No. 40898 (Amendment): Rule R33-16. Protests

(Amendment)

DAR File No.: 40898
Filed: 10/19/2016 03:30:20 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Subsection 63G-6a-1602(3)(a)(ii) of the Utah Code does not define or include the term "Relevant Facts"; it merely says "facts". Therefore, the term "relevant" is being removed from the rule.

Summary of the rule or change:

The term "relevant" has been removed from this rule so that it complies with the definition found in Subsection 63G-6a-1602(3)(a)(ii) of the Utah Code.

Statutory or constitutional authorization for this rule:

• Sections 63G-6a-1601 through 13G-6a-604

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings that are expected as a result of the changes to this rule to the state budget. The changes to this rule simply remove the term "relevant" so that it complies with Subsection 63G-6a-1602(3)(a)(ii).

local governments:

There are no anticipated costs or savings that are expected as a result of the changes to this rule to local government. The changes to this rule simply remove the term "relevant" so that it complies with Subsection 63G-6a-1602(3)(a)(ii).

small businesses:

There are no anticipated costs or savings that are expected as a result of the changes to this rule to small businesses. The changes to this rule simply remove the term "relevant" so that it complies with Subsection 63G-6a-1602(3)(a)(ii).

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

There are no anticipated costs or savings that are expected as a result of the changes to this rule to persons other than small businesses, businesses, or local government entities. The changes to this rule simply remove the term "relevant" so that it complies with Subsection 63G-6a-1602(3)(a)(ii).

Compliance costs for affected persons:

There are no anticipated compliance costs for affected persons. The changes to this rule simply remove the term "relevant" so that it complies with Subsection 63G-6a-1602(3)(a)(ii).

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

There are no anticipated fiscal impacts that this rule may have on businesses. The changes to this rule simply remove the term "relevant" so that it complies with Subsection 63G-6a-1602(3)(a)(ii).

Ken Hansen, Interim Executive Director

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

Administrative Services
Purchasing and General Services
Room 3150 STATE OFFICE BLDG
450 N STATE ST
SALT LAKE CITY, UT 84114-1201

Direct questions regarding this rule to:

• Kent Beers at the above address, by phone at 801-538-3143, by FAX at 801-538-3882, 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:

12/15/2016

This rule may become effective on:

12/22/2016

Authorized by:

Kent Beers, Director

RULE TEXT

R33. Administrative Services, Division of Purchasing and General Services.

R33-16. Protests.

R33-16-101. Conduct.

Controversies and protests shall be conducted in accordance with the requirements set forth in Sections 63G-6a-1601 through 13G-6a-604. All definitions in the Utah Procurement Code shall apply to this Rule unless otherwise specified in this Rule. This administrative rule provides additional requirements and procedures and must be used in conjunction with the Procurement Code.

 

R33-16-101a. Grounds for a Protest.

(1) This Rule shall apply to all protests filed under Section 63G-6a-1602.

(2) In accordance with the requirements set forth in Section 63G-6a-1602(3)(a)(ii), a person filing a protest must include a concise statement of the grounds upon which the protest is made.

(a) A concise statement of the grounds for a protest should include the [relevant ]facts leading the protestor to contend that a grievance has occurred, including but not limited to specifically referencing:

(i) An alleged violation of Utah Procurement Code 63G-6a;

(ii) An alleged violation of Title R33 or other applicable rule;

(iii) A provision of the request for proposals, invitation for bids, or other solicitation allegedly not being followed;

(iv) A provision of the solicitation alleged to be:

(A) ambiguous;

(B) confusing;

(C) contradictory;

(D) unduly restrictive;

(E) erroneous;

(F) anticompetitive; or

(G) unlawful;

(v) An alleged error made by the evaluation committee or conducting procurement unit;

(vi) An allegation of bias by the evaluation committee or an individual committee member; or

(vii) A scoring criteria allegedly not being correctly applied or calculated.

(b) "[Relevant ]Facts" as referred to in Section 63G-6a-1602(3)(a)(ii), [in addition to being relevant, ] must be specific enough to enable the protest officer to determine, if such facts are proven to be true, whether a legitimate basis for the protest exists.

(c) None of the following qualify as a concise statement of the grounds for a protest:

(i) claims made after the opening of bids or closing date of proposals that the specifications, terms and conditions, or other elements of a solicitation are ambiguous, confusing, contradictory, unduly restrictive, erroneous, or anticompetitive;

(ii) vague or unsubstantiated allegations that do not reference [relevant or ]specific facts including, but not limited to, vague or unsubstantiated allegations by a bidder, offeror, or prospective contractor that:

(A) a bidder, offeror, or prospective contractor should have received a higher score or that another bidder, offeror, or prospective contractor should have received a lower score;

(B) a service or product provided by a bidder, offeror, or prospective contractor is better than another bidder's, offeror's, or prospective contractor's service or product;

(C) another bidder, offeror, or prospective contractor cannot provide the procurement item for the price bid or perform the services described in the solicitation; or

(D) any item listed in Section 63G-6a-1602(3)(a)(ii) of this Rule has occurred that is not [relevant or ]specific;

(iii) Filing a protest requesting:

(A) a detailed explanation of the thinking and scoring of evaluation committee members, beyond the official justification statement described in Section 63G-6a-708,

(B) protected information beyond what is provided under the disclosure provisions of the Utah Procurement Code; or

(C) other information, documents, or explanations reasonably deemed to be not in compliance with the Utah Code or this Rule by the protest officer.

(d) In accordance with Section 63G-6a-1603(1), a protest officer may dismiss a protest if the concise statement of the grounds for filing a protest does not comply with this Rule.

 

R33-16-201. Verification of Legal Authority.

A person filing a protest may be asked to verify that the person has legal authority to file a protest on behalf of the public or private corporation, governmental entity, sole proprietorship, partnership, or unincorporated association.

 

R33-16-301. Intervention in a Protest.

(1) Application. This Rule contains provisions applicable to intervention in a protest, including who may intervene and the time and manner of intervention.

(2) Period of Time to File. After a timely protest is filed in accordance with the Utah Procurement Code, the Protest Officer shall notify awardees of the subject procurement and may notify others of the protest. A Motion to Intervene must be filed with the Protest Officer no later than ten days from the date such notice is sent by the Protest Officer. Only those Motions to Intervene made within the time prescribed in this Rule will be considered timely. The entity or entities who conducted the procurement and those who are the intended beneficiaries of the procurement are automatically considered a Party of Record and need not file any Motion to Intervene.

(3) Contents of a Motion to Intervene. A copy of the Motion to Intervene shall also be mailed or emailed to the person protesting the procurement.

(4) Any Motion to Intervene must state, to the extent known, the position taken by the person seeking intervention and the basis in fact and law for that position. A motion to intervene must also state the person's interest in sufficient factual detail to demonstrate that:

(a) the person seeking to intervene has a right to participate which is expressly conferred by statute or by Commission rule, order, or other action;

(b) the person seeking to intervene has or represents an interest which may be directly affected by the outcome of the proceeding, including any interest as a:

(i) consumer;

(ii) customer;

(iii) competitor;

(iv) security holder of a party; or

(v) the person's participation is in the public interest.

(5) Granting of Status. If no written objection to the timely Motion to Intervene is filed with the Protest Officer within seven calendar days after the Motion to Intervene is received by the protesting person, the person seeking intervention becomes a party at the end of this seven day period. If an objection is timely filed, the person seeking intervention becomes a party only when the motion is expressly granted by the Protest Officer based on a determination that a reason for intervention exists as stated in this Rule. Notwithstanding any provision of this Rule, an awardee of the procurement that is the subject of a protest will not be denied their Motion to Intervene, regardless of its content, unless it is not timely filed with the Protest Officer.

(6) Late Motions. If a motion to intervene is not timely filed, the motion shall be denied by the Protest Officer.

 

R33-16-401. Protest Officer May Correct Noncompliance, Errors and Discrepancies.

(1) At any time during the protest process, if it is discovered that a procurement is out of compliance with any part of the Utah Procurement Code or Administrative Rules established by the applicable rule making authority, including errors or discrepancies, the protest officer, chief procurement officer, or head of a procurement unit with independent procurement authority, may take administrative action to correct or amend the procurement to bring it into compliance, correct errors or discrepancies or cancel the procurement.

 

KEY: conduct, controversies, government purchasing, protests

Date of Enactment or Last Substantive Amendment: [August 21, 2015]2016

Authorizing, and Implemented or Interpreted Law: 63G-6a

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