Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 92 Fourth Substitute (2022GS)

Sponsor

Sen. Owens, D.R.

Final action

Governor Signed 3/24/2022

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines terms;
• requires project entities to comply with the Open and Public Meetings Act;
• describes situations in which a project entity may close a meeting under the Open and Public Meetings Act; and
• requires project entities to:
• adopt provisions related to procurement; and
• comply with provisions of the Utah Procurement Code.

Every vote on this bill

Bill text

PROJECT ENTITY OVERSIGHT MODIFICATIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Derrin R. Owens
House Sponsor: 
Val L. Peterson
LONG TITLE
General Description:
This bill amends provisions related to the procurement and meeting practices of project
entities.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ requires project entities to comply with the Open and Public Meetings Act;
▸ describes situations in which a project entity may close a meeting under the Open
and Public Meetings Act; and
▸ requires project entities to:
• adopt provisions related to procurement; and
• comply with provisions of the Utah Procurement Code.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
11-13-316
, as enacted by Laws of Utah 2021, Second Special Session, Chapter 7
11-13-603
, as last amended by Laws of Utah 2021, Second Special Session, Chapter 7
52-4-103
, as last amended by Laws of Utah 2019, Chapters 25 and 246
52-4-204
, as last amended by Laws of Utah 2021, Chapter 217
52-4-205
, as last amended by Laws of Utah 2021, Chapters 179 and 231
63G-6a-103
, as last amended by Laws of Utah 2021, Chapters 179, 344, and 345
ENACTS:
63G-6a-107.5
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
11-13-316
 is amended to read:
11-13-316.
Project entity oversight.
(1) Notwithstanding any other provision of law, a project entity is a political
subdivision that:
(a) pursuant to Utah Constitution, Article VI, Section 33, is subject to the authority of
the legislative auditor to conduct audits of any funds, functions, and accounts in any political
subdivision of this state; and
(b) is subject to the requirement to provide the Office of the Legislative Auditor
General with all records, documents, and reports necessary for the legislative auditor general or
the office to fulfill the duties described in Subsection (1)(a).
(2) Subsection (1) takes precedence over Section 
36-12-15
.
(3) A project entity shall comply with Title 63G, Chapter 6a, Utah Procurement Code,
unless the governing board of the project entity adopts policies for procurement that enable the
project entity to efficiently fulfill the project entity's responsibilities under the project entity's
organization agreement.
(4) If a project entity does not adopt policies for procurement under Subsection (3),
then for purposes of Title 63G, Chapter 6a, Utah Procurement Code:
(a) the project entity is a local government procurement unit, as defined in Section
63G-6a-103
; and
(b) the governing board is a procurement official, as defined in Section 
63G-6a-103
.
(5) A project entity shall comply with Title 52, Chapter 4, Open and Public Meetings
Act.
Section 2. Section 
11-13-603
 is amended to read:
11-13-603.
Taxed interlocal entity.
(1) Except for purposes of an audit, examination, or review by the Office of the
Legislative Auditor General as described in Subsection (8) and notwithstanding any other
provision of law:
(a) the use of an asset by a taxed interlocal entity does not constitute the use of a public
asset;
(b) a taxed interlocal entity's use of an asset that was a public asset before the taxed
interlocal entity's use of the asset does not constitute a taxed interlocal entity's use of a public
asset;
(c) an official of a project entity is not a public treasurer; and
(d) a taxed interlocal entity's governing board shall determine and direct the use of an
asset by the taxed interlocal entity.
(2) 
(a)
 A taxed interlocal entity 
that is not a project entity
 is not subject to the
provisions of Title 63G, Chapter 6a, Utah Procurement Code.
(b) A project entity is subject to the provisions of Title 63G, Chapter 6a, Utah
Procurement Code to the extent described in Section 
11-13-316
.
(3) (a) A taxed interlocal entity is not a participating local entity as defined in Section
67-3-12
.
(b) For each fiscal year of a taxed interlocal entity, the taxed interlocal entity shall
provide:
(i) the taxed interlocal entity's financial statements for and as of the end of the fiscal
year and the prior fiscal year, including:
(A) the taxed interlocal entity's statement of net position as of the end of the fiscal year
and the prior fiscal year, and the related statements of revenues and expenses and of cash flows
for the fiscal year; or
(B) financial statements that are equivalent to the financial statements described in
Subsection (3)(b)(i)(A) and, at the time the financial statements were created, were in
compliance with generally accepted accounting principles that are applicable to taxed interlocal
entities; and
(ii) the accompanying auditor's report and management's discussion and analysis with
respect to the taxed interlocal entity's financial statements for and as of the end of the fiscal
year.
(c) The taxed interlocal entity shall provide the information described in Subsection
(3)(b) within a reasonable time after the taxed interlocal entity's independent auditor delivers to
the taxed interlocal entity's governing board the auditor's report with respect to the financial
statements for and as of the end of the fiscal year.
(d) Notwithstanding Subsections (3)(b) and (c) or a taxed interlocal entity's compliance
with one or more of the requirements of Title 63A, Chapter 3, Division of Finance:
(i) the taxed interlocal entity is not subject to Title 63A, Chapter 3, Division of
Finance; and
(ii) the information described in Subsection (3)(b)(i) or (ii) does not constitute public
financial information as defined in Section 
67-3-12
.
(4) (a) A taxed interlocal entity's governing board is not a governing board as defined
in Section 
51-2a-102
.
(b) A taxed interlocal entity is not subject to the provisions of Title 51, Chapter 2a,
Accounting Reports from Political Subdivisions, Interlocal Organizations, and Other Local
Entities Act.
(5) Notwithstanding any other provision of law, a taxed interlocal entity is not subject
to the following provisions:
(a) Part 4, Governance;
(b) Part 5, Fiscal Procedures for Interlocal Entities;
(c) Subsection 
11-13-204
(1)(a)(i) or (ii)(J);
(d) Subsection 
11-13-206
(1)(f);
(e) Subsection 
11-13-218
(5)(a);
(f) Section 
11-13-225
;
(g) Section 
11-13-226
; or
(h) Section 
53-2a-605
.
(6) (a) In addition to having the powers described in Subsection 
11-13-204
(1)(a)(ii), a
taxed interlocal entity may, for the regulation of the entity's affairs and conduct of its business,
adopt, amend, or repeal bylaws, policies, or procedures.
(b) Nothing in Part 4, Governance, or Part 5, Fiscal Procedures for Interlocal Entities,
may be construed to limit the power or authority of a taxed interlocal entity.
(7) (a) A governmental law enacted after May 12, 2015, and on or before November
10, 2021, is not applicable to, is not binding upon, and does not have effect on a taxed
interlocal entity that is a project entity unless the governmental law expressly states the section
of governmental law to be applicable to and binding upon the taxed interlocal entity with the
following words: "[Applicable section or subsection number] constitutes an exception to
Subsection 
11-13-603
(7)(a) and is applicable to and binding upon a taxed interlocal entity."
(b) A governmental law enacted after May 12, 2015, is not applicable to, is not binding
upon, and does not have effect on a taxed interlocal entity that is an energy services interlocal
entity unless the governmental law expressly states the section of governmental law to be
applicable to and binding upon the energy services interlocal entity with the following words:
"[Applicable section or subsection number] constitutes an exception to Subsection
11-13-603
(7)(a) and is applicable to and binding upon an energy services interlocal entity."
(c) Sections 
11-13-601
 through 
11-13-608
 constitute an exception to Subsections (7)(a)
and (7)(b) and are applicable to and binding upon a taxed interlocal entity.
(8) (a) Notwithstanding any other provision of law, a taxed interlocal entity that is a
project entity is a political subdivision that:
(i) pursuant to Utah Constitution, Article VI, Section 33, is subject to the authority of
the legislative auditor to conduct audits of any funds, functions, and accounts in any political
subdivision of this state; and
(ii) is subject to the requirement to provide the Office of the Legislative Auditor
General with all records, documents, and reports necessary of the legislative auditor general or
the office to fulfill the duties described in Subsection (8)(a)(i).
(b) Subsection (8)(a) takes precedence over Section 
36-12-15
.
Section 3. Section 
52-4-103
 is amended to read:
52-4-103.
Definitions.
As used in this chapter:
(1) "Anchor location" means the physical location from which:
(a) an electronic meeting originates; or
(b) the participants are connected.
(2) "Capitol hill complex" means the grounds and buildings within the area bounded by
300 North Street, Columbus Street, 500 North Street, and East Capitol Boulevard in Salt Lake
City.
(3) (a) "Convening" means the calling together of a public body by a person authorized
to do so for the express purpose of discussing or acting upon a subject over which that public
body has jurisdiction or advisory power.
(b) "Convening" does not include the initiation of a routine conversation between
members of a board of trustees of a large public transit district if the members involved in the
conversation do not, during the conversation, take a tentative or final vote on the matter that is
the subject of the conversation.
(4) "Electronic meeting" means a public meeting convened or conducted by means of a
conference using electronic communications.
(5) "Electronic message" means a communication transmitted electronically, including:
(a) electronic mail;
(b) instant messaging;
(c) electronic chat;
(d) text messaging, as that term is defined in Section 
76-4-401
; or
(e) any other method that conveys a message or facilitates communication
electronically.
(6) (a) "Meeting" means the convening of a public body or a specified body, with a
quorum present, including a workshop or an executive session, whether in person or by means
of electronic communications, for the purpose of discussing, receiving comments from the
public about, or acting upon a matter over which the public body or specific body has
jurisdiction or advisory power.
(b) "Meeting" does not mean:
(i) a chance gathering or social gathering;
(ii) a convening of the State Tax Commission to consider a confidential tax matter in
accordance with Section 
59-1-405
; or
(iii) a convening of a three-member board of trustees of a large public transit district as
defined in Section 
17B-2a-802
 if:
(A) the board members do not, during the conversation, take a tentative or final vote on
the matter that is the subject of the conversation; or
(B) the conversation pertains only to day-to-day management and operation of the
public transit district.
(c) "Meeting" does not mean the convening of a public body that has both legislative
and executive responsibilities if:
(i) no public funds are appropriated for expenditure during the time the public body is
convened; and
(ii) the public body is convened solely for the discussion or implementation of
administrative or operational matters:
(A) for which no formal action by the public body is required; or
(B) that would not come before the public body for discussion or action.
(7) "Monitor" means to hear or observe, live, by audio or video equipment, all of the
public statements of each member of the public body who is participating in a meeting.
(8) "Participate" means the ability to communicate with all of the members of a public
body, either verbally or electronically, so that each member of the public body can hear or
observe the communication.
(9) (a) "Public body" means:
(i) any administrative, advisory, executive, or legislative body of the state or its
political subdivisions that:
(A) is created by the Utah Constitution, statute, rule, ordinance, or resolution;
(B) consists of two or more persons;
(C) expends, disburses, or is supported in whole or in part by tax revenue; and
(D) is vested with the authority to make decisions regarding the public's business; or
(ii) any administrative, advisory, executive, or policymaking body of an association, as
that term is defined in Section 
53G-7-1101
, that:
(A) consists of two or more persons;
(B) expends, disburses, or is supported in whole or in part by dues paid by a public
school or whose employees participate in a benefit or program described in Title 49, Utah State
Retirement and Insurance Benefit Act; and
(C) is vested with authority to make decisions regarding the participation of a public
school or student in an interscholastic activity, as that term is defined in Section 
53G-7-1101
.
(b) "Public body" includes:
(i) an interlocal entity or joint or cooperative undertaking, as those terms are defined in
Section 
11-13-103
;
(ii) a governmental nonprofit corporation as that term is defined in Section 
11-13a-102
;
[
and
]
(iii) the Utah Independent Redistricting Commission[
.
]
; and
(iv) a project entity, as that term is defined in Section 
11-13-103
.
(c) "Public body" does not include:
(i) a political party, a political group, or a political caucus;
(ii) a conference committee, a rules committee, or a sifting committee of the
Legislature;
(iii) a school community council or charter trust land council, as that term is defined in
Section 
53G-7-1203
;
(iv) a taxed interlocal entity, as that term is defined in Section 
11-13-602
, if the taxed
interlocal entity is not a project entity
; or
(v) the following Legislative Management subcommittees, which are established in
Section 
36-12-8
, when meeting for the purpose of selecting or evaluating a candidate to
recommend for employment, except that the meeting in which a subcommittee votes to
recommend that a candidate be employed shall be subject to the provisions of this act:
(A) the Research and General Counsel Subcommittee;
(B) the Budget Subcommittee; and
(C) the Audit Subcommittee.
(10) "Public statement" means a statement made in the ordinary course of business of
the public body with the intent that all other members of the public body receive it.
(11) (a) "Quorum" means a simple majority of the membership of a public body, unless
otherwise defined by applicable law.
(b) "Quorum" does not include a meeting of two elected officials by themselves when
no action, either formal or informal, is taken.
(12) "Recording" means an audio, or an audio and video, record of the proceedings of a
meeting that can be used to review the proceedings of the meeting.
(13) "Specified body":
(a) means an administrative, advisory, executive, or legislative body that:
(i) is not a public body;
(ii) consists of three or more members; and
(iii) includes at least one member who is:
(A) a legislator; and
(B) officially appointed to the body by the president of the Senate, speaker of the
House of Representatives, or governor; and
(b) does not include a body listed in Subsection (9)(c)(ii) or (9)(c)(v).
(14) "Transmit" means to send, convey, or communicate an electronic message by
electronic means.
Section 4. Section 
52-4-204
 is amended to read:
52-4-204.
Closed meeting held upon vote of members -- Business -- Reasons for
meeting recorded.
(1) A closed meeting may be held if:
(a) (i) a quorum is present;
(ii) the meeting is an open meeting for which notice has been given under Section
52-4-202
; and
(iii) (A) two-thirds of the members of the public body present at the open meeting vote
to approve closing the meeting;
(B) for a meeting that is required to be closed under Section 
52-4-205
, if a majority of
the members of the public body present at an open meeting vote to approve closing the
meeting;
(C) for an ethics committee of the Legislature that is conducting an open meeting for
the purpose of reviewing an ethics complaint, a majority of the members present vote to
approve closing the meeting for the purpose of seeking or obtaining legal advice on legal,
evidentiary, or procedural matters, or for conducting deliberations to reach a decision on the
complaint; [
or
]
(D) for the Political Subdivisions Ethics Review Commission established in Section
63A-15-201
 that is conducting an open meeting for the purpose of reviewing an ethics
complaint in accordance with Section 
63A-15-701
, a majority of the members present vote to
approve closing the meeting for the purpose of seeking or obtaining legal advice on legal,
evidentiary, or procedural matters, or for conducting deliberations to reach a decision on the
complaint; [
or
]
(E) for a project entity that is conducting an open meeting for the purposes of
determining the value of an asset, developing a strategy related to the sale or use of that asset;
(F) for a project entity that is conducting an open meeting for purposes of discussing a
business decision, the disclosure of which could cause commercial injury to, or confer a
competitive advantage upon a potential or actual competitor of, the project entity; or
(G) for a project entity that is conducting an open meeting for purposes of discussing a
record, the disclosure of which could cause commercial injury to, or confer a competitive
advantage upon a potential competitor of, the project entity; or
(b) (i) for the Independent Legislative Ethics Commission, the closed meeting is
convened for the purpose of conducting business relating to the receipt or review of an ethics
complaint, provided that public notice of the closed meeting is given under Section 
52-4-202
,
with the agenda for the meeting stating that the meeting will be closed for the purpose of
"conducting business relating to the receipt or review of ethics complaints";
(ii) for the Political Subdivisions Ethics Review Commission established in Section
63A-15-201
, the closed meeting is convened for the purpose of conducting business relating to
the preliminary review of an ethics complaint in accordance with Section 
63A-15-602
,
provided that public notice of the closed meeting is given under Section 
52-4-202
, with the
agenda for the meeting stating that the meeting will be closed for the purpose of "conducting
business relating to the review of ethics complaints"; or
(iii) for the Independent Executive Branch Ethics Commission created in Section
63A-14-202
, the closed meeting is convened for the purpose of conducting business relating to
an ethics complaint, provided that public notice of the closed meeting is given under Section
52-4-202
, with the agenda for the meeting stating that the meeting will be closed for the
purpose of "conducting business relating to an ethics complaint."
(2) A closed meeting is not allowed unless each matter discussed in the closed meeting
is permitted under Section 
52-4-205
.
(3) (a) An ordinance, resolution, rule, regulation, contract, or appointment may not be
approved at a closed meeting.
(b) (i) A public body may not take a vote in a closed meeting, except for a vote on a
motion to end the closed portion of the meeting and return to an open meeting.
(ii) A motion to end the closed portion of a meeting may be approved by a majority of
the public body members present at the meeting.
(4) The following information shall be publicly announced and entered on the minutes
of the open meeting at which the closed meeting was approved:
(a) the reason or reasons for holding the closed meeting;
(b) the location where the closed meeting will be held; and
(c) the vote by name, of each member of the public body, either for or against the
motion to hold the closed meeting.
(5) Except as provided in Subsection 
52-4-205
(2), nothing in this chapter shall be
construed to require any meeting to be closed to the public.
Section 5. Section 
52-4-205
 is amended to read:
52-4-205.
Purposes of closed meetings -- Certain issues prohibited in closed
meetings.
(1) A closed meeting described under Section 
52-4-204
 may only be held for:
(a) except as provided in Subsection (3), discussion of the character, professional
competence, or physical or mental health of an individual;
(b) strategy sessions to discuss collective bargaining;
(c) strategy sessions to discuss pending or reasonably imminent litigation;
(d) strategy sessions to discuss the purchase, exchange, or lease of real property,
including any form of a water right or water shares, if public discussion of the transaction
would:
(i) disclose the appraisal or estimated value of the property under consideration; or
(ii) prevent the public body from completing the transaction on the best possible terms;
(e) strategy sessions to discuss the sale of real property, including any form of a water
right or water shares, if:
(i) public discussion of the transaction would:
(A) disclose the appraisal or estimated value of the property under consideration; or
(B) prevent the public body from completing the transaction on the best possible terms;
(ii) the public body previously gave public notice that the property would be offered for
sale; and
(iii) the terms of the sale are publicly disclosed before the public body approves the
sale;
(f) discussion regarding deployment of security personnel, devices, or systems;
(g) investigative proceedings regarding allegations of criminal misconduct;
(h) as relates to the Independent Legislative Ethics Commission, conducting business
relating to the receipt or review of ethics complaints;
(i) as relates to an ethics committee of the Legislature, a purpose permitted under
Subsection 
52-4-204
(1)(a)(iii)(C);
(j) as relates to the Independent Executive Branch Ethics Commission created in
Section 
63A-14-202
, conducting business relating to an ethics complaint;
(k) as relates to a county legislative body, discussing commercial information as
defined in Section 
59-1-404
;
(l) as relates to the Utah Higher Education Assistance Authority and its appointed
board of directors, discussing fiduciary or commercial information as defined in Section
53B-12-102
;
(m) deliberations, not including any information gathering activities, of a public body
acting in the capacity of:
(i) an evaluation committee under Title 63G, Chapter 6a, Utah Procurement Code,
during the process of evaluating responses to a solicitation, as defined in Section 
63G-6a-103
;
(ii) a protest officer, defined in Section 
63G-6a-103
, during the process of making a
decision on a protest under Title 63G, Chapter 6a, Part 16, Protests; or
(iii) a procurement appeals panel under Title 63G, Chapter 6a, Utah Procurement
Code, during the process of deciding an appeal under Title 63G, Chapter 6a, Part 17,
Procurement Appeals Board;
(n) the purpose of considering information that is designated as a trade secret, as
defined in Section 
13-24-2
, if the public body's consideration of the information is necessary in
order to properly conduct a procurement under Title 63G, Chapter 6a, Utah Procurement Code;
(o) the purpose of discussing information provided to the public body during the
procurement process under Title 63G, Chapter 6a, Utah Procurement Code, if, at the time of
the meeting:
(i) the information may not, under Title 63G, Chapter 6a, Utah Procurement Code, be
disclosed to a member of the public or to a participant in the procurement process; and
(ii) the public body needs to review or discuss the information in order to properly
fulfill its role and responsibilities in the procurement process;
(p) as relates to the governing board of a governmental nonprofit corporation, as that
term is defined in Section 
11-13a-102
, the purpose of discussing information that is designated
as a trade secret, as that term is defined in Section 
13-24-2
, if:
(i) public knowledge of the discussion would reasonably be expected to result in injury
to the owner of the trade secret; and
(ii) discussion of the information is necessary for the governing board to properly
discharge the board's duties and conduct the board's business; or
(q) a purpose for which a meeting is required to be closed under Subsection (2).
(2) The following meetings shall be closed:
(a) a meeting of the Health and Human Services Interim Committee to review a report
described in Subsection 
62A-16-301
(1)(a), and the responses to the report described in
Subsections 
62A-16-301
(2) and (4);
(b) a meeting of the Child Welfare Legislative Oversight Panel to:
(i) review a report described in Subsection 
62A-16-301
(1)(a), and the responses to the
report described in Subsections 
62A-16-301
(2) and (4); or
(ii) review and discuss an individual case, as described in Subsection 
62A-4a-207
(5);
(c) a meeting of the Opioid and Overdose Fatality Review Committee, created in
Section 
26-7-13
, to review and discuss an individual case, as described in Subsection
26-7-13
(10);
(d) a meeting of a conservation district as defined in Section 
17D-3-102
 for the
purpose of advising the Natural Resource Conservation Service of the United States
Department of Agriculture on a farm improvement project if the discussed information is
protected information under federal law;
(e) a meeting of the Compassionate Use Board established in Section 
26-61a-105
 for
the purpose of reviewing petitions for a medical cannabis card in accordance with Section
26-61a-105
; [
and
]
(f) a meeting of the Colorado River Authority of Utah if:
(i) the purpose of the meeting is to discuss an interstate claim to the use of the water in
the Colorado River system; and
(ii) failing to close the meeting would:
(A) reveal the contents of a record classified as protected under Subsection
63G-2-305
(82);
(B) reveal a legal strategy relating to the state's claim to the use of the water in the
Colorado River system;
(C) harm the ability of the Colorado River Authority of Utah or river commissioner to
negotiate the best terms and conditions regarding the use of water in the Colorado River
system; or
(D) give an advantage to another state or to the federal government in negotiations
regarding the use of water in the Colorado River system[
.
]
; and
(g) a meeting of a project entity if:
(i) the purpose of the meeting is to conduct a strategy session to discuss market
conditions relevant to a business decision regarding the value of a project entity asset if the
terms of the business decision are publicly disclosed before the decision is finalized and a
public discussion would:
(A) disclose the appraisal or estimated value of the project entity asset under
consideration; or
(B) prevent the project entity from completing on the best possible terms a
contemplated transaction concerning the project entity asset;
(ii) the purpose of the meeting is to discuss a record, the disclosure of which could
cause commercial injury to, or confer a competitive advantage upon a potential or actual
competitor of, the project entity;
(iii) the purpose of the meeting is to discuss a business decision, the disclosure of
which could cause commercial injury to, or confer a competitive advantage upon a potential or
actual competitor of, the project entity; or
(iv) failing to close the meeting would prevent the project entity from getting the best
price on the market.
(3) In a closed meeting, a public body may not:
(a) interview a person applying to fill an elected position;
(b) discuss filling a midterm vacancy or temporary absence governed by Title 20A,
Chapter 1, Part 5, Candidate Vacancy and Vacancy and Temporary Absence in Elected Office;
or
(c) discuss the character, professional competence, or physical or mental health of the
person whose name was submitted for consideration to fill a midterm vacancy or temporary
absence governed by Title 20A, Chapter 1, Part 5, Candidate Vacancy and Vacancy and
Temporary Absence in Elected Office.
Section 6. Section 
63G-6a-103
 is amended to read:
63G-6a-103.
Definitions.
As used in this chapter:
(1) "Approved vendor" means a person who has been approved for inclusion on an
approved vendor list through the approved vendor list process.
(2) "Approved vendor list" means a list of approved vendors established under Section
63G-6a-507
.
(3) "Approved vendor list process" means the procurement process described in
Section 
63G-6a-507
.
(4) "Bidder" means a person who submits a bid or price quote in response to an
invitation for bids.
(5) "Bidding process" means the procurement process described in Part 6, Bidding.
(6) "Board" means the Utah State Procurement Policy Board, created in Section
63G-6a-202
.
(7) "Building board" means the State Building Board, created in Section 
63A-5b-201
.
(8) "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.
(9) "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.
(10) "Chief procurement officer" means the individual appointed under Section
63A-2-102
.
(11) "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 the process 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.
(12) "Conservation district" means the same as that term is defined in Section
17D-3-102
.
(13) "Construction project":
(a) means a project for the construction, renovation, alteration, improvement, or repair
of a public facility on real property, including all services, labor, supplies, and materials for the
project; and
(b) does not include services and supplies for the routine, day-to-day operation, repair,
or maintenance of an existing public facility.
(14) "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.
(15) "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.
(16) "Contract" means an agreement for a procurement.
(17) "Contract administration" means all functions, duties, and responsibilities
associated with managing, overseeing, and carrying out a contract between a procurement unit
and a contractor, including:
(a) implementing the contract;
(b) ensuring compliance with the contract terms and conditions by the conducting
procurement unit and the contractor;
(c) executing change orders;
(d) processing contract amendments;
(e) resolving, to the extent practicable, contract disputes;
(f) curing contract errors and deficiencies;
(g) terminating a contract;
(h) measuring or evaluating completed work and contractor performance;
(i) computing payments under the contract; and
(j) closing out a contract.
(18) "Contractor" means a person who is awarded a contract with a procurement unit.
(19) "Cooperative procurement" means procurement conducted by, or on behalf of:
(a) more than one procurement unit; or
(b) a procurement unit and a cooperative purchasing organization.
(20) "Cooperative purchasing organization" means an organization, association, or
alliance of purchasers established to combine purchasing power in order to obtain the best
value for the purchasers by engaging in procurements in accordance with Section 
63G-6a-2105
.
(21) "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.
(22) "Cost-reimbursement contract" means a contract under which a contractor is
reimbursed for costs which are allowed and allocated in accordance with the contract terms and
the provisions of this chapter, and a fee, if any.
(23) "Days" means calendar days, unless expressly provided otherwise.
(24) "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.
(25) "Design professional" means:
(a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
Licensing Act;
(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; or
(c) an individual certified as a commercial interior designer under Title 58, Chapter 86,
State Certification of Commercial Interior Designers Act.
(26) "Design professional procurement process" means the procurement process
described in Part 15, Design Professional Services.
(27) "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
;
(c) master planning and programming services; or
(d) services within the scope of the practice of commercial interior design, as defined
in Section 
58-86-102
.
(28) "Design-build" means the procurement of design professional services and
construction by the use of a single contract.
(29) "Division" means the Division of Purchasing and General Services, created in
Section 
63A-2-101
.
(30) "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 the 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.
(31) "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.
(32) (a) "Executive branch procurement unit" means a department, division, office,
bureau, agency, or other organization within the state executive branch.
(b) "Executive branch procurement unit" does not include the Colorado River
Authority of Utah as provided in Section 
63M-14-210
.
(33) "Facilities division" means the Division of Facilities Construction and
Management, created in Section 
63A-5b-301
.
(34) "Fixed price contract" means a contract that provides a price, for each
procurement item obtained under the contract, that is not subject to adjustment except to the
extent that:
(a) the contract provides, under circumstances specified in the contract, for an
adjustment in price that is not based on cost to the contractor; or
(b) an adjustment is required by law.
(35) "Fixed price contract with price adjustment" means a fixed price contract that
provides for an upward or downward revision of price, precisely described in the contract, that:
(a) is based on the consumer price index or another commercially acceptable index,
source, or formula; and
(b) is not based on a percentage of the cost to the contractor.
(36) "Grant" means an expenditure of public funds or other assistance, or an agreement
to expend public funds or other assistance, for a public purpose authorized by law, without
acquiring a procurement item in exchange.
(37) "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 procurement official reasonably considers to be immaterial.
(38) "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.
(39) "Independent procurement unit" means:
(a) (i) a legislative procurement unit;
(ii) a judicial branch procurement unit;
(iii) an educational procurement unit;
(iv) a local government procurement unit;
(v) a conservation district;
(vi) a local building authority;
(vii) a local district;
(viii) a public corporation;
(ix) a special service district; or
(x) the Utah Communications Authority, established in Section 
63H-7a-201
;
(b) the building board or the facilities division, but only to the extent of the
procurement authority provided under Title 63A, Chapter 5b, Administration of State
Facilities;
(c) the attorney general, but only to the extent of the procurement authority provided
under Title 67, Chapter 5, Attorney General;
(d) the Department of Transportation, but only to the extent of the procurement
authority provided under Title 72, Transportation Code; or
(e) any other executive branch department, division, office, or entity that has statutory
procurement authority outside this chapter, but only to the extent of that statutory procurement
authority.
(40) "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 (40)(a).
(41) "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.
(42) "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.
(43) "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.
(44) "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. 
(45) "Local building authority" means the same as that term is defined in Section
17D-2-102
.
(46) "Local district" means the same as that term is defined in Section 
17B-1-102
.
(47) "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.
]
(a) a county, municipality, or project entity, and each office of the county, municipality,
or project entity, unless:
(i) the county or municipality adopts a procurement code by ordinance; or
(ii) the project entity adopts a procurement code through the process described in
Section 
11-13-316
;
(b) (i) a county or municipality that has adopted this entire chapter by ordinance, and
each office or agency of that county or municipality; and
(ii) a project entity that has adopted this entire chapter through the process described in
Subsection 
11-13-16
; or
(c) a county, municipality, or project entity, and each office of the county, municipality,
or project entity that has adopted a portion of this chapter to the extent that:
(i) a term in the ordinance is used in the adopted chapter; or
(ii) a term in the ordinance is used in the language a project entity adopts in its
procurement code through the process described in Section 
11-13-316
.
(48) "Multiple award contracts" means the award of a contract for an indefinite
quantity of a procurement item to more than one person.
(49) "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.
(50) "Municipality" means a city, town, or metro township.
(51) "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 (51)(a).
(52) "Offeror" means a person who submits a proposal in response to a request for
proposals.
(53) "Preferred bidder" means a bidder that is entitled to receive a reciprocal preference
under the requirements of this chapter.
(54) "Procure" means to acquire a procurement item through a procurement.
(55) "Procurement" means the 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.
(56) "Procurement item" means an item of personal property, a technology, a service,
or a construction project.
(57) "Procurement official" means:
(a) for a procurement unit other than an independent procurement unit, the chief
procurement officer;
(b) for a legislative procurement unit, the individual, individuals, or body designated in
a policy adopted by the Legislative Management Committee;
(c) for a judicial procurement unit, the Judicial Council or an individual or body
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) an individual or body designated by the local government procurement unit;
(e) for a local district, the board of trustees of the local district or the board of trustees'
designee;
(f) for a special service district, the governing body of the special service district or the
governing body's designee;
(g) for a local building authority, the board of directors of the local building authority
or the board of directors' designee;
(h) for a conservation district, the board of supervisors of the conservation district or
the board of supervisors' designee;
(i) for a public corporation, the board of directors of the public corporation or the board
of directors' designee;
(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 designee of the individual or body;
(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 the State Board of Education, the State Board of Education or the State Board
of Education's designee;
(n) for the Utah Board of Higher Education, the Commissioner of Higher Education or
the designee of the Commissioner of Higher Education;
(o) for the Utah Communications Authority, established in Section 
63H-7a-201
, the
executive director of the Utah Communications Authority or the executive director's designee;
or
(p) (i) for the building board, and only to the extent of procurement activities of the
building board as an independent procurement unit under the procurement authority provided
under Title 63A, Chapter 5b, Administration of State Facilities, the director of the building
board or the director's designee;
(ii) for the facilities division, and only to the extent of procurement activities of the
facilities division as an independent procurement unit under the procurement authority
provided under Title 63A, Chapter 5b, Administration of State Facilities, the director of the
facilities division or the director's designee;
(iii) for the attorney general, and only to the extent of procurement activities of the
attorney general as an independent procurement unit under the procurement authority provided
under Title 67, Chapter 5, Attorney General, the attorney general or the attorney general's
designee;
(iv) for the Department of Transportation created in Section 
72-1-201
, and only to the
extent of procurement activities of the Department of Transportation as an independent
procurement unit under the procurement authority provided under Title 72, Transportation
Code, the executive director of the Department of Transportation or the executive director's
designee; or
(v) for any other executive branch department, division, office, or entity that has
statutory procurement authority outside this chapter, and only to the extent of the procurement
activities of the department, division, office, or entity as an independent procurement unit
under the procurement authority provided outside this chapter for the department, division,
office, or entity, the chief executive officer of the department, division, office, or entity or the
chief executive officer's designee.
(58) "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) the Utah Communications Authority, established in Section 
63H-7a-201
;
(vi) a local government procurement unit;
(vii) a local district;
(viii) a special service district;
(ix) a local building authority;
(x) a conservation district; 
and
(xi) a public corporation; and
(b) 
except for a project entity, to the extent that a project entity is subject to this chapter
as described in Section 
11-13-316
,
 does not include a political subdivision created under Title
11, Chapter 13, Interlocal Cooperation Act.
(59) "Professional service" means labor, effort, or work that requires specialized
knowledge, expertise, 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.
(60) "Protest officer" means:
(a) for the division or an independent procurement unit:
(i) the procurement official;
(ii) the procurement official's designee who is an employee of the procurement unit; or
(iii) a person designated by rule made by the rulemaking authority; or
(b) for a procurement unit other than an independent procurement unit, the chief
procurement officer or the chief procurement officer's designee who is an employee of the
division .
(61) "Project entity" means the same as that term is defined in Section 
11-13-103
.
[
(61)
] 
(62)
 "Public corporation" means the same as that term is defined in Section
63E-1-102
.
[
(62)
] 
(63)
 "Public entity" means the state or any other government entity within the
state that expends public funds.
[
(63)
] 
(64)
 "Public facility" means a building, structure, infrastructure, improvement,
or other facility of a public entity.
[
(64)
] 
(65)
 "Public funds" means money, regardless of its source, including from the
federal government, that is owned or held by a procurement unit.
[
(65)
] 
(66)
 "Public transit district" means a public transit district organized under Title
17B, Chapter 2a, Part 8, Public Transit District Act.
[
(66)
] 
(67)
 "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.
[
(67)
] 
(68)
 "Qualified vendor" means a vendor who:
(a) is responsible; and
(b) submits a responsive statement of qualifications under Section 
63G-6a-410
 that
meets the minimum mandatory requirements, evaluation criteria, and any applicable score
thresholds set forth in the request for statement of qualifications.
[
(68)
] 
(69)
 "Real property" means land and any building, fixture, improvement,
appurtenance, structure, or other development that is permanently affixed to land.
[
(69)
] 
(70)
 "Request for information" means a nonbinding process through which a
procurement unit requests information relating to a procurement item.
[
(70)
] 
(71)
 "Request for proposals" means a document used to solicit proposals to
provide a procurement item to a procurement unit, including all other documents that are
attached to that document or incorporated in that document by reference.
[
(71)
] 
(72)
 "Request for proposals process" means the procurement process described
in Part 7, Request for Proposals.
[
(72)
] 
(73)
 "Request for statement of qualifications" means a document used to solicit
information about the qualifications of a person interested in responding to a potential
procurement, including all other documents attached to that document or incorporated in that
document by reference.
[
(73)
] 
(74)
 "Requirements contract" means a contract:
(a) under which a contractor agrees to provide a procurement unit's entire requirements
for certain procurement items at prices specified in the contract during the contract period; and
(b) that:
(i) does not require a minimum purchase amount; or
(ii) provides a maximum purchase limit.
[
(74)
] 
(75)
 "Responsible" means being capable, in all respects, of:
(a) meeting all the requirements of a solicitation; and
(b) fully performing all the requirements of the contract resulting from the solicitation,
including being financially solvent with sufficient financial resources to perform the contract.
[
(75)
] 
(76)
 "Responsive" means conforming in all material respects to the requirements
of a solicitation.
[
(76)
] 
(77)
 "Rule" includes a policy or regulation adopted by the rulemaking authority,
if adopting a policy or regulation is the method the rulemaking authority uses to adopt
provisions that govern the applicable procurement unit.
[
(77)
] 
(78)
 "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 facilities division, the building board;
(B) for the Office of the Attorney General, the attorney general;
(C) for the Department of Transportation created in Section 
72-1-201
, the executive
director of the Department of Transportation; and
(D) for any other executive branch department, division, office, or entity that has
statutory procurement authority outside this chapter, the governing authority of the department,
division, office, or entity; and
(ii) for each other executive branch procurement unit, the board;
(d) for a local government procurement unit:
(i) the governing body of the local government unit; or
(ii) an individual or body designated by 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 Utah Board of Higher Education;
(g) for the State Board of Education or the Utah Schools for the Deaf and the Blind, 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,
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:
(i) with respect to a subject addressed by board rules; or
(ii) that are in addition to board rules;
(j) for the Utah Educational Savings Plan, created in Section 
53B-8a-103
, the Utah
Board of Higher Education;
(k) for the School and Institutional Trust Lands Administration, created in Section
53C-1-201
, the School and Institutional Trust Lands Board of Trustees;
(l) for the School and Institutional Trust Fund Office, created in Section 
53D-1-201
,
the School and Institutional Trust Fund Board of Trustees;
(m) for the Utah Communications Authority, established in Section 
63H-7a-201
, the
Utah Communications Authority board, created in Section 
63H-7a-203
; or
(n) for any other procurement unit, the board.
[
(78)
] 
(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.
[
(79)
] 
(80)
 "Small purchase process" means the procurement process described in
Section 
63G-6a-506
.
[
(80)
] 
(81)
 "Sole source contract" means a contract resulting from a sole source
procurement.
[
(81)
] 
(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.
[
(82)
] 
(83)
 "Solicitation" means an invitation for bids, request for proposals, or request
for statement of qualifications.
[
(83)
] 
(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.
[
(84)
] 
(85)
 "Special service district" means the same as that term is defined in Section
17D-1-102
.
[
(85)
] 
(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.
[
(86)
] 
(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.
[
(87)
] 
(88)
 "State cooperative contract" means a contract awarded by the division for
and in behalf of all public entities.
[
(88)
] 
(89)
 "Statement of qualifications" means a written statement submitted to a
procurement unit in response to a request for statement of qualifications.
[
(89)
] 
(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.
[
(90)
] 
(91)
 "Technology" means the same as "information technology," as defined in
Section 
63A-16-102
.
[
(91)
] 
(92)
 "Tie bid" means that the lowest responsive bids of responsible bidders are
identical in price.
[
(92)
] 
(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.
[
(93)
] 
(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.
[
(94)
] 
(95)
 "Vendor":
(a) means a person who is seeking to enter into a contract with a procurement unit to
provide a procurement item; and
(b) includes:
(i) a bidder;
(ii) an offeror;
(iii) an approved vendor;
(iv) a design professional; and
(v) a person who submits an unsolicited proposal under Section 
63G-6a-712
.
Section 7. Section 
63G-6a-107.5
 is enacted to read:
 63G-6a-107.5.
Application of chapter to project entities.
This chapter applies to a project entity to the extent described in Section 
11-13-316
.