Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 204 (2017GS)

Sponsor

Sen. Okerlund, R.

Final action

Governor Signed 3/24/2017

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines "public-private partnership"; and
• enacts language relating to the use of public-private partnerships in the procurement of projects.

Every vote on this bill

Bill text

PUBLIC-PRIVATE PARTNERSHIPS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Ralph Okerlund
House Sponsor: 
John Knotwell
LONG TITLE
General Description:
This bill modifies provisions of the Utah Procurement Code relating to public-private
partnerships.
Highlighted Provisions:
This bill:
▸ defines "public-private partnership"; and
▸ enacts language relating to the use of public-private partnerships in the procurement
of projects.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-6a-103
, as last amended by Laws of Utah 2016, Chapters 176, 237, 355 and last
amended by Coordination Clause, Laws of Utah 2016, Chapter 355
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
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
63G-6a-103
 is amended to read:
63G-6a-103.
Definitions.
As used in this chapter:
(1) "Administrative law judge" means the same as that term is defined in Section
67-19e-102
.
(2) "Administrative law judge service" means service provided by an administrative
law judge. 
(3) "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 any other procurement unit, the board.
(4) "Approved vendor" means a vendor who has been approved through the approved
vendor list process.
(5) "Approved vendor list" means a list of approved vendors established under Section
63G-6a-507
.
(6) "Approved vendor list process" means the procurement process described in
Section 
63G-6a-507
.
(7) "Bidder" means a person who submits a bid or price quote in response to an
invitation for bids.
(8) "Bidding process" means the procurement process described in Part 6, Bidding.
(9) "Board" means the Utah State Procurement Policy Board, created in Section
63G-6a-202
.
(10) "Building board" means the State Building Board, created in Section 
63A-5-101
.
(11) "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) "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) "Chief procurement officer" means the chief procurement officer appointed under
Subsection 
63G-6a-302
(1).
(14) "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) "Conservation district" means the same as that term is defined in Section
17D-3-102
.
(16) "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) "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.
(18) "Contract" means an agreement for a procurement.
(19) "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) "Contractor" means a person who is awarded a contract with a procurement unit.
(21) "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) "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) "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) "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) "Days" means calendar days, unless expressly provided otherwise.
(26) "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) "Design-build" means the procurement of design professional services and
construction by the use of a single contract.
(28) "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) "Design professional procurement process" means the procurement process
described in Part 15, Design Professional Services.
(30) "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) "Director" means the director of the division.
(32) "Division" means the Division of Purchasing and General Services, created in
Section 
63A-2-101
.
(33) "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.
(34) "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) "Executive branch procurement unit" means a department, division, office,
bureau, agency, or other organization within the state executive branch.
(36) "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) "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) "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) "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 a public transit district, the board of trustees or a designee of the board of
trustees.
(40) "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) "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) "Independent procurement authority" means authority granted to a procurement
unit under Subsection 
63G-6a-106
(4)(a).
(43) "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)(a).
(44) "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) "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) "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) "Legislative procurement unit" means:
(a) the Legislature;
(b) the Senate;
(c) the House of Representatives;
(d) a staff office of the Legislature, the Senate, or the House of Representatives; or
(e) an office, committee, subcommittee, commission, or other organization within the
state legislative branch.
(48) "Local building authority" means the same as that term is defined in Section
17D-2-102
.
(49) "Local district" means the same as that term is defined in Section 
17B-1-102
.
(50) "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) "Multiple award contracts" means the award of a contract for an indefinite
quantity of a procurement item to more than one bidder or offeror.
(52) "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) "Municipality" means a city, town, or metro township.
(54) "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) "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) "Preferred bidder" means a bidder that is entitled to receive a reciprocal preference
under the requirements of this chapter.
(58) "Procure" means to acquire a procurement item through a procurement.
(59) "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
, including an acquisition
through a public-private partnership
;
(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) "Procurement item" means a supply, a service, or construction.
(61) "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) "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) "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) "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; 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.
(65) "Public corporation" means the same as that term is defined in Section 
63E-1-102
.
(66) "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) "Public facility" means a building, structure, infrastructure, improvement, or other
facility of a public entity.
(68) "Public funds" means money, regardless of its source, including from the federal
government, that is owned or held by a procurement unit.
(69) "Public-private partnership" means an arrangement or agreement, occurring on or
after January 1, 2017, between a procurement unit and one or more contractors to provide for a
public need through the development or operation of a project in which the contractor or
contractors share with the procurement unit the responsibility or risk of developing, owning,
maintaining, financing, or operating the project.
[
(69)
] 
(70)
 "Public transit district" means a public transit district organized under Title
17B, Chapter 2a, Part 8, Public Transit District Act.
[
(70)
] 
(71)
 "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)
] 
(72)
 "Real property" means land and any building, fixture, improvement,
appurtenance, structure, or other development that is permanently affixed to land.
[
(72)
] 
(73)
 "Request for information" means a nonbinding process through which a
procurement unit requests information relating to a procurement item.
[
(73)
] 
(74)
 "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)
] 
(75)
 "Request for proposals process" means the procurement process described
in Part 7, Request for Proposals.
[
(75)
] 
(76)
 "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)
] 
(77)
 "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)
] 
(78)
 "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)
] 
(79)
 "Responsive" means conforming in all material respects to the requirements
of a solicitation.
[
(79)
] 
(80)
 "Sealed" means manually or electronically secured to prevent disclosure.
[
(80)
] 
(81)
 "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)
] 
(82)
 "Small purchase process" means the procurement process described in
Section 
63G-6a-506
.
[
(82)
] 
(83)
 "Sole source contract" means a contract resulting from a sole source
procurement.
[
(83)
] 
(84)
 "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)
] 
(85)
 "Solicitation" means an invitation for bids, request for proposals, request
for statement of qualifications, or request for information.
[
(85)
] 
(86)
 "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)
] 
(87)
 "Special service district" means the same as that term is defined in Section
17D-1-102
.
[
(87)
] 
(88)
 "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)
] 
(89)
 "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)
] 
(90)
 "State cooperative contract" means a contract awarded by the division for
and in behalf of all public entities.
[
(90)
] 
(91)
 "Statement of qualifications" means a written statement submitted to a
procurement unit in response to a request for statement of qualifications.
[
(91)
] 
(92)
 "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.
[
(92)
] 
(93)
 "Supply" means a good, material, technology, piece of equipment, or any
other item of personal property.
[
(93)
] 
(94)
 "Tie bid" means that the lowest responsive bids of responsible bidders are
identical in price.
[
(94)
] 
(95)
 "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)
] 
(96)
 "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)
] 
(97)
 "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)
] 
(98)
 "Vendor":
(a) means a person who is seeking to enter into a contract with a procurement unit to
provide a procurement item; and
(b) includes:
(i) a bidder;
(ii) an offeror;
(iii) an approved vendor; and
(iv) a design professional.
Section 2. Section 
63G-6a-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.
(2) The request for proposals standard procurement process is appropriate to use [
for
]:
(a) 
for
 the procurement of professional services;
(b) 
for
 a design-build procurement;
(c) [
when
] 
if
 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
] 
if
 factors, in addition to cost, are highly significant in making the selection
that is most advantageous to the procurement unit[
.
]
; or
(e) if the procurement unit anticipates entering into a public-private partnership.
(3) The procurement of architect-engineer services is governed by Part 15,
Architect-Engineer Services.
Section 3. Section 
63G-6a-703
 is amended to read:
63G-6a-703.
Request for proposals -- Requirements -- Publication of request.
(1) The request for proposals standard procurement process begins when the division
or a procurement unit with independent procurement authority issues a request for proposals.
(2) A request for proposals shall:
(a) state the period of time during which a proposal will be accepted;
(b) describe the manner in which a proposal shall be submitted;
(c) state the place where a proposal shall be submitted;
(d) include, or incorporate by reference:
(i) a description of the procurement items sought;
(ii) a description of the subjective and objective criteria that will be used to evaluate
the proposal; and
(iii) the standard contractual terms and conditions required by the authorized
purchasing entity;
(e) state the relative weight that will be given to each score for the criteria described in
Subsection (2)(d)(ii), including cost;
(f) state the formula that will be used to determine the score awarded for the cost of
each proposal;
(g) if the request for proposals will be conducted in multiple stages, as described in
Section 
63G-6a-710
, include a description of the stages and the criteria and scoring that will be
used to screen offerors at each stage; [
and
]
(h) state that 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[
.
]
; and
(i) if the procurement unit anticipates the procurement process to result in a
public-private partnership, state that the procurement unit anticipates entering into a
public-private partnership.
(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 4. Section 
63G-6a-707
 is amended to read:
63G-6a-707.
Evaluation of proposals -- Evaluation committee.
(1) To determine which proposal provides the best value to the procurement unit, the
evaluation committee shall evaluate each responsive and responsible proposal that has not been
disqualified from consideration under the provisions of this chapter, using the criteria described
in the request for proposals, which may include:
(a) experience;
(b) performance ratings;
(c) inspection;
(d) testing;
(e) quality;
(f) workmanship;
(g) time, manner, or schedule of delivery;
(h) references;
(i) financial solvency;
(j) suitability for a particular purpose;
(k) management plans;
(l) the presence and quality of a work site safety program, including any requirement
that the offeror imposes on subcontractors for a work site safety program;
(m) cost; [
or
]
(n) if applicable, the offeror's willingness and capability to enter into a public-private
partnership; 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.