Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 133 First Substitute (2017GS)

Sponsor

Sen. Mayne, K.

Final action

Governor Signed 3/20/2017

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• adds to the criteria that can be considered in evaluating a bid or proposal whether the contractor and subcontractor:
• employ an individual with OSHA training; and
• will assign to the project an individual with oversight responsibility for safety at the site.

Every vote on this bill

Bill text

PROCUREMENT PROCESS AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Karen Mayne
House Sponsor: 
____________
LONG TITLE
General Description:
This bill modifies provisions relating to the procurement process.
Highlighted Provisions:
This bill:
▸ adds to the criteria that can be considered in evaluating a bid or proposal whether
the contractor and subcontractor:
• employ an individual with OSHA training; and
• will assign to the project an individual with oversight responsibility for safety at
the site.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-6a-606
, 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
Be it enacted by the Legislature of the state of Utah:
Section 1. 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) whether the contractor and each subcontractor:
(i) employs an individual who has received safety training sanctioned by the federal
Occupational Safety and Health Administration; and
(ii) will assign to the project a safety director or manager or other individual who will
have oversight responsibility for safety at the site; or
[
(m)
] 
(n)
 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) 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 2. Section 
63G-6a-707
 is amended to read:
63G-6a-707.
Evaluation of proposals -- Evaluation committee.
(1) To determine which proposal provides the best value to the procurement unit, the
evaluation committee shall evaluate each responsive and responsible proposal that has not been
disqualified from consideration under the provisions of this chapter, using the criteria described
in the request for proposals, which may include:
(a) experience;
(b) performance ratings;
(c) inspection;
(d) testing;
(e) quality;
(f) workmanship;
(g) time, manner, or schedule of delivery;
(h) references;
(i) financial solvency;
(j) suitability for a particular purpose;
(k) management plans;
(l) the presence and quality of a work site safety program, including any requirement
that the offeror imposes on subcontractors for a work site safety program;
(m) whether the contractor and each subcontractor:
(i) employs an individual who has received safety training sanctioned by the federal
Occupational Safety and Health Administration; and
(ii) will assign to the project a safety director or manager or other individual who will
have oversight responsibility for safety at the site;
[
(m)
] 
(n)
 cost; or
[
(n)
] 
(o)
 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 conducting procurement unit shall:
(i) appoint an evaluation committee consisting of at least three individuals with at least
a general familiarity with or basic understanding of:
(A) the technical requirements relating to the type of procurement item that is the
subject of the procurement; or
(B) the need that the procurement item is intended to address; and
(ii) ensure that the evaluation committee and each individual participating in the
evaluation committee process:
(A) does not have a conflict of interest with any of the offerors;
(B) can fairly evaluate each proposal;
(C) does not contact or communicate with an offeror concerning the 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.
(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; and
(iv) provide to the evaluation committee the total combined score calculated for each
responsive and responsible proposal, including any applicable cost formula, weighting, and
scoring procedures used to calculate the total combined scores.
(c) The evaluation committee may not:
(i) change its final recommended scores described in Subsection (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.
Legislative Review Note
Office of Legislative Research and General Counsel