No. 30590 (Repeal and Reenact): R131-4. Procurement of Construction

DAR File No.: 30590
Filed: 10/15/2007, 08:43
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is promulgated pursuant to Subsection 63C-9-301(4) which directs the board to adopt procurement rules substantially similar to the requirements of the Utah Procurement Code, Title 63, Chapter 56.

Summary of the rule or change:

Section 63C-9-301 provides for and authorizes the State Capitol Preservation Board to adopt rules governing, administering, and regulating the State Capitol Hill facilities and grounds. This rewritten rule retains the information for the procurement of construction rule and incorporates substantially similar requirements of the Utah Procurement Code, meets the Government Records Access and Management Act (GRAMA) requirements, provides increased economy in Capitol Preservation Board procurement activities, and fosters effective broad-based competition within the free enterprise system.

State statutory or constitutional authorization for this rule:

Section 63C-9-301

Anticipated cost or savings to:

the state budget:

Pursuant to state statute, the board is implementing regulatory requirements that currently exist. The other changes in the rule have no fiscal impact because they relate to how items are procured and not the actual cost of the items.

local governments:

Pursuant to state statute, the board is implementing regulatory requirements that currently exist. The other changes in the rule have no fiscal impact because they relate to how items are procured and not the actual cost of the items.

small businesses and persons other than businesses:

Pursuant to state statute, the board is implementing regulatory requirements that currently exist. The other changes in the rule have no fiscal impact because they relate to how items are procured and not the actual cost of the items.

Compliance costs for affected persons:

Pursuant to state statute, the board is implementing regulatory requirements that currently exist. The other changes in the rule have no fiscal impact because they relate to how items are procured and not the actual cost of the items.

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

The actions of the Capitol Preservation Board do not affect businesses. David Hart, AIA, Executive Director

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

Capitol Preservation Board (State)
Administration
Room E110 EAST BUILDING
420 N STATE ST
SALT LAKE CITY UT 84114-2110

Direct questions regarding this rule to:

Sarah Whitney at the above address, by phone at 801-538-3074, by FAX at 801-538-3221, 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:

12/03/2007

This rule may become effective on:

12/10/2007

Authorized by:

David H. Hart, AIA, Executive Director

RULE TEXT

R131. Capitol Preservation Board (State), Administration.

[R131-4. Procurement of Construction.

R131-4-1. Purpose and Authority.

In accordance with the Utah procurement code, this rule establishes procedures for the procurement of construction by the Capitol Preservation Board (Board).

 

R131-4-2. Definitions.

(1) In addition to terms defined in the Utah procurement code:

(a) "Acceptable Bid Security" means either:

(i) A bid bond which meets the requirements of this rule; or

(ii) A cashier's or certified check.

(b) "Cost Data" means factual information concerning details; including expected monetary values for labor, material, overhead, and other pricing components which the contractor has included, or will include as part of performing the contract.

(c) " Executive Director" means the Executive Director of the Board, including, unless otherwise stated, his duly authorized designee.

(d) "Emergency Condition" means a situation which creates a threat to public safety, health, or welfare that is caused by flood, epidemic, riot, natural disaster, war, etc. that results in/or has the likely potential to result in destruction of property, building or equipment failures; or any other urgent condition proclaimed by an authorized government official.

(e) "Established Market Price" means a current price, resulting from the usual and ordinary course of trade between buyers and sellers, which can be substantiated from sources independent of the manufacturer or supplier.

(f) "Price Data" means factual information concerning prices for supplies, services, or construction substantially identical to those being procured. Prices in this definition refer to offered or proposed selling prices and includes data relevant to both prime and subcontract prices.

(g) "Procuring Agencies" means, individually or collectively, the state, the Board, the owner and a using agency, if any.

(h) "Products" means and includes materials, systems and equipment that are components of a construction project.

(i) "Proprietary Specification" means a specification which uses a brand name to describe the standard of quality, performance, and other characteristics needed to meet the procuring agencies' requirements.

(j) "Specification" means terms that describe the physical, functional or performance characteristics, of a supply or construction item. It may include requirements for inspecting, testing, or the preparation of supply or construction items for delivery or use in the construction process.

(k) "State" means the State of Utah.

(l) "Subcontractor" means any person who has a contract with any person other than the procuring agency to perform any portion of the work on a project.

(m) "Work" means the furnishing of labor or materials, or both.

 

R131-4-3. Competitive Sealed Bidding.

(1) General. Competitive sealed bidding, including multi-step sealed bidding, shall be an allowable method for the procurement of construction when a single prime contractor is used. Other methods may be considered as extenuating circumstances occur.

(2) Public Notice to Contractors of Invitations For Bids.

(a) Public notice to contractors of Invitations For Bids shall be publicized in a newspaper having general circulation in the state; and may be publicized in any or all of the following as determined appropriate:

(i) In a newspaper having general circulation in the area in which the project is located;

(ii) In appropriate trade publications;

(iii) By electronic means; or

(iv) By any other method determined appropriate.

(b) A copy of the public notice shall be available for public inspection at the principal office of the Board in Salt Lake City, Utah.

(3) Content of the Public Notice to Contractors for Invitation For Bids. The public notice to Contractors for Invitation For Bids (herein referred to as the "Notice") shall include the following:

(a) The closing time and date for the submission of bids;

(b) The address of the office to which bids are to be delivered;

(c) The address where the bidding documents may be obtained;

(d) A brief description of the project;

(e) Notice of any mandatory pre-bid meetings.

(4) Bidding Time. Bidding time is the period of time between the date of the first publication of the notice and the final date and time set for the receipt of bids by the Board. Bidding time shall be set to provide bidders with reasonable time to prepare their bids, and shall be not less than ten calendar days, unless a shorter time is deemed necessary for a particular project as determined in writing by the Executive Director.

(5) Proposal Form. The bidding documents for an Invitation For Bids shall include a proposal form having a space in which the bid prices shall be inserted and which the bidder shall sign and submit along with all other required documents and materials.

(6) Addenda to the Bidding Documents.

(a) Addenda shall be provided to all entities known to have obtained bidding documents for a project.

(b) Addenda shall be distributed within a reasonable time to allow all prospective bidders to consider them in preparing bids. If the time set for the final receipt of bids will not permit appropriate consideration, the bidding time shall be extended to allow proper consideration of the addenda. The person responsible for the issuance of bidding documents shall confirm in writing, any addenda communicated to bidders by telephone.

(7) Pre-Opening Modification or Withdrawal of Bids.

(a) Bids may be modified or withdrawn by the bidder by written notice delivered to the place designated in the notice when bids are to be delivered prior to the time set for the opening of bids.

(b) Bid security, if any, shall be returned to the bidder when withdrawal of the bid is permitted.

(c) All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate project file.

(8) Late Bids, Late Withdrawals, and Late Modifications. Any bid, withdrawal of bid, or modification of bid received after the time and date set for the submission of bids at the place designated in the notice shall be deemed to be late and shall not be considered, unless it is the only bid received in which case it may be considered.

(9) Receipt, Opening, and Recording of Bids.

(a) Upon receipt, all bids and modifications shall be stored in a secure place until the time for bid opening.

(b) Bids and modifications shall be opened publicly, in the presence of one or more witnesses, at times and places designated in the notice. The names of the bidders, the bid price, and other information deemed appropriate by the Executive Director shall be read aloud or otherwise made available to the public. After the bid opening, the bids shall be tabulated or a bid abstract made. The name and address of at least one witness shall be recorded in the official minutes of the bid opening meeting. The opened bids shall be available for public inspection.

(10) Mistakes in Bids.

(a) If a mistake is attributable to an error in judgment, the bid may not be corrected. Bid correction or withdrawal by reason of an inadvertent, nonjudgmental mistake is permissible but only at the discretion of the Executive Director and only to the extent it is not contrary to the interest of the Board or the fair treatment of other bidders.

(b) When it appears from a review of the bid that a mistake may have been made, the Executive Director may request the bidder to confirm the bid in writing. Situations in which confirmation may be requested include obvious, apparent errors on the face of the bid or a bid lower than the other bids submitted that appears to have neglected some part of the project.

(c) Mistakes at Bid Opening: The Director shall weigh the types of factors described below in which mistakes in bids are discovered after opening but before award. After the bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the procuring agencies or fair competition shall be permitted. These include:

(i) Minor formalities are matters which, at the discretion of the Board or Executive Director, are found to be of form rather than substance evident from the bid document, or are insignificant mistakes that can be waived or corrected without prejudice to other bidders and with respect to which, in the Executive Director's discretion, the effect on price, quantity, quality, delivery, or contractual conditions is not or will not be significant. The Executive Director may waive minor formalities or allow the bidder to correct them depending on which is in the best interest of the procuring agencies. Examples include the failure of a bidder to:

(A) Sign the bid, but only if the unsigned bid is accompanied by other material indicating the bidder's intent to be bound;

(B) Acknowledge receipt of any addenda to the Invitation For Bids, but only if it is clear from the bid that the bidder received the addenda and intended to be bound by its terms; the addenda involved had a negligible effect on price, quantity, quality, or delivery; or the bidder acknowledged receipt of the addenda at the bid opening.

(ii) A determination by the Executive Director that the mistake and the intended bid are clearly evident on the face of the bid document. The bid shall be corrected to reflect the intent of the bidder, and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.

(iii) Approval to withdraw a low bid if the Executive Director determines a mistake is clearly evident on the face of the bid document but the intended amount of the bid is not similarly evident, or if the bidder submits to the Board proof of evidentiary value which, in the Executive Director's best judgment, clearly and convincingly demonstrates that a mistake in calculation or estimation was made.

(d) No bidder shall be allowed to correct a mistake or withdraw a bid because of a mistake discovered after award of the contract; provided, that mistakes of the types described in this rule may be corrected or the award of the contract canceled if the Executive Director determines that correction or cancellation will not prejudice the interests of the procuring agencies or fair competition.

(e) The Executive Director shall approve in writing, all requests to correct or withdraw a bid, which may be finalized after the receipt of the bidder's written request for correction or withdrawal.

(11) Bid Evaluation and Award. Except as provided below, the contract may be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the bidding documents.

(12) Cancellation of Invitations For Bids; Rejection Of Bids in Whole or In Part.

(a) Although issuance of an Invitation For Bids does not compel award of a contract, the Board may cancel an Invitation For Bids or reject bids received in whole or in part when the Executive Director determines that it is in the best interests of the state to do so.

(b) The reasons for cancellation or rejection shall be documented and made a part of the project file and available for public inspection. Any determination of nonresponsibility of a bidder or offeror shall be made by the Executive Director in writing. An unreasonable failure of the bidder or offeror to promptly supply information regarding responsibility may be grounds for a determination of nonresponsibility. Any bidder or offeror determined to be nonresponsible shall be provided with a copy of the written determination within a reasonable time. Information furnished by a bidder or offeror pursuant to any inquiry concerning responsibility shall not be disclosed to the public by the Board without the prior written consent of the bidder or offeror.

 

R131-4-4. Multi-Step Sealed Bidding.

(1) Description. Multi-step sealed bidding is a two-phase process. In the first phase, bidders shall submit unpriced technical offers to be evaluated. In the second phase, bidders whose technical offers are determined to be acceptable during the first phase shall be invited to submit price bids.

(2) Use. Multi-step sealed bidding may be used:

(a) to invite and evaluate technical offers or statements of qualifications to determine their acceptability to fulfill the purchase description requirements;

(b) to conduct discussions of the technical offer, obtain supplemental information or amend technical offers or the purchase description prior to soliciting priced bids; or

(c) to award the contract to the lowest responsive and responsible bidder in accordance with the competitive sealed bidding procedures.

(3) Pre-Bid Conferences In Multi-Step Sealed Bidding. The Board of Executive Director may hold one or more pre-bid conferences prior to the submission of unpriced technical offers or at any time during the evaluation of the unpriced technical offers.

(4) Procedure for Phase One of Multi-Step Sealed Bidding.

(a) Public Notice. Multi-step sealed bidding shall be initiated by a Public Notice to Contractors for Invitation for Bids.

(b) Invitation for Bids. The multi-step Invitation for Bids shall state:

(i) that unpriced technical offers are requested;

(ii) that either price bids are to be submitted at the same time as unpriced technical offers; or in a separate sealed envelope;

(iii) that it is a multi-step sealed bid procurement, and priced bids will be considered only in the second phase and only from those bidders whose unpriced technical offers are found acceptable in the first phase;

(iv) the criteria to be used in the evaluation of the unpriced technical offers;

(v) that the Executive Director may conduct oral or written discussions of the unpriced technical offers; or

(vi) that bidders may designate those portions of the unpriced technical offers which contain trade secrets or other proprietary data which are to remain confidential. If the Offeror selected for award has requested in writing the non-disclosure of trade secrets and other proprietary data so identified, the Executive Director shall examine the request in the proposal to determine its validity prior to award of the contract. If the parties do not agree as to the disclosure of data in the contract, the Executive Director shall inform the offeror in writing what portion of the proposal will be disclosed and that, unless the offeror withdraws the proposal, it will be disclosed.

(c) Amendments to the Invitation for Bids. After receipt of unpriced technical offers, amendments to the Invitation for Bids shall be distributed only to bidders who submitted unpriced technical offers and they shall be allowed to submit new unpriced technical offers or to amend those submitted. The Executive Director may amend the proposed procurement, cancel the Invitation for Bids in accordance with this rule, and may issue a new Invitation for Bids.

(d) Receipt and Handling of Unpriced Technical Offers. Proposals shall be opened publicly, identifying only the names of the offerors. After the date established for receipt of proposals, a register of proposals shall be open to public inspection and shall include for all proposals the name of each offeror, the number of addenda received, if any, and a description sufficient to identify the item offered. Proposals of the successful offeror shall be open to public inspection for a period of 90 days after award of the contract. Proposals of offerors who are not awarded contracts shall not be open to public inspection.

(e) Evaluation of Unpriced Technical Offers. The unpriced technical offers submitted by contractors interested in bidding shall be evaluated by an Evaluation Committee selected by the Board, which shall determine a short list of contractors for participation in the second phase. Contractors will be selected according to formula scores of the technical offers, using board criteria. If in the Evaluation Committee's opinion, the variation in scores are so great that the lower scored contractor's qualifications are inferior to those who scored higher, the Evaluation Committee may chose to select a short list of less than eight, but no less than three.

(f) Discussion of Unpriced Technical Offers. Discussion of technical offer may be conducted with the bidder. During the course of discussions, any information derived from one unpriced technical offer shall not be disclosed to any other bidder. Once discussions are begun, only a bidder who has been notified that its technical offer is acceptable and has been short-listed may submit supplemental information modifying or otherwise amending its technical offer until the closing date established by the Executive Director at the request of the Executive Director or upon the bidder's own initiative.

(g) Notice of Unacceptable Unpriced Technical Offer. When the Executive Director determines a bidder's unpriced technical offer to be unacceptable, he shall notify the bidder, who shall not be given an additional opportunity to supplement technical offers.

(5) Mistakes During Multi-Step Sealed Bidding. Mistakes may be corrected or bids may be withdrawn during phase one:

(a) before unpriced technical offers are considered;

(b) after any discussions have commenced under this rule, or

(c) when responding to any amendment of the Invitation for Bids. Otherwise mistakes may be corrected or withdrawal permitted in accordance with this rule.

(6) Carrying Out Phase Two.

(a) Initiation. Upon the completion of phase one, the Executive Director shall either:

(i) open price bids submitted in phase one (if price bids were required to be submitted) from bidders whose unpriced technical offers were found to be acceptable; provided, however, that the offers have remained unchanged, and the Invitation for Bids has not been amended subsequent to the submittal of the bids; or

(ii) invite each acceptable bidder to submit a price bid in accordance to schedule set by the Executive Director.

(b) Conduct. Phase two shall be conducted as any other competitive sealed bid procurement except:

(i) as specifically set forth in this rule ; and

(ii) no public notice will be provided about this invitation to submit.

 

R131- 4-5. Competitive Sealed Proposals.

(1) Considerations for Use. Competitive sealed proposals may be used, if:

(a) there may be a need for price and service negotiation;

(b) there may be a need for negotiation during performance of the contract;

(c) the relative skills or expertise of the offerors should be evaluated;

(d) cost is secondary to the characteristics of the product or service sought; or

(e) the conditions of the service, product or delivery conditions are unable to be sufficiently described in the invitation for Bids.

(2) Determinations.

(a) Except as provided in the Utah procurement code, before a contract may be entered into by competitive sealed proposals, the Executive Director shall determine in writing that the use of competitive sealed proposals is more advantageous for state purposes than competitive sealed bidding.

(b) Determinations may be by category of service or construction items. The Executive Director may modify or revoke a determination and may review previous determinations for current applicability at any time.

(3) Public Notice. Public notice of the Request for Proposals shall be given in the same manner provided for giving public notice of an Invitation for Bids, as provided by this rule.

(4) Proposal Preparation Time. Proposal preparation time is the period of time between the date of first publication of the notice and the date and time set for the receipt of proposals by the Board. For each project, a proposal preparation time-frame shall be included to provide offerors a reasonable time to prepare their proposals, not less than ten calendar days, unless a shorter time is deemed necessary.

(5) Form of Proposal. The Request for Proposals may state the manner in which proposals are to be submitted, including any forms for that purpose.

(6) Addenda to Requests for Proposals. Addenda to the requests for proposals may be made in the same manner provided for addenda to the bidding documents in connection with Invitations for Bids by this rule. Addenda may also be issued to qualified proposers after the deadline for proposals and prior to the deadline for best and final offers.

(7) Modification or Withdrawal of Proposals. Proposals may be modified or withdrawn prior to the established due date. For the purposes of this rule, the established due date will be either the date and time announced for receipt of proposals or receipt of modifications to proposals, if any; or if discussions have begun, it is the date and time by which best and final offers must be submitted, provided that only offerors who submitted proposals by the time announced for receipt of proposals may submit best and final offers.

(8) Late Proposals, Late Withdrawals, or Late Modifications: Except for modifications allowed pursuant to negotiation, any proposal, withdrawal, or modification received at the place designated for receipt of proposals after the established due date as defined in this rule shall be deemed to be late and shall not be considered unless there are no other offerors.

(9) Receipt and Registration of Proposals.

(a) Proposals shall be opened publicly, and shall only identify the names of the offerors in public. Proposals and modifications shall be held in a secure place until the established due date. After the date established for receipt of proposals, a register of proposals shall be open to public inspection and shall include for all proposals the name of each offeror, the number of addenda received, if any, and a description sufficient to identify the supply, service, or construction item offered. Prior to award, proposals and modifications shall be shown only to procurement and other officials involved with the review and selection of proposals.

(b) Proposals of the successful offeror shall be open to public inspection after award of the contract. Proposals of offerors who are not awarded contracts shall not be open to public inspection.

(c) If the offeror selected for award has requested in writing the non-disclosure of trade secrets and other proprietary data so identified, the Executive Director shall examine the request in the proposal to determine its validity prior to award of the contract. If the parties do not agree as to the disclosure of data in the contract, the Executive Director shall inform the offeror in writing what portion of the proposal will be disclosed and that, unless the offeror withdraws the proposal, it will be disclosed.

(10) Evaluation of Proposals.

(a) Evaluation Factors in the Request for Proposals. The Request for Proposals shall state all of the evaluation factors and their relative importance including price.

(b) Evaluation. The evaluation shall be based on the evaluation factors set forth in the request for proposals. Numerical rating systems may be used but are not required.

(c) Classifying Proposals. Proposals shall be initially classified as:

(i) Acceptable;

(ii) Potentially acceptable, that is, having the possibility of being made acceptable; or

(iii) Unacceptable. Offerors whose proposals are unacceptable shall be so notified.

(11) Proposal Discussions with Individual Offerors.

(a) "Offerors" means only those persons submitting proposals that are acceptable or potentially acceptable, the number of which may be limited to no less than the two best proposals. This shall not include persons who submitted unacceptable proposals.

(b) Purposes of Discussions. Discussions may be held in order to:

(i) review the procuring agency's requirements and the offerors' proposals; and

(ii) Facilitate the development of a contract that will be most advantageous to the board, taking into consideration price and other evaluation factors listed in the request for proposals.

(c) Conduct of Discussions. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals. There shall be no disclosure of any information derived from proposals submitted by competing offerors. Any oral clarification or change of a proposal shall be reduced to writing by the offeror.

(12) Best and Final Offers. The Executive Director shall establish a common time and date to submit best and final offers. These shall be submitted only once unless the Executive Director makes a written determination before each subsequent round of best and final offers that another round is in the best interest of the state, and additional discussions will be conducted or the requirements may be changed. Otherwise, no discussion of, or changes in the best and final offers shall be allowed prior to award. If offerors do not submit a notice of withdrawal or another best and final offer, their immediate previous offer will be construed as their best and final offer.

(13) Mistakes in Proposals.

(a) Mistakes discovered before the established due date. An offeror may correct mistakes discovered before the time and date established for receipt of proposals by withdrawing or correcting the proposal as provided in this rule.

(b) Confirmation of proposal. When it appears from a review of the proposal before an award is made, that a mistake has been made, the offeror shall be asked to confirm the proposal. If the offeror alleges that a mistake occurred, the proposal may be corrected or withdrawn during any discussions that are held or the conditions listed below, by this rule, are met.

(c) Mistakes discovered after receipt but before award. This subsection defines procedures to be applied in four situations in which mistakes in proposals may be discovered after receipt of proposals but before award.

(i) During discussions; prior to best and final offers. Once discussions are commenced with any offeror or after best and final offers are requested, any offeror may freely correct any mistake by modifying or withdrawing the proposal until the time and date set for receipt of best and final offers.

(ii) Minor formalities. Minor formalities, unless otherwise corrected by an offeror as provided in this section, shall be treated in accordance with this rule.

(iii) Corrections of mistakes. If discussions are not held or if the best and final offers upon which award will be made have been received, mistakes may be corrected and the correct offer considered only if:

(A) the mistakes and the correct offer are clearly evident on the face of the proposal in which event the proposal may not be withdrawn;

(B) the mistake is not clearly evident on the face of the proposal, but the offeror submits proof of evidentiary value which clearly and convincingly demonstrates both the existence of a mistake and the correct offer, and the correction of the mistake would not be contrary to the fair and equal treatment of other offerors.

(iv) Withdrawals of proposals. If discussions are not held, or if the best and final offers upon which award will be made have been received, offeror may be permitted to withdraw a proposal if:

(A) a mistake was made that is clearly evident on the face of the proposal and the intended amount of the offer is not evident; or

(B) the offeror submits proof of evidentiary value which clearly and convincingly demonstrates that a mistake was made that it does not demonstrate the correct offer or, if the correct offer is also demonstrated, to allow correction on the basis the proof provided would not be contrary to the fair and equal treatment of other offerors.

(d) Mistakes discovered after award. A offeror shall be bound to all terms, conditions and statements in offeror's proposal after award of the contract.

(14) Award.

(a) Award Documentation. A written determination shall be made showing the basis on which the award was found to be most advantageous to the state based on the factors set forth in the Request for Proposals.

(b) One proposal received. If only one proposal is received in response to a Request for Proposals, the Executive Director may make an award or, if time permits, resolicit for the purpose of obtaining additional competitive sealed proposals.

(15) Publicizing Awards. After a contract is entered into, notice of award shall be available in the principal office of the Board.

 

R131-4-6. Bids Over Budget.

(1) In the event all bids for a construction project exceed available funds as certified by the appropriate fiscal officer, and the low responsive and responsible bid does not exceed those funds by more than 5%, the Executive Director may, where time or economic considerations preclude resolicitation of work of a reduced scope, negotiate an adjustment of the bid price, including changes in the bid requirements, with the low responsive and responsible bidder in order to bring the bid within the amount of available funds.

(2) As an alternative to the procedure authorized in (1) above, when all bids for a construction project exceed available funds as certified by the Executive Director, and the Executive Director finds that due to time or economic considerations the re-solicitation of a reduced scope of work would not be in the interest of the state, the Executive Director may negotiate an adjustment in the bid price using one of the following methods:

(a) reducing the scope of work in specific subcontract areas and supervising the re-bid of those subcontracts by the low responsive and responsible bidder;

(b) negotiating with the low responsive and responsible bidder for a reduction in scope and cost with the value of those reductions validated in accordance with this rule; or

(c) revising the contract documents and soliciting new bids only from bidders who submitted a responsive bid on the original solicitation. This re-solicitation may have a shorter bid response time than may have been otherwise required.

(3) The use of one of the alternative procedures provided for in subsection (2) must provide for the fair and equitable treatment of bidders.

(4) The Executive Director's written determination, including a brief explanation of the basis for the decision shall be included in the contact file.

(5) This rule does not restrict in any way, the right of the Executive Director to use any emergency or sole source procurement provisions, or any other applicable provisions of State law or rule which may be used to award the construction project.

 

R131-4-7. Small Purchases.

(1) Procurements of $100,000 or Less.

(a) The Executive Director may make procurements of construction estimated to cost $100,000 or less by soliciting at least two firms to submit written quotations.

(b) The names of the persons submitting quotations and the date and amount of each quotation shall be recorded and maintained as a public record by the Board.

(2) Procurements of $25,000 or Less. The Executive Director may make small purchases of construction of $25,000 or less in any manner that he shall deem to be adequate and reasonable.

 

R131-4-8. Sole Source Procurement.

(1) Conditions for Sole Source Procurement.

The procedures concerning sole source procurement in this rule may be undertaken if, in the discretion of the Executive Director, a product or service is more reasonably available only from a single source. Examples of circumstances which could also necessitate sole source procurement are:

(a) compatibility of product design, equipment, accessories, or replacement parts is of paramount consideration;

(b) trial use or testing; and

(c) procurement of public utility services.

(2) Written Determination. The determination as to whether a procurement shall be a sole source shall be made by the Executive Director and shall be in writing.

(3) Negotiation in Sole Source Procurement. The Executive Director shall negotiate with the sole source vendor for considerations of price, delivery, and other terms.

 

R131-4-9. Emergency Procurements.

(1) Authority to Make Emergency Procurements.

(a) The Board Executive Director shall make emergency procurements of construction when, in the Executive Director's determination, an emergency condition exists or will exist and the need cannot be met through normal procurement methods.

(b) The competitive sealed bidding process or the request for proposal process shall be considered unsuccessful when all bids received pursuant to an Invitation For Bids are nonresponsive, unreasonable, noncompetitive, or when the low bid exceeds available funds as certified by the appropriate fiscal officer, and time or other circumstances will not permit the delay required to resolicit competitive sealed bids. If an unsuccessful attempt to use competitive sealed bidding occurs, an emergency procurement may be made.

(3) An emergency procurement process may be used to assure that required goods and services are available to meet a given need, and the Executive Director may employ such competitive methods as are practicable and in the best interest of the state.

(6) Specifications. For emergency procurements, the Executive Director may use any appropriate specifications without being subject to the requirements of this rule.

(7) Required Construction Contract Clauses. For emergency procurements, the Executive Director may modify or exclude construction contract clauses otherwise required by this rule.

(8) Written Determination. The Executive Director shall make a written determination stating the basis for each emergency procurement and for the selection of the particular source. This determination shall be included in the project file.

 

R131-4-10. Qualifications of Contractors.

(1) Pre-Bidding Requirements. The following documents must be on file with the Board before the bidding documents for a project may be issued to prospective bidders.

(a) If the type of work involved with the project requires a contractor's license, a photocopy of the bidder's current Utah contractor's license showing date issued, expiration date, bid limit amount or similar restriction, and the class of work for which licensed;

(b) A statement from the bidder's surety stating that it will bond the bidder for an amount at least equal to the estimated cost of the contract as determined by the Executive Director. This requirement can be met by having the surety file an annual statement with the Board showing the bonding limit it has established for the bidder.

(2) A form of surety statement and, when applicable, a form for prequalification, are available at the principal office of the Board.

(3) Project Specific Requirements. The Board may include additional qualification requirements in the bidding documents as may be appropriate for a specific project.

 

R131-4-11. Acceptable Bid Security; Performance and Payment Bonds.

(1) Application. This section shall govern bonding and bid security requirements for the award of construction contracts by the Board in excess of $50,000; although acceptable bid security and performance and payment bonds may be required on any construction contract regardless of size. Bidding Documents shall state whether acceptable bid security, performance bonds or payment bonds are required.

(2) Acceptable Bid Security.

(a) Invitations for Bids on construction contracts shall require the submission of acceptable bid security in an amount equal to at least five percent of the bid, at the time the bid is submitted. If a contractor fails to accompany its bid with acceptable bid security, the bid shall be deemed nonresponsive, unless this failure is found to be nonsubstantial as hereinafter provided.

(b) If acceptable bid security is not furnished, the bid shall be rejected as nonresponsive, unless the failure to the comply is determined by the Executive Director to be nonsubstantial. Failure to submit an acceptable bid security in connection with an Invitation For Bids shall be deemed nonsubstantial where only one bid is received, and there is not sufficient time to rebid the contract.

(3) Payment and Performance Bonds. Payment and performance bonds are required for all contracts in excess of $50,000, in the amount of 100% of the contract price. These bonds shall cover the procuring agencies and shall be delivered by the contractor to the Board at the same time the contract is executed. If a contractor fails to deliver the required bonds, the contractor's bid shall be found nonresponsive and its bid security shall be forfeited.

(4) Forms of Bonds. Bid Bonds, Payment Bonds and Performance Bonds must be from sureties meeting the requirements of this rule and must be on the exact bond forms most recently adopted by the Board and on file with the Board.

(5) Surety firm requirements. All surety firms must be authorized to do business in the State of Utah and be listed in the U.S. Department of the Treasury Circular 570, Companies Holding Certificates of Authority as Acceptable Securities on Federal Bonds and as Acceptable Reinsuring Companies for an amount not less than the amount of the bond to be issued. A co-surety may be utilized to satisfy this requirement.

(6) Waiver. The Executive Director may waive the bonding requirement if he finds that bonds cannot be reasonably obtained for the work involved, which finding shall be documented in the project files.

 

R131-4-12. Methods of Construction Contract Management.

(1) Application. This section contains provisions applicable to the selection of the appropriate type of construction contract management.

(2) Flexibility. The Executive Director may devise an appropriate construction contract management method for a particular project that will best meet the needs of the Board. The methods outlined in this rule are not an exclusive list.

(3) Selection. The Executive Director shall be expected to consider the results achieved on similar projects in the past and the methods used, other appropriate and effective methods, and how a method could be adapted or combined to meet the needs of the state.

(4) Criteria. Before choosing the construction contracting method, some factors that may be considered include:

(a) when the facility must be ready for occupancy;

(b) the type of project, for example, housing, offices, labs, heavy or specialized construction;

(c) the extent to which the requirements of the occupants are known;

(d) the location of the project;

(e) the size, scope, complexity, and economics of the project;

(f) the amount and type of financing available for the project, including whether the budget is fixed, the source of funding, general or special appropriation, federal assistance moneys, general obligation bonds or revenue bonds;

(g) the availability, qualification, experience, and available time of assigned State personnel to the project;

(h) the availability, experience and qualifications of outside consultants and contractors.

(5) General Descriptions.

(a) Application of Descriptions. The following descriptions are provided for the more common contracting methods. The methods described are not mutually exclusive and may be combined on a project. These descriptions are not intended to be fixed for all construction projects of the State. In each project, these descriptions may be adapted to fit the circumstances of that project.

(b) Single Prime Contractor. The single prime contractor method is typified by one business entity acting as a general contractor with the state to complete an entire construction project in accordance with drawings and specifications provided by the state within a defined time period. Generally the drawings and specifications are prepared by an architectural or engineering firm under contract with the state. Further, while the general contractor may take responsibility for successful completion of the project, much of the work may be performed by specialty contractors with whom the prime contractor has entered into subcontracts.

(c) Multiple Prime Contractors. Under this method, the Board or the Board's agent shall contract directly with a number of specialty contractors to complete portions of the project in accordance with the Board's drawings and specifications. The Board or its agent may have primary responsibility for successful completion of the entire project, or the contracts may provide that one of the multiple prime contractors shall have this responsibility.

(d) Design-Build. In a design-build project, a business entity shall contract directly with the Board to meet requirements described in a set of performance specifications. Both the design and construction responsibilities are assumed by the design-build contractor. This method can include instances where the design-build contractor supplies the site as part of the package.

(e) Construction Manager. A Construction Manager, including a Construction Manager/General Contractor, shall be selected in accordance with the Utah Procurement Code. A construction manager shall be experienced in construction, have the ability to evaluate and to implement drawings and specifications as they affect time, cost, and quality of construction and the ability to coordinate the construction of the project, including the addition of change orders. A contract with a construction manager may be issued early in a project to assist in the development of a cost effective design. The construction manager may be appointed the single prime contractor, or may be required to guarantee that the project will be completed by a specified time, and not to exceed a specified maximum price. The procurement of a construction manager may be based, among other criteria, on proposals for a management fee which is either a lump sum or a percentage of construction costs with a guaranteed maximum cost or, on proposals for a lump sum or guaranteed maximum cost for the construction of the project. The contract with the construction manager may also provide for a sharing of any savings which are achieved below the guaranteed maximum cost. When entering into any subcontract that was not specifically included in the Construction Manager/General Contractor's cost proposal, the Construction Manager/General Contractor shall procure that subcontractor in accordance with the Utah Procurement Code in the same manner as if the subcontract work was procured directly by the Board.

(f) Sequential Design and Construction. Sequential design and construction is a method whereby design of substantially the entire structure is completed prior to beginning the construction process.

(g) Phased Design and Construction. Phased design and construction is a method whereby construction is begun when appropriate portions have been designed but before design of the entire structure has been completed. This method is also known as fast track construction.

 

R131-4-13. Cost or Pricing Data and Analysis; Audits.

(1) Applicability. Cost or pricing data shall be required when negotiating contracts and adjustments to contracts if:

(a) adequate price competition is not obtained as provided in this rule; and

(b) the amounts listed in (3) below are exceeded.

(2) Adequate Price Competition. Adequate price competition for portions of, or entire contracts, occurs when:

(a) a contract is awarded based on competitive sealed bidding;

(b) a contractor is selected from competitive sealed proposals and cost was one of the selection criteria;

(c) a portion of a contract is awarded for a lump sum amount or a fixed percentage of other costs, and the cost of the lump sum or percentage amount is one of the selection criteria, and when contractor selection is made from competitive sealed proposals;

(d) a portion of a contract is awarded for which adequate price competition that was not otherwise obtained when competitive bids were obtained and documented by either the Board or the contractor;

(e) costs are based upon established catalogue prices or market prices;

(f) costs are set by law or rule; or

(g) the Executive Director makes a written determination that other circumstances have resulted in adequate price competition.

(3) Amounts. This section does not apply to:

(a) Contracts or portions of contracts costing less than $100,000, and

(b) Change orders or other price adjustments of less than $25,000.

(4) Other Applications: This section may apply to any contract or price adjustment when it is found by the Executive Director to be in the best interest of the state.

(5) Submission of Cost or Pricing Data and Certification. When cost or pricing data is required, the data shall be submitted prior to beginning price negotiation. The offeror or contractor shall keep the data current throughout the negotiations and certify as soon as practicable after agreement is reached on price that the cost or pricing data submitted are accurate, complete, and current as of a mutually determined date.

(6) Refusal to Submit. If the offeror fails to submit the required data, the Executive Director may disqualify the noncomplying offeror, to defer award pending further investigation, or to enter into the contract. If the matter involves a price adjustment, the Executive Director may further investigate the price adjustment, disallow any price adjustment, or set the amount of the price adjustment.

(7) Defective Cost or Pricing Data. If certified cost or pricing data are subsequently found to have been inaccurate, incomplete, or noncurrent as of the date stated in the certificate, the Board shall be entitled to an adjustment of the contract price to exclude any significant sum, including profit or fee, to the extent the contract sum was increased because of the defective data. It shall be assumed that overstated cost or pricing data resulted in an increase of the contract price in the amount of the defect plus any related overhead and profit or fee; therefore, unless documentation can show that the defective data were not used or relied upon, the price may be reduced by a requisite amount. In establishing that defective data caused an increase in the contract price, the Executive Director shall not be required to reconstruct the negotiation or speculate on the mental attitudes of the negotiating parties if correct data had been submitted at the time of agreement on price.

(8) Audit. The Executive Director may, at his discretion, and at reasonable times and places, audit or cause to be audited the books and records of a contractor, prospective contractor, subcontractor, or prospective subcontractor which are related to the cost or pricing data submitted.

(9) Retention of Books and Records. Any contractor who receives a contract or price adjustment for which cost or pricing data is required shall maintain all books and records that relate to the cost or pricing data for three years from the date of final payment under the contract. This requirement shall also extend to any subcontractors of the contractor.

 

R131-4-14. Specifications.

(1) General Provisions.

(a) Purpose. Specifications shall permit maximum practicable competition and accurately describe the project requirements.

(b) Preference for Commercially Available Products. Recognized, commercially-available products shall be procured wherever practicable. In developing specifications, accepted commercial standards shall be used and unique products shall be avoided where practicable.

(c) Nonrestrictiveness Requirements. All specifications shall describe the requirements to be met, without having the effect of exclusively requiring a proprietary supply, or construction item, or procurement from a sole source, unless no other manner of description will meet the need. If needed, a written determination shall justify the use of restrictive specifications over non-restrictive specifications.

(2) Executive Director's Responsibilities.

(a) The Executive Director shall prepare all project specifications, or

(b) The Board may enter into contracts with others to prepare construction specifications when there will not be a substantial conflict of interest. In the latter instance, the Executive Director shall retain the authority to approve all specifications.

(c) Whenever specifications are prepared by persons other than the Board and Executive Director's staff, the contract for the preparation of specifications shall adhere to the requirements of this rule.

(3) Types of Specifications. The Executive Director may use any method of specifying construction items, including:

(a) a performance specification stating the results to be achieved with the contractor choosing the means, or

(b) a prescriptive specification describing a means for achieving desired, but normally unstated, ends. Prescriptive specifications shall include the following:

(i) Descriptive specifications, providing detailed written descriptions of the required properties of products, or the workmanship required to fabricate, erect and install without using trade names; or

(ii) Proprietary specifications, identifying desired products by using manufacturers, brand names, model or type designation or important characteristics. This shall consist of:

(A) Base Bid, where a rigid standard is specified and there are no allowed substitutions due to the nature of the conditions to be met. This may only be used when very restrictive standards are necessary and there are only definite proprietary products known that will meet the rigid standards needed; and

(B) Or Equal, which allows substitutions if properly approved;

(c) a reference standard specification where documents or publications are incorporated by reference as though they were included in their entirety; or,

(d) a nonrestrictive specification which may describe elements of prescriptive or performance specifications, or both, in order to describe the end result, thereby giving the contractor latitude in methods, materials, delivery, conditions, cost or other characteristics or considerations to be satisfied.

(4) Procedures for the Development of Specifications.

(a) Specifications may designate alternate supplies or construction items where two or more design, functional, or proprietary performance criteria will satisfactorily meet the procuring agencies' requirements.

(b) Specifications shall contain a nontechnical section to include any solicitation or contract terms or conditions such as requirements for the time and place of bid opening, time of delivery, payment, liquidated damages, and similar contract matters.

(c) Use of Proprietary Specifications.

(i) The Executive Director shall designate one or more brands as a standard reference and shall state that substantially equivalent products will be considered for award, with particular conditions of approval being described in the specification.

(ii) Unless the Executive Director determines that the essential characteristics of the brand names included in the proprietary specifications are commonly known in the industry or trade, proprietary specifications shall include a description of the particular design, functional, or performance characteristics which are required.

(iii) Where a proprietary specification is used, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition.

(iv) The Board shall solicit sources to achieve whatever degree of competition is practicable. If only one source can supply the requirement, the procurement shall be made in accordance with this rule.

 

R131-4-15. Construction Contract Clauses.

(1) Required Contract Clauses. Pursuant to Section 63-56-40, the document entitled "Required Construction Contract Clauses", dated March 28, 2001 and on file with the Executive Director, is hereby incorporated by reference. Except as provided in this rule, the Executive Director shall include some or all of these clauses in all construction contracts for more than $50,000.

(2) Revisions to Contract Clauses. The clauses required by this section may be modified for use in any particular contract when, pursuant to this rule, the Executive Director makes a written determination describing the circumstances justifying the variation or variations. Notice of any material variations from the contract clauses required by this section shall be included in any invitation for bids or request for proposals.]

R131-4. Capitol Preservation Board General Procurement Rule.

R131-4-101. Purpose.

The underlying purposes and policies of R131-4 are:

(1) to comply with the Capitol Preservation Board statute which requires the board to adopt rules that are substantially similar to the requirements of the Utah Procurement Code, Title 63, Chapter 56;

(2) to ensure the fair and equitable treatment of all persons who deal with the Capitol Preservation Board;

(3) to provide increased economy in Capitol Preservation Board procurement activities; and

(4) to foster effective broad-based competition within the free enterprise system.

 

R131-4-102. Application of this Rule.

(1) R131-4 applies only to contracts solicited or entered into after the effective date of this rule unless the parties agree to its application to a contract solicited or entered into prior to the effective date.

(2) Except as provided in R131-4-103, this rule shall apply to every expenditure of public funds irrespective of their source, including federal assistance, by the Capitol Preservation Board under any contract.

(3) Unless otherwise provided by statute, R131-4 does not apply to procurement of real property.

 

R131-4-103. Exemptions from this Rule.

(1) R131-4 is not applicable to funds administered under the Percent-for-Art Program of the Utah Percent-for-Art Act.

(2) R131-4 is not applicable to grants awarded by the state or contracts between the state and local public procurement units except as provided in R131-4-901, Intergovernmental Relations.

(3) R131-4 shall not prevent the Capitol Preservation Board from complying with the terms and conditions of any grant, gift, or bequest that is otherwise consistent with law.

(4) When a procurement involves the expenditure of federal assistance or contract funds, the chief procurement officer, executive director of the Capitol Preservation Board, shall comply with mandatory applicable federal law and regulations not reflected in R131-4.

(5) R131-4 may not supersede the requirements for retention or withholding of construction proceeds and release of construction proceeds as provided in Section 13-8-5.

 

R131-4-104. Records.

(1) All procurement records shall be retained and disposed of in accordance with Title 63, Chapter 2, Government Records Access and Management Act.

(2) Written determinations required by R131-4 shall also be retained in the appropriate official contract file of the Division of Purchasing and General Services or the Capitol Preservation Board.

 

R131-4-105. Definitions.

As used in R131-4:

(1) "Acceptable bid security" means a bid bond which meets the requirements of this rule.

(2) "Architect-engineer services" are those professional services within the scope of the practice of architecture as defined in Section 58-3a-102, or professional engineering as defined in Section 58-22-102.

(3) "Business" means any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other private legal entity.

(4) "Board" means the state of Utah Capitol Preservation Board created under Title 63C, Chapter 9.

(5) "Change order" means a written order signed by the executive director or duly appointed designee, directing the contractor to suspend work or make changes, which the appropriate clauses of the contract authorize the executive director to order without the consent of the contractor or any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity, or other provisions of any contract accomplished by mutual action of the parties to the contract. The executive director or duly appointed designee may also issue a construction change directive changing the scope and/or time of the contract which shall become a change order once either agreed to by the contractor or not objected to by the contractor by submission to the executive director of such objection in writing within 21 days of the delivery of the construction change directive to the contractor.

(6)(a) "Construction" means the process of building, renovation, alteration, improvement, or repair of any public building or public work.

(b) "Construction" does not mean the routine operation, routine repair, or routine maintenance of existing structures, buildings, or real property.

(7)(a) "Construction manager/general contractor" means any contractor who enters into a contract for the management of a construction project when that contract allows the contractor to subcontract for additional labor and materials that were not included in the contractor's cost proposal submitted at the time of the procurement of the construction manager/general contractor's services.

(b) "Construction manager/general contractor" does not mean a contractor whose only subcontract work not included in the contractor's cost proposal submitted as part of the procurement of construction is to meet subcontracted portions of change orders approved within the scope of the project.

(8) "Contract" means any state agreement for the procurement or disposal of supplies, services, or construction.

(9) "Cooperative purchasing" means procurement conducted by, or on behalf of, more than one public procurement unit, or by a public procurement unit with an external procurement unit.

(10) "Cost data" means factual information concerning details; including expected monetary values for labor, material, overhead, and other pricing components which the contractor has included, or will include as part of performing the contract.

(11) "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 rule, and a fee, if any.

(12)(a) "Design-build" means the procurement of architect-engineer services and construction by the use of a single contract with the design-build provider.

(b) This method of design and construction can include the design-build provider supplying the site as part of the contract.

(13) "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 either 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.

(14) "Executive director" means the executive director of the board.

(15) "External procurement unit" means any buying organization not located in this state which, if located in this state, would qualify as a public procurement unit. An agency of the United States is an external procurement unit.

(16) "Grant" means the furnishing by the state or by any other public or private source assistance, whether financial or otherwise, to any person to support a program authorized by law. It does not include an award whose primary purpose is to procure an end product, whether in the form of supplies, services, or construction. A contract resulting from the award is not a grant but a procurement contract.

(17) "Invitation for bids" means all documents, whether attached or incorporated by reference, utilized for soliciting bids.

(18) "Local public procurement unit" means any political subdivision or institution of higher education of the state or public agency of any subdivision, public authority, educational, health, or other institution, and to the extent provided by law, any other entity which expends public funds for the procurement of supplies, services, and construction, but not counties, municipalities, political subdivisions created by counties or municipalities under the Interlocal Cooperation Act, the Utah Housing Corporation, or the Legislature and its staff offices. It includes two or more local public procurement units acting under legislation which authorizes intergovernmental cooperation.

(19) "Person" means any business, individual, union, committee, club, other organization, or group of individuals, not including a state agency or a local public procurement unit.

(20) "Policy board" means the Budget Development and Board Operations Subcommittee of the board to act as the procurement policy board as referred to in the Utah Procurement Code, Title 63, Chapter 56.

(21) "Preferred bidder" means a bidder that is entitled to receive a reciprocal preference under the requirements of this rule.

(22) "Price data" means factual information concerning prices for supplies, services, or construction substantially identical to those being procured. Prices in this definition refer to offered or proposed selling prices and includes data relevant to both prime and subcontract prices.

(23) "Procurement" means buying, purchasing, renting, leasing, leasing with an option to purchase, or otherwise acquiring any supplies, services, or construction. It also includes all functions that pertain to the obtaining of any supply, service, or construction, including description of requirements, selection, and solicitation of sources, preparation, and award of a contract, and all phases of contract administration.

(24) "Procurement officer" means the executive director duly authorized to enter into and administer contracts and make written determinations with respect thereto. It also includes an authorized representative acting within the limits of authority as provided by the board or designated by the executive director.

(25) "Procuring agencies" means, individually or collectively, the state, the board, the owner and a using agency, if any.

(26) "Products" means and includes materials, systems and equipment that are components of a construction project.

(27) "Proprietary specification" means a specification which uses a brand name to describe the standard of quality, performance, and other characteristics needed to meet the procuring agencies' requirements.

(28) "Public procurement unit" means either a local public procurement unit or a state public procurement unit.

(29) "Purchase description" means the words used in a solicitation to describe the supplies, services, or construction to be purchased, and includes specifications attached to or made a part of the solicitation.

(30) "Purchasing agency" means any state agency other than the board that is authorized by R131-4, or by delegation from the executive director, to enter into contracts.

(31) "Record" shall have the meaning defined in Section 63-2-103 of the Governmental Records Access and Management Act (GRAMA).

(32) "Request for proposals" means all documents, whether attached or incorporated by reference, used for soliciting proposals.

(33) "Responsible bidder or offeror" means a person who has the capability in all respects to perform fully the contract requirements and who has the integrity and reliability which will assure good faith performance.

(34) "Responsive bidder" means a person who has submitted a bid which conforms in all material respects to the invitation for bids.

(35) "Sealed" does not preclude acceptance of electronically sealed and submitted bids or proposals in addition to bids or proposals manually sealed and submitted.

(36) "Services" means the furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance. It does not include employment agreements or collective bargaining agreements.

(37) "Specification" means any description of the physical or functional characteristics, or of the nature of a supply, service, or construction item. It may include a description of any requirement for inspecting, testing, or preparing a supply, service, or construction item for delivery.

(38) "State" means the state of Utah.

(39) "State agency" or "the state" means any department, division, commission, council, board, bureau, committee, institution, government corporation, or other establishment, official or employee of this state.

(40) "State public procurement unit" means the board, Division of Purchasing and General Services and any other puchasing agency of this state.

(41) "Subcontractor" means any person who has a contract with any person other than the procuring agency (board or executive director) to perform any portion of the work on a project.

(42) "Supplies" means all property, including equipment, materials, and printing.

(43) "Using agency" means any state agency which utilizes any supplies, services, or construction procured under this rule.

(44) "Work" means the furnishing of labor or materials, or both.

 

R131-4-201. Procurement Policy.

Procurement policy powers and duties under R131-4-202 below shall be performed by the Budget Development and Board Operations Subcommittee of the board as created in Title 63C, Chapter 9. Any procurement policy determinations of the subcommittee shall be brought to the board for final approval.

 

R131-4-202. Powers and Duties of the Budget Development and Board Operations Subcommittee in Regard to Procurement Policies.

(1) Except as otherwise provided in R131-4-102, the Budget Development and Board Operations Subcommittee shall:

(a) make procurement rule recommendations to the board that are substantially similar to the requirements of Title 63, Chapter 56, Utah Procurement Code or facilitate the implementation of such requirements, governing the procurement, management, and control of any and all supplies, services, and construction to be procured by the board; and

(b) consider and recommend to the board, matters of policy within the provisions of R131-4, including those referred to it by the executive director.

(2)(a) The subcommittee may:

(i) audit and monitor the implementation of the board's rules and the requirements of the Utah Procurement Code and R131-4;

(ii) approve the use of innovative procurement methods proposed by the executive director.

(b) Except as otherwise provided in this rule or as duly authorized by the board, the subcommittee may not exercise authority over the award or administration of

(i) any particular contact; or

(ii) over any dispute, claim, or litigation pertaining to any particular contract.

(3) After receiving the recommendations from the Budget Development and Board Operations Subcommittee, the board shall review the recommendations, and shall make a determination on the recommendations, including the commencement of the rulemaking process.

 

R131-4-203. Chief Procurement Officer.

The executive director of the board shall be the chief procurement officer.

 

R131-4-204. Duties of Chief Procurement Officer.

Except as otherwise specifically provided in R131-4, the chief procurement officer serves as the central procurement officer for the board and shall:

(1) adopt office policies governing the internal functions of the staff for the board;

(2) procure or supervise the procurement of all supplies, services, and construction needed by the board;

(3) exercise general supervision and control over all inventories or supplies belonging to the board;

(4) establish and maintain programs for the inspection, testing, and acceptance of supplies, services, and construction; and

(5) prepare statistical data concerning the procurement and usage of all supplies, services, and construction.

 

R131-4-205. Delegation of Authority.

The executive director may delegate authority to a designated staff person(s) of the board.

 

R131-4-206. Specific Statutory Authority.

As stated in Section 63-56-207:

(1) The authority to procure certain supplies, services, and construction given the public procurement units governed by the following provisions shall be retained:

(a) Title 53B, State System of Higher Education;

(b) Title 63A, Chapter 5, State Building Board - Division of Facilities Construction and Management;

(c) Title 67, Chapter 5, Attorney General;

(d) Title 72, Transportation; and

(e) Title 78, Chapter 3, District Courts.

(2) This authority extends only to supplies, services, and construction to the extent provided in the cited chapters.

(3)(a) The Department of Transportation may make rules governing the procurement of highway construction or improvement.

(b) This Subsection (3) supersedes Subsections (1) and (2) above.

(4) The legislature may procure supplies and services for its own needs.

 

R131-4-301. Rules and Regulations for Specifications of Supplies.

R131-4 shall govern the preparation, maintenance, and content of specifications for supplies, services, and construction required by the board. R131-4 shall determine the extent to which a nonemployee who has prepared specifications for use by the board may participate in any board procurement using such specifications.

 

R131-4-302. Duty of Executive Director in Maintaining Specifications.

The executive director shall prepare, issue, revise, maintain, and monitor the use of specifications for supplies, services, and construction required by the board.

 

R131-4-303. Purpose of Specifications.

All specifications shall seek to promote overall best quality economy and best use for the purposes intended and encourage competition in satisfying the state's needs, and shall not be unduly restrictive. The requirements of R131-4-301 through R131-4-304 regarding the purposes and nonrestrictiveness of specifications shall apply to all specifications, including, but not limited to, those prepared by architects, engineers, designers, and draftsmen for public contracts.

 

R131-4-304. Additional Specification Requirements.

(1) General provisions.

(a) Preference for Commercially Available Products. Recognized, commercially-available products shall be procured wherever practicable. In developing specifications, accepted commercial standards shall be used and unique products shall be avoided where practicable.

(b) Nonrestrictiveness Requirements. All specifications shall describe the requirements to be met, without having the effect of exclusively requiring a proprietary supply, or construction item, or procurement from a sole source, unless no other manner of description will meet the need. If needed, a written determination shall justify the use of restrictive specifications over non-restrictive specifications.

(2) Executive Director's Responsibilities.

(a) The executive director shall prepare all project specifications, or

(b) The board may enter into contracts with others to prepare construction specifications when there will not be a substantial conflict of interest. In the latter instance, the executive director shall retain the authority to approve all specifications.

(c) Whenever specifications are prepared by persons other than the board and executive director's staff, the contract for the preparation of specifications shall adhere to the requirements of this rule.

(3) Types of Specifications. The executive director may use any method of specifying construction items, including:

(a) a performance specification stating the results to be achieved with the contractor choosing the means; or

(b) a prescriptive specification describing a means for achieving desired, but normally unstated, ends. Prescriptive specifications shall include the following:

(i) Descriptive specifications, providing detailed written descriptions of the required properties of products, or the workmanship required to fabricate, erect and install without using trade names; or

(ii) Proprietary specifications, identifying desired products by using manufacturers, brand names, model or type designation or important characteristics. This shall consist of:

(A) Base bid, where a rigid standard is specified and there are no allowed substitutions due to the nature of the conditions to be met. This may only be used when very restrictive standards are necessary and there are only definite proprietary products known that will meet the rigid standards needed; and

(B) Or equal, which allows substitutions if properly approved;

(c) a reference standard specification where documents or publications are incorporated by reference as though they were included in their entirety; or

(d) a nonrestrictive specification which may describe elements of prescriptive or performance specifications, or both, in order to describe the end result, thereby giving the contractor latitude in methods, materials, delivery, conditions, cost or other characteristics or considerations to be satisfied.

(4) Procedures for the Development of Specifications.

(a) Specifications may designate alternate supplies or construction items where two or more design, functional, or proprietary performance criteria will satisfactorily meet the procuring agencies' requirements.

(b) Specifications shall contain a nontechnical section to include any solicitation or contract terms or conditions such as requirements for the time and place of bid opening, time of delivery, payment, liquidated damages, and similar contract matters.

(c) Use of Proprietary Specifications.

(i) The executive director shall designate one or more brands as a standard reference and shall state that substantially equivalent products will be considered for award, with particular conditions of approval being described in the specification.

(ii) Unless the executive director determines that the essential characteristics of the brand names included in the proprietary specifications are commonly known in the industry or trade, proprietary specifications shall include a description of the particular design, functional, or performance characteristics which are required.

(iii) Where a proprietary specification is used, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition.

(iv) The board shall solicit sources to achieve whatever degree of competition is practicable. If only one source can supply the requirement, the procurement shall be made in accordance with this rule.

 

R131-4-401. Contracts Awarded by Sealed Bidding - Procedure.

(1) In General. Competitive sealed bidding, which includes multi-step sealed bidding, shall be an allowable method for the procurement of construction when a single prime contractor is used. Other methods may be considered for procurement of construction when the executive director determines that it best meets the needs for the project. For all other goods, supplies and services, contracts shall be awarded by competitive sealed bidding expect as otherwise provided in R131-4. An invitation for bids shall be issued when a contract is to be awarded by competitive sealed bidding. The invitation shall include a purchase description and all contractual terms and conditions applicable to the procurement.

(2) Public Notice of Invitations for Bids.

(a) Public notice of invitations for bids shall be publicized electronically on the Internet, and may be publicized in any or all of the following as determined appropriate:

(i) In a newspaper having general circulation in the area in which the project is located;

(ii) In appropriate trade publications;

(iii) In a newspaper having general circulation in the state; or

(iv) By any other method determined appropriate.

(b) A copy of the public notice shall be available for public inspection at the principal office of the board in Salt Lake City, Utah.

(3) Content of the Public Notice to Contractors for Invitation For Bids. The public notice to contractors for invitation for bids (herein referred to as the "Notice") shall include the following:

(a) The closing time and date for the submission of bids;

(b) The location to which bids are to be delivered;

(c) Directions for obtaining the bidding documents;

(d) A brief description of the project; and

(e) Notice of any mandatory pre-bid meetings.

(4) Bidding Time. Bidding time is the period of time between the date of the first publication of the public notice and the final date and time set for the receipt of bids by the executive director. Bidding time shall be set to provide bidders with reasonable time to prepare their bids and shall be not less than ten calendar days, unless a shorter time is deemed necessary for a particular project as determined in writing by the executive director.

(5) Bid Prices. The bidding documents for an invitation for bids shall include a bid price form having a space in which the bid prices shall be inserted and which the bidder shall sign and submit along with all other required documents and materials and may include qualification requirements as appropriate.

(6) Addenda to the Bidding Documents.

(a) Addenda shall be distributed or otherwise made available to all entities known to have obtained bidding documents for a project.

(b) Addenda shall be distributed within a reasonable time to allow all prospective bidders to consider them in preparing bids. If the time set for the final receipt of bids will not permit appropriate consideration, the bidding time shall be extended to allow proper consideration of the addenda. The person responsible for the issuance of bidding documents shall confirm in writing, any addenda communicated to bidders by telephone.

(7) Pre-Opening Modification or Withdrawal of Bids.

(a) Bids may be modified or withdrawn by the bidder by written notice delivered to the place designated in the notice when bids are to be delivered prior to the time set for the opening of bids.

(b) Bid security, if any, shall be returned to the bidder when withdrawal of the bid is permitted.

(c) All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate project file.

(8) Late Bids, Late Withdrawals, and Late Modifications. Any bid, withdrawal of bid, or modification of bid received after the time and date set for the submission of bids at the place designated in the notice shall be deemed to be late and shall not be considered, unless it is the only bid received in which case it may be considered.

(9) Receipt, Opening, and Recording of Bids.

(a) Upon receipt, all bids and modifications shall be stored in a secure place until the time for bid opening.

(b) Bids and modifications shall be opened publicly, in the presence of one or more witnesses, at the time and place designated in the invitation for bids. The names of the bidders, the bid price, and other information deemed appropriate by the executive director shall be read aloud or otherwise made available to the public. After the bid opening, the bids shall be tabulated or a bid abstract made, including the amount of each bid. The record (bid tabulation) and opened bids shall be available for public inspection.

(10) Mistakes in Bids.

(a) If a mistake is attributable to an error in judgment, the bid may not be corrected. Bid correction or withdrawal by reason of an inadvertent, nonjudgmental mistake is permissible but only at the discretion of the executive director and only to the extent it is not contrary to the interest of the board or the fair treatment of other bidders.

(b) When it appears from a review of the bid that a mistake may have been made, the executive director may request the bidder to confirm the bid in writing. Situations in which confirmation may be requested include obvious, apparent errors on the face of the bid or a bid lower than the other bids submitted that appears to have neglected some part of the project.

(c) Mistakes at Bid Opening. The executive director shall weigh the types of factors described below in which mistakes in bids are discovered after opening but before award. After the bid opening, no changes in the bid prices or other provisions of bids prejudicial to the interest of the board or fair competition may be permitted. These include:

(i) Minor formalities are matters which, in the discretion of the board or executive director, are found to be of form rather than substance evident from the bid document, or are insignificant mistakes that can be waived or corrected without prejudice to other bidders and with respect to which, in the executive director's discretion, the effect on price, quantity, quality, delivery, or contractual conditions is not or will not be significant. The executive director, in the executive director's sole discretion, may waive minor formalities or allow the bidder to correct them depending on which is in the best interest of the board. Examples include the failure of a bidder to:

(A) Sign the bid, but only if the unsigned bid is accompanied by other material indicating the bidder's intent to be bound;

(B) Acknowledge receipt of any addenda to the invitation for bids, but only if it is clear from the bid that the bidder received the addenda and intended to be bound by its terms; the addenda involved had a negligible effect on price, quantity, quality, or delivery; or the bidder acknowledged receipt of the addenda at the bid opening.

(ii) A determination by the executive director that the mistake and the intended bid are clearly evident on the face of the bid document. The bid shall be corrected to reflect the intent of the bidder, and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.

(iii) Approval to withdraw a low bid if the executive director determines a mistake is clearly evident on the face of the bid document but the intended amount of the bid is not similarly evident, or if the bidder submits to the executive director proof of evidentiary value which, in the executive director's best judgment, demonstrates that a mistake in calculation or estimation was made.

(d) No bidder shall be allowed to correct a mistake or withdraw a bid because of a mistake discovered after award of the contract; provided, that mistakes of the types described in R131-4-401 may be corrected or the award of the contract canceled if the executive director determines that correction or cancellation will not prejudice the interests of the board or fair competition.

(e) The executive director shall approve or deny in writing all requests to correct or withdraw a bid.

(11) Bid Evaluation and Award. Except as provided below, the contract may be awarded to the lowest qualified responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids and no bid shall be evaluated for any requirements or criteria that are not disclosed in the bidding documents. A reciprocal preference shall be granted to a resident contractor if the provisions of Section 63-56-405 are met. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award shall be objectively measurable. The criteria may include discounts, transportation costs, and total or life cycle costs.

(12) Cancellation of Invitations For Bids; Rejection Of Bids in Whole or In Part.

(a) Although issuance of an invitation for bids does not compel award of a contract, the executive director may cancel an invitation for bids or reject bids received in whole or in part only when the executive director determines that it is in the best interests of the board to do so.

(b) The reasons for cancellation or rejection shall be documented and made a part of the project file and available for public inspection.

(c) Any determination of nonresponsibility of a bidder shall be made by the executive director in writing. An unreasonable failure of the bidder to promptly supply information regarding responsibility may be grounds for a determination of nonresponsibility. Any bidder determined to be nonresponsible shall be provided with a copy of the written determination within a reasonable time. The board finds that it would impair governmental procurement proceedings by creating a disincentive for bidders to respond to inquiries of nonresponsibility, therefore information furnished by a bidder or pursuant to any inquiry concerning responsibility shall be classified as a protected record pursuant to Section 63-2-304 and may be disclosed only as provided for in R131-4-411A.

(13)(a) All bids for a construction project exceed available funds as certified by the appropriate fiscal officer, and the low responsive and responsible bid does not exceed those funds by more than 5%, the executive director may, in situations where time or economic considerations preclude resolicitation of work of a reduced scope, negotiate an adjustment of the bid price, including changes in the bid requirements, with the low responsive and responsible bidder in order to bring the bid within the amount of available funds.

(b) Notwithstanding Subsection (13)(a), if all bids exceed the construction budget by any amount, the executive director may take any action allowed by this rule to award the contract to the lowest responsible and responsive bidder that will complete the construction project within the amount of available funds.

(c) This rule does not restrict in any way, the right of the executive director to use any emergency or sole source procurement provisions, or any other applicable provisions of State law or rule which may be used to award the construction project.

(14) Tie Bids. Tie bids shall be resolved in accordance with Section 63-56-426.

(15) Subcontractor Lists. The executive director may provide for subcontractor list requirements in the invitation for bids.

(a) Pursuant to Section 63-2-304, information contained in the subcontractor list submitted to the board or executive director shall be classified public except for the amount of subcontractor bids which shall be classified as protected until a contract has been awarded to the bidder at which time the subcontractor bid amounts shall be classified as public. During the time that the subcontractor bids are classified protected, they may only be made available to procurement and other officials involved with the review and approval of bids.

(b) Change of Listed Subcontractors. If the executive director requires the submission of a subcontractor list with a deadline, the contractor may change his submitted listed subcontractors only after receiving written permission from the executive director based on complying with all of the following:

(i) The contractor has established in writing that the change is in the best interest of the state and that the contractor establishes an appropriate reason for the change, which may include, but is not limited to, the following reasons: the original subcontractor has failed to perform, or is not qualified or capable of performing, or the subcontractor has requested in writing to be released;

(ii) The circumstances related to the request for the change do not indicate any bad faith in the original listing of the subcontractors;

(iii) Any requirement set forth by the executive director to ensure that the process used to select a new subcontractor does not give rise to bid shopping;

(iv) Any increase in the cost of the subject subcontractor work shall be borne by the contractor; and

(v) Any decrease in the cost of the subject subcontractor work shall result in a deductive change order being issued for the contract for such decreased amount.

 

R131-4-401A. Multi-Step Sealed Bidding.

(1) When it is considered impractical to prepare initially a purchase description to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced offers (statement of qualifications) to be followed by an invitation for bids limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation.

(2) Description. Multi-step sealed bidding is a two-phase process. In the first phase, bidders shall submit a statement of qualifications to be evaluated. In the second phase, bidders whose statement of qualifications are determined to be acceptable during the first phase shall be invited to submit price bids.

(3) Use. Multi-step sealed bidding may be used when the executive director deems it to be in the interest of the state.

(4) Procedure for First Phase. The first phase shall be processed in accordance with the notice, substance and procedural requirements of a request for proposal under R131-4-408.

(5) The second phase shall be processed in accordance with the applicable substance and procedural requirements of a competitive sealed bid under R131-4-401. No public notice will be provided for this invitation.

 

R131-4-402. Contracts Awarded by Reverse Auction.

(1) As used in this Section, "reverse auction" means a process where:

(a) contracts are awarded in an open and interactive environment, which may include the use of electronic media; and

(b) bids are opened and made public immediately, and bidders given opportunity to submit revised, lower bids, until the bidding process is complete.

(2) Notwithstanding the requirements of this rule, contracts may be awarded through a reverse auction.

(3) Reverse auction is a two-phase process consisting of a technical first phase composed of one or more steps in which bidders submit a statement of qualifications to be evaluated against the established criteria by the executive director, and a second phase in which those bidders whose statement of qualifications are determined to be acceptable during the first phase submit their price bids through a reverse auction.

(4) Use. The reverse auction method will be used when the executive director deems it to the advantage of the board.

(5) Pre-Bid Conferences in Reverse Auctions. Prior to the submission of a statement of qualifications, a pre-bid conference may be conducted by the executive director.  The executive director may also hold a conference of all bidders at any time during the evaluation of the statement of qualifications, or to explain the reverse auction process.

(6) Procedure for Phase One of Reverse Auctions.

(a) Form. A reverse auction shall be initiated by the issuance of an invitation for bids in the form required by R131-4-401. In addition to those requirements, the reverse auction invitation for bids shall state:

(i) that a statement of qualifications are requested;

(ii) that it is a reverse auction procurement, and priced bids will be considered only in the second phase and only from those bidders whose statement of qualifications are found acceptable in the first phase;

(iii) the criteria to be used in the evaluation of the statement of qualifications;

(iv) that the board or executive director, to the extent the executive director finds necessary, may conduct oral or written discussions of the statement of qualifications;

(v) that bidders may designate those portions of the statement of qualifications which contain trade secrets or other proprietary data which are to remain confidential to the extent provided by law; and

(vi) the manner in which the second phase reverse auction will be conducted.

(7) Amendments to the Invitation for Bids. After receipt of the statement of qualifications, amendments to the invitation for bids shall be distributed only to bidders who submitted a statement of qualifications and they shall be allowed to submit new statements of qualifications or to amend those submitted. If, in the opinion of the executive director, a contemplated amendment will significantly change the nature of the procurement, the invitation for bids shall be canceled in accordance with R131-4-401 and a new invitation for bids issued.

(8) Receipt and Handling of Statement of Qualifications. Statement of qualifications shall be opened publicly identifying only the names of the bidders. Technical offers and modifications shall be time stamped upon receipt and held in a secure place until the established due date. After the date established for receipt of bids, a register of bids shall be open to public inspection and shall include the name of each bidder, and a description sufficient to identify the supply, service, or construction offered. Prior to the selection of the lowest bid of a responsive and responsible bidder following phase two, statement of qualifications shall remain confidential and shall be available only to board personnel and those involved in the selection process having a legitimate interest in them.

(9) Non-Disclosure of Proprietary Data. Bidders may request protection of records in accordance with R131-4-411A.

(10)(a) Evaluation of Statement of Qualifications. The statement of qualifications submitted by bidders shall be evaluated solely in accordance with the criteria set forth in the invitation for bids. The statement of qualifications shall be categorized as:

(i) acceptable;

(ii) potentially acceptable, that is, reasonably susceptible of being made acceptable; or

(iii) unacceptable.

(b) The executive director shall record in writing the basis for finding an offer unacceptable and make it part of the procurement file.

(c) The executive director may initiate phase two of the procedure if, in the executive director's opinion, there are sufficient acceptable statements of qualifications to assure effective price competition in the second phase without modification or alteration of the offers. If the executive director finds that this is not the case, the executive director shall issue an amendment to the invitation for bids or engage in technical discussions as set forth in R131-4-402(11) below.

(11) Discussion of Statement of Qualifications. Discussion of the statement of qualifications may be conducted by the executive director with any bidder who submits an acceptable or potentially acceptable statement of qualifications. During the course of these discussions, the executive director shall not disclose any information derived from one statement of qualifications offer to any other bidder. Once discussions are begun, any bidder who has not been notified that its statement of qualifications has been finally found unacceptable may submit supplemental information modifying or otherwise amending its statement of qualifications offer at any time until the closing date established by the executive director. This submission may be made at the request of the executive director or upon the bidder's own initiative.

(12) Notice of Unacceptable Statement of Qualifications. When the executive director determines a bidder's statement of qualifications is unacceptable, the executive director shall notify the bidder. After this notification, the bidder shall not be afforded an additional opportunity to modify their statement of qualifications.

(13) Carrying Out Phase Two of Reverse Auctions.

(a) Upon the completion of phase one, the executive director shall invite those qualified bidders to participate in phase two of the reverse auction which is an open and interactive process where pricing is submitted, made public immediately, and bidders are given the opportunity to submit revised, lower bids, until the bidding process is closed.

(b) The invitation for bids shall:

(i) establish a date and time for the beginning of phase two;

(ii) establish a closing date and time. The closing date and time need not be a fixed point in time, but may remain dependent on a variable specified in the invitation for bids.

(c) Following receipt of the first bid after the beginning of phase two, the lowest bid price shall be posted, either manually or electronically, and updated as other bidders submit their bids.

(i) At any time before the closing date and time a bidder may submit a lower bid, provided that the price is below the then lowest bid.

(ii) Bid prices may not be increased after the beginning of phase two.

(14) Mistakes During Reverse Auctions.

(a) Mistakes may be corrected or bids may be withdrawn during phase one:

(i) before statements of qualifications are considered;

(ii) after any discussions have commenced under the procedure for phase one of reverse auctions, discussion of statement of qualifications; or

(iii) when responding to any amendment of the invitation for bids. Otherwise, mistakes may be corrected or withdrawal permitted in accordance with R131-4-401(10).

(15) A phase two bid may be withdrawn only in accordance with R131-4-401(10). If a bid is withdrawn, a later bid submitted by the same bidder may not be for a higher price. If the lowest responsive bid is withdrawn after the closing date and time, the executive director may cancel the solicitation or reopen phase two bidding to all bidders deemed qualified through phase one by giving notice to those bidders of the new date and time for the beginning of phase two and the new closing date and time.

 

R131-4-403. Procurement - Use of Recycled Goods.

The executive director shall:

(1) comply with Section 63-56-406 regarding recycled paper and paper products; and

(2)(a) use for reference, the current listing of recycled items available on state contract as issued by the State Division of Purchasing and General Services under Section 63-56-204; and

(b) give recycled items consideration when inviting bids and purchasing supplies.

 

R131-4-404. Preference for Providers of State Products.

(1)(a) All board procurement shall, in all purchases of goods, supplies, equipment, materials, and printing, give a reciprocal preference to those bidders offering goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in Utah as against those bidders offering goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in any state that gives or requires a preference to goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in that state.

(b) The amount of reciprocal preference shall be equal to the amount of the preference applied by the other state for that particular good, supply, equipment, material, or printing.

(c)(i) The bidder shall certify on the bid that the goods, supplies, equipment, materials, or printing offered are produced, manufactured, mined, grown, or performed in Utah.

(ii) The reciprocal preference is waived if that certification does not appear on the bid or the product, quality or services is not available from within the state of Utah.

(2)(a) If the bidder submitting the lowest responsive and responsible bid offers goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in a state that gives or requires a preference, and if another bidder has submitted a responsive and responsible bid offering goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in Utah, and with the benefit of the reciprocal preference, his bid is equal to or less than the original lowest bid, the executive director shall:

(i) give notice to the bidder offering goods, supplies, equipment, materials, or printing produced, manufactured, mined, grown, or performed in Utah that he qualifies as a preferred bidder; and

(ii) make the purchase from the preferred bidder if, within 72 hours after notification to him that he is a preferred bidder, he agrees, in writing, to meet the low bid.

(b) The executive director shall include the exact price submitted by the lowest bidder in the notice he submits to the preferred bidder.

(c) The executive director may not enter into a contract with any other bidder for the purchase until 72 hours have elapsed after notification to the preferred bidder.

(3)(a) If there is more than one preferred bidder, the executive director shall award the contract to the willing preferred bidder who was the lowest preferred bidder originally.

(b) If there were two or more equally low preferred bidders, the executive director shall resolve the tie in accordance with Section 63-56-426.

(4) The provisions of R131-4-404 do not apply if such application might jeopardize the receipt of federal funds.

 

R131-4-405. Preference for Resident Contractors.

(1) As used in this Section, "resident contractor" means a person, partnership, corporation, or other business entity that:

(a) either has its principal place of business in Utah or that employs workers who are residents of this state when available; and

(b) was transacting business on the date when bids for the public contract were first solicited.

(2)(a) When awarding contracts for construction, the board shall grant a resident contractor a reciprocal preference as against a nonresident contractor from any state that gives or requires a preference to contractors from that state.

(b) The amount of the reciprocal preference shall be equal to the amount of the preference applied by the state of the nonresident contractor.

(3)(a) The bidder shall certify on the bid that the bidder qualifies as a resident contractor.

(b) The reciprocal preference is waived if that certification does not appear on the bid or if the resident contractor is not qualified to perform the work as stipulated in the pre-proposal or pre-bid documents.

(4)(a) If the contractor submitting the lowest responsive and responsible bid is not a resident contractor and has its principal place of business in any state that gives or requires a preference to contractors from that state, and if a resident contractor has also submitted a responsive and responsible bid, and, with the benefit of the reciprocal preference, the resident contractor's bid is equal to or less than the original lowest bid, the executive director shall:

(i) give notice to the resident contractor that the contractor qualifies as a preferred resident contractor; and

(ii) issue the contract to the resident contractor if, within 72 hours after notification to the contractor that such contractor is a preferred resident contractor, the contractor agrees, in writing, to meet the low bid.

(b) The executive director shall include the exact price submitted by the lowest bidder in the notice submitted to the preferred resident contractor.

(c) The executive director may not enter into a contract with any other bidder for the construction until 72 hours have elapsed after notification to the preferred resident contractor.

(5)(a) If there is more than one preferred resident contractor, the executive director shall award the contract to the willing preferred resident contractor who was the lowest preferred resident contractor originally.

(b) If there were two or more equally low preferred resident contractors, the executive director shall resolve the tie in accordance with Section 63-56-426.

(6) The provisions of R131-4-405 do not apply if such application might jeopardize the receipt of federal funds.

 

R131-4-407. Use of Alkaline Paper.

The Board and executive director shall comply with Section 63-56-407 regarding the use of Alkaline Paper.

 

R131-4-408. Use of Competitive Sealed Proposals in lieu of Bids - Procedure.

(1) Considerations for Use. Competitive sealed proposals, which shall be solicited through a request for proposals, may be used, if:

(a) there may be a need for price and service negotiation;

(b) there may be a need for negotiation during performance of the contract;

(c) the relative skills or expertise of the offerors should be evaluated;

(d) characteristics of the product or service sought is important; or

(e) the conditions of the service, product or delivery conditions are unable to be sufficiently described in the invitation for bids.

(2) Determinations.

(a) Before a contract may be entered into by competitive sealed proposals, the executive director shall determine in writing that the use of competitive sealed proposals is more advantageous for state purposes than competitive sealed bidding.

(b) Determinations may be by category of service or construction items. The executive director may modify or revoke a determination and may review previous determinations for current applicability at any time. Competitive sealed proposals may be used for the procurement of services of consultants, professionals, contractors and any other entity sought for procurement by the executive director or the board.

(3) Public Notice. Public notice of the request for proposals shall be given in the same manner provided for giving public notice of an invitation for bids, as provided by R131-4-401.

(4) Proposal Preparation Time. Proposal preparation time is the period of time between the date of first publication of the notice and the date and time set for the receipt of proposals by the board or executive director. For each project, a proposal preparation time-frame shall be included to provide offerors a reasonable time to prepare their proposals, not less than ten calendar days, unless a shorter time is deemed necessary.

(5) Form of Proposal. The request for proposals may state the manner in which proposals are to be submitted, including any forms for that purpose.

(6) Addenda to Requests for Proposals. Addenda to the requests for proposals may be made in the same manner provided for addenda to the bidding documents in connection with invitations for bids by this rule. Addenda may also be issued to qualified proposers after the deadline for proposals and prior to the deadline for best and final offers.

(7) Modification or Withdrawal of Proposals. Proposals may be modified or withdrawn prior to the established due date. For the purposes of this rule, the established due date will be either the date and time announced for receipt of proposals or receipt of modifications to proposals, if any; or if discussions have begun, it is the date and time by which best and final offers must be submitted, provided that only offerors who submitted proposals by the time announced for receipt of proposals may submit best and final offers.

(8) Late Proposals, Late Withdrawals, or Late Modifications: Except for modifications allowed pursuant to negotiation, any proposal, withdrawal, or modification received at the place designated for receipt of proposals after the established due date as defined in this rule shall be deemed to be late and shall not be considered unless there are no other offerors.

(9) Receipt and Registration of Proposals.

(a) Proposals shall be opened publicly, and shall only identify the names of the offerors in public. Proposals shall be opened so as to avoid disclosure of contents to competing offerors during the process of negotiation. Proposals and modifications shall be held in a secure place until the established due date.

(b) After the date established for receipt of proposals, a register of proposals shall be open to public inspection and shall include for all proposals the name of each offeror, the number of addenda received, if any, and a description sufficient to identify the supply, service, or construction item offered. Prior to award, proposals and modifications shall be shown only to procurement and other officials involved with the review and selection of proposals who shall adhere to the requirements of GRAMA and this rule.

(10) Evaluation of Proposals.

(a) Evaluation Factors in the Request for Proposals. The request for proposals shall be prepared in a manner to assure maximum practicable competition, state all of the evaluation factors as well as the relative importance of price and other evaluating factors.

(b) Evaluation. The evaluation shall be based on the evaluation factors set forth in the request for proposals. Numerical rating systems may be used but are not required.

(c) Classifying Proposals.  Proposals shall be initially classified as:

(i) Acceptable;

(ii) Potentially acceptable, that is, having the possibility of being made acceptable; or

(iii) Unacceptable. Offerors whose proposals are unacceptable shall be so notified.

(11) Proposal Discussions with Individual Offerors.

(a) "Offerors" means only those responsible persons submitting proposals that are acceptable or potentially acceptable, the number of which may be limited to no less than the two best proposals. This shall not include persons who submitted unacceptable proposals.

(b) Purposes of Discussions. Discussions may be held in order to:

(i) review the board's requirements and the offerors' proposals; and

(ii) facilitate the development of a contract that will be most advantageous to the board, taking into consideration price and other evaluation factors listed in the request for proposals.

(c) Conduct of Discussions. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals. Discussions may be conducted for the purpose of assuring full understanding of, and responsiveness to, solicitation requirements. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and revisions may be permitted after submissions and before the contract is awarded for the purpose of obtaining best and final offers. There shall be no disclosure of any information derived from proposals submitted by competing offerors except as otherwise provided by this rule or law. Any oral clarification or change of a proposal shall be reduced to writing by the offeror.

(12) Best and Final Offers. The executive director shall establish a common time and date to submit best and final offers. These shall be submitted only once unless the executive director makes a written determination before each subsequent round of best and final offers that another round is in the best interest of the state, and additional discussions will be conducted or the requirements may be changed. Otherwise, no discussion of, or changes in the best and final offers shall be allowed prior to award. If offerors do not submit a notice of withdrawal or another best and final offer, their immediate previous offer will be construed as their best and final offer.

(13) Mistakes in Proposals.

(a) Mistakes discovered before the established due date. An offeror may correct mistakes discovered before the time and date established for receipt of proposals by withdrawing or correcting the proposal as provided in R131-4-408.

(b) Confirmation of proposal. When it appears from a review of the proposal before an award is made, that a mistake has been made, the offeror shall be asked to confirm the proposal. If the offeror alleges that a mistake occurred, the proposal may be corrected or withdrawn during any discussions that are held or the conditions listed below, by this rule, are met.

(c) Mistakes discovered after receipt but before award. This Subsection defines procedures to be applied in four situations in which mistakes in proposals may be discovered after receipt of proposals but before award.

(i) During discussions; prior to best and final offers. Once discussions are commenced with any offeror or after best and final offers are requested, any offeror may freely correct any mistake by modifying or withdrawing the proposal until the time and date set for receipt of best and final offers.

(ii) Minor formalities. Minor formalities, unless otherwise corrected by an offeror as provided in this Section, shall be treated in accordance with this rule.

(iii) Corrections of mistakes. If discussions are not held or if the best and final offers upon which award will be made have been received, mistakes may be corrected and the correct offer considered only if:

(A) the mistakes and the correct offer are clearly evident on the face of the proposal in which event the proposal may not be withdrawn;

(B) the mistake is not clearly evident on the face of the proposal, but the offeror submits proof of evidentiary value which clearly and convincingly demonstrates both the existence of a mistake and the correct offer, and the correction of the mistake would not be contrary to the fair and equal treatment of other offerors.

(iv) Withdrawals of proposals. If discussions are not held, or if the best and final offers upon which award will be made have been received, offeror may be permitted to withdraw a proposal if:

(A) a mistake was made that is clearly evident on the face of the proposal and the intended amount of the offer is not evident; or

(B) the offeror submits proof of evidentiary value which clearly and convincingly demonstrates that a mistake was made that it does not demonstrate the correct offer or, if the correct offer is also demonstrated, to allow correction on the basis the proof provided would not be contrary to the fair and equal treatment of other offerors.

(d) Mistakes discovered after award. An offeror shall be bound to all terms, conditions and statements in offeror's proposal after award of the contract.

(14) Award.

(a) Award Documentation. A written determination shall be made showing the basis on which the award was found to be most advantageous to the state based on the factors set forth in the request for proposals. No other factors or criteria shall be used in the evaluation. The contract file shall contain the basis on which the award is made.

(b) One proposal received. If only one proposal is received in response to a request for proposals, the executive director may make an award or, if time permits, resolicit for the purpose of obtaining additional competitive sealed proposals.

(15) Publicizing Awards.

(a) Notice. After the selection of the successful offeror, notice of award shall be available in the executive director's office in Salt Lake City, Utah and may be available on the Internet.

(b) Information Disclosed. The following shall be disclosed with the notice of award:

(i) the rankings of the proposals;

(ii) the names of the selection committee members;

(iii) the amount of each offeror's cost proposal;

(iv) the final scores used by the selection committee to make the selection, except that the names of the individual scorers shall not be associated with their individual scores; and

(v) the written justification statement supporting the selection.

(c) Information Classified as Protected. After due consideration and public input, the following has been determined by the board to impair governmental procurement proceedings or give an unfair advantage to any person proposing to enter into a contract with the board and shall be classified as protected records:

(i) the names of individual selection committee scorers in relation to their individual scores or rankings; and

(ii) non-public financial statements.

(16) Confidentiality of Performance Evaluations and Reference Information. The board finds that it is necessary to maintain the confidentiality of performance evaluations and reference information in order to avoid competitive injury and to encourage those persons providing the information to respond in an open and honest manner without fear of retribution. Accordingly, records containing performance evaluations and reference information are classified as protected records under the provisions of Subsections 63-2-304(6) and shall be disclosed only to those persons involved with the performance evaluation, the contractor that the information addresses and procurement and other officials involved with the review and selection of proposals. The executive director may, however, provide reference information to other governmental entities for use in their procurement activities and to other parties when requested by the contractor that is the subject of the information. Any other disclosure of such performance evaluations and reference information shall only be as required by applicable law.

 

R131-4-409. Small Purchases.

(1) Procurements of $200,000 or Less.

(a) The executive director may make procurements estimated to cost $200,000 or less by soliciting at least two firms to submit written quotations.

(b) The names of the persons submitting quotations and the date and amount of each quotation shall be recorded and maintained as a public record by the board.

(c) If the executive director determines that other factors in addition to cost should be considered in the procurement, the executive director shall solicit proposals from at least two firms. The award shall be made to the firm offering the best proposal as determined through application of the procedures provided for in R131-4-408 except that a public notice is not required and only invited firms may submit proposals.

(2) Procurements of $50,000 or Less. The executive director may make small purchases of $50,000 or less in any manner that he shall deem to be adequate and reasonable.

(3) Division of Procurements. Procurements shall not be divided in order to qualify for the procedures outlined in this rule.

 

R131-4-410. Sole Source Procurement.

(1) Conditions for Use of Sole Source Procurement.

The procedures concerning sole source procurement in this rule may be used if, in the discretion of the executive director, a requirement is reasonably available only from a single source. Examples of circumstances which could also necessitate sole source procurement are:

(a) there is only one qualified source for the required craftsmanship, supply, service, or construction item; or

(b) the level of craftsmanship and quality to replicate restore is critical to the best interests of the state.

(c) the award to a specific supplier, service provider, or contractor is a condition of a donation that will fund the full cost of the supply, service, or construction item.

(d) where the compatibility of product design, equipment, accessories, or replacement parts is the paramount consideration;

(e) where a sole supplier's item is needed for trial use or testing;

(f) procurement of public utility services; or

(g) when it is a condition of a donation that will fund the full cost of the supply, material, equipment, service, or construction item.

(2) Written Determination. The determination as to whether a procurement shall be made as a sole source shall be made by the executive director in writing and may cover more than one procurement.

(3) Negotiation in Sole Source Procurement. The executive director shall negotiate with the sole source vendor for considerations of price, delivery, and other terms.

 

R131-4-411. Emergency Procurements.

(1) Application. This Section shall apply to every procurement made under emergency conditions that will not permit other source selection methods to be used.

(2) Definition of Emergency Conditions. An emergency condition is a situation which creates a threat to public health, welfare, or safety such as may arise by reason of floods, epidemics, riots, natural disasters, wars, destruction of property, building or equipment failures, or any emergency proclaimed by governmental authorities.

(3) Scope of Emergency Procurements. Emergency procurements shall be limited to only those items necessary to meet the emergency.

(4) Authority to Make Emergency Procurements.

(a) The executive director may make an emergency procurement when, in the executive director's determination, an emergency condition exists or will exist and the need cannot be met through other procurement methods.

(b) The procurement process shall be considered unsuccessful when all bids or proposals received pursuant to an invitation for bids or request for proposals are nonresponsive, unreasonable, noncompetitive, or exceed available funds as certified by the appropriate fiscal officer, and time or other circumstances will not permit the delay required to resolicit competitive sealed bids or proposals. If emergency conditions exist after or are brought about by an unsuccessful procurement process, an emergency procurement may be made.

(5) Source Selection Methods. The source selection method used for emergency procurement shall be selected by the executive director with a view to assuring that the required items are procured in time to meet the emergency. Given this constraint, as much competition as the executive director determines to be practicable shall be obtained.

(6) Specifications. The executive director may use any appropriate specifications without being subject to the requirements of R131-4-301 through R131-4-304.

(7) Required Construction Contract Clauses. The executive director may modify or not use the construction contract clauses otherwise required by R131-4-601.

(8) Written Determination. The executive director shall make a written determination stating the basis for each emergency procurement and for the selection of the particular source. This determination shall be included in the project file.

 

R131-4-411A. Protected Records.

(1) General Classification. Records submitted to the board or the executive director in a procurement process are classified as public unless a different classification is determined in accordance with Title 63, Chapter 2, Government Records Access and Management Act.

(2) Protected Records. Records meeting the requirements of Section 63-2-304 will be treated as protected records if the procedural requirements of GRAMA are met. Examples of protected records include the following:

(a) trade secrets, as defined in Section 13-24-2, if the requirements of R131-4-411A(3) are met;

(b) commercial information or nonindividual financial information if the requirements of Subsection 63-2-304(2) and R131-4-411A(3) are met; and

(c) records the disclosure of which would impair governmental procurement proceedings or give an unfair advantage to any person proposing to enter into a contract with the board, including, but not limited to, those records for which such a determination is made in R131-4 or R131-1.

(3) Requests for Protected Status. Persons who believe that a submitted record, or portion thereof, should be protected under the classifications listed in R131-4-411A(2)(a) and R131-4-411A(2)(b) shall provide with the record a written claim of business confidentiality and a concise statement of reasons supporting the claim of business confidentiality. Such statements must address each portion of a document for which protected status is requested.

(4) Notification. A person who complies with R131-4-411A shall be notified by the executive director prior to the executive director's public release of any information for which business confidentiality has been asserted.

(5) Disclosure of Records and Appeal. The records access determination and any further appeal of such determination shall be made in accordance with the provisions of Sections 63-2-308 and 63-2-401 et seq., GRAMA.

(6) Not Limit Rights. Nothing in this rule shall be construed to limit the right of the board or executive director to protect a record from public disclosure where such protection is allowed by law.

 

R131-4-412. Cancellation and Rejection of Bids.

An invitation for bids, a request for proposals, or other solicitation may be cancelled, or any or all bids or proposals may be rejected, in whole or in part, as may be specified in the solicitation, when it is in the best interests of the state as determined by the board or executive director in writing. The reasons shall be made part of the contract file.

 

R131-4-413. Determination of Nonresponsibility of Bidder or Offeror.

A written determination of nonresponsibility of a bidder or offeror shall be made by the executive director when information of such nonresponsibility is provided to the executive director. The unreasonable failure of a bidder or offeror to promptly supply information in connection with an inquiry with respect to responsibility may be grounds for a determination of nonresponsibility with respect to the bidder or offeror. Information furnished by a bidder or offeror pursuant to R131-4-413 shall not be disclosed outside of the board or executive director's office without prior written consent by the bidder or offeror.

 

R131-4-414. Prequalification of Suppliers.

Prospective suppliers may be prequalified for particular types of supplies, services, and construction. Solicitation mailing lists of potential contractors shall include but shall not be limited to prequalified suppliers.

 

R131-4-415. Rules and Regulations to Determine Allowable Incurred Costs - Required Information - Auditing of Books.

(1) Applicability. Cost or pricing data shall be required when negotiating contracts and adjustments to contracts if:

(a) adequate price competition is not obtained as provided in this rule; and

(b) the amounts listed in Subsection (3) below are exceeded.

(2) Adequate Price Competition. Adequate price competition for portions of, or entire contracts, occurs when:

(a) a contract is awarded based on competitive sealed bidding;

(b) a contractor is selected from competitive sealed proposals and cost was one of the selection criteria;

(c) a portion of a contract is awarded for a lump sum amount or a fixed percentage of other costs, and the cost of the lump sum or percentage amount is one of the selection criteria, and when contractor selection is made from competitive sealed proposals;

(d) a portion of a contract is awarded for which adequate price competition that was not otherwise obtained when competitive bids were obtained and documented by either the board, executive director, or the contractor;

(e) costs are based upon established catalogue prices or market prices;

(f) costs are set by law or rule; or

(g) the executive director makes a written determination that other circumstances have resulted in adequate price competition.

(3) Amounts. R131-4-415 does not apply to:

(a) Contracts or portions of contracts costing less than $200,000, and

(b) Change orders or other price adjustments of less than $50,000.

(4) Other Applications: R131-4-415 may apply to any contract or price adjustment when it is found by the executive director to be in the best interest of the state and any contract may require cost or pricing data and certifications by the contractor as to the accuracy of such cost or pricing data.

(5) Submission of Cost or Pricing Data and Certification. When cost or pricing data is required, the data shall be submitted prior to beginning price negotiation. The offeror or contractor shall keep the data current throughout the negotiations and certify as soon as practicable after agreement is reached on price that the cost or pricing data submitted are accurate, complete, and current as of a mutually determined date.

(6) Refusal to Submit. If the offeror fails to submit the required data, the executive director may disqualify the noncomplying offeror, to defer award pending further investigation, or to enter into the contract. If the matter involves a price adjustment, the executive director may further investigate the price adjustment, disallow any price adjustment, or set the amount of the price adjustment.

(7) Defective Cost or Pricing Data. If certified cost or pricing data are subsequently found to have been inaccurate, incomplete, or noncurrent as of the date stated in the certificate, the Board shall be entitled to an adjustment of the contract price to exclude any significant sum, including profit or fee, to the extent the contract sum was increased because of the defective data. It shall be assumed that overstated cost or pricing data resulted in an increase of the contract price in the amount of the defect plus any related overhead and profit or fee; therefore, unless documentation can show that the defective data were not used or relied upon, the price may be reduced by a requisite amount. In establishing that defective data caused an increase in the contract price, the executive director shall not be required to reconstruct the negotiation or speculate on the mental attitudes of the negotiating parties if correct data had been submitted at the time of agreement on price.

(8) Audit. The state, board or executive director may, in its discretion, and at reasonable times and places, audit or cause to be audited the books and records of any person who has submitted cost or pricing data pursuing to this rule or any contractor, prospective contractor, subcontractor, or prospective subcontractor which are related to the cost or pricing data submitted.

(9) Retention of Books and Records. Any contractor who receives a contract or price adjustment for which cost or pricing data is required shall maintain all books and records that relate to the cost or pricing data for three years following the end of the fiscal year in which final payment is made under the prime contract and by the subcontractor for three years following the end of the fiscal year in which final payment is made under the subcontract.

 

R131-4-416. Cost-Plus-a-Percentage-of-Cost Contract.

(1) Subject to the limitations of R131-4-416, any type of contract which will promote the best interests of the state or the Board may be used; provided that the use of a cost-plus-a-percentage-of-cost contract is only allowed as approved by the board, otherwise it is prohibited. A cost-reimbursement contract with a guaranteed maximum price may be used only when a determination is made in writing by the board that such contract is likely to be less costly to the state than any other type or that it is impracticable to obtain the supplies, services, or construction required except under such a contract.

(2) Except with respect to firm fixed-price contracts, no contract type shall be used unless it has been determined in writing by the executive director or the board that:

(a) the proposed contractor's accounting system will permit timely development of all necessary cost data in the form required by the specific contract type contemplated; and

(b) the proposed contractor's accounting system is adequate to allocate costs in accordance with generally accepted accounting principles.

 

R131-4-417. Period of Time for Contract of Supplies.

(1) Unless otherwise provided by law, a contract for supplies or services may be entered into for any period of time deemed to be in the best interests of the state or the board; provided that the term of the contract and conditions of renewal or extension, if any, are included in the solicitation and funds are available for the first fiscal period at the time of contracting. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds.

(2) Prior to the utilization of a multi-year contract, it shall be determined in writing by the executive director or the board that estimated requirements cover the period of the contract and are reasonably firm and continuing and that such a contract will serve the best interests of the state or the board by encouraging effective competition or otherwise promoting economies in state procurement.

(3) When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be cancelled and the contractor shall be reimbursed for the reasonable value of any nonrecurring costs incurred but not amortized in the price of the supplies or services delivered under the contract. The cost of cancellation may be paid from any appropriations available for that purpose.

 

R131-4-418. Right to Inspect Place of Business of Contractor or Subcontractor.

The state, board or the executive director may, at reasonable times, inspect the part of the plant or place of business of a contractor or any subcontractor which is related to the performance of any contract awarded or to be awarded by the board or the executive director.

 

R131-4-419. Determinations Final Except when Arbitrary and Capricious.

The determinations required by R131-4-401, R131-4-408, R131-4-410, R131-4-411, R131-4-413, R131-4-415, R131-3-416, and R131-4-417 are final and conclusive unless they are arbitrary and capricious or clearly erroneous.

 

R131-4-420. Factual Information to Attorney General if Collusion Suspected.

When for any reason collusion or other anticompetitive practices are suspected among bidders or offerors, a notice of the relevant facts shall be transmitted to the attorney general.

 

R131-4-421. Records of Contracts Made.

The executive director shall maintain a record listing all contracts made under R131-4-410 or R131-4-111 and shall maintain the record in accordance with Title 63, Chapter 2, Government Records Access and Management Act. The record shall contain each contractor's name, the amount and type of each contract, and a listing of the supplies, services, or construction procured under each contract.

 

R131-4-423. Purchase of Prison Industry Goods.

(1) The board shall purchase goods and services produced by the Utah Correctional Industries Division as provided by R131-4-423, which is an exemption from other provisions of R131-4, when in the opinion of the board or executive director such purchase is feasible.

(2) The board or executive director may not purchase any goods or services provided by the Utah Correctional Industries Division from any other source unless it has been determined in writing by the director of the Utah Correctional Industries and the board or executive director, that purchase from the Utah Correctional Industries Division is not feasible due to one of the following circumstances:

(a) the good or service offered by the Utah Correction Industries Division does not meet the reasonable requirements of the executive director or board, including the compatibility with the unique design requirements of the Capitol Hill facilities and grounds;

(b) the good or service cannot be supplied within a reasonable time by the Utah Corrections Industries Division; or

(c) the cost of the good or service, including basic price, transportation costs, and other expenses of acquisition, is not competitive with the cost of procuring the item from another source.

(3) In cases of disagreement, the decision may be appealed to a board consisting of the director of the Department of Corrections, the executive director, and a neutral third party agreed upon by the other two members.

 

R131-4-425. Purchase from Community Rehabilitation Programs.

(1) Except as provided under R131-4-425(3) below, notwithstanding any provision in R131-4 to the contrary, the board or executive director shall purchase goods and services produced by a community rehabilitation program using the preferred procurement contract list approved under Section 63-56-425(2)(b)(iii) if:

(a) the good or service offered for sale by a community rehabilitation program reasonably conforms to the needs and specifications of the board;

(b) the community rehabilitation program can supply the good or service within a reasonable time; and

(c) the price of the good or service is reasonably competitive with the cost of procuring the good or service from another source.

(2) In accordance with Section 63-56-425 (5), each community rehabilitation program:

(a) may submit a bid to the Persons with Disabilities Advisory Board at any time and not necessarily in response to a request for bids; and

(b) shall certify on any bid it submits to the Persons with Disabilities Advisory Board, the Board or executive director that it is claiming a preference under Section 63-56-425.

(3) During a fiscal year, the requirement for the board or executive director to purchase goods and services produced by a community rehabilitation program under the preferred procurement list under Section 63-56-425(4) does not apply if the Division of Purchasing and General Services determines that the total amount of procurement contracts with community rehabilitation programs has reached $5 million for that fiscal year.

(4) In the case of conflict between a purchase under R131-4-425 and a purchase under R131-4-423, R131-4-425 prevails.

 

R131-4-501. Alternative Methods of Construction Contracting Management.

(1) Application. This Section contains provisions applicable to the selection of the appropriate type of construction contract management.

(2) Flexibility. The executive director may devise an appropriate construction contract management method for a particular project that will best meet the needs of the board. The methods outlined in this rule are not an exclusive list.

(3) Selection. The executive director shall be expected to consider the results achieved on similar projects in the past and the methods used, other appropriate and effective methods, and how a method could be adapted or combined to meet the needs of the state.

(4) Criteria. Before choosing the construction contracting method, some factors that may be considered include:

(a) when the facility must be ready for occupancy;

(b) the type of project, for example, housing, offices, labs, heavy or specialized construction;

(c) the extent to which the requirements of the occupants are known;

(d) the location of the project;

(e) the size, scope, complexity, and economics of the project;

(f) the amount and type of financing available for the project, including whether the budget is fixed, the source of funding, general or special appropriation, federal assistance moneys, general obligation bonds or revenue bonds;

(g) the availability, qualification, experience, and available time of assigned State personnel to the project;

(h) the availability, experience and qualifications of outside consultants and contractors.

(5) General Descriptions.

(a) Application of Descriptions. The following descriptions are provided for the more common contracting methods. The methods described are not mutually exclusive and may be combined on a project. These descriptions are not intended to be fixed for all construction projects of the state. In each project, these descriptions may be adapted to fit the circumstances of that project.

(b) Single Prime Contractor. The single prime contractor method is typified by one business entity acting as a general contractor with the state to complete an entire construction project in accordance with drawings and specifications provided by the state within a defined time period. Generally, the drawings and specifications are prepared by an architectural or engineering firm under contract with the state. Further, while the general contractor may take responsibility for successful completion of the project, much of the work may be performed by specialty contractors with whom the prime contractor has entered into subcontracts.

(c) Multiple Prime Contractors. Under this method, the board or the board's agent shall contract directly with a number of specialty contractors to complete portions of the project in accordance with the board's drawings and specifications. The board or its agent may have primary responsibility for successful completion of the entire project, or the contracts may provide that one of the multiple prime contractors shall have this responsibility.

(d) Design-Build. The use of a design build provider is authorized if determined to be used in accordance with this rule. In a design-build project, a business entity shall contract directly with the board to meet requirements described in a set of performance specifications. Both the design and construction responsibilities are assumed by the design-build contractor. This method can include instances where the design-build contractor supplies the site as part of the package.

(e) Construction Manager. The use of a construction manager, including a construction manager/general contractor, is authorized if determined to be used in accordance with this rule and shall be selected in accordance with R131-4. A construction manager shall be experienced in construction, have the ability to evaluate and to implement drawings and specifications as they affect time, cost, and quality of construction and the ability to coordinate the construction of the project, including the addition of change orders. A contract with a construction manager may be issued early in a project to assist in the development of a cost effective design. The construction manager may be appointed the single prime contractor, or may be required to guarantee that the project will be completed by a specified time, and not to exceed a specified maximum price. The procurement of a construction manager may be based, among other criteria, on proposals for a management fee which is either a lump sum or a percentage of construction costs with a guaranteed maximum cost or, on proposals for a lump sum or guaranteed maximum cost for the construction of the project. The contract with the construction manager may also provide for a sharing of any savings which are achieved below the guaranteed maximum cost. When entering into any subcontract that was not specifically included in the construction manager/general contractor's cost proposal, the construction manager/general contractor shall procure that subcontractor in accordance with R131-4 in the same manner as if the subcontract work was procured directly by the board.

(f) Sequential Design and Construction. Sequential design and construction is a method whereby design of substantially the entire structure is completed prior to beginning the construction process.

(g) Phased Design and Construction. Phased design and construction is a method whereby construction is begun when appropriate portions have been designed but before design of the entire structure has been completed. This method is also known as fast track construction.

(h) Design Assist Contracting. Design assist contacting may be used when it is determined by the executive director that a contractor (including a particular subcontractor trade) is needed subject to the following:

(i) it is determined that the design assist contractor (DAC) has a unique knowledge of a material or product that warrants the interaction of the DAC early on with the designer;

(ii) the DAC will be providing construction estimates, details and documents as well as the construction or installation of materials or products into the project;

(iii) the DAC is selected through a competitive sealed proposal process where qualifications are the main criteria for selection;

(iv) the DAC will provide information to the executive director and the designer of the project as needed to define the scope of the work for a fee; and

(v) a contract may be entered with a DAC only when the proposed cost for the work is equal to or less than the budget established by the board for the project, provided that the board may increase the budget, the board/executive director may use the information provided by the DAC and initiate a procurement process for the construction or installation; or the board/executive director may reduce the scope of the work.

 

R131-4-502. Procurement of Design-Build Highway Project Contracts.

The board may contract with the Department of Transportation as needed for procurement of design-build transportation project contracts surrounding Capitol Hill.

 

R131-4-503. Bid Security Requirements.

(1) Bid security in amount equal to at least 5% of the amount of the bid shall be required for all competitive sealed bidding for construction contracts with an amount over $50,000. The board finds that requiring a bid bond for construction contracts of $50,000 or less is presumed not necessary to protect the state or the board, though the executive director or the board has the right on an individual contract to so require the bonds. Bid security shall be a bond in a form and from a surety company that meets the requirements of R131-4-504.

(2) When a bidder fails to comply with the requirement for bid security set forth in the invitation for bids, the bid shall be rejected unless, pursuant to R131-4, it is determined by the executive director that the failure to comply with the security requirements is nonsubstantial.

(3) After the bids are opened, they shall be irrevocable for the period specified in the invitation for bids, except as provided in R131-4-401. If a bidder is permitted to withdraw a bid before award, no action shall be taken against the bidder or the bid security. Failure to submit an acceptable bid security in connection with an invitation for bids shall be deemed nonsubstantial where only one bid is received, and there is not sufficient time to rebid the contract.

(4) When issuing an invitation for bid under R131-4, the executive director may not require a person or entity who is bidding for a contract to obtain a bond of the type referred to in Subsection (1) from a specific insurance or surety company, producer, agent, or broker.

 

R131-4-504. Bonds Necessary When Contract is Awarded - Waiver - Action - Attorneys' Fees.

(1) When a construction contract for an amount over $50,000, is awarded under R131-4, the contractor to whom the contract is awarded shall deliver the following bonds or security to the executive director, which shall become binding on the parties upon the execution of the contract:

(a) a performance bond satisfactory to the executive director that is in an amount equal to 100% of the price specified in the contract and is executed by a surety company authorized to do business in this state or any other form satisfactory to the state; and

(b) a payment bond satisfactory to the executive director that is in an amount equal to 100% of the price specified in the contract and is executed by a surety company authorized to do business in this state or any other form satisfactory to the state, which is for the protection of each person supplying labor, service, equipment, or material for the performance of the work provided for in the contract.

(2) The board finds that requiring a performance or payment bond for construction contracts of $50,000 or less is presumed not necessary to protect the state or the board, though the executive director or the board has the right on an individual contract to so require the bonds.

(3) If a contractor fails to deliver the required bonds, the contractor's bid shall be found nonresponsive and its bid security shall be forfeited.

(4) Forms of Bonds. Bid bonds, payment bonds and performance bonds must be from sureties meeting the requirements of this rule and must be on the exact bond forms most recently adopted by the board and on file with the board.

(5) Surety firm requirements. All surety firms must be authorized to do business in the state of Utah and be listed in the U.S. Department of the Treasury Circular 570, Companies Holding Certificates of Authority as Acceptable Securities on Federal Bonds and as Acceptable Reinsuring Companies for an amount not less than the amount of the bond to be issued. A co-surety may be utilized to satisfy this requirement.

(6) Waiver. The executive director may waive the bonding requirement if the executive director finds that bonds cannot be reasonably obtained for the work involved and, after seeking advice from the attorney general, that such bonds are not necessary to protect the board or the state, which finding shall be documented in the project files.

(7) A person shall have a right of action on a payment bond in accordance with Section 63-56-504.

 

R131-4-505. Preliminary Notice Requirement.

(1) Any person furnishing labor, service, equipment, or material for which a payment bond claim may be made under R131-4, shall provide preliminary notice to the designated agent as prescribed by Section 38-1-32, except that this preliminary notice requirement shall not apply:

(a) to a person performing labor for wages; or

(b) if a notice of commencement is not filed as prescribed in Section 38-1-31 for the project or improvement for which labor, service, equipment or material is furnished.

(2) Any person who fails to provide the preliminary notice required by Subsection (1) may not make a payment bond claim under the Utah Procurement Code or R131-4.

(3) The preliminary notice required by Subsection (1) must be provided prior to commencement of any action on the payment bond.

 

R131-4-506. Form of Bonds - Effect of Certified Copy.

The form of the bonds shall be as required in R131-4-503 and R131-4-504 above. Any person may obtain from the executive director a certified copy of a bond upon payment of the cost of reproduction of the bond and postage, if any. A certified copy of a bond shall be prima facie evidence of the contents, execution, and delivery of the original.

 

R131-4-507. Qualifications of Contractors.

(1) Pre-Bidding Requirements. The following documents must be on file with the board before the bidding documents for a project may be issued to prospective bidders.

(a) If the type of work involved with the project requires a contractor's license, a photocopy of the bidder's current Utah contractor's license showing date issued, expiration date, bid limit amount or similar restriction, and the class of work for which licensed;(b) A statement from the bidder's surety stating that it will bond the bidder for an amount at least equal to the estimated cost of the contract as determined by the executive director. This requirement can be met by having the surety file an annual statement with the board showing the bonding limit it has established for the bidder.

(2) A form of surety statement and, when applicable, a form for prequalification, are available at the principal office of the board.

(3) Project Specific Requirements. The board may include additional qualification requirements in the solicitation documents as may be appropriate for a specific project.

 

R131-4-601. Construction Contract Clauses.

(1) Required Contract Clauses. Pursuant to Section 63-56-601, the document entitled "Required Construction Contract Clauses", dated March 28, 2001 and on file with the executive director, is hereby incorporated by reference. Except as provided in this rule, the executive director shall include some or all of these clauses in all construction contracts for more than $50,000.

(2) Revisions to Contract Clauses. The executive director may modify the clauses for inclusion in any particular contract. The clauses required by this Section may be modified for use in any particular contract when, pursuant to this rule, the executive director makes a written determination describing the circumstances justifying the variation or variations. Notice of any material variations from the contract clauses required by this Section shall be included in any invitation for bids or request for proposals. Any variations shall be supported by a written determination by the executive director that describes the circumstances justifying the variations, and notice of any material variation shall be included in the invitation for bids or request for proposals.

 

R131-4-602. Certification of Change Order.

Under a construction contract, any change order which increases the contract amount shall be subject to prior written certification that the change order is within the determined project or contract budget. The certification shall be made by the executive director. If the certification discloses a resulting increase in the total project or contract budget, the executive director shall not execute or make the change order unless sufficient funds are available or the scope of the project or contract is adjusted to permit the degree of completion feasible within the total project or contract budget as it existed prior to the change order under consideration. However, with respect to the validity, as to the contractor, of any executed change order upon which the contractor has reasonably relied, it shall be presumed that there has been compliance with the provisions of this rule.

 

R131-4-701. Procured in Accordance with R131-1.

Architectural and engineering services shall be procured in accordance with R131-1.

 

R131-4-703. Selection as Part of Design-Build or Lease.

Notwithstanding any other provision of R131-4, architect-engineer services may be procured by the board as part of the services obtained in a design-build contract or as part of the services obtained in a lease contract for real property, provided that the qualifications of those providing the architect-engineer services are part of the consideration in the selection process.

 

R131-4-801. In General.

While the board is exempt from the requirements of Title 63, Chapter 56, Utah Procurement Code and is required to adopt procurement rules substantially similar to the requirements of that chapter, the board recognizes that the provisions of Title 63, Chapter 56, Utah Procurement Code Section 63-56-801 through 63-56-820 shall apply to the procurement processes of the board and the executive director. The following R131-801A through R131-4-820 shall be operative, whether through the Utah Procurement Code or through the rules themselves.

 

R131-4-801A. Protest to Executive Director - Time - Authority to Resolve Protest.

(1) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the executive director. A protest with respect to an invitation for bids or a request for proposals shall be submitted in writing prior to the opening of bids or the closing date for proposals, unless the aggrieved person did not know and should not have known of the facts giving rise to the protest prior to bid opening or the closing date for proposals. The protest shall be submitted in writing within five working days after the aggrieved person knows or should have known of the facts giving rise thereto.

(2) The executive director shall have the authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve the protest.

 

R131-4-802. Effect of Timely Protest.

In the event of a timely protest under R131-4-801A(1), Section 63-56-810(1) or R131-4-815(1), the board shall not proceed further with the solicitation or with the award of the contract until all administrative and judicial remedies have been exhausted or until the executive director after consultation with the head of any applicable using agency or the head of any applicable purchasing agency, makes a written determination that the award of the contract without delay is necessary to protect substantial interests of the state.

 

R131-4-803. Costs to or Against Protestor.

(1) When a protest is sustained administratively or upon administrative or judicial review and the protesting bidder or offeror should have been awarded the contract under the solicitation but is not, the protestor shall be entitled to the following relief as a claim against the state:

(a) the reasonable costs incurred in connection with the solicitation, including bid preparation and appeal costs; and

(b) any equitable relief determined to be appropriate by the reviewing administrative or judicial body.

(2) When a protest is not sustained by the procurement appeals board, the protestor shall reimburse the board or the Division of Purchasing and General Services, in accordance with which agency incurred the expense, for the per diem and expenses paid to witnesses or appeals board members and any additional expenses incurred by the state agency staff who have provided materials and administrative services to the procurement appeals board for that case.

 

R131-4-804. Debarment from Consideration for Award of Contracts - Causes for Debarment.

(1) After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the executive director after consultation with the attorney general and any applicable using agency, shall have authority to debar a person for cause from consideration for award of contracts. The debarment shall not be for a period exceeding three years. The executive director, after consultation with the attorney general and any applicable using agency, shall have authority to suspend a person from consideration for award of contracts if there is probable cause to believe that the person has engaged in any activity which might lead to debarment. The suspension shall not be for a period exceeding three months unless an indictment has been issued for an offense which would be a cause for debarment under Subsection (2) of R131-4-804, in which case the suspension shall, at the request of the attorney general, remain in effect until after the trial of the suspended person.

(2) The causes for debarment include the following:

(a) conviction of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract or in the performance of such contract or subcontract;

(b) conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a state contractor;

(c) conviction under state or federal antitrust statutes;

(d) failure without good cause to perform in accordance with the terms of the contract; or

(e) any other cause the executive director determines to be so serious and compelling as to affect responsibility as a state contractor, including debarment by another governmental entity for any cause listed in rules and regulations.

 

R131-4-805. Authority to Resolve Controversy Between Capitol Preservation Board and Contractor.

The board/executive director is authorized, prior to commencement of an action in court concerning the controversy, to settle and resolve a controversy which arises between the board/executive director and a contractor under or by virtue of a contract between them. This includes, without limitation, controversies based upon breach of contract, mistakes, misrepresentation, or other cause for contract modification or rescission.

 

R131-4-806. Decisions of Executive Director to be in Writing - Effect of no Writing.

(1) The executive director, or board if determined by the board, shall promptly issue a written decision regarding any protest, debarment or suspension, or contract controversy if it is not settled by a mutual agreement. The decision shall state the reasons for the action taken and inform the protestor, contractor, or prospective contractor of the right to judicial or administrative review as provided in the Utah Procurement Code and R131-4.

(2) A decision shall be effective until stayed or reversed on appeal, except to the extent provided in R131-4-802. A copy of the decision under Subsection (1) above shall be mailed or otherwise furnished immediately to the protestor, prospective contractor, or contractor. The decision shall be final and conclusive unless the protestor, prospective contractor, or contractor appeals administratively to the procurement appeals board in accordance with Subsection 63-56-810(2) or the protestor, prospective contractor, or contractor commences an action in district court in accordance with R131-4-815 (Section 63-56-815).

(3) If the executive director or board, depending who is considering the matter, does not issue the written decision regarding a contract controversy within 60 calendar days after written request for a final decision, or within such longer period as may be agreed upon by the parties, then the contractor may proceed as if an adverse decision had been received.

 

R131-4-807. Procurement Appeals Board.

The board recognizes the provisions of Sections 63-56-807 through 63-56-813, related to the procurement appeals board, as being applicable to the procurement processes of the board and the executive director.

 

R131-4-814. Right to Appeal to Court of Appeals.

In accordance with Section 63-56-814, any person receiving an adverse decision of the board may appeal a decision of the procurement appeals board to the court of appeals. However, no appeal may be made by the board unless recommended by the executive director and approved by the attorney general.

 

R131-4-815. Jurisdiction of District Court.

The board recognizes the jurisdictional provisions of Section 63-56-815 regarding the district court.

 

R131-4-816. Effect of Prior Determination by Agents of State.

The board recognizes the provisions of Section 63-56-816 as being applicable in that in any judicial action under R131-4-815, determinations by employees, agents, or other persons appointed by the state shall be final and conclusive only as provided in R131-4-419, R131-4-806, and R131-4-807.

 

R131-4-817. Statutes of Limitations.

(1) The board recognizes the statute or limitation requirements of Section 63-56-817 as being applicable and therefore:

(a) Any action under R131-4-815(1)(a) shall be initiated as follows:

(i) within 20 calendar days after the aggrieved person knows or should have known of the facts giving rise to the action; provided, however, that an action with respect to an invitation for bids or request for proposals shall be initiated prior to the opening of bids or the closing date for proposals unless the aggrieved person did not know and should not have known of the facts giving rise to the action prior to bid opening or the closing date for proposals; or

(ii) within 14 calendar days after receipt of a final administrative decision pursuant to either R131-4-806 or R131-4-807, whichever is applicable.

(b) Any action under R131-4-815(1)(b) shall be commenced within six months after receipt of a final administrative decision pursuant to R131-4-806 or R131-4-807, whichever is applicable.

(c) The statutory limitations on an action between private persons on a contract or for breach of contract shall apply to any action commenced pursuant to R131-4-815(1)(c), except notice of appeals from the procurement appeals board pursuant to R131-4-807 concerning actions on a contract or for breach of contract shall be filed within one year after the date of the procurement appeals board decision.

 

R131-4-818. Effect of Violation Prior to Award of Contract.

The board recognizes Section 63-56-818 as being applicable and therefore, if prior to award it is determined administratively or upon administrative or judicial review that a solicitation or proposed award of a contract is in violation of law, the solicitation or proposed award shall be cancelled or revised to comply with the law.

 

R131-4-819. Effect of Violation after Award of Contract.

The board recognizes Section 63-56-819 as being applicable and therefore, if after an award it is determined administratively or upon administrative or judicial review that a solicitation or award of a contract is in violation of law:

(1) If the person awarded the contract has not acted fraudulently or in bad faith:

(a) The contract may be ratified and affirmed if it is determined that doing so is in the best interests of the state; or

(b) The contract may be terminated and the person awarded the contract shall be compensated for the actual expenses reasonably incurred under the contract prior to termination, plus a reasonable profit;

(2) If the person awarded the contract has acted fraudulently or in bad faith:

(a) The contract may be declared null and void; or

(b) The contract may be ratified and affirmed if such action is in the best interests of the state, without prejudice to the board's and the state's rights to any appropriate damages.

 

R131-4-820. Interest Rate.

The board recognizes Section 63-56-820 as being applicable and therefore:

(1) Except as provided in (2) below, in controversies between the board, including the executive director, and contractors under R131-4-801 through R131-4-820, interest on amounts ultimately determined to be due to a contractor or to the board and the state are payable at the rate applicable to judgments from the date the claim arose through the date of decision or judgment, whichever is later.

(2) This rule does not apply to public assistance benefits programs.

 

R131-4-901. Public Procurement Units.

The board recognizes the applicability of Sections 63-56-901 through 63-56-907 and the board is authorized to enter into agreements under those Sections and those Sections shall be operative in regard to such agreements.

 

R131-4-1001. Accepting or Offering Emolument.

To the extent allowed by law, the provisions of Sections 63-56-1001 and 63-56-1002 restricting the acceptance or offering of emolument shall apply.

 

KEY: contracts, public buildings, procurement

Date of Enactment or Last Substantive Amendment: [May 16, 2001]2007

Notice of Continuation: May 12, 2006

Authorizing, and Implemented or Interpreted Law: 63C-9-301