No. 31981 (New Rule): R357-4. Government Procurement Private Proposal Program

DAR File No.: 31981
Filed: 09/30/2008, 06:34
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of the rule is to specify which portions of an initial proposal are public and which portions of an initial proposal are private records. The rule also outlines when a fee may be refunded and provides process timing requirements.

Summary of the rule or change:

The rule specifies which portions of an initial proposal are public and which portions are protected under the Government Records Management Act, as required by Section 63M-1-2403. The rule also sets forth conditions under which a portion of the fee due with an initial proposal may be refunded. The rule also sets forth time requirements for various steps within the proposal application review process.

State statutory or constitutional authorization for this rule:

Subsections 63M-1-2403(2)(c), 63M-1-2405(5), 63M-1-2406(1)(b), 63M-1-2408(1)(h)(i), 63M-1-2409(3)(f), and 63M-1-2410(3)(i)

Anticipated cost or savings to:

the state budget:

It is anticipated that detailed proposals will be accepted for projects which are provide a cost savings over the cost of current state services. Consequently, these projects will results in a net savings to the state budget.

local governments:

The government procurement private proposal program does not directly impact local government budgets.

small businesses and persons other than businesses:

The government procurement private proposal program provides more opportunities for small businesses to compete for current state services. Small businesses proposals which are accepted will generate additional business and revenue for the company.

Compliance costs for affected persons:

Compliance costs include the fee associated with any entity which chooses to submit an initial proposal.

Comments by the department head on the fiscal impact the rule may have on businesses:

Businesses whose detailed proposals are accepted will have the fiscal benefit of the additional business with the state. Jason P. Perry, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Governor
Economic Development
324 S State
5th Floor
SALT LAKE CITY UT 84111

Direct questions regarding this rule to:

Michael Sullivan at the above address, by phone at 801-538-8811, by FAX at 801-538-8888, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/14/2008

This rule may become effective on:

11/21/2008

Authorized by:

Jason Perry, Executive Director

RULE TEXT

R357.Governor, Economic Development.

R357-4.Government Procurement Private Proposal Program.

R357-4-1.Purpose.

The purpose of the administrative rule is to describe the required procedures for submission, review and processing of an initial proposal, fee, and a detailed proposal, and the preparation of a project agreement.

 

R357-4-2.Authority.

(1)These administrative rules are made pursuant to authority granted under 63M-1-2403(2)(c), 63M-1-2405(5), 63M-1-2406(1)(b), 63M-1-2408(1)(h)(i), 63M-1-2409(3)(f), and 63M-1-2410(3)(i).

 

R357-4-3.Definitions.

(1)Terms in these rules are used as defined in UCA 63M-1-2402.

 

R357-4-4.Initial and Detailed Proposal -- Protected and Public Portions.

(1)An initial proposal submitted to the Committee in accordance with UCA 63M-1-2405 is a protected record under UCA 63G-2-305, and shall be protected from all public disclosure during initial review by the Committee, the Governor's Office of Planning and Budget, the affected department and any directly affected state entity or school district.

(2)If the Committee determines to move forward with a project beyond the initial review, the following portions of an initial proposal shall be made public once the chief procurement officer initiates a procurement process in accordance with UCA 63G-6-408.5:

(a)conceptual description of the project;

(b)description of the economic benefit of the project to the state and the affected department;

(c)information concerning the products, services, and supplies currently being provided by the state, that are similar to the project;

(d)Notwithstanding the portions of an initial proposal that may be made public under this subsection, all proprietary information provided in an initial and detailed proposal shall remain a protected record under

UCA 63G-2-305.

(3)Portions of an initial proposal not excepted in subsection (2) shall remain a protected record under UCA 63G-2-305.Protected portions include but are not limited to:

(a)Trade secrets as defined in UCA 13-24-2;

(b)Commercial information or non-individual financial information satisfying the requirements of UCA 63G-2-305; and

(c)Other information submitted by a private entity and not excepted in subsection (2) that, if disclosed prior to the execution of a project agreement, would adversely affect the financial interest or bargaining position of the public entity in accordance with UCA 13-24-2.

(4)A private entity requesting protection from public disclosure under this rule must satisfy the requirements of Title 63G, Chapter 2, Government Records Access and Management Act upon submission of the initial proposal or the detailed proposal, including the statement of business confidentiality required by UCA 63G-2-309.

 

R357-4-5.Initial Proposal - Fee.

(1)A private entity submitting an initial proposal shall pay a fee when the initial proposal is submitted.

(2)The amount of the fee shall be based on one percent of the project cost estimate submitted with an initial proposal.The minimum fee shall be $5,000 and the maximum fee shall be $50,000.

(3)Forty percent of the fee shall be allocated to reviewing the private entity's initial proposal and shall be non-refundable.

(4)Thirty percent of the fee shall be allocated to reviewing a detailed proposal and shall be refunded if for any reason the Committee does not review the private entity's detailed proposal.

(5)Thirty percent of the fee shall be allocated to preparing a project agreement and shall be refunded if for any reason the director does not prepare a project agreement for the private entity.

 

R357-4-6.Process and Time Requirements.

(1)A private entity may submit an initial proposal for a project to the Committee at any time.Within 30 days after receipt, the Committee shall review the initial proposal and determine, in its sole discretion, whether to move forward with a project in accordance with UCA 63M-1-2406.If the Committee determines to move forward with the project, the Committee shall immediately submit a copy of the initial proposal to any affected department, directly affected state entity, school district and the Governor's Office of Planning and Budget.

(2)Within 30 days from receipt of the initial proposal, an affected department shall provide the Committee with any comment, suggestion or modification to the initial proposal or the project.The affected department shall include any comment, suggestion or modification from any directly affected state entity or school district that receives a copy of the proposal in accordance with Section 63M-1-2406(4).

(3)Within 30 days from receipt of the initial proposal, the Governor's Office of Planning and Budget shall prepare an economic feasibility report containing the information required by Section 63M-1-2406(3)(b).

(4)Within 30 days from the receipt of the comments, suggestions or modification from the affected department and the economic feasibility report, the Committee shall determine, in its sole discretion, whether to move forward with a project to the detailed proposal stage.If the Committee determines to move forward with the project, the Committee shall immediately submit a copy of the initial proposal, including any comment, suggestion or modification adopted by the Committee and incorporated into the initial proposal, to the chief procurement officer and the Executive Appropriations Committee, in accordance with Section 63M-1-2406(5), with any protected portions of the initial proposal clearly identified.

(5)The chief procurement officer shall take action under 63G-6-408.5 to initiate and complete a procurement process within 60 days from the receipt of the initial proposal, in compliance with Tile 63G, Chapter 56, Utah Procurement Code.

(6)The chief procurement officer shall review each detailed proposal submitted pursuant to such procurement process and submit each detailed proposal that complies with UCA 63M-1-2408(1) to the Committee for review and to the Governor's Office of Planning and Budget for the purpose of updating the economic feasibility report.

(7)Within 30 days from receipt of the updated economic feasibility report, the Committee shall determine, in its sole discretion, whether to approve the detailed proposal.If approved by the Committee, the board shall determine whether to approve the detailed proposal as soon as reasonably practicable.

(8)The affected department, directly affected state entity or school district may dispute the detailed proposal and submit any comment, suggestion or modification to the Committee and the Governor's Office of Planning and Budget within 15 days following the board's final decision.Within 15 days, the Governor's Office of Planning and Budget shall determine whether to proceed with a project agreement.

(9)If an appropriation or alternative funding is necessary for a project that is the subject of a detailed proposal, the Committee shall work with the office to submit, within 30 days following the board's final decision, a report requesting funding to the Governor's Office of Planning and Budget and the Executive Appropriations Committee detailing the position of the board, the affected department, directly affected state entity and the school district, as applicable. The filing of such report shall not interfere with the execution of the project agreement.

(10)Within 30 days from board and, if applicable, Governor's Office of Planning and Budget, approval of a detailed proposal, the director and the private entity shall, in good faith and in consultation with the affected department and a directly affected state entity or school district, prepare, negotiate and enter into a project agreement in accordance with Section 63M-1-2410.

(11)The review, processing and, if applicable, procurement of an initial proposal, a detailed proposal or a project agreement under this rule shall be subject to such time modification as the Committee may deem to be necessary to accommodate the specific needs of each project or to be in the best interests of the state.

 

KEY:procurment, purchasing, Private Proposal Program

Date of Enactment of Last Subsatantive Amendmemnt:2008

Authorizing, and Implemented or Interpreted Law:63M-1-2403(2)(c); 63M-1-2405(5); 63M-1-2406(1)(b); 63M-1-2408(1)(h)(i); 63M-1-2409(3)(f); and 63M-1-2410(3)(i)