No. 40729 (New Rule): Rule R918-5. Construction or Improvement of Highway

(New Rule)

DAR File No.: 40729
Filed: 09/01/2016 04:32:52 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is required by Section 72-6-107 of the Transportation Code and is promulgated pursuant to Section 63G-3-301 of the Utah Administrative Rulemaking Act and Section 72-1-201.

Summary of the rule or change:

Section 72-6-107 requires construction or improvement projects with an estimated cost for labor and materials that exceeds the bid limit defined in Section 72-6-109 to be performed under contract awarded to the lowest responsible and responsive bidder. Construction or improvement projects with estimated costs for labor and materials lower than that bid limit may be performed by force account. Section 72-6-107 also directs the Department to establish a procedure whereby evidence that a region violated that law may be heard, and also directs the Department to establish sanctions for a region found to have violated Section 72-6-107. This rule establishes those procedures and sanctions.

Statutory or constitutional authorization for this rule:

• Section 72-6-107
• Section 72-6-109

Anticipated cost or savings to:

the state budget:

The Department does not anticipate that this rule will lead to additional costs or savings to the state's budget. Any fiscal impact that results due to enforcement of this rule will be internal to the Department.

local governments:

The Department does not anticipate that this rule will lead to additional costs or savings to the budgets of local governments. Any fiscal impact that results due to enforcement of this rule will be internal to the Department.

small businesses:

The Department does not anticipate that this rule will lead to additional costs or savings to the budgets of small businesses. Any fiscal impact that results due to enforcement of this rule will be internal to the Department.

persons other than small businesses, businesses, or local governmental entities:

The Department does not anticipate that this rule will lead to additional costs or savings to the budgets of persons other than small businesses, businesses, or local government entities. Any fiscal impact that results due to enforcement of this rule will be internal to the Department.

Compliance costs for affected persons:

Any compliance costs that result due to enforcement of this rule will be internal to the Department. Persons outside of the Department will not be affected by enforcement of this rule.

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

This rule will not have any fiscal impact on businesses.

Carlos Braceras, Executive Director

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

Transportation
Operations, Maintenance
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY, UT 84119-5998

Direct questions regarding this rule to:

• Christine Newman at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at [e-mail]
• James Palmer at the above address, by phone at 801-965-4000, by FAX at 801-965-4338, or by Internet E-mail at [e-mail]
• Michelle Jeronimo at the above address, by phone at 801-965-3883, by FAX at , or by Internet E-mail at [e-mail]
• Linda Hull at the above address, by phone at 801-965-4253, by FAX at , 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:

10/17/2016

This rule may become effective on:

10/24/2016

Authorized by:

Carlos Braceras, Executive Director

RULE TEXT

R918. Transportation, Operations, Maintenance.

R918-5. Construction or Improvement of Highway.

R918-5-1. Authority.

This rule is required by Section 72-6-107 of the Transportation Code and is promulgated pursuant to Section 63G-3-301 of the Utah Administrative Rulemaking Act and Section 72-1-201.

 

R918-5-2. Purpose and Background.

Section 72-6-107 requires that any construction or improvement project whose estimated cost for labor and materials exceeds the Bid Limit defined in Section 72-6-109 shall be performed under contract awarded to the lowest responsible bidder. Construction or improvement projects with estimated costs for labor and materials lower than that Bid Limit may be performed by force account. That same section also directs the Department to establish a procedure whereby evidence that a region violated that law may be heard, and also directs the Department to establish sanctions for a region found to be in violation. This rule establishes those procedures and sanctions.

 

R918-5-3. Definitions.

(1) "Bid Limit" is the dollar amount set forth in Section 72-6-109.

(2) "Department" or "UDOT" means the Utah Department of Transportation.

(3) "Region" means one of the four regions of the Utah Department of Transportation.

(4) "Project" means the performance of a clearly identifiable group of associated road construction activities or the same type of maintenance process, where the construction or maintenance is performed on any one road, within a half-mile proximity and occurs within the same calendar year.

 

R918-5-4. Process to Hear Evidence of Violations.

(1) There is established within the Department a "Bid Limit Hearing Board" (the Board), consisting of persons in the following positions:

(a) Director of Operations (Chair);

(b) Engineer for Construction;

(c) Engineer for Maintenance;

(d) Director of Project Development;

(e) UDOT Internal Auditor;

(f) One UDOT Region Director (appointed by the Deputy Director on a case-by-case basis); and

(g) Deputy Engineer for Maintenance (Secretary/Recorder, non-voting).

(2) Any person, corporation, government agency, or UDOT group, having reasonable evidence that a region violated any provision of Section 72-6-107, may request that the Board be convened to hear that evidence, by submitting a written request or complaint to the Department's Deputy Director.

(3) Upon receiving a complaint of an alleged violation, the Deputy Director shall direct the Board to convene by notifying the Chair that a complaint has been received.

(4) The Board shall convene no later than 30 days after the Deputy Director receives the complaint.

(5) During the hearing, the complainant shall present objective evidence that the estimated cost of the project for labor and materials exceeded the Bid Limit. The evidence shall include credible cost data to support the allegation. The accused region shall be afforded the opportunity to defend itself against any and all allegations by presenting credible evidence of its own.

(6) Having heard evidence from both parties, the Board shall privately deliberate on the evidence heard and return a decision either supporting the complainant's claim of a violation, or finding the claim unsubstantiated. The board's decision shall be based on a simple majority vote of the board. The Board shall then notify the Deputy Director of its decision and recommendation for sanction if appropriate.

(7) Upon receiving the Board's decision, the Deputy Director shall either dismiss an unsubstantiated claim or administer an appropriate sanction against the region in violation. The Deputy Director has discretion to administer either the standard sanction outlined in Section R918-5-5, or other appropriate corrective action.

 

R918-5-5. Standard Sanction for Violation.

The standard sanction for a region found in violation of the provisions of Section 72-6-107 by exceeding the Bid Limit for labor and materials, is a penalty to be taken from that region's operations budget (commonly known as the "Code 1" budget), and distributed equally among the other three regions. The standard amount of the penalty is the larger of: (1) the total cost of the project for labor and materials, less the Bid Limit in effect at the time the project began, or (2) $100,000.

 

KEY: maintenance, construction, improvement projects, bid limits

Date of Enactment or Last Substantive Amendment: 2016

Authorizing, Implemented, or Interpreted Law: 72-6-109; 72-6-107

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