferred bidder, the issuing procurement unit shall
award the contract to the willing preferred bidder who was the lowest preferred bidder
originally.
(b) If there were two or more equally low preferred bidders, the issuing procurement
unit shall comply with the rules of the applicable rulemaking authority to determine which
bidder should be awarded the contract.
(4) The provisions of this section do not apply if application of this section might
jeopardize the receipt of federal funds.
Section 24. Section 
63G-6a-1003
 is amended to read:
63G-6a-1003.
Preference for resident contractors.
(1) As used in this section, "resident contractor" means a person, partnership,
corporation, or other business entity that:
(a) either has its principal place of business in Utah or that employs workers who are
residents of this state when available; and
(b) was transacting business on the date when bids for the public contract were first
solicited.
(2) (a) When awarding contracts for construction, an issuing procurement unit shall
grant a resident contractor a reciprocal preference over a nonresident contractor from any state
that gives or requires a preference to contractors from that state.
(b) The amount of the reciprocal preference shall be equal to the amount of the
preference applied by the state of the nonresident contractor.
(3) (a) In order to receive the reciprocal preference under this section, the bidder shall
certify on the bid that the bidder qualifies as a resident contractor.
(b) The reciprocal preference is waived if the certification described in Subsection
(2)(a) does not appear on the bid.
(4) (a) If the 
responsible
 contractor submitting the lowest responsive [
and responsible
]
bid is not a resident contractor whose principal place of business is in a state that gives or
requires a preference to contractors from that state, and if a resident 
responsible
 contractor has
also submitted a responsive [
and responsible
] bid, and, with the benefit of the reciprocal
preference, the resident contractor's bid is equal to or less than the original lowest bid, the
issuing procurement unit shall:
(i) give notice to the resident contractor that the resident contractor qualifies as a
preferred resident contractor; and
(ii) issue the contract to the resident contractor if the resident contractor agrees, in
writing, to meet the low bid within 72 hours after notification that the resident contractor is a
preferred resident contractor.
(b) The issuing procurement unit shall include the exact price submitted by the lowest
bidder in the notice that the issuing procurement unit submits to the preferred resident
contractor.
(c) The issuing procurement unit may not enter into a contract with any other bidder for
the construction until 72 hours have elapsed after notification to the preferred resident
contractor.
(5) (a) If there is more than one preferred resident contractor, the issuing procurement
unit shall award the contract to the willing preferred resident contractor who was the lowest
preferred resident contractor originally.
(b) If there were two or more equally low preferred resident contractors, the issuing
procurement unit shall comply with the rules of the applicable rulemaking authority to
determine which bidder should be awarded the contract.
(6) The provisions of this section do not apply if application of this section might
jeopardize the receipt of federal funds.
Section 25. Section 
63G-6a-1204.5
 is amended to read:
63G-6a-1204.5.
Multiple award contracts.
(1) (a) [
The
] 
Through a standard procurement process, the
 division or a procurement
unit with independent procurement authority may enter into multiple award contracts with
[
bidders or offerors
] 
multiple persons
.
(b) The applicable rulemaking authority may make rules, consistent with this section,
regulating the use of multiple award contracts.
(2) Multiple award contracts may be in a procurement unit's best interest if award to
two or more bidders or offerors for similar procurement items is needed or desired for adequate
delivery, service, availability, or product compatibility.
(3) A procurement unit that enters into multiple award contracts under this section
shall:
(a) exercise care to protect and promote competition among bidders or offerors when
seeking to enter into multiple award contracts;
(b) name all eligible users of the multiple award contracts in the invitation for bids or
request for proposals; and
(c) if the procurement unit anticipates entering into multiple award contracts before
issuing the invitation for bids or request for proposals, state in the invitation for bids or request
for proposals that the procurement unit may enter into multiple award contracts at the end of
the procurement process.
(4) A procurement unit that enters into multiple award contracts under this section
shall:
(a) obtain, under the multiple award contracts, all of its normal, recurring requirements
for the procurement items that are the subject of the contracts until the contracts terminate; and
(b) reserve the right to obtain the procurement items described in Subsection (4)(a)
separately from the contracts if:
(i) there is a need to obtain a quantity of the procurement items that exceeds the
amount specified in the contracts; or
(ii) the procurement officer makes a written finding that the procurement items
available under the contract will not effectively or efficiently meet a nonrecurring special need
of a procurement unit.
(5) An applicable rulemaking authority may make rules to further regulate a
procurement under this section.
Section 26. Section 
63G-6a-1402
 is amended to read:
63G-6a-1402.
Procurement of design-build transportation project contracts.
(1) As used in this section:
(a) "Design-build transportation project contract" means the procurement of both the
design and construction of a transportation project in a single contract with a company or
combination of companies capable of providing the necessary engineering services and
construction.
(b) "Transportation agency" means:
(i) the Department of Transportation;
(ii) a county of the first or second class, as defined in Section 
17-50-501
;
(iii) a municipality of the first class, as defined in Section 
10-2-301
;
(iv) a public transit district that has more than 200,000 people residing within its
boundaries; and
(v) a public airport authority.
(2) Except as provided in Subsection (3), a transportation agency may award a
design-build transportation project contract for any transportation project that has an estimated
cost of at least $50,000,000 by following the requirements of this section.
(3) (a) The Department of Transportation:
(i) may award a design-build transportation project contract for any transportation
project by following the requirements of this section; and
(ii) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, establishing requirements for the procurement of its design-build
transportation project contracts in addition to those required by this section.
(b) A public transit district that has more than 200,000 people residing within its
boundaries:
(i) may award a design-build transportation project contract for any transportation
project by following the requirements of this section; and
(ii) shall pass ordinances or a resolution establishing requirements for the procurement
of its design-build transportation project contracts in addition to those required by this section.
(c) A design-build transportation project contract authorized under this Subsection (3)
is not subject to the estimated cost threshold described in Subsection (2).
(d) A design-build transportation project contract may include provision by the
contractor of operations, maintenance, or financing.
(4) (a) Before entering into a design-build transportation project contract, a
transportation agency may issue a request for qualifications to prequalify potential contractors.
(b) Public notice of the request for qualifications shall be given in accordance with
board rules.
(c) A transportation agency shall require, as part of the qualifications specified in the
request for qualifications, that potential contractors at least demonstrate their:
(i) construction experience;
(ii) design experience;
(iii) financial, manpower, and equipment resources available for the project; and
(iv) experience in other design-build transportation projects with attributes similar to
the project being procured.
(d) The request for qualifications shall identify the number of eligible competing
proposers that the transportation agency will select to submit a proposal, which may not be less
than two.
(5) The transportation agency shall:
(a) evaluate the responses received from the request for qualifications;
(b) select from their number those qualified to submit proposals; and
(c) invite those respondents to submit proposals based upon the transportation agency's
request for proposals.
(6) If the transportation agency fails to receive at least two qualified eligible competing
proposals, the transportation agency shall readvertise the project.
(7) The transportation agency shall issue a request for proposals to those qualified
respondents that:
(a) includes a scope of work statement constituting an information for proposal that
may include:
(i) preliminary design concepts;
(ii) design criteria, needs, and objectives;
(iii) warranty and quality control requirements;
(iv) applicable standards;
(v) environmental documents;
(vi) constraints;
(vii) time expectations or limitations;
(viii) incentives or disincentives; and
(ix) other special considerations;
(b) requires submitters to provide:
(i) a sealed cost proposal;
(ii) a critical path matrix schedule, including cash flow requirements;
(iii) proposal security; and
(iv) other items required by the department for the project; and
(c) may include award of a stipulated fee to be paid to offerors who submit
unsuccessful proposals.
(8) The transportation agency shall:
(a) evaluate the submissions received in response to the request for proposals from the
prequalified offerors;
(b) comply with rules relating to discussion of proposals, best and final offers, and
evaluations of the proposals submitted; and
(c) after considering price and other identified factors, award the contract to the
[
responsive and
] responsible offeror whose 
responsive
 proposal is most advantageous to the
transportation agency or the state.
Section 27. Section 
63G-6a-1403
 is amended to read:
63G-6a-1403.
Procurement of tollway development agreements.
(1) As used in this section, "tollway development agreement" is as defined in Section
72-6-202
.
(2) The Department of Transportation and the Transportation Commission:
(a) may solicit a tollway development agreement proposal by following the
requirements of this section;
(b) may award a solicited tollway development agreement contract for any tollway
project by following the requirements of this section; and
(c) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, establishing requirements for the procurement of tollway development
agreement proposals in addition to those required by this section.
(3) (a) Before entering into a tollway development agreement, the Department of
Transportation may issue a request for qualifications to prequalify potential contractors.
(b) Public notice of the request for qualifications shall be given in accordance with
board rules.
(c) The Department of Transportation shall require, as part of the qualifications
specified in the request for qualifications, that potential contractors at least provide:
(i) a demonstration of their experience with other transportation concession projects
with attributes similar to the project being procured;
(ii) a financial statement of the firm or consortium of firms making the proposal;
(iii) a conceptual project development plan and financing plan;
(iv) the legal structure of the firm or consortium of firms making the proposal;
(v) the organizational structure for the project; and
(vi) a statement describing why the firm or consortium of firms is best qualified for the
project.
(d) The request for qualifications shall identify the number of eligible competing
offerors that the Department of Transportation will select to submit a proposal.
(4) The Department of Transportation shall:
(a) evaluate the responses received from the request for qualifications;
(b) select from their number those qualified to submit proposals; and
(c) invite those respondents to submit proposals based upon the Department of
Transportation's request for proposals.
(5) The Department of Transportation shall issue a request for proposals to those
qualified respondents that may require, as appropriate for the procurement:
(a) a description of the proposed project or projects;
(b) a financial plan for the project, including:
(i) the anticipated financial commitment of all parties;
(ii) equity, debt, and other financing mechanisms;
(iii) an analysis of the projected return, rate of return, or both; and
(iv) the monetary benefit and other value to a government entity;
(c) assumptions about user fees or toll rates;
(d) a project development and management plan, including:
(i) the contracting structure;
(ii) the plan for quality management;
(iii) the proposed toll enforcement plan; and
(iv) the plan for safety management; and
(e) that the proposal to comply with the minimum guidelines for tollway development
agreement proposals under Section 
72-6-204
.
(6) The Department of Transportation and the Transportation Commission:
(a) shall evaluate the submissions received in response to the request for proposals
from the prequalified offerors;
(b) shall comply with rules relating to discussion of proposals, best and final offers,
and evaluations of the proposals submitted; and
(c) may, after considering price and other identified factors and complying with the
requirements of Section 
72-6-206
, award the contract to the [
responsive and
] responsible
offeror whose 
responsive
 proposal is most advantageous to the state.
Section 28. Section 
63G-6a-1601.5
 is amended to read:
63G-6a-1601.5.
Definitions.
As used in this part:
(1) "Constructive knowledge":
(a) means knowledge or information that a protestor would have if the protestor had
exercised reasonable care or diligence, 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) "Hearing" means a proceeding in which evidence, which may include oral
testimony, or argument relevant to a protest is presented to a protest officer in connection with
the protest officer's determination of an issue of fact or law or both.
(3) "Protest appeal record" means:
(a) a copy of the protest officer's written decision;
(b) all documentation and other evidence the protest officer relied upon in reaching the
protest officer's decision;
(c) the recording of the hearing, if the protest officer held a hearing;
(d) a copy of the protestor's written protest; and
(e) all documentation and other evidence submitted by the protestor supporting the
protest or the protestor's claim of standing.
[
(2)
] 
(4)
 "Protestor" means a person who files a protest under this part.
[
(3)
] 
(5)
 "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 29. Section 
63G-6a-1602
 is amended to read:
63G-6a-1602.
Protest -- Time for filing -- Basis of protest -- Authority to resolve
protest.
(1) A protest may be filed with the protest officer by a person who:
(a) has standing; and
(b) is aggrieved in connection with a procurement or an award of a contract.
(2) A protest may not be filed after:
(a) (i) (A) the opening of bids, for a protest relating to a procurement under a bidding
process; or
(B) the deadline for submitting responses to the solicitation, for a protest relating to
another standard procurement process; or
(ii) the closing of the procurement stage that is the subject of the protest:
(A) if the protest relates to a multiple-stage procurement; and
(B) notwithstanding Subsections (2)(a)(i)(A) and (B); or
(b) the day that is seven days after the day on which the person knows or first has
constructive knowledge of the facts giving rise to the protest, if:
(i) the protestor did not know and did not have constructive knowledge of the facts
giving rise to the protest before:
(A) the opening of bids, for a protest relating to a procurement under a bidding process;
(B) the deadline for submitting responses to the solicitation, for a protest relating to
another standard procurement process; or
(C) the closing of the procurement stage that is the subject of the protest, if the protest
relates to a multiple-stage procurement; or
(ii) the protest relates to a procurement process not described in Subsection (2)(a).
(3) A deadline under Subsection (2) for filing a protest may not be modified.
[
(3)
] 
(4)
 (a) A protestor shall include in a protest:
(i) the protestor's mailing address and email address; and
(ii) a concise statement of the 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 other applicable law or 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,
excluding a bias that is a preference arising during the evaluation process because of how well
a solicitation response meets criteria in the solicitation;
(v) a failure to correctly apply or calculate a scoring criterion; or
(vi) that specifications in a solicitation are unduly restrictive or unduly anticompetitive.
[
(4)
] 
(5)
 A protest may not be based on:
(a) the rejection of a solicitation response due to a protestor's failure to attend or
participate in a mandatory conference, meeting, or site visit held before the deadline for
submitting a solicitation response; [
or
]
(b) a vague or unsubstantiated allegation[
.
]
; or
(c) a person's claim that:
(i) a procurement unit that complied with Section 
63G-6a-112
 did not provide
individual notice of a solicitation to the person; or
(ii) the person received late notice of a solicitation for which notice was provided in
accordance with Section 
63G-6a-112
.
[
(5)
] 
(6)
 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.
[
(6)
] 
(7)
 A person who fails to file a protest within the time prescribed in Subsection
(2) 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.
[
(7)
] 
(8)
 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 30. 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
without holding a hearing
.
(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 
without holding a hearing
 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 
or law
 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.
]
(iii) if the protestor appeals the protest officer's decision, submit the protest appeal
record to the procurement policy board chair 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 for the protest appeal record 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 within
30 calendar days after the day on which the protest was filed with the protest officer, or within
a longer period as may be agreed upon by the parties, the protester 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.
(11) An individual is not precluded from acting, and may not be disqualified or
required to be recused from acting, as a protest officer because the individual also acted in
another capacity during the procurement process, as required or allowed in this chapter.
Section 31. Section 
63G-6a-1701.5
 is enacted to read:
 63G-6a-1701.5.
Definitions.
As used in this part:
(1) "Appointing officer" means:
(a) the chair of the board; or
(b) a designee of the chair who is not employed by the procurement unit responsible for
the solicitation, contract award, or other action that is the subject of the protestor's protest.
(2) "Protest appeal record" means the same as that term is defined in Section
63G-6a-1601.5
.
(3) "Protestor" means the same as that term is defined in Section 
63G-6a-1601.5
.
Section 32. Section 
63G-6a-1702
 is amended to read:
63G-6a-1702.
Appeal to Utah State Procurement Policy Board -- Appointment of
procurement appeals panel -- Proceedings.
(1) This part applies to all procurement units other than:
(a) a legislative procurement unit;
(b) a judicial procurement unit;
(c) a nonadopting local government procurement unit; or
(d) a public transit district.
(2) (a) Subject to Section 
63G-6a-1703
, a [
party to a protest involving a procurement
unit other than a procurement unit listed in Subsection (1)(a), (b), (c), or (d)
] 
protestor
 may
appeal [
the protest decision
] to the board 
a protest decision of a procurement unit that is subject
to this part
 by filing a written notice of appeal with the chair of the board within seven days
after:
(i) the day on which the written decision described in Section 
63G-6a-1603
 is:
(A) personally served on the party or the party's representative; or
(B) emailed or mailed to the address or email address provided by the party under
Subsection 
63G-6a-1602
[
(3)
]
(4)
; or
(ii) the day on which the 30-day period described in Subsection 
63G-6a-1603
(9) ends,
if a written decision is not issued before the end of the 30-day period.
[
(b) A person appealing a debarment or suspension of a procurement unit other than a
procurement unit listed in Subsection (1)(a), (b), (c), or (d) shall file a written notice of appeal
with the chair of the board no later than seven days after the debarment or suspension.
]
[
(c)
] 
(b)
 A notice of appeal under Subsection (2)(a) [
or (b)
] shall:
(i) include the address of record and email address of record of the party filing the
notice of appeal; and
(ii) be accompanied by a copy of any written protest decision [
or debarment or
suspension order
].
(c) The deadline for appealing a protest decision may not be modified.
(3) A person may not base an appeal of a protest under this section on
:
(a)
 a ground not specified in the person's protest under Section 
63G-6a-1602
[
.
]
; or
(b) new or additional evidence not considered by the protest officer.
(4) 
(a)
 A person may not appeal from a protest described in Section 
63G-6a-1602
,
unless:
[
(a)
] 
(i)
 a decision on the protest has been issued; or
[
(b)
] 
(ii)
 a decision is not issued and the 30-day period described in Subsection
63G-6a-1603
(9), or a longer period agreed to by the parties, has passed.
[
(5) The chair of the board or a designee of the chair who is not employed by the
procurement unit responsible for the solicitation, contract award, or other action complained
of:
]
[
(a) shall, within seven days after the day on which the chair receives a timely written
notice of appeal under Subsection (2), and if all the requirements of Subsection (2) and Section
63G-6a-1703
 have been met, appoint:
]
[
(i) a procurement appeals panel to hear and decide the appeal, consisting of at least
three individuals, each of whom is:
]
(b) A procurement unit may not appeal a protest decision or other determination made
by the procurement unit's protest officer.
(5) (a) Within seven days after the chair of the board receives a written notice of an
appeal under this section, the chair shall submit a written request to the protest officer for the
protest appeal record.
(b) Within seven days after the chair receives the protest appeal record from the protest
officer, the appointing officer shall, in consultation with the attorney general's office:
(i) review the appeal to determine whether the appeal complies with the requirements
of Subsections (2), (3), and (4) and Section 
63G-6a-1703
; and
(ii) (A) dismiss any claim asserted in the appeal, or dismiss the appeal, without holding
a hearing if the appointing officer determines that the claim or appeal, respectively, fails to
comply with any of the requirements listed in Subsection (5)(b)(i); or
(B) appoint a procurement appeals panel to conduct an administrative review of any
claim in the appeal that has not been dismissed under Subsection (5)(b)(ii)(A), if the appointing
officer determines that one or more claims asserted in the appeal comply with the requirements
listed in Subsection (5)(b)(i).
(c) A procurement appeals panel appointed under Subsection (5)(a) shall consist of an
odd number of at least three individuals, each of whom is:
[
(A)
] 
(i)
 a member of the board; or
[
(B)
] 
(ii)
 a designee of a member appointed under Subsection (5)[
(a)(i)(A)
]
(c)(i)
, if the
designee is approved by the chair[
; and
] 
of the board.
[
(ii)
] 
(d) The appointing officer shall appoint
 one of the members of the procurement
appeals panel to [
be the chair
] 
serve as the coordinator
 of the panel[
;
]
.
[
(b)
] 
(e) The appointing officer
 may:
(i) appoint the same procurement appeals panel to hear more than one appeal; or
(ii) appoint a separate procurement appeals panel for each appeal[
;
]
.
[
(c)
] 
(f) The appointing officer
 may not appoint a person to a procurement appeals
panel if the person is employed by the procurement unit responsible for the solicitation,
contract award, or other action [
complained of; and
] 
that is the subject of the protestor's protest.
[
(d)
] 
(g) The appointing officer
 shall, at the time the procurement appeals panel is
appointed, provide appeals panel members with a copy of the [
protest officer's written decision
and all other records and other evidence that the protest officer relied on in reaching the
decision
] 
notice of appeal filed under Subsection (2) and the protest decision record
.
(6) 
(a)
 A procurement appeals panel described in Subsection (5) [
shall
]:
[
(a) consist of an odd number of members;
]
[
(b)
] 
(i) shall
 conduct an [
informal proceeding on
] 
administrative review of
 the appeal
within [
] 
 days after the day on which the procurement appeals panel is appointed[
:
]
, or
before a later date that all parties agree upon, unless the appeal is dismissed under Subsection
(8)(a); and
[
(i) unless all parties stipulate to a later date; and
]
[
(ii) subject to Subsection (8);
]
(ii) (A) may, as part of the administrative review and at the sole discretion of the
procurement appeals panel, conduct an informal hearing, if the procurement appeals panel
considers a hearing to be necessary; and
[
(c)
] 
(B) if the procurement appeals panel conducts an informal hearing, shall,
 at least
seven days before the [
proceeding
] 
hearing
, mail, email, or hand-deliver a written notice of the
[
proceeding
] 
hearing
 to the parties to the appeal[
; and
]
.
(b) A procurement appeals panel may, during an informal hearing, ask questions and
receive responses regarding the appeal and the protest appeal record to assist the procurement
appeals panel to understand the basis of the appeal and information contained in the protest
appeal record, but may not otherwise take any additional evidence or consider any additional
ground for the appeal.
(7) A procurement appeals panel shall consider and decide the appeal based solely on:
(a) the notice of appeal and the protest appeal record; and
(b) responses received during an informal hearing, if an informal hearing is held and to
the extent allowed under Subsection (6)(b).
(8) A procurement appeals panel:
(a) may dismiss an appeal if the appeal does not comply with the requirements of this
chapter; and
(b) shall uphold the protest decision unless the protest decision is arbitrary and
capricious or clearly erroneous.
[
(d)
] 
(9) The procurement appeals panel shall,
 within seven days after the day on which
the [
proceeding ends
] 
procurement appeals panel concludes the administrative review
:
[
(i)
] 
(a)
 issue a written decision on the appeal; and
[
(ii)
] 
(b)
 mail, email, or hand-deliver the written decision on the appeal to the parties to
the appeal and to the protest officer.
[
(7)
] 
(10)
 (a) The deliberations of a procurement appeals panel may be held in private.
(b) If the procurement appeals panel is a public body, as defined in Section 
52-4-103
,
the procurement appeals panel shall comply with Section 
52-4-205
 in closing a meeting for its
deliberations.
[
(8)
] 
(11)
 A procurement appeals panel may continue [
a procurement appeals
proceeding
] 
an administrative review under this section
 beyond the [
60-day
] 
30-day
 period
described in Subsection (6)[
(b)
]
(a)(i)
 if the procurement appeals panel determines that the
continuance is in the interests of justice.
[
(9) A procurement appeals panel:
]
[
(a) shall, subject to Subsection (9)(c), consider the appeal based solely on:
]
[
(i) the protest decision;
]
[
(ii) the record considered by the person who issued the protest decision; and
]
[
(iii) if a protest hearing was held, the record of the protest hearing;
]
[
(b) may not take additional evidence;
]
[
(c) notwithstanding Subsection (9)(b), may, during an informal hearing, ask questions
and receive responses regarding the appeal, the protest decision, or the record in order to assist
the panel to understand the appeal, the protest decision, and the record; and
]
[
(d) shall uphold the decision of the protest officer, unless the decision is arbitrary and
capricious or clearly erroneous.
]
[
(10)
] 
(12)
 If a procurement appeals panel determines that the decision of the protest
officer is arbitrary and capricious or clearly erroneous, the procurement appeals panel:
(a) shall remand the matter to the protest officer, to cure the problem or render a new
decision;
(b) may recommend action that the protest officer should take; and
(c) may not order that:
(i) a contract be awarded to a certain person;
(ii) a contract or solicitation be cancelled; or
(iii) any other action be taken other than the action described in Subsection [
(10)
]
(12)
(a).
[
(11)
] 
(13)
 The board shall make rules relating to the conduct of an appeals proceeding,
including rules that provide for:
(a) expedited proceedings; and
(b) electronic participation in the proceedings by panel members and participants.
[
(12)
] 
(14)
 The Rules of Evidence do not apply to [
an appeals proceeding
] 
a hearing
held by a procurement appeals panel
.
(15) Part 20, Records, applies to the records involved in the process described in this
section, including the decision issued by a procurement appeals panel.
Section 33. 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) 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 34. Section 
63G-6a-1802
 is amended to read:
63G-6a-1802.
Appeal to Utah Court of Appeals.
(1) (a) As provided in this part:
(i) a person may appeal a dismissal of an appeal by the board chair under Subsection
[
63G-6a-1706
(1)
] 
63G-6a-1702
(5)(b)(ii)(A)
;
(ii) a person who receives an adverse decision by a procurement appeals panel may
appeal that decision;
(iii) subject to Subsection (2), a procurement unit, other than a legislative procurement
unit, a judicial procurement unit, a nonadopting local government procurement unit, or a public
transit district, may appeal an adverse decision by a procurement appeals panel; 
and
(iv) a person who receives an adverse decision in a protest relating to a legislative
procurement unit, a judicial procurement unit, a nonadopting local government procurement
unit, or a public transit district may appeal that decision[
; and
]
.
[
(v) a person who is debarred or suspended under Section 
63G-6a-904
 by a legislative
procurement unit, a judicial procurement unit, a nonadopting local government procurement
unit, or a public transit district may appeal the debarment or suspension.
]
(b) A person seeking to appeal a dismissal[
,
] 
or
 decision[
, or debarment or suspension
]
under Subsection (1)(a) shall file a notice of appeal with the Utah Court of Appeals within
seven days after the dismissal[
,
] 
or
 decision[
, or debarment or suspension
].
(2) A procurement unit may not appeal the decision of a procurement appeals panel,
unless the appeal is:
(a) recommended by the protest officer involved; and
(b) except for a procurement unit that is not represented by the attorney general's
office, approved by the attorney general.
(3) A person appealing a dismissal, decision, 
or
 protest[
, debarment, or suspension
]
under this section may not base the appeal on a ground not specified in the proceeding from
which the appeal is taken.
(4) The Utah Court of Appeals:
(a) shall consider the appeal as an appellate court;
(b) may not hear the matter as a trial de novo; and
(c) may not overturn a finding, dismissal, 
or
 decision[
, or debarment or suspension,
]
unless the finding, dismissal, 
or
 decision, [
or debarment or suspension
] is arbitrary and
capricious or clearly erroneous.
(5) The Utah Court of Appeals is encouraged to:
(a) give an appeal made under this section priority; and
(b) consider the appeal and render a decision in an expeditious manner.
Section 35. Section 
63G-6a-2403
 is amended to read:
63G-6a-2403.
Applicability.
(1) This part applies to each public entity.
(2) A procurement professional is subject to this part at all times during:
(a) the procurement process; and
(b) the administration of a contract or grant.
(3) A contract administration professional is subject to this part at all times during the
period the contract administration professional is:
(a) under contract with a procurement unit; and
(b) involved in:
(i) the procurement process; or
(ii) the administration of a contract or grant.
(4) This part does not apply to:
(a) an individual described in Subsection 
63G-6a-2402
(9)(b); [
or
]
(b) any individual other than a procurement professional or contract administration
professional[
.
]
; or
(c) a taxed interlocal entity, as defined in Section 
11-13-602
, or a director, officer, or
employee of a taxed interlocal entity.
(5) The other subsections of this section do not affect the applicability or effect of any
other ethics, bribery, or other law.
Section 36. Section 
63G-6a-2404.3
 is enacted to read:
 63G-6a-2404.3.
Dividing a procurement to avoid using a standard procurement
process.
(1) It is unlawful for a person knowingly to divide a single procurement into multiple
smaller procurements if dividing the single procurement:
(a) is done with the intent to avoid the use of a standard procurement process that
would have otherwise been required if the procurement had not been divided;
(b) constitutes unlawful conduct under Subsection 
63G-6a-506
(8); or
(c) is otherwise prohibited by this chapter.
(2) A violation of Subsection (1) is:
(a) a second degree felony, if the value of the procurement before being divided is
$1,000,000 or more;
(b) a third degree felony, if the value of the procurement before being divided is
$250,000 or more but less than $1,000,000;
(c) a class A misdemeanor, if the value of the procurement before being divided is
$100,000 or more but less than $250,000; or
(d) a class B misdemeanor, if the value of the procurement before being divided is less
than $100,000.
Section 37. Section 
63G-6a-2404.7
 is enacted to read:
 63G-6a-2404.7.
Improper action against a public officer or employee involved in
the procurement process.
(1) (a) It is unlawful for a person knowingly to threaten to make a false allegation
against a public officer or employee, or knowingly to threaten to take a menacing or
intimidating action against a public officer or employee, with the intent to:
(i) prevent the officer or employee from performing a duty or responsibility that the
officer or employee has under this chapter;
(ii) influence the officer or employee to award a contract under this chapter to the
person or take other action under this chapter in favor of the person; or
(iii) retaliate against the officer or employee for:
(A) not awarding a contract under this chapter to the person;
(B) issuing a decision or taking an action under this chapter that is adverse to the
person; or
(C) performing a duty or responsibility the officer or employee has under this chapter.
(b) A violation of Subsection (1)(a) is a class A misdemeanor.
(2) (a) It is unlawful for a person knowingly to make a false allegation against a public
officer or employee, or knowingly to take a menacing or intimidating action against a public
officer or employee, with the intent to:
(i) prevent the officer or employee from performing a duty or responsibility that the
officer or employee has under this chapter;
(ii) influence the officer or employee to award a contract under this chapter to the
person or take other action under this chapter in favor of the person; or
(iii) retaliate against the officer or employee for:
(A) not awarding a contract under this chapter to the person;
(B) issuing a decision or taking an action under this chapter that is adverse to the
person; or
(C) performing a duty or responsibility the officer or employee has under this chapter.
(b) A violation of Subsection (2)(a) is a third degree felony.
Section 38. Section 
63G-6a-2407
 is amended to read:
63G-6a-2407.
Duty to report unlawful conduct.
(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.
(3) A procurement professional who fails to comply with the requirement of
Subsection (2)(a) is subject to any applicable disciplinary action [
or civil penalty identified in
Subsection 
63G-6a-2404
(5)
].
Section 39. Section 
63G-10-403
 is amended to read:
63G-10-403.
Department of Transportation bid or request for proposals protest
settlement agreement approval and review.
(1) As used in this section:
(a) "Department" means the Department of Transportation created in Section 
72-1-201
.
(b) "Settlement agreement" includes stipulations, consent decrees, settlement
agreements, or other legally binding documents or representations resolving a dispute between
the department and another party when the department is required to pay money or required to
take legally binding action.
(2) The department shall obtain the approval of the Transportation Commission or the
governor or review by the Legislative Management Committee of a settlement agreement that
involves a bid or request for proposal protest in accordance with this section.
(3) A settlement agreement that is being settled by the department as part of a bid or
request for proposal protest, in accordance with Subsection 
63G-6a-1602
[
(7)
]
(8)
, that might
cost government entities more than $100,000 to implement shall be presented to the
Transportation Commission for approval or rejection.
(4) A settlement agreement that is being settled by the department as part of a bid or
request for proposal protest, in accordance with Subsection 
63G-6a-1602
[
(7)
]
(8)
, that might
cost government entities more than $500,000 to implement shall be presented:
(a) to the Transportation Commission for approval or rejection; and
(b) to the governor for approval or rejection.
(5) (a) A settlement agreement that is being settled by the department as part of a bid or
request for proposal protest, in accordance with Subsection 
63G-6a-1602
[
(7)
]
(8)
, that might
cost government entities more than $1,000,000 to implement shall be presented:
(i) to the Transportation Commission for approval or rejection;
(ii) to the governor for approval or rejection; and
(iii) if the settlement agreement is approved by the Transportation Commission and the
governor, to the Legislative Management Committee.
(b) The Legislative Management Committee may recommend approval or rejection of
the settlement agreement.
(6) (a) The department may not enter into a settlement agreement that resolves a bid or
request for proposal protest, in accordance with Subsection 
63G-6a-1602
[
(7)
]
(8)
, that might
cost government entities more than $100,000 to implement until the Transportation
Commission has approved the agreement.
(b) The department may not enter into a settlement agreement that resolves a bid or
request for proposal protest, in accordance with Subsection 
63G-6a-1602
[
(7)
]
(8)
, that might
cost government entities more than $500,000 to implement until the Transportation
Commission and the governor have approved the agreement.
(c) The department may not enter into a settlement agreement that resolves a bid or
request for proposal protest, in accordance with Subsection 
63G-6a-1602
[
(7)
]
(8)
, that might
cost government entities more than $1,000,000 to implement until:
(i) the Transportation Commission has approved the agreement;
(ii) the governor has approved the agreement; and
(iii) the Legislative Management Committee has reviewed the agreement.
Section 40. 
Repealer.
This bill repeals:
Section 
63G-6a-1604
,
Dismissal of protest not filed in accordance with
requirements.
Section 
63G-6a-1706
,
Dismissal of an appeal not filed in compliance with
requirements.
Section 41. 
 Coordinating H.B. 398 with S.B. 204 -- Technical amendments.
If this H.B. 398 and S.B. 204, Public-Private Partnerships, both pass and become law, it
is the intent of the Legislature that the Office of Legislative Research and General Counsel in
preparing the Utah Code database for publication, merge the amendments in Subsection
63G-6a-702
(2) to read:
"(2) 
(a)
 The request for proposals [
standard procurement
] process is appropriate 
for a
procurement unit
 to use [
for
] 
in selecting the proposal that provides the best value or is the
most advantageous to the procurement unit, including when
:
[
(a) the procurement of professional services;
]
[
(b) a design-build procurement;
]
(i) the procurement involves a contract whose terms and conditions are to be negotiated
in order to achieve the result that is the most advantageous to the procurement unit;
[
(c) when
] 
(ii)
 cost is not the most important factor to be considered in making the
selection that is most advantageous to the procurement unit; [
or
]
[
(d) when
] 
(iii)
 factors, 
apart from or
 in addition to cost, are highly significant in
making the selection that is most advantageous to the procurement unit[
.
]
; or
(iv) the procurement unit anticipates entering into a public-private partnership.
(b) The types of procurements for which it is appropriate to use the request for
proposals process include:
(i) a procurement of professional services; and
(ii) a procurement of design-build or construction manager/general contractor
services.
"