Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 139 (2018GS)

Sponsor

Sen. Harper, W.

Final action

Governor Signed 3/20/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• provides a process for a person to submit to a procurement unit an unsolicited proposal for a public-private partnership, including:
• requirements for an unsolicited proposal;
• a process for considering and evaluating unsolicited proposals; and
• limitations on a procurement unit's awarding a contract pursuant to an unsolicited proposal; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

PUBLIC-PRIVATE PARTNERSHIP AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Wayne A. Harper
House Sponsor: 
Mike Schultz
LONG TITLE
General Description:
This bill modifies and enacts provisions relating to public-private partnerships.
Highlighted Provisions:
This bill:
▸ provides a process for a person to submit to a procurement unit an unsolicited
proposal for a public-private partnership, including:
• requirements for an unsolicited proposal;
• a process for considering and evaluating unsolicited proposals; and
• limitations on a procurement unit's awarding a contract pursuant to an
unsolicited proposal; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-2-305
, as last amended by Laws of Utah 2017, Chapters 374, 382, and 415
63G-6a-103
, as last amended by Laws of Utah 2017, Chapters 181, 348, 376, 382, 463
and last amended by Coordination Clause, Laws of Utah 2017, Chapter 382
ENACTS:
63G-6a-712
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
63G-2-305
 is amended to read:
63G-2-305.
Protected records.
The following records are protected if properly classified by a governmental entity:
(1) trade secrets as defined in Section 
13-24-2
 if the person submitting the trade secret
has provided the governmental entity with the information specified in Section 
63G-2-309
;
(2) commercial information or nonindividual financial information obtained from a
person if:
(a) disclosure of the information could reasonably be expected to result in unfair
competitive injury to the person submitting the information or would impair the ability of the
governmental entity to obtain necessary information in the future;
(b) the person submitting the information has a greater interest in prohibiting access
than the public in obtaining access; and
(c) the person submitting the information has provided the governmental entity with
the information specified in Section 
63G-2-309
;
(3) commercial or financial information acquired or prepared by a governmental entity
to the extent that disclosure would lead to financial speculations in currencies, securities, or
commodities that will interfere with a planned transaction by the governmental entity or cause
substantial financial injury to the governmental entity or state economy;
(4) records, the disclosure of which could cause commercial injury to, or confer a
competitive advantage upon a potential or actual competitor of, a commercial project entity as
defined in Subsection 
11-13-103
(4);
(5) test questions and answers to be used in future license, certification, registration,
employment, or academic examinations;
(6) records, the disclosure of which would impair governmental procurement
proceedings or give an unfair advantage to any person proposing to enter into a contract or
agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
Subsection (6) does not restrict the right of a person to have access to, after the contract or
grant has been awarded and signed by all parties[
,
]
:
(a)
 a bid, proposal, application, or other information submitted to or by a governmental
entity in response to:
[
(a)
] 
(i)
 an invitation for bids;
[
(b)
] 
(ii)
 a request for proposals;
[
(c)
] 
(iii)
 a request for quotes;
[
(d)
] 
(iv)
 a grant; or
[
(e)
] 
(v)
 other similar document; 
or
(b) an unsolicited proposal, as defined in Section 
63G-6a-712
;
(7) information submitted to or by a governmental entity in response to a request for
information, except, subject to Subsections (1) and (2), that this Subsection (7) does not restrict
the right of a person to have access to the information, after:
(a) a contract directly relating to the subject of the request for information has been
awarded and signed by all parties; or
(b) (i) a final determination is made not to enter into a contract that relates to the
subject of the request for information; and
(ii) at least two years have passed after the day on which the request for information is
issued;
(8) records that would identify real property or the appraisal or estimated value of real
or personal property, including intellectual property, under consideration for public acquisition
before any rights to the property are acquired unless:
(a) public interest in obtaining access to the information is greater than or equal to the
governmental entity's need to acquire the property on the best terms possible;
(b) the information has already been disclosed to persons not employed by or under a
duty of confidentiality to the entity;
(c) in the case of records that would identify property, potential sellers of the described
property have already learned of the governmental entity's plans to acquire the property;
(d) in the case of records that would identify the appraisal or estimated value of
property, the potential sellers have already learned of the governmental entity's estimated value
of the property; or
(e) the property under consideration for public acquisition is a single family residence
and the governmental entity seeking to acquire the property has initiated negotiations to acquire
the property as required under Section 
78B-6-505
;
(9) records prepared in contemplation of sale, exchange, lease, rental, or other
compensated transaction of real or personal property including intellectual property, which, if
disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
of the subject property, unless:
(a) the public interest in access is greater than or equal to the interests in restricting
access, including the governmental entity's interest in maximizing the financial benefit of the
transaction; or
(b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
the value of the subject property have already been disclosed to persons not employed by or
under a duty of confidentiality to the entity;
(10) records created or maintained for civil, criminal, or administrative enforcement
purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for
enforcement, discipline, licensing, certification, or registration purposes;
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
proceedings;
(c) would create a danger of depriving a person of a right to a fair trial or impartial
hearing;
(d) reasonably could be expected to disclose the identity of a source who is not
generally known outside of government and, in the case of a record compiled in the course of
an investigation, disclose information furnished by a source not generally known outside of
government if disclosure would compromise the source; or
(e) reasonably could be expected to disclose investigative or audit techniques,
procedures, policies, or orders not generally known outside of government if disclosure would
interfere with enforcement or audit efforts;
(11) records the disclosure of which would jeopardize the life or safety of an
individual;
(12) records the disclosure of which would jeopardize the security of governmental
property, governmental programs, or governmental recordkeeping systems from damage, theft,
or other appropriation or use contrary to law or public policy;
(13) records that, if disclosed, would jeopardize the security or safety of a correctional
facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
with the control and supervision of an offender's incarceration, treatment, probation, or parole;
(14) records that, if disclosed, would reveal recommendations made to the Board of
Pardons and Parole by an employee of or contractor for the Department of Corrections, the
Board of Pardons and Parole, or the Department of Human Services that are based on the
employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
jurisdiction;
(15) records and audit workpapers that identify audit, collection, and operational
procedures and methods used by the State Tax Commission, if disclosure would interfere with
audits or collections;
(16) records of a governmental audit agency relating to an ongoing or planned audit
until the final audit is released;
(17) records that are subject to the attorney client privilege;
(18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer,
employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial,
quasi-judicial, or administrative proceeding;
(19) (a) (i) personal files of a state legislator, including personal correspondence to or
from a member of the Legislature; and
(ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
legislative action or policy may not be classified as protected under this section; and
(b) (i) an internal communication that is part of the deliberative process in connection
with the preparation of legislation between:
(A) members of a legislative body;
(B) a member of a legislative body and a member of the legislative body's staff; or
(C) members of a legislative body's staff; and
(ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
legislative action or policy may not be classified as protected under this section;
(20) (a) records in the custody or control of the Office of Legislative Research and
General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
legislation or contemplated course of action before the legislator has elected to support the
legislation or course of action, or made the legislation or course of action public; and
(b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
Office of Legislative Research and General Counsel is a public document unless a legislator
asks that the records requesting the legislation be maintained as protected records until such
time as the legislator elects to make the legislation or course of action public;
(21) research requests from legislators to the Office of Legislative Research and
General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
in response to these requests;
(22) drafts, unless otherwise classified as public;
(23) records concerning a governmental entity's strategy about:
(a) collective bargaining; or
(b) imminent or pending litigation;
(24) records of investigations of loss occurrences and analyses of loss occurrences that
may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
Uninsured Employers' Fund, or similar divisions in other governmental entities;
(25) records, other than personnel evaluations, that contain a personal recommendation
concerning an individual if disclosure would constitute a clearly unwarranted invasion of
personal privacy, or disclosure is not in the public interest;
(26) records that reveal the location of historic, prehistoric, paleontological, or
biological resources that if known would jeopardize the security of those resources or of
valuable historic, scientific, educational, or cultural information;
(27) records of independent state agencies if the disclosure of the records would
conflict with the fiduciary obligations of the agency;
(28) records of an institution within the state system of higher education defined in
Section 
53B-1-102
 regarding tenure evaluations, appointments, applications for admissions,
retention decisions, and promotions, which could be properly discussed in a meeting closed in
accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
the final decisions about tenure, appointments, retention, promotions, or those students
admitted, may not be classified as protected under this section;
(29) records of the governor's office, including budget recommendations, legislative
proposals, and policy statements, that if disclosed would reveal the governor's contemplated
policies or contemplated courses of action before the governor has implemented or rejected
those policies or courses of action or made them public;
(30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
revenue estimates, and fiscal notes of proposed legislation before issuance of the final
recommendations in these areas;
(31) records provided by the United States or by a government entity outside the state
that are given to the governmental entity with a requirement that they be managed as protected
records if the providing entity certifies that the record would not be subject to public disclosure
if retained by it;
(32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
except as provided in Section 
52-4-206
;
(33) records that would reveal the contents of settlement negotiations but not including
final settlements or empirical data to the extent that they are not otherwise exempt from
disclosure;
(34) memoranda prepared by staff and used in the decision-making process by an
administrative law judge, a member of the Board of Pardons and Parole, or a member of any
other body charged by law with performing a quasi-judicial function;
(35) records that would reveal negotiations regarding assistance or incentives offered
by or requested from a governmental entity for the purpose of encouraging a person to expand
or locate a business in Utah, but only if disclosure would result in actual economic harm to the
person or place the governmental entity at a competitive disadvantage, but this section may not
be used to restrict access to a record evidencing a final contract;
(36) materials to which access must be limited for purposes of securing or maintaining
the governmental entity's proprietary protection of intellectual property rights including patents,
copyrights, and trade secrets;
(37) the name of a donor or a prospective donor to a governmental entity, including an
institution within the state system of higher education defined in Section 
53B-1-102
, and other
information concerning the donation that could reasonably be expected to reveal the identity of
the donor, provided that:
(a) the donor requests anonymity in writing;
(b) any terms, conditions, restrictions, or privileges relating to the donation may not be
classified protected by the governmental entity under this Subsection (37); and
(c) except for an institution within the state system of higher education defined in
Section 
53B-1-102
, the governmental unit to which the donation is made is primarily engaged
in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
over the donor, a member of the donor's immediate family, or any entity owned or controlled
by the donor or the donor's immediate family;
(38) accident reports, except as provided in Sections 
41-6a-404
, 
41-12a-202
, and
73-18-13
;
(39) a notification of workers' compensation insurance coverage described in Section
34A-2-205
;
(40) (a) the following records of an institution within the state system of higher
education defined in Section 
53B-1-102
, which have been developed, discovered, disclosed to,
or received by or on behalf of faculty, staff, employees, or students of the institution:
(i) unpublished lecture notes;
(ii) unpublished notes, data, and information:
(A) relating to research; and
(B) of:
(I) the institution within the state system of higher education defined in Section
53B-1-102
; or
(II) a sponsor of sponsored research;
(iii) unpublished manuscripts;
(iv) creative works in process;
(v) scholarly correspondence; and
(vi) confidential information contained in research proposals;
(b) Subsection (40)(a) may not be construed to prohibit disclosure of public
information required pursuant to Subsection 
53B-16-302
(2)(a) or (b); and
(c) Subsection (40)(a) may not be construed to affect the ownership of a record;
(41) (a) records in the custody or control of the Office of Legislative Auditor General
that would reveal the name of a particular legislator who requests a legislative audit prior to the
date that audit is completed and made public; and
(b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
Office of the Legislative Auditor General is a public document unless the legislator asks that
the records in the custody or control of the Office of Legislative Auditor General that would
reveal the name of a particular legislator who requests a legislative audit be maintained as
protected records until the audit is completed and made public;
(42) records that provide detail as to the location of an explosive, including a map or
other document that indicates the location of:
(a) a production facility; or
(b) a magazine;
(43) information:
(a) contained in the statewide database of the Division of Aging and Adult Services
created by Section 
62A-3-311.1
; or
(b) received or maintained in relation to the Identity Theft Reporting Information
System (IRIS) established under Section 
67-5-22
;
(44) information contained in the Management Information System and Licensing
Information System described in Title 62A, Chapter 4a, Child and Family Services;
(45) information regarding National Guard operations or activities in support of the
National Guard's federal mission;
(46) records provided by any pawn or secondhand business to a law enforcement
agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
Secondhand Merchandise Transaction Information Act;
(47) information regarding food security, risk, and vulnerability assessments performed
by the Department of Agriculture and Food;
(48) except to the extent that the record is exempt from this chapter pursuant to Section
63G-2-106
, records related to an emergency plan or program, a copy of which is provided to or
prepared or maintained by the Division of Emergency Management, and the disclosure of
which would jeopardize:
(a) the safety of the general public; or
(b) the security of:
(i) governmental property;
(ii) governmental programs; or
(iii) the property of a private person who provides the Division of Emergency
Management information;
(49) records of the Department of Agriculture and Food that provides for the
identification, tracing, or control of livestock diseases, including any program established under
Title 4, Chapter 24, Utah Livestock Brand and Anti-Theft Act, or Title 4, Chapter 31, Control
of Animal Disease;
(50) as provided in Section 
26-39-501
:
(a) information or records held by the Department of Health related to a complaint
regarding a child care program or residential child care which the department is unable to
substantiate; and
(b) information or records related to a complaint received by the Department of Health
from an anonymous complainant regarding a child care program or residential child care;
(51) unless otherwise classified as public under Section 
63G-2-301
 and except as
provided under Section 
41-1a-116
, an individual's home address, home telephone number, or
personal mobile phone number, if:
(a) the individual is required to provide the information in order to comply with a law,
ordinance, rule, or order of a government entity; and
(b) the subject of the record has a reasonable expectation that this information will be
kept confidential due to:
(i) the nature of the law, ordinance, rule, or order; and
(ii) the individual complying with the law, ordinance, rule, or order;
(52) the name, home address, work addresses, and telephone numbers of an individual
that is engaged in, or that provides goods or services for, medical or scientific research that is:
(a) conducted within the state system of higher education, as defined in Section
53B-1-102
; and
(b) conducted using animals;
(53) an initial proposal under Title 63N, Chapter 13, Part 2, Government Procurement
Private Proposal Program, to the extent not made public by rules made under that chapter;
(54) in accordance with Section 
78A-12-203
, any record of the Judicial Performance
Evaluation Commission concerning an individual commissioner's vote on whether or not to
recommend that the voters retain a judge including information disclosed under Subsection
78A-12-203
(5)(e);
(55) information collected and a report prepared by the Judicial Performance
Evaluation Commission concerning a judge, unless Section 
20A-7-702
 or Title 78A, Chapter
12, Judicial Performance Evaluation Commission Act, requires disclosure of, or makes public,
the information or report;
(56) records contained in the Management Information System created in Section
62A-4a-1003
;
(57) records provided or received by the Public Lands Policy Coordinating Office in
furtherance of any contract or other agreement made in accordance with Section 
63J-4-603
;
(58) information requested by and provided to the 911 Division under Section
63H-7a-302
;
(59) in accordance with Section 
73-10-33
:
(a) a management plan for a water conveyance facility in the possession of the Division
of Water Resources or the Board of Water Resources; or
(b) an outline of an emergency response plan in possession of the state or a county or
municipality;
(60) the following records in the custody or control of the Office of Inspector General
of Medicaid Services, created in Section 
63A-13-201
:
(a) records that would disclose information relating to allegations of personal
misconduct, gross mismanagement, or illegal activity of a person if the information or
allegation cannot be corroborated by the Office of Inspector General of Medicaid Services
through other documents or evidence, and the records relating to the allegation are not relied
upon by the Office of Inspector General of Medicaid Services in preparing a final investigation
report or final audit report;
(b) records and audit workpapers to the extent they would disclose the identity of a
person who, during the course of an investigation or audit, communicated the existence of any
Medicaid fraud, waste, or abuse, or a violation or suspected violation of a law, rule, or
regulation adopted under the laws of this state, a political subdivision of the state, or any
recognized entity of the United States, if the information was disclosed on the condition that
the identity of the person be protected;
(c) before the time that an investigation or audit is completed and the final
investigation or final audit report is released, records or drafts circulated to a person who is not
an employee or head of a governmental entity for the person's response or information;
(d) records that would disclose an outline or part of any investigation, audit survey
plan, or audit program; or
(e) requests for an investigation or audit, if disclosure would risk circumvention of an
investigation or audit;
(61) records that reveal methods used by the Office of Inspector General of Medicaid
Services, the fraud unit, or the Department of Health, to discover Medicaid fraud, waste, or
abuse;
(62) information provided to the Department of Health or the Division of Occupational
and Professional Licensing under Subsection 
58-68-304
(3) or (4);
(63) a record described in Section 
63G-12-210
;
(64) captured plate data that is obtained through an automatic license plate reader
system used by a governmental entity as authorized in Section 
41-6a-2003
;
(65) any record in the custody of the Utah Office for Victims of Crime relating to a
victim, including:
(a) a victim's application or request for benefits;
(b) a victim's receipt or denial of benefits; and
(c) any administrative notes or records made or created for the purpose of, or used to,
evaluate or communicate a victim's eligibility for or denial of benefits from the Crime Victim
Reparations Fund;
(66) an audio or video recording created by a body-worn camera, as that term is
defined in Section 
77-7a-103
, that records sound or images inside a hospital or health care
facility as those terms are defined in Section 
78B-3-403
, inside a clinic of a health care
provider, as that term is defined in Section 
78B-3-403
, or inside a human service program as
that term is defined in Subsection 
62A-2-101
(19)(a)(vi), except for recordings that:
(a) depict the commission of an alleged crime;
(b) record any encounter between a law enforcement officer and a person that results in
death or bodily injury, or includes an instance when an officer fires a weapon;
(c) record any encounter that is the subject of a complaint or a legal proceeding against
a law enforcement officer or law enforcement agency;
(d) contain an officer involved critical incident as defined in Subsection
76-2-408
(1)(d); or
(e) have been requested for reclassification as a public record by a subject or
authorized agent of a subject featured in the recording; and 
(67) a record pertaining to the search process for a president of an institution of higher
education described in Section 
53B-2-102
, except for application materials for a publicly
announced finalist.
Section 2. Section 
63G-6a-103
 is amended to read:
63G-6a-103.
Definitions.
As used in this chapter:
(1) "Applicable rulemaking authority" means:
(a) for a legislative procurement unit, the Legislative Management Committee;
(b) for a judicial procurement unit, the Judicial Council;
(c) (i) only to the extent of the procurement authority expressly granted to the
procurement unit by statute:
(A) for the building board or the Division of Facilities Construction and Management,
created in Section 
63A-5-201
, the building board;
(B) for the Office of the Attorney General, the attorney general; and
(C) for the Department of Transportation created in Section 
72-1-201
, the executive
director of the Department of Transportation; and
(ii) for each other executive branch procurement unit, the board;
(d) for a local government procurement unit:
(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 described in:
(i) Subsections 
53B-1-102
(1)(a) and (c), the State Board of Regents; or
(ii) Subsection 
53B-1-102
(1)(b), the Utah System of Technical Colleges Board of
Trustees;
(g) for the State Board of Education, the State Board of Education;
(h) for a public transit district, the chief executive of the public transit district;
(i) 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
(j) for any other procurement unit, the board.
(2) "Approved vendor" means a [
vendor
] 
person
 who has been approved 
for inclusion
on an approved vendor list
 through the approved vendor list process.
(3) "Approved vendor list" means a list of approved vendors established under Section
63G-6a-507
.
(4) "Approved vendor list process" means the procurement process described in
Section 
63G-6a-507
.
(5) "Bidder" means a person who submits a bid or price quote in response to an
invitation for bids.
(6) "Bidding process" means the procurement process described in Part 6, Bidding.
(7) "Board" means the Utah State Procurement Policy Board, created in Section
63G-6a-202
.
(8) "Building board" means the State Building Board, created in Section 
63A-5-101
.
(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.
(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.
(11) "Chief procurement officer" means the chief procurement officer appointed under
Subsection 
63G-6a-302
(1).
(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.
(13) "Conservation district" means the same as that term is defined in Section
17D-3-102
.
(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.
(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.
(17) "Contract" means an agreement for a procurement.
(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.
(19) "Contractor" means a person who is awarded a contract with a procurement unit.
(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.
(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
.
(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.
(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.
(24) "Days" means calendar days, unless expressly provided otherwise.
(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 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.
[
(28)
] 
(27)
 "Design professional procurement process" means the procurement process
described in Part 15, Design Professional Services.
[
(26)
] 
(28)
 "Design-build" means the procurement of design professional services and
construction by the use of a single contract.
(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.
(30) "Director" means the director of the division.
(31) "Division" means the Division of Purchasing and General Services, created in
Section 
63A-2-101
.
(32) "Educational procurement unit" means:
(a) a school district;
(b) a public school, including a local school board or a charter school;
(c) the Utah Schools for the Deaf and Blind;
(d) the Utah Education and Telehealth Network;
(e) an institution of higher education of the state described in Section 
53B-1-102
; or
(f) the State Board of Education.
(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.
(34) "Executive branch procurement unit" means a department, division, office,
bureau, agency, or other organization within the state executive branch.
(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.
(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.
(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.
(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 described in Section 
53B-2-101
, the president
of the institution of higher education, or the president's designee;
(m) for a public transit district, the board of trustees or a designee of the board of
trustees; or
(n) for the State Board of Education, the State Board of Education or a designee of the
State Board of Education.
(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.
(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.
(41) "Independent procurement authority" means authority granted to a procurement
unit under Subsection 
63G-6a-106
(4)(a).
(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 (42)(a).
(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.
(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.
(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.
(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) 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. 
(47) "Local building authority" means the same as that term is defined in Section
17D-2-102
.
(48) "Local district" means the same as that term is defined in Section 
17B-1-102
.
(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.
(50) "Multiple award contracts" means the award of a contract for an indefinite
quantity of a procurement item to more than one person.
(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.
(52) "Municipality" means a city, town, or metro township.
(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 (53)(a).
(54) "Offeror" means a person who submits a proposal in response to a request for
proposals.
(55) "Preferred bidder" means a bidder that is entitled to receive a reciprocal preference
under the requirements of this chapter.
(56) "Procure" means to acquire a procurement item through a procurement.
(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, 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.
(58) "Procurement item" means a supply, a service, or construction.
(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.
(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.
(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) administrative law judge service;
(c) architecture;
(d) construction design and management;
(e) engineering;
(f) financial services;
(g) information technology;
(h) the law;
(i) medicine;
(j) psychiatry; or
(k) underwriting.
(62) "Protest officer" means:
(a) for the division or a procurement unit with independent procurement authority:
(i) the head of the procurement unit;
(ii) 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 .
(63) "Public corporation" means the same as that term is defined in Section 
63E-1-102
.
(64) "Public entity" means any government entity of the state or political subdivision of
the state, including:
(a) a procurement unit;
(b) a municipality or county, regardless of whether the municipality or county has
adopted this chapter or any part of this chapter; and
(c) any other government entity located in the state that expends public funds.
(65) "Public facility" means a building, structure, infrastructure, improvement, or other
facility of a public entity.
(66) "Public funds" means money, regardless of its source, including from the federal
government, that is owned or held by a procurement unit.
[
(68)
] 
(67)
 "Public transit district" means a public transit district organized under Title
17B, Chapter 2a, Part 8, Public Transit District Act.
[
(67)
] 
(68)
 "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) "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.
(70) "Real property" means land and any building, fixture, improvement, appurtenance,
structure, or other development that is permanently affixed to land.
(71) "Request for information" means a nonbinding process through which a
procurement unit requests information relating to a procurement item.
(72) "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.
(73) "Request for proposals process" means the procurement process described in Part
7, Request for Proposals.
(74) "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.
(75) "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.
(76) "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.
(77) "Responsive" means conforming in all material respects to the requirements of a
solicitation.
(78) "Sealed" means manually or electronically secured to prevent disclosure.
(79) "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.
(80) "Small purchase process" means the procurement process described in Section
63G-6a-506
.
(81) "Sole source contract" means a contract resulting from a sole source procurement.
(82) "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.
(83) "Solicitation" means an invitation for bids, request for proposals, request for
statement of qualifications, or request for information.
(84) "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.
(85) "Special service district" means the same as that term is defined in Section
17D-1-102
.
(86) "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.
(87) "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.
(88) "State cooperative contract" means a contract awarded by the division for and in
behalf of all public entities.
(89) "Statement of qualifications" means a written statement submitted to a
procurement unit in response to a request for statement of qualifications.
(90) "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.
(91) "Supply" means a good, material, technology, piece of equipment, or any other
item of personal property.
(92) "Tie bid" means that the lowest responsive bids of responsible bidders are
identical in price.
(93) "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.
(94) "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.
(95) "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.
(96) "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[
.
]
; and
(v) a person who submits an unsolicited proposal under Section 
63G-6a-712
.
Section 3. Section 
63G-6a-712
 is enacted to read:
 63G-6a-712.
Unsolicited proposals.
(1) As used in this section, "unsolicited proposal":
(a) means a written proposal:
(i) for a public-private partnership for:
(A) an infrastructure project; or
(B) a project to collect, analyze, and distribute health data to improve health and health
care and to facilitate interaction regarding health and health care issues; and
(ii) that is not submitted in response to a solicitation; and
(b) does not include an initial proposal, as defined in Section 
63G-6a-711
.
(2) (a) Subject to Subsection (2)(b), a person may submit an unsolicited proposal to a
procurement unit at any time.
(b) An unsolicited proposal may not be used to seek a procurement unit's consideration
of a proposal after the expiration of the time for submitting proposals in response to a request
for proposals.
(3) An unsolicited proposal shall include:
(a) a reference to this section and a statement that the unsolicited proposal is submitted
under this section;
(b) a conceptual description of the project that constitutes the procurement item that is
the subject of the proposed public-private partnership;
(c) a description of the economic benefit of the project to the state and the procurement
unit;
(d) information concerning the services or facilities currently being provided by the
state or procurement unit that are similar to the project;
(e) an estimate of the project costs for:
(i) design;
(ii) implementation;
(iii) operation and maintenance; and
(iv) any other related project cost; and
(f) the name, address, telephone number, and email address of an individual who may
be contacted for further information concerning the unsolicited proposal.
(4) A procurement unit is not required to consider an unsolicited proposal.
(5) A procurement unit may charge a person submitting an unsolicited proposal a fee to
cover the actual cost of processing, considering, and evaluating the unsolicited proposal.
(6) A procurement unit that receives an unsolicited proposal may not award a contract
for the procurement item described in the unsolicited proposal unless:
(a) the procurement unit first engages in a standard procurement process for proposals
to provide the procurement item described in the unsolicited proposal; or
(b) awarding the contract without the procurement unit engaging in a standard
procurement process is allowed under Section 
63G-6a-802
.
(7) If a procurement unit engages in a standard procurement process pursuant to
Subsection (6)(a):
(a) the procurement unit shall treat an unsolicited proposal as though it were submitted
as a proposal in response to the solicitation; and
(b) a person who has submitted an unsolicited proposal may, within the time provided
in the solicitation for the submission of proposals, modify the unsolicited proposal to the extent
necessary to address matters raised in the solicitation that were not addressed in the initial
unsolicited proposal.
(8) An applicable rulemaking authority may make rules to govern the submission,
processing, consideration, and evaluation of an unsolicited proposal, including fees relating to
the unsolicited proposal.
(9) An unsolicited proposal is subject to Chapter 2, Government Records Access and
Management Act, including, if applicable, provisions relating to a written claim of business
confidentiality, as provided in Section 
63G-2-309
, for trade secrets, commercial information, or
nonindividual financial information described in Subsection 
63G-2-305
(1) or (2).