Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 118 Third Substitute (2023GS)

Sponsor

Rep. Teuscher, J.

Final action

House/ filed 3/3/2023

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• defines terms;
• makes changes to procurement provisions for school districts, public schools, and the State Board of Education;
• enacts false claims provisions for educational procurement units; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

EDUCATION FALSE CLAIMS AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Jordan D. Teuscher
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill makes changes to procurement provisions for the public education system.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ makes changes to procurement provisions for school districts, public schools, and
the State Board of Education;
▸ enacts false claims provisions for educational procurement units; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-6a-103
, as last amended by Laws of Utah 2022, Chapters 421 and 422
63G-6a-106
, as last amended by Laws of Utah 2021, Chapter 344
ENACTS:
63G-6a-2501
, Utah Code Annotated 1953
63G-6a-2502
, Utah Code Annotated 1953
63G-6a-2503
, Utah Code Annotated 1953
63G-6a-2504
, Utah Code Annotated 1953
63G-6a-2505
, Utah Code Annotated 1953
63G-6a-2506
, Utah Code Annotated 1953
63G-6a-2507
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
63G-6a-103
 is amended to read:
63G-6a-103.
Definitions.
As used in this chapter:
(1) "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) "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.
(8) "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.
(9) "Chief procurement officer" means the individual appointed under Section
63A-2-102
.
(10) "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.
(11) "Conservation district" means the same as that term is defined in Section
17D-3-102
.
(12) "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.
(13) "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.
(14) "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.
(15) "Contract" means an agreement for a procurement.
(16) "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.
(17) "Contractor" means a person who is awarded a contract with a procurement unit.
(18) "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.
(19) "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
.
(20) "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.
(21) "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.
(22) "Days" means calendar days, unless expressly provided otherwise.
(23) "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.
(24) "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.
(25) "Design professional procurement process" means the procurement process
described in Part 15, Design Professional Services.
(26) "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
.
(27) "Design-build" means the procurement of design professional services and
construction by the use of a single contract.
(28) "Division" means the Division of Purchasing and General Services, created in
Section 
63A-2-101
.
(29) "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.
(30) "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.
(31) (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
.
(32) "Facilities division" means the Division of Facilities Construction and
Management, created in Section 
63A-5b-301
.
(33) "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.
(34) "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.
(35) "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.
(36) "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.
(37) "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.
(38) "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 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.
(39) "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 (39)(a).
(40) "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.
(41) "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.
(42) "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.
(43) "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.
(44) "Local building authority" means the same as that term is defined in Section
17D-2-102
.
(45) "Local district" means the same as that term is defined in Section 
17B-1-102
.
(46) "Local government procurement unit" means:
(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 
11-13-316
; 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
.
(47) "Multiple award contracts" means the award of a contract for an indefinite
quantity of a procurement item to more than one person.
(48) "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.
(49) "Municipality" means a city, town, or metro township.
(50) "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 (50)(a).
(51) "Offeror" means a person who submits a proposal in response to a request for
proposals.
(52) "Preferred bidder" means a bidder that is entitled to receive a reciprocal preference
under the requirements of this chapter.
(53) "Procure" means to acquire a procurement item through a procurement.
(54) "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.
(55) "Procurement item" means an item of personal property, a technology, a service,
or a construction project.
(56) "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 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;
(ii) 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;
(iii) 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
(iv) 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.
(57) "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.
(58) "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.
(59) "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.
(60) "Public corporation" means the same as that term is defined in Section 
63E-1-102
.
(61) "Project entity" means the same as that term is defined in Section 
11-13-103
.
(62) "Public entity" means the state or any other government entity within the state that
expends public funds.
(63) "Public facility" means a building, structure, infrastructure, improvement, or other
facility of a public entity.
(64) "Public funds" means money, regardless of its source, including from the federal
government, that is owned or held by a procurement unit.
(65) "Public transit district" means a public transit district organized under Title 17B,
Chapter 2a, Part 8, Public Transit District Act.
(66) "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) "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) "Real property" means land and any building, fixture, improvement, appurtenance,
structure, or other development that is permanently affixed to land.
(69) "Request for information" means a nonbinding process through which a
procurement unit requests information relating to a procurement item.
(70) "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) "Request for proposals process" means the procurement process described in Part
7, Request for Proposals.
(72) "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) "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) "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) "Responsive" means conforming in all material respects to the requirements of a
solicitation.
(76) "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) "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 facilities division, the facilities division;
(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
]
the State Board of Education
;
(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) "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) "Small purchase process" means the procurement process described in Section
63G-6a-506
.
(80) "Sole source contract" means a contract resulting from a sole source procurement.
(81) "Sole source procurement" means a procurement without competition pursuant to
a determination under Subsection 
63G-6a-802
(1)(a) that there is only one source for the
procurement item.
(82) "Solicitation" means an invitation for bids, request for proposals, or request for
statement of qualifications.
(83) "Solicitation response" means:
(a) a bid submitted in response to an invitation for bids;
(b) a proposal submitted in response to a request for proposals; or
(c) a statement of qualifications submitted in response to a request for statement of
qualifications.
(84) "Special service district" means the same as that term is defined in Section
17D-1-102
.
(85) "Specification" means any description of the physical or functional characteristics
or of the nature of a procurement item included in an invitation for bids or a request for
proposals, or otherwise specified or agreed to by a procurement unit, including a description of:
(a) a requirement for inspecting or testing a procurement item; or
(b) preparing a procurement item for delivery.
(86) "Standard procurement process" means:
(a) the bidding process;
(b) the request for proposals process;
(c) the approved vendor list process;
(d) the small purchase process; or
(e) the design professional procurement process.
(87) "State cooperative contract" means a contract awarded by the division for and in
behalf of all public entities.
(88) "Statement of qualifications" means a written statement submitted to a
procurement unit in response to a request for statement of qualifications.
(89) "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) "Technology" means the same as "information technology," as defined in Section
63A-16-102
.
(91) "Tie bid" means that the lowest responsive bids of responsible bidders are
identical in price.
(92) "Time and materials contract" means a contract under which the contractor is paid:
(a) the actual cost of direct labor at specified hourly rates;
(b) the actual cost of materials and equipment usage; and
(c) an additional amount, expressly described in the contract, to cover overhead and
profit, that is not based on a percentage of the cost to the contractor.
(93) "Transitional costs":
(a) means the costs of changing:
(i) from an existing provider of a procurement item to another provider of that
procurement item; or
(ii) from an existing type of procurement item to another type;
(b) includes:
(i) training costs;
(ii) conversion costs;
(iii) compatibility costs;
(iv) costs associated with system downtime;
(v) disruption of service costs;
(vi) staff time necessary to implement the change;
(vii) installation costs; and
(viii) ancillary software, hardware, equipment, or construction costs; and
(c) does not include:
(i) the costs of preparing for or engaging in a procurement process; or
(ii) contract negotiation or drafting costs.
(94) "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 2. Section 
63G-6a-106
 is amended to read:
63G-6a-106.
 Independent procurement units.
(1) An independent procurement unit may, without the supervision, interference,
oversight, control, or involvement of the division or the chief procurement officer, but in
accordance with the requirements of this chapter:
(a) engage in a standard procurement process;
(b) acquire a procurement item under an exception, as provided in this chapter, to the
requirement to use a standard procurement process; or
(c) otherwise engage in an act authorized or required by this chapter.
(2) Notwithstanding Subsection (1)[
,
]
:
(a)
 an independent procurement unit may agree in writing with the division to extend
the authority of the division or the chief procurement officer to the procurement unit, as
provided in the agreement[
.
]
; and
(b) an independent procurement unit that is a school district or public school may agree
in writing with the State Board of Education to extend the authority of the State Board of
Education to the school district or public school, as provided in the agreement.
(3) With respect to a procurement or contract over which an independent procurement
unit's procurement official has authority, the procurement official may:
(a) manage and supervise the procurement to ensure to the extent practicable that
taxpayers receive the best value;
(b) prepare and issue standard specifications for procurement items;
(c) review contracts, coordinate contract compliance, conduct contract audits, and
approve change orders;
(d) delegate duties and authority to an employee of the procurement unit, as the
independent procurement unit's procurement official considers appropriate;
(e) for the procurement official of an executive branch procurement unit that is an
independent procurement unit, coordinate with the Division of Technology Services, created in
Section 
63A-16-103
, with respect to the procurement unit's procurement of information
technology services;
(f) correct, amend, or cancel a procurement at any stage of the procurement process if
the procurement is out of compliance with this chapter or a rule adopted by the rulemaking
authority;
(g) attempt to resolve a contract dispute in coordination with the legal counsel of the
independent procurement unit; and
(h) at any time during the term of a contract awarded by the independent procurement
unit, correct or amend a contract to bring it into compliance or cancel the contract:
(i) if the procurement official determines that correcting, amending, or canceling the
contract is in the best interest of the procurement unit; and
(ii) after consulting with, as applicable, the attorney general's office or the procurement
unit's legal counsel.
(4) The attorney general may, in accordance with the provisions of this chapter, but
without involvement by the division or the chief procurement officer:
(a) retain outside counsel, subject to Section 
67-5-33
 if the attorney general retains
outside counsel under a contingent fee contract, as defined in that section; or
(b) procure litigation support services, including retaining an expert witness.
(5) An independent procurement unit that is not represented by the attorney general's
office may, in accordance with the provisions of this chapter, but without involvement by the
division or the chief procurement officer:
(a) retain outside counsel; or
(b) procure litigation support services, including retaining an expert witness.
(6) The state auditor's office may, in accordance with the provisions of this chapter, but
without involvement by the division or the chief procurement officer, procure audit services.
(7) The state treasurer may, in accordance with the provisions of this chapter, but
without involvement by the division or the chief procurement officer, procure:
(a) deposit services; and
(b) services related to issuing bonds.
Section 3. Section 
63G-6a-2501
 is enacted to read:
Part 25. Education Procurement Unit False Claims
 63G-6a-2501.
Definitions.
As used in this part:
(1) (a) "Claim" means any request or demand, whether under a contract or otherwise,
for money or property and whether an educational procurement unit has title to the money or
property, that:
(i) is presented to an officer, employee, or agent of the educational procurement unit;
or
(ii) is made to a contractor, grantee, or other recipient, if the money or property is to be
spent or used on the educational procurement unit's behalf or to advance an educational
procurement unit's program or interest, and if the educational procurement unit:
(A) provides or has provided any portion of the money or property requested or
demanded; or
(B) will reimburse such contractor, grantee, or other recipient for any portion of the
money or property which is requested or demanded.
(b) "Claim" does not include a request or demand for money or property that an
educational procurement unit has paid to an individual as compensation for employment or as
an income subsidy with no restrictions on that individual's use of the money or property.
(2) "Knowing" and "knowingly" means that a person, with respect to information:
(a) has actual knowledge of the information; and
(b) acts in deliberate ignorance of the truth or falsity of the information.
(3) "Material" means having a natural tendency to influence, or be capable of
influencing, the payment or receipt of money or property.
(4) (a) "Obligation" means an established duty, arising from an express or implied
contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar
relationship, from statute or regulation, or from the retention of any overpayment.
(b) "Obligation" includes a fixed duty.
Section 4. Section 
63G-6a-2502
 is enacted to read:
 63G-6a-2502.
Liability for certain acts.
(1) A person is liable to an educational procurement unit for a civil penalty of not less
than $5,000 and not more than $10,000, plus three times the amount of damages which the
educational procurement unit sustains, who:
(a) knowingly presents, or causes to be presented, a false or fraudulent claim for
payment or approval;
(b) knowingly makes, uses, or causes to be made or used, a false record or statement
material to a false or fraudulent claim;
(c) conspires to commit a violation of Subsection (1)(a), (b), (d), (e), or (f);
(d) has possession, custody, or control of property or money used, or to be used, by the
educational procurement unit and knowingly delivers, or causes to be delivered, less than all of
that money or property;
(e) is authorized to make or deliver a document certifying receipt of property used, or
to be used, by the educational procurement unit and, intending to defraud the educational
procurement unit, makes or delivers the receipt without completely knowing that the
information on the receipt is true; or
(f) knowingly makes, uses, or causes to be made or used, a false record or statement
material to an obligation to pay or transmit money or property to the educational procurement
unit, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to
pay or transmit money or property to the educational procurement unit.
(2) Proof of an action described in Subsection (1) does not require proof of specific
intent to defraud.
(3) A court may assess not less than two times the amount of damages that the
educational procurement unit sustains because of a violation of this section, if the court finds
that:
(a) the person committing the violation of this section furnished officials of the state
responsible for investigating false claims violations with all information known to such person
about the violation within 30 days after the date on which the defendant first obtained the
information; and
(b) at the time the person furnished the educational procurement unit with the
information about the violation, no criminal prosecution, civil action, or administrative action
had commenced under this part with respect to such violation, and the person did not have
actual knowledge of the existence of an investigation into such violation.
(4) A person who violates this section is liable to the educational procurement unit for
the costs of a civil action brought to recover any penalty or damages.
(5) Any information furnished pursuant to Subsection (3) is exempt from disclosure
under Title 63G, Chapter 2, Government Records Access and Management Act.
Section 5. Section 
63G-6a-2503
 is enacted to read:
 63G-6a-2503.
Responsibilities of the attorney general -- Actions by private
persons.
(1) (a) The attorney general shall diligently investigate a violation under this part.
(b) If the attorney general finds that a person violates this part, the attorney general may
bring a civil action under this section against the person.
(2) (a) A person may bring a civil action for a violation of this part for the person and
for the educational procurement unit.
(b) The action described in Subsection (2)(a):
(i) shall be brought in the name of the educational procurement unit; and
(ii) may be dismissed only if the court and the attorney general give written consent to
the dismissal and the reasons for consenting.
(3) (a) A person who brings a civil action as described in Subsection (2) shall serve on
the educational procurement unit in accordance with Rule 4 of the Utah Rules of Civil
Procedure:
(i) a copy of the complaint; and
(ii) written disclosure of substantially all material evidence and information the person
possesses.
(b) The complaint shall:
(i) be filed in camera;
(ii) remain under seal for at least 60 days; and
(iii) not be served on the defendant until the court so orders.
(c) The educational procurement unit may elect to intervene and proceed with the
action within 60 days after the educational procurement unit receives both the complaint and
the material evidence and information.
(4) (a) An educational procurement unit may, for good cause shown, move the court
for extensions of the time during which the complaint remains under seal under Subsection (3).
(b) A motion described in Subsection (4)(a) may be supported by affidavits or other
submissions in camera.
(c) The defendant shall not be required to respond to any complaint filed under this
section until 20 days after the complaint is unsealed and served upon the defendant in
accordance with Rule 4 of the Utah Rules of Civil Procedure.
(5) (a) Before the expiration of the 60 day period described in Subsection (3)(b), or any
extensions an educational procurement unit obtains as described in Subsection (4)(a), the
educational procurement unit shall:
(i) proceed with the action; or
(ii) notify the court that the educational procurement unit declines to take over the
action.
(b) If the educational procurement unit declines to take over the action, the person who
initiates the action may conduct the action.
(6) When a person brings an action under this section, no person other than the
educational procurement unit may intervene or bring a related action based on the facts
underlying the pending action.
Section 6. Section 
63G-6a-2504
 is enacted to read:
 63G-6a-2504.
Rights of the parties to qui tam actions.
(1) (a) If an educational procurement unit proceeds with an action as described in
Section 
63G-6a-2503
, the educational procurement unit:
(i) has the primary responsibility for prosecuting the action; and
(ii) is not bound by an act of the person who initiates the action.
(b) The person who initiates the action may continue as a party to the action, subject to
the limitations of Subsection (2).
(2) (a) The educational procurement unit may dismiss the action notwithstanding the
objections of the person initiating the action if the educational procurement unit notifies the
person who initiates the action:
(i) that the educational procurement unit filed the action; and
(ii) the court has provided the person with an opportunity for a hearing on the motion.
(b) (i) The educational procurement unit may settle the action with the defendant
notwithstanding the objections of the person initiating the action if the court determines, after a
hearing, that the proposed settlement is fair, adequate, and reasonable under all the
circumstances.
(ii) Upon a showing of good cause, a hearing may be held in camera.
(c) Upon a showing by the educational procurement unit that unrestricted participation
during the course of the litigation by the person initiating the action would interfere with or
unduly delay the educational procurement unit's prosecution of the case, or would be
repetitious, irrelevant, or for purposes of harassment, the court may, in the court's discretion,
impose limitations on the person's participation, including:
(i) limiting the number of witnesses the person may call;
(ii) limiting the length of the testimony of such witnesses;
(iii) limiting the person's cross-examination of witnesses; or
(iv) otherwise limiting the participation by the person in the litigation.
(d) Upon a showing by the defendant that unrestricted participation during the course
of the litigation by the person initiating the action would be for purposes of harassment or
would cause the defendant undue burden or unnecessary expense, the court may limit the
participation by the person in the litigation.
(3) If the educational procurement unit requests, a person who conducts the action
under Subsection 
63G-6a-2503
(4)(b) shall:
(a) serve the educational procurement unit with copies of all pleadings filed in the
action; and
(b) supply the educational procurement unit with copies of all deposition transcripts at
the educational procurement unit's expense. When a person proceeds with the action, the court,
without limiting the status and rights of the person initiating the action, may nevertheless
permit the educational procurement unit to intervene at a later date upon a showing of good
cause.
(4) (a) Regardless of whether the educational procurement unit proceeds with the
action, upon a showing by the educational procurement unit that an action of discovery by the
person who initiates the action interferes with the educational procurement unit's investigation
or prosecution of a criminal or civil matter arising out of the same facts, the court may stay the
discovery for not more than 60 days.
(b) The showing described in Subsection (4)(a) shall be conducted in camera.
(c) The court may extend the stay of discovery described in Subsection (4)(a) upon a
further showing in camera that:
(i) the educational procurement unit has pursued the criminal or civil investigation or
proceedings with reasonable diligence; and
(ii) any discovery in the civil action initiated under this part will interfere with the
ongoing criminal or civil investigation or proceedings.
(5) (a) Notwithstanding Section 
63G-6a-2503
, the educational procurement unit may
pursue the educational procurement unit's claim through any alternate remedy available to the
educational procurement unit, including any administrative proceeding to determine a civil
penalty.
(b) If an educational procurement unit pursues an alternate remedy in a proceeding as
described in Subsection (5)(a), the person initiating an action under this part has the same
rights in the proceeding as the person has under an action under this part.
(c) A final finding of fact or conclusion of law in a proceeding described in Subsection
(5)(b) is conclusive on all parties to an action under this part.
(d) For purposes of Subsection (5)(c), a finding of fact or conclusion of law is final if:
(i) the finding of fact or conclusion of law has been finally determined on appeal to the
appropriate court of the state;
(ii) if the time for filing an appeal of the finding of fact or conclusion of law has
expired; or
(iii) if the finding of fact or conclusion of law is not subject to judicial review.
Section 7. Section 
63G-6a-2505
 is enacted to read:
 63G-6a-2505.
Award to qui tam plaintiff.
(1) If an educational procurement unit proceeds with an action as described in
Subsection 
63G-6a-2503
(4), the person who initiates the action is entitled to, subject to
Subsection (2), at least 15% but not more than 25% of the proceeds of the action or settlement
of the claim, in proportion to the contributions of the person who initiates the action to the
prosecution of the action.
(2) (a) Notwithstanding Subsection (1), the court may not award more than 10% of the
proceeds of an action or settlement of a claim to the person who initiates an action under this
part if the court finds that the action is based primarily on disclosures of specific information:
(i) relating to allegations or transactions in a:
(A) criminal, civil, or administrative hearing; or
(B) legislative, administrative, or state auditor report, hearing, audit, or investigation;
or
(ii) from the news media.
(b) The information described in Subsection (2)(a) does not include information the
person who initiates the action provides.
(3) The court shall award to a person who receives a payment under Subsection (1) or
(2):
(a) reasonable expenses, if the court finds the expenses were necessary; and
(b) reasonable attorney fees and costs.
(4) (a) If an educational procurement unit declines to take over an action as described
in Subsection 
63G-6a-2503
(4), the person who initiates the action or settles the claim is
entitled to an amount the court determines is reasonable for collecting the civil penalty and
damages.
(b) The amount described in Subsection (4)(a):
(i) shall not be less than 25% and not more than 30% of the proceeds of the action or
settlement; and
(ii) shall be paid out of the proceeds described in Subsection (4)(b)(i).
(5) The court shall award to a person who receives a payment under Subsection (4):
(a) reasonable expenses, if the court finds the expenses were necessary; and
(b) reasonable attorney fees and costs.
(6) (a) Whether the educational procurement unit proceeds with an action under this
part, if the court finds that the person who initiates the action planned or initiated the violation
of this part upon which the action was brought, the court may reduce the share of the proceeds
of the action which the person would otherwise receive under this section.
(b) In reducing the share of proceeds as described in Subsection (6)(a), the court shall
take into account the role of the person in advancing the case to litigation and any relevant
circumstances pertaining to the violation.
(c) If the person who initiates the action is convicted of criminal conduct arising from
the person's role in the violation of this part:
(i) the court shall dismiss the person from the civil action; and
(ii) the person may not receive any share of the proceeds of the action.
(d) A dismissal described in Subsection (6)(c) may not prejudice the right of the
educational procurement unit to continue the action, represented by the attorney general.
(7) If an educational procurement unit declines to take over an action as described in
Subsection 
63G-6a-2503
(4), and the person who initiates the action conducts the action, the
court may award to the defendant reasonable attorney fees and costs if:
(a) the defendant is the prevailing party in the action; and
(b) the court finds that the claim of the person who initiates the action was clearly
frivolous, clearly vexatious, or brought primarily for purposes of harassment.
(8) An educational procurement unit is not liable for expenses that a person who
initiates an action under this part incurs in bringing an action under this part.
Section 8. Section 
63G-6a-2506
 is enacted to read:
 63G-6a-2506.
Certain actions barred.
(1) A court of this state has no jurisdiction over an action brought under Section
63G-6a-2503
:
(a) by a former or present member of the armed forces against a member of the armed
forces arising out of the person's service in the armed forces; or
(b) against a member of the Legislature, a member of the judiciary, or a senior
executive branch official if the action is based on evidence or information known to the
educational procurement unit when the action was initiated.
(2) A person may not bring an action under Section 
63G-6a-2503
 that is based on
allegations or transactions that are the subject of a civil suit or an administrative civil money
penalty proceeding in which the educational procurement unit is already a party.
(3) (a) As used in this Subsection (3), "original source" means a person who:
(i) prior to a public disclosure described in Subsection (3)(b), has voluntarily disclosed
to the educational procurement unit the information on which allegations or transactions in a
claim are based; or
(ii) (A) has knowledge that is independent of and materially adds to the publicly
disclosed allegations or transactions; and
(B) voluntarily provides the information to the educational procurement unit before
filing an action under this section.
(b) The court shall dismiss an action or claim under this section, unless opposed by the
educational procurement unit, if substantially the same allegations or transactions as alleged in
the action or claim were publicly disclosed:
(i) in a criminal, civil, or administrative hearing in which the educational procurement
unit or the educational procurement unit's agent is a party;
(ii) in a legislative, state auditor, or other state or local:
(A) report;
(B) hearing;
(C) audit; or
(D) investigation; or
(iii) in the news media, unless:
(A) the action is brought by the attorney general; or
(B) the person who initiates the action is an original source of the information.
Section 9. Section 
63G-6a-2507
 is enacted to read:
 63G-6a-2507.
Relief from retaliatory actions.
(1) As used in this section:
(a) "Employee" means an employee of an educational procurement unit.
(b) "Retaliation" means the discharge, demotion, suspension, threatening, harassment,
or discrimination in the terms and conditions of an employee's employment.
(2) An employee is entitled to all relief necessary to make the employee whole for
retaliation against the employee for the employee's or another person's:
(a) lawful acts in furtherance of an action under this part; or
(b) efforts to stop a violation of this part.
(3) Relief described in Subsection (2) includes:
(a) reinstatement with the same seniority status that employee would have had but for
the retaliation;
(b) back pay and interest on the back pay; and
(c) compensation for any special damages sustained as a result of the retaliation,
including litigation costs and reasonable attorney fees.
(4) An action under this section may be brought in the appropriate district court of this
state for the relief provided in this section.