Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 561 (2023GS)

Sponsor

Rep. Stoddard, A.

Final action

House/ filed 3/3/2023

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• creates and modifies definitions;
• provides that the department is an independent procurement unit under the Utah Procurement Code for certain human services procurements;
• exempts the department from the Utah Procurement Code for certain medical supply purchases;
• addresses the following for human services procurements:
• public notice;
• protest appeals;
• direct purchases without solicitation;
• invitations for contract awards through an open enrollment, noncompetitive process; and
• determining debarment and suspension;
• authorizes the executive director of the department to appoint a procurement advisory council;
• grants administrative rulemaking authority; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

DEPARTMENT OF HEALTH AND HUMAN SERVICES
PROCUREMENT AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Andrew Stoddard
Senate Sponsor: 
 David G. Buxton
LONG TITLE
General Description:
This bill addresses procurements by the Department of Health and Human Services
(department).
Highlighted Provisions:
This bill:
▸ creates and modifies definitions;
▸ provides that the department is an independent procurement unit under the Utah
Procurement Code for certain human services procurements;
▸ exempts the department from the Utah Procurement Code for certain medical
supply purchases;
▸ addresses the following for human services procurements:
• public notice;
• protest appeals;
• direct purchases without solicitation;
• invitations for contract awards through an open enrollment, noncompetitive
process; and
• determining debarment and suspension;
▸ authorizes the executive director of the department to appoint a procurement
advisory council;
▸ grants administrative rulemaking authority; 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, 422
63G-6a-107.6
, as last amended by Laws of Utah 2021, Chapter 179
63G-6a-107.7
, as enacted by Laws of Utah 2020, Chapter 257
63G-6a-1702
, as last amended by Laws of Utah 2017, Chapter 348
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) "Human services procurement item" means a procurement item used to provide
services or support to:
(a) a child, family, or adult at home, school, work, or in the community;
(b) an individual in secure care, as defined in Section 
80-1-102
; or
(c) an individual at the Utah State Hospital or the Utah State Developmental Center.
[
(36)
] 
(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.
[
(37)
] 
(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.
[
(38)
] 
(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 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) the Department of Health and Human Services, but only for a human services
procurement item; or
[
(e)
] 
(f)
 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)
] 
(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 [
(39)(a).
] 
(40)(a).
[
(40)
] 
(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.
[
(41)
] 
(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.
[
(42)
] 
(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.
[
(43)
] 
(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.
[
(44)
] 
(45)
 "Local building authority" means the same as that term is defined in Section
17D-2-102
.
[
(45)
] 
(46)
 "Local district" means the same as that term is defined in Section
17B-1-102
.
[
(46)
] 
(47)
 "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)
] 
(48)
 "Multiple award contracts" means the award of a contract for an indefinite
quantity of a procurement item to more than one person.
[
(48)
] 
(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.
[
(49)
] 
(50)
 "Municipality" means a city, town, or metro township.
[
(50)
] 
(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 [
(50)(a).
]
(51)(a).
[
(51)
] 
(52)
 "Offeror" means a person who submits a proposal in response to a request
for proposals.
[
(52)
] 
(53)
 "Preferred bidder" means a bidder that is entitled to receive a reciprocal
preference under the requirements of this chapter.
[
(53)
] 
(54)
 "Procure" means to acquire a procurement item through a procurement.
[
(54)
] 
(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.
[
(55)
] 
(56)
 "Procurement item" means an item of personal property, a technology, a
service, or a construction project.
[
(56)
] 
(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 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 the Department of Health and Human Services, and only to the extent of the
procurement activities of the Department of Health and Human Services as an independent
procurement unit, the executive director of the Department of Health and Human Services or
the executive director's designee; or
[
(iv)
] 
(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.
[
(57)
] 
(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.
[
(58)
] 
(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.
[
(59)
] 
(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 .
[
(60)
] 
(61)
 "Public corporation" means the same as that term is defined in Section
63E-1-102
.
[
(61)
] 
(62)
 "Project entity" means the same as that term is defined in Section
11-13-103
.
[
(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 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 the Department of Health and Human Services, the executive director of the
Department of Health and Human Services; and
[
(D)
] 
(E)
 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 2. Section 
63G-6a-107.6
 is amended to read:
63G-6a-107.6.
Exemptions from chapter.
(1) Except for this Subsection (1), the provisions of this chapter do not apply to:
(a) a public entity's acquisition of a procurement item from another public entity; or
(b) a public entity that is not a procurement unit, including the Colorado River
Authority of Utah as provided in Section 
63M-14-210
.
(2) Unless otherwise provided by statute and except for this Subsection (2), the
provisions of this chapter do not apply to the acquisition or disposal of real property or an
interest in real property.
(3) Except for this Subsection (3) and Part 24, Unlawful Conduct and Penalties, the
provisions of this chapter do not apply to:
(a) funds administered under the Percent-for-Art Program of the Utah Percent-for-Art
Act;
(b) a grant;
(c) medical supplies or medical equipment, including service agreements for medical
equipment, obtained by the University of Utah Hospital 
or the Department of Health and
Human Services
 through a purchasing consortium if:
(i) the consortium uses a competitive procurement process; and
(ii) the chief administrative officer of the hospital 
or the Department of Health and
Human Services
 makes a written finding that the prices for purchasing medical supplies and
medical equipment through the consortium are competitive with market prices;
(d) the purchase of firefighting supplies or equipment by the Division of Forestry, Fire,
and State Lands, created in Section 
65A-1-4
, through the federal General Services
Administration or the National Fire Cache system;
(e) supplies purchased for resale to the public; or
(f) activities related to the management of investments by a public entity granted
investment authority by law.
(4) This chapter does not supersede the requirements for retention or withholding of
construction proceeds and release of construction proceeds as provided in Section 
13-8-5
.
(5) Except for this Subsection (5), the provisions of this chapter do not apply to a
procurement unit's hiring a mediator, arbitrator, or arbitration panel member to participate in
the procurement unit's dispute resolution efforts.
Section 3. Section 
63G-6a-107.7
 is amended to read:
63G-6a-107.7.
Procurement rules.
(1) (a) Subject to Subsection (1)(b), the rulemaking authority for a procurement unit
shall make rules relating to the management and control of procurements and procurement
procedures by the procurement unit.
(b) Building board rules governing procurement of construction projects, design
professional services, and leases apply to the procurement of construction projects, design
professional services, and leases of real property, respectively, by the Division of Facilities
Construction and Management.
(2) A rulemaking authority may not adopt rules, policies, or regulations that are
inconsistent with this chapter.
(3) An individual or body that makes rules as required or authorized in this chapter
shall make the rules:
(a) in accordance with Chapter 3, Utah Administrative Rulemaking Act, if the
individual or body is subject to Chapter 3, Utah Administrative Rulemaking Act; or
(b) in accordance with the established process for making rules or their equivalent, if
the individual or body is not subject to Chapter 3, Utah Administrative Rulemaking Act.
(4) The rules of the rulemaking authority for the executive branch procurement unit
shall require, for each contract and request for proposals, the inclusion of a clause that requires
the issuing procurement unit, for the duration of the contract, to make available contact
information of the winning contractor to the Department of Workforce Services in accordance
with Section 
35A-2-203
. This requirement does not preclude a contractor from advertising job
openings in other forums throughout the state.
(5) The Department of Transportation may make rules governing the procurement of a
highway construction project or highway improvement project.
(6) The rulemaking authority for a public transit district may make rules governing the
procurement of a transit construction project or a transit improvement project.
(7) The Department of Health and Human Services may make rules governing the
procurement of a human services procurement item.
Section 4. Section 
63G-6a-1702
 is amended to read:
63G-6a-1702.
Appeal to Utah State Procurement Policy Board -- Appointment of
procurement appeals panel -- Proceedings.
(1) [
This
] 
Except as provided in Section 
63G-6a-1702
, this
 part applies to all
procurement units other than:
(a) a legislative procurement unit;
(b) a judicial procurement unit;
(c) a nonadopting local government procurement unit; or
(d) a public transit district.
(2) (a) Subject to Section 
63G-6a-1703
, a protestor may appeal to the board a protest
decision of a procurement unit that is subject to this part by filing a written notice of appeal
with the chair of the board within seven days after:
(i) the day on which the written decision described in Section 
63G-6a-1603
 is:
(A) personally served on the party or the party's representative; or
(B) emailed or mailed to the address or email address provided by the party under
Subsection 
63G-6a-1602
(4); or
(ii) the day on which the 30-day period described in Subsection 
63G-6a-1603
(9) ends,
if a written decision is not issued before the end of the 30-day period.
(b) A notice of appeal under Subsection (2)(a) shall:
(i) include the address of record and email address of record of the party filing the
notice of appeal; and
(ii) be accompanied by a copy of any written protest decision.
(c) The deadline for appealing a protest decision may not be modified.
(3) A person may not base an appeal of a protest under this section on:
(a) a ground not specified in the person's protest under Section 
63G-6a-1602
; or
(b) new or additional evidence not considered by the protest officer.
(4) (a) A person may not appeal from a protest described in Section 
63G-6a-1602
,
unless:
(i) a decision on the protest has been issued; or
(ii) a decision is not issued and the 30-day period described in Subsection
63G-6a-1603
(9), or a longer period agreed to by the parties, has passed.
(b) A procurement unit may not appeal a protest decision or other determination made
by the procurement unit's protest officer.
(5) (a) Within seven days after the chair of the board receives a written notice of an
appeal under this section, the chair shall submit a written request to the protest officer for the
protest appeal record.
(b) Within seven days after the chair receives the protest appeal record from the protest
officer, the appointing officer shall, in consultation with the attorney general's office:
(i) review the appeal to determine whether the appeal complies with the requirements
of Subsections (2), (3), and (4) and Section 
63G-6a-1703
; and
(ii) (A) dismiss any claim asserted in the appeal, or dismiss the appeal, without holding
a hearing if the appointing officer determines that the claim or appeal, respectively, fails to
comply with any of the requirements listed in Subsection (5)(b)(i); or
(B) appoint a procurement appeals panel to conduct an administrative review of any
claim in the appeal that has not been dismissed under Subsection (5)(b)(ii)(A), if the appointing
officer determines that one or more claims asserted in the appeal comply with the requirements
listed in Subsection (5)(b)(i).
(c) A procurement appeals panel appointed under Subsection (5)(a) shall consist of an
odd number of at least three individuals, each of whom is:
(i) a member of the board; or
(ii) a designee of a member appointed under Subsection (5)(c)(i), if the designee is
approved by the chair of the board.
(d) The appointing officer shall appoint one of the members of the procurement
appeals panel to serve as the coordinator of the panel.
(e) The appointing officer may:
(i) appoint the same procurement appeals panel to hear more than one appeal; or
(ii) appoint a separate procurement appeals panel for each appeal.
(f) The appointing officer may not appoint a person to a procurement appeals panel if
the person is employed by the procurement unit responsible for the solicitation, contract award,
or other action that is the subject of the protestor's protest.
(g) The appointing officer shall, at the time the procurement appeals panel is
appointed, provide appeals panel members with a copy of the notice of appeal filed under
Subsection (2) and the protest decision record.
(6) (a) A procurement appeals panel described in Subsection (5):
(i) shall conduct an administrative review of the appeal within 30 days after the day on
which the procurement appeals panel is appointed, or before a later date that all parties agree
upon, unless the appeal is dismissed under Subsection (8)(a); and
(ii) (A) may, as part of the administrative review and at the sole discretion of the
procurement appeals panel, conduct an informal hearing, if the procurement appeals panel
considers a hearing to be necessary; and
(B) if the procurement appeals panel conducts an informal hearing, shall, at least seven
days before the hearing, mail, email, or hand-deliver a written notice of the hearing to the
parties to the appeal.
(b) A procurement appeals panel may, during an informal hearing, ask questions and
receive responses regarding the appeal and the protest appeal record to assist the procurement
appeals panel to understand the basis of the appeal and information contained in the protest
appeal record, but may not otherwise take any additional evidence or consider any additional
ground for the appeal.
(7) A procurement appeals panel shall consider and decide the appeal based solely on:
(a) the notice of appeal and the protest appeal record; and
(b) responses received during an informal hearing, if an informal hearing is held and to
the extent allowed under Subsection (6)(b).
(8) A procurement appeals panel:
(a) may dismiss an appeal if the appeal does not comply with the requirements of this
chapter; and
(b) shall uphold the protest decision unless the protest decision is arbitrary and
capricious or clearly erroneous.
(9) The procurement appeals panel shall, within seven days after the day on which the
procurement appeals panel concludes the administrative review:
(a) issue a written decision on the appeal; and
(b) mail, email, or hand-deliver the written decision on the appeal to the parties to the
appeal and to the protest officer.
(10) (a) The deliberations of a procurement appeals panel may be held in private.
(b) If the procurement appeals panel is a public body, as defined in Section 
52-4-103
,
the procurement appeals panel shall comply with Section 
52-4-205
 in closing a meeting for its
deliberations.
(11) A procurement appeals panel may continue an administrative review under this
section beyond the 30-day period described in Subsection (6)(a)(i) if the procurement appeals
panel determines that the continuance is in the interests of justice.
(12) If a procurement appeals panel determines that the decision of the protest officer is
arbitrary and capricious or clearly erroneous, the procurement appeals panel:
(a) shall remand the matter to the protest officer, to cure the problem or render a new
decision;
(b) may recommend action that the protest officer should take; and
(c) may not order that:
(i) a contract be awarded to a certain person;
(ii) a contract or solicitation be cancelled; or
(iii) any other action be taken other than the action described in Subsection (12)(a).
(13) The board shall make rules relating to the conduct of an appeals proceeding,
including rules that provide for:
(a) expedited proceedings; and
(b) electronic participation in the proceedings by panel members and participants.
(14) The Rules of Evidence do not apply to a hearing held by a procurement appeals
panel.
(15) Part 20, Records, applies to the records involved in the process described in this
section, including the decision issued by a procurement appeals panel.
Section 5. Section 
63G-6a-2501
 is enacted to read:
Part 25. Human Services Procurements
 63G-6a-2501.
Definitions.
As used in this part:
(1) "Department" means the Department of Health and Human Services.
(2) "Executive director" means the executive director of the department.
Section 6. Section 
63G-6a-2502
 is enacted to read:
 63G-6a-2502.
Procurement advisory council -- Appointment.
The executive director may appoint an advisory council to advise and make
recommendations to the department on the procurement of a human services procurement item,
including recommendations regarding persons to be debarred or suspended under Section
63G-6a-2504
.
Section 7. Section 
63G-6a-2503
 is enacted to read:
 63G-6a-2503.
Direct purchase procurement process requirements -- Payment
information on website.
(1) The department may, without issuing a solicitation, directly purchase from, or
contract with, another person for the following human services procurement items:
(a) medical, dental, behavioral, psychological, psychiatric, or substance use evaluation
and treatment for an individual;
(b) assistance payments on behalf of an individual that are intended to keep the
individual out of a higher level of care or prevent or reduce the need for additional department
services;
(c) services for which the individual receiving the services has the right to choose the
person who provides the services;
(d) services for which the department makes a written determination, made available to
the public, that the individual's need to receive services from a particular provider outweigh the
public interest in issuing a competitive procurement;
(e) adoption subsidy and maintenance payments;
(f) child placing services for an individual adoption;
(g) death investigation services; or
(h) residential treatment services for an individual after all providers under contract
from a competitive procurement are exhausted.
(2) The department shall:
(a) maintain a written record of the name of all persons who provide services under this
section; and
(b) annually publish on the department's website the total amount paid to each person
under this section during the immediately preceding five-year period.
Section 8. Section 
63G-6a-2504
 is enacted to read:
 63G-6a-2504.
Open enrollment procurement process requirements.
(1) The department may contract with another person for a human services
procurement item in accordance with the open enrollment invitation process described in this
section.
(2) (a) The department may issue an open enrollment invitation for applications to
provide the department a human services procurement item that includes:
(i) a description of the human services procurement item the department is seeking to
obtain;
(ii) the time period for which the invitation will remain open for applications;
(iii) the requirements for submission of an application;
(iv) the payment rate or a description of the process for determining the payment rate
for the human services procurement item;
(v) the requirements a provider is required to meet to be awarded a contract for the
human service procurement item; and
(vi) the required terms and conditions of a contract if awarded.
(b) The department shall publish the invitation in accordance with the notice
requirements for a solicitation described in Section 
63G-6a-2506
.
(c) The department may:
(i) keep an invitation open for an indeterminate or specified time period;
(ii) close an invitation if the need for additional providers for a human services
procurement item no longer exists; or
(iii) reissue an invitation after closing the invitation.
(d) The department may provide technical application assistance to a person applying
to an invitation.
(3) (a) Upon receipt of an application to an invitation, the department shall:
(i) review the application to determine compliance with the requirements described in
Subsection (2)(a);
(ii) award a contract to a person whose application complies with Subsection (2)(a);
and
(iii) reject an application that does not comply with Subsection (2)(a).
(b) If the department closes an invitation, the department may reject an application
submitted before the invitation is closed.
(c) The department may allow a person to correct deficiencies in an application during
the department's review of the application under Subsection (3)(a).
(4) If a person's application is rejected under Subsection (3):
(a) the department shall notify the person of the rejection in writing; and
(b) the person may not reapply to the same invitation for at least 12 months after the
day on which the rejection is issued.
(5) The department shall make rules to establish procedures to ensure the open
enrollment invitation process described in this section is administered in an open and fair
manner that provides any interested, qualified provider the ability to obtain a contract.
Section 9. Section 
63G-6a-2505
 is enacted to read:
 63G-6a-2505.
Debarred or suspension from consideration for award of contract.
(1) The executive director may:
(a) debar or suspend a person from consideration for award of contracts for a human
services procurement item for any amount of time in accordance with the process described in
Subsection 
63G-6a-904
(1); and
(b) obtain the recommendation of the council before debarring or suspending the
person.
(2) The council shall recommend that the executive director debar or suspend a person
for award of contracts for a human services procurement item if the person:
(a) is convicted of a criminal offense:
(i) for actions taken to obtain or perform under a public or private contract;
(ii) for embezzlement, fraud, theft, forgery, bribery, falsification or destruction of
records, or receiving stolen property; or
(iii) under Title 76, Chapter 10, Part 31, Utah Antitrust Act, or another antitrust law;
(b) fails, without good cause, to perform in accordance with the terms of a contract
with the department;
(c) commits two or more violations of department rules made in accordance with Title
63G, Chapter 3, Utah Administrative Rulemaking Act;
(d) violates this chapter;
(e) poses a significant risk of harm to department clients or the department;
(f) is barred or suspended from providing services to another governmental agency; or
(g) takes another action that the council determines is fraudulent or substantially affects
the person's ability to perform under a contract with the department for a human services
procurement item.
Section 10. Section 
63G-6a-2506
 is enacted to read:
 63G-6a-2506.
Public notice requirements.
(1) The department may post notice of a solicitation in accordance with Subsection
63G-6a-112
(1) at least three days before the day of the deadline for submission of a solicitation
response.
(2) The department may reduce the three-day period described in Subsection (1) in
accordance with Subsection 
63G-6a-112
(2).
Section 11. Section 
63G-6a-2507
 is enacted to read:
 63G-6a-2507.
Human services procurement appeals process.
(1) A protester may appeal a protest decision to the department in the same manner a
protest may be appealed to the board under Part 17, Procurement Appeals Board.
(2) In conducting an appeal under Subsection (1), the executive director has the same
powers and authority as the chair of the board and the appointing officer in an appeal
conducted under Part 17, Procurement Appeals Board, including the power to appoint a
procurement appeals panel to conduct a review of a claim in the appeal.