No. 38425 (Repeal and Reenact): Rule R23-29. Across the Board Delegation

(Repeal and Reenact)

DAR File No.: 38425
Filed: 04/10/2014 02:16:54 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The reason for the changes are to include the Utah Department of Transportation (UDOT) as an additional entity in which this rule provides the procedures for the delegation of construction projects, as well as provide for the use of partnering agreements between the Division of Facilities Construction and Management (DFCM) and state agencies, as well as some additional substantive changes that are discussed in the rule summary.

Summary of the rule or change:

The substantive provisions that exist in the new rule that did not exist in the old rule are as follows: 1) to include UDOT as an additional entity in which this rule provides the procedures for the delegation of construction projects; 2) to provide for the use of partnering agreements between the DFCM and state agencies; 3) to establish the delegation dollar limitations, which are $4,000,000 or less for Utah State University, $10,000,000 or less for the University of Utah, and $350,000 or less for the UDOT; 4) to establish that projects may not be divided into multiple projects in order to create projects which are small enough to meet the dollar limitations for delegation; 5) to establish when legislative authorization and a program is required; 6) the Board may require that delegation agreements designating the various responsibilities of the parties be executed prior to the commencement of the project under a project-specific delegation referred to in this rule; 7) the entity may not access DFCM's statewide contingency and project reserve authorized in Section 63A-5-209; 8) UDOT shall use the DFCM Building Official, the University of Utah and Utah State University shall use an in-house Building Official or contract for a Building Official, all approved by the DFCM Building Official; 9) any significant deviations from the space standards adopted by the Building Board must be approved in advance by the Board; 10) each entity shall be responsible for retention of record drawings and shall submit a copy of all record drawings of any new facility to DFCM, as well as record drawings for any other project when requested by DFCM; and 11) the Board may modify or repeal the authority delegated under this rule by amending or repealing this rule, as well as by taking action to remove the delegation for a particular project when necessary to protect the interest of the State of Utah, at a Board meeting to which the applicable entity and DFCM are given an opportunity to provide input. The substantive provisions that existed in the old rule that do not exist in the new rule are as follows: 1) the entities do not need to submit all capital budget requests to DFCM and the Building Board for review and recommendation to the Governor and the Legislature as part of this rule; 2) the entity may determine the extent of programming or scope definition required and supervise the development of these documents, with no DFCM review or approval required; and 3) there are no staffing level requirements on delegated construction projects.

State statutory or constitutional authorization for this rule:

• Section 63A-5-103

Anticipated cost or savings to:

the state budget:

This rule will not affect the state's budget because it provides the procedures for delegation of construction projects to the University of Utah, Utah State University, and UDOT ("entities"). This rule will make state government more efficient.

local governments:

Local governments' budget will not be affected since they have never managed these construction projects, so there is no potential loss of revenue.

small businesses:

Small businesses budget will not be affected, since they have never managed these construction projects, so there is no potential loss of revenue.

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

This rule will not affect any other person's budget because it provides the procedures for delegation of construction projects to the University of Utah, Utah State University, and UDOT ("entities"). This rule will make state government more efficient.

Compliance costs for affected persons:

This rule affects the University of Utah, Utah State University, and UDOT's budget. The delegation referred to in this rule is granted to the University of Utah for construction projects less than $10,000,000, to Utah State University for construction projects less than $4,000,000, and to UDOT for construction projects less than $350,000. In most cases, this rule codifies current practice.

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

This rule will have no fiscal impact on businesses.

Kimberly Hood, Executive Director

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

Administrative Services
Facilities Construction and Management
Room 4110 STATE OFFICE BLDG
450 N STATE ST
SALT LAKE CITY, UT 84114-1201

Direct questions regarding this rule to:

• Priscilla Anderson at the above address, by phone at 801-538-9595, by FAX at 801-538-3378, or by Internet E-mail at [e-mail]
• Alan Bachman at the above address, by phone at 801-538-3105, by FAX at 801-538-3313, or by Internet E-mail at [e-mail]
• Cecilia Niederhauser at the above address, by phone at 801-538-3261, by FAX at 801-538-9694, or by Internet E-mail at [e-mail]
• Chiarina Bautista at the above address, by phone at 801-538-3240, by FAX at 801-538-3313, 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:

06/02/2014

This rule may become effective on:

06/09/2014

Authorized by:

Joshua Haines, Director

RULE TEXT

R23. Administrative Services, Facilities Construction and Management.

[R23-29. Across the Board Delegation.

R23-29-1. Purpose.

This rule provides the procedures for delegation of construction projects to the University of Utah and Utah State University.

 

R23-29-2. Authority.

This rule is authorized under Subsection 63A-5-103, which directs the Building Board to make rules necessary for the discharge of its duties and the duties of the Division of Facilities Construction and Management.

 

R23-29-3. Authority and Extent of Delegation.

(1) As permitted by subsection 63A-5-206(3)(a)(ii)(B), authority is delegated to the University of Utah and Utah State University, "the Institutions," to exercise direct supervision over the design and construction of all alterations, repairs, and improvements to existing facilities on their respective campuses up to the dollar amounts stated below.

(2) As permitted by subsection 63A-5-206(5)(c), the Board expresses its intent to authorize the delegation of the design and construction of new facilities on a project-by-project basis up to the dollar amounts stated below. New facilities means the addition of new space costing more than $100,000.

(3) This delegation is granted to Utah State University for projects having a total budget for design and construction of less than $2,000,000.

(4)(a) This delegation is granted to the University of Utah for the design and construction of all alteration, repair and improvement projects unless the Utah State Building Board, after consultation with the University of Utah, determines that the project should be managed by DFCM.

(b) For projects having a total budget for design and construction greater than $5,000,000, the University of Utah shall provide the following in writing to the Director of DFCM prior to initiating a project under this delegation:

(i) a notice of the University's desire to manage the project under this delegation authorization; and

(ii) a project management and staffing plan for the project.

(5) Projects may not be subdivided into multiple projects in order to arrive at projects which are small enough to meet the dollar limits for delegation.

(6) Substantial benefit and justification must be demonstrated before consideration will be given to any delegation requests from these institutions for projects larger than the above limits.

(7) When applicable, this delegation authority shall not take effect for a specific project until the following requirements are met:

(a) Legislative authorization for design and construction has been obtained for the construction of all new space costing more than $100,000.

(b) The requirements of section R23-29-17 regarding the completion of a DFCM administered architectural program have been satisfied.

 

R23-29-4. Fiduciary Control.

The Institutions shall assume fiduciary control over project finances and shall assume all responsibility for project budgets and expenditures. The Institutions shall be responsible for ensuring compliance with all applicable laws, rules, and building codes.

 

R23-29-5. Building Official.

Each Institution is designated as the Building Official for projects delegated. Institutions shall comply with all requirements of the Uniform Building Standards Act, Chapter 58-56. If an Institution does not have the internal staff to comply with this requirement, it must contract for the appropriate service.

 

R23-29-6. Procurement.

Each Institution shall comply with the state Procurement Code, Chapter 63G-6-102, and its procurement rules. Any aspect of the Institution's rules for the procurement of architect/engineer services or construction which is less restrictive than the procurement rules adopted by the Building Board must be approved by the Board.

 

R23-29-7. Contract Documents.

The Institutions shall utilize substantially the same standard Contract Documents as used by DFCM. Any substantive differences must be approved by the Board.

 

R23-29-8. Transfer of State Funds.

(1) To the extent possible, all state funds appropriated to DFCM for projects delegated to the Institutions shall be transferred to the respective Institution immediately upon their receipt by DFCM.

(2) State funds provided from state issued bonds, or from other sources containing similar restrictions, shall be transferred to the Institutions on a reimbursement basis. Such reimbursements shall be made on a monthly basis upon receipt of a reimbursement request from the Institution detailing the expenditures made on each project.

(3) Upon completion of a project, any remaining statewide funds like roofing, paving) shall remain with the Institution to be used for a similar need on its campus. This activity shall be noted in the monthly report to the Building Board.

 

R23-29-9. Contingencies.

The Institutions shall be subject to the same laws and rules regarding contingency funds as is DFCM. The only difference is that contingency funds for delegated projects shall be segregated from the contingency funds held by DFCM for non-delegated projects.

 

R23-29-10. Space Standards.

The Institutions shall comply with the space standards as adopted by the Building Board. Any significant deviations from these standards shall be reported to the Board.

 

R23-29-11. Design Criteria.

The Institutions shall utilize the Design Criteria adopted by the Building Board. These may be supplemented by special requirements that are unique to each Institution. Any significant departures from the Board approved Design Criteria shall be reported to the Board.

 

R23-29-12. Value Engineering.

The Institutions shall comply with state law and Rule R23-6 regarding the value engineering and life cycle costing of facilities. DFCM may assist each Institution as requested in the performance of these reviews.

 

R23-29-13. Record Drawings.

At the completion of each delegated project, each Institution shall submit a copy of all record drawings to DFCM.

 

R23-29-14. Statutory Requirements on DFCM Projects.

(1) In addition to those noted elsewhere in this rule, the Institutions shall comply with the following statutory requirements which have been placed on DFCM projects.

(a) Subsection 63A-5-205(3) relating to the investment of contractor's retention.

(b) Subsection 63A-5-206(3)(c)(ii) relating to the notification to local governments regarding certain types of projects.

(c) The Percent-for-Art program as provided in Sections 63A-5-206 and 63A-5-209, and Title 9, Chapter 6, Part 4.

(d) Subsection 63A-5-206(7) relating to the reporting of completed projects to the Office of the Legislative Fiscal Analyst.

(e) Section 63A-5-208 relating to the listing and changing of subcontractors and the disclosure of subcontractor bids.

(2) The Institutions and DFCM shall strive to avoid any confusion which could result from inconsistent procedures and requirements being used by each entity.

 

R23-29-15. Reporting.

(1) Each Institution shall report monthly to the Building Board on the status of its delegated projects.

(2) The following reports shall be presented in a similar format and content as that presented by DFCM on projects and funds it is administering.

(a) Architect/Engineer Contracts Awarded

(b) Construction Contracts Awarded

(c) Contingency Funds

(d) Statewide Funds

(e) Status Report for Projects in Construction

(3) The above reports shall be submitted to DFCM at least ten calendar days prior to each Board meeting to be included in packet sent to the Building Board.

(4) A copy of the above reports shall be submitted to the Office of the Commissioner of Higher Education for distribution to the Board of Regents at the same time it is submitted to DFCM.

 

R23-29-16. Capital Budget Requests.

The Institutions shall continue to submit all capital budget requests to DFCM and the Building Board for review, prioritization, and recommendation to the Governor and the Legislature.

 

R23-29-17. Programming.

(1) For projects within the definition of "Capital Developments" as defined in subsection 63A-5-103(3)(a), which will be funded wholly or in part by state funds for either construction or operations and maintenance, a facility program shall be developed under the supervision of DFCM unless this requirement is waived by the Building Board.

(2) For projects which are within the delegation limits set forth in section R23-29-1 and which do not meet the requirements of subsection R23-29-17(1), the Institutions may determine the extent of programming or scope definition required and supervise the development of these documents. No DFCM review or approval will be required.

 

R23-29-18. Sharing of Resources.

DFCM and the Institutions shall strive to share personnel resources where resources exist at one entity and not at another. The Institutions and DFCM shall enter into a separate agreement to accomplish this sharing of resources.

 

R23-29-19. Staffing Levels.

(1) The Institutions have represented that they have adequate existing resources to assume the responsibilities given to them under this delegation.

(2) The Institutions shall not increase the staffing levels related to the administration of capital projects beyond the levels represented in seeking this delegation which was 32 full time staff at the University of Utah and 15 full time staff and 5 F.T.E. of student employees at Utah State University.

 

R23-29-20. Review of Delegated Projects.

Upon direction of the Building Board, DFCM staff may review the management of delegated projects and report its findings to the Board.

 

R23-29-21. Authority to Modify Delegation.

The Building Board may modify or repeal the authority delegated under this rule by amending or repealing this rule.]

R23-29. Delegation of Project Management.

R23-29-1. Purpose.

This rule provides the procedures for delegation of construction projects to the University of Utah, Utah State University, and the Utah Department of Transportation, hereinafter referred to as "Entity" or "Entities." This rule also provides for the use of Partnering Agreements between the Division of Facilities Construction and Management (DFCM) and State Agencies, including the Entities.

 

R23-29-2. Authority.

This rule is authorized under Subsection 63A-5-103, which directs the Utah State Building Board, hereinafter referred to as "Board" to make rules necessary for the discharge of its duties and the duties of the Division of Facilities Construction and Management.

 

R23-29-3. Authority and Extent of Categorical Delegation.

(1) Projects Delegated on a Categorical Basis. As permitted by subsection 63A-5-206(4)(a)(ii)(B), authority is delegated to the University of Utah, Utah State University, and the Utah Department of Transportation (UDOT), to exercise direct supervision over the design and construction of all projects on their respective properties or facilities up to the dollar amounts stated below.

(2) Delegation Dollar Limitations. The delegation referred to in this Rule is granted to the Entities for projects having a budget for construction, excluding soft costs, consistent with the DFCM Construction Budget Estimate (CBE) form, of:

(a) $4,000,000 or less for Utah State University;

(b) $10,000,000 or less for the University of Utah; and

(c) $350,000 or less for the Utah Department of Transportation.

 

R23-29-4. When Delegation Above Limits Allowed.

Delegation to the Entities may be allowed above the limits indicated above in this Rule when the Board in a meeting to which the particular Entity and DFCM has an opportunity to provide input, determines that there is a substantial justification that the project should be managed by the particular Entity. The Board may also determine that the particular project should be managed with specific roles defined for DFCM and the particular Entity.

 

R23-29-5. No Artificial Division of Projects.

Projects may not be divided into multiple projects in order to create projects which are small enough to meet the dollar limits for delegation. Projects that are designed to be constructed in conjunction with each other and are to be constructed by the same construction contractor, including construction manager/general contractor, are projects that are prohibited from being artificially divided under this Rule.

 

R23-29-6. When Legislative Authorization and a Program Is Required.

When applicable, this delegation authority shall not take effect for a specific project until the following requirements are met:

(1) legislative authorization, when required, for design and construction has been obtained for the construction of all New Facilities; and

(2) the requirements of Rule R23-29-20 below regarding the completion of a DFCM administered architectural program have been satisfied.

 

R23-29-7. Delegation Agreements.

The Board, at a meeting to which the particular Entity and DFCM has an opportunity to provide input, may require that delegation agreements designating the various responsibilities of the parties be executed prior to the commencement of the project under a project-specific delegation referred to in this Rule. For categorical delegations and project-specific delegations, DFCM and the particular Entity may enter into partnering agreements under Rule R23-29-24.

 

R23-29-8. Fiduciary Control and Codes.

(1) The Entity to whom control is delegated under this Rule shall assume fiduciary control over project finances, and shall assume all responsibility for project budgets and expenditures.

(2) Delegation of project control does not exempt the Entity from complying with all requirements for design and construction adopted by DFCM or the Board as well as all applicable laws, rules and codes.

(3) The Entity may not access for the delegated project, DFCM's statewide contingency reserve and project reserve authorized in Section 63A-5-209.

 

R23-29-9. Building Official.

UDOT shall use the DFCM Building Official. The University of Utah and Utah State University shall use an in-house Building Official or contract for a Building Official; all as approved by the DFCM Building Official.

 

R23-29-10. Procurement.

The Entity shall comply with the Utah Procurement Code, Title 63G, Chapter 6a of the Utah Code and all applicable procurement rules.

 

R23-29-11. Contract Documents.

The Entity shall utilize substantially the same standard Contract Documents as used by DFCM. Any substantive differences must be approved by DFCM.

 

R23-29-12. Transfer of State Funds.

(1) To the extent possible, state funds appropriated to DFCM for projects delegated to the Entity shall be transferred to the respective Entity in a timely manner upon the receipt of such funds by DFCM and on a reimbursement basis after providing supporting documents as required by DFCM.

 

R23-29-13. Contingency Funds, Contingency Reserve and Project Reserve.

The Entity shall be subject to the same laws and rules regarding contingency funds as is DFCM except that:

(1) contingency funds for delegated projects shall be segregated from the contingency funds held by DFCM for non-delegated projects; and

(2) the Entity may not access for the delegated project, DFCM's statewide contingency reserve and project reserve authorized in Section 63A-5-209.

 

R23-29-14. Space Standards.

The Entity shall comply with the space standards as adopted by the Board. Any significant deviations from these standards must be approved in advance by the Board.

 

R23-29-15. Design Criteria.

The Entity shall utilize the Design Criteria adopted by the Board. These may be supplemented by special requirements that are unique to each Entity.

 

R23-29-16. Value Engineering.

The Entity shall comply with applicable laws and rules regarding the value engineering and life cycle costing of facilities. DFCM may assist the Entity as requested in the performance of these reviews.

 

R23-29-17. Record Drawings.

At the completion of each delegated project, each Entity shall be responsible for retention of record drawings and shall submit a copy of all record drawings of any new facility to DFCM as well as record drawings for any other project when requested by DFCM.

 

R23-29-18. Specific Statutory Requirements.

(1) In addition to the statutory requirement specified elsewhere in this rule, each Entity shall comply with the following requirements:

(a) laws relating to retention;

(b) laws relating to the notification to local governments or any person regarding certain types of projects;

(c) the Percent-for-Art program as provided in the Utah Code;

(d) Section 63A-5-206 relating to the reporting of completed projects to the Office of the Legislative Fiscal Analyst;

(e) Section 63A-5-208 relating to the listing and changing of subcontractors and the disclosure of subcontractor bids; and

(f) all applicable constitutional provisions, laws, rules, codes, and regulations.

 

R23-29-19. Reporting.

(1) The Utah Department of Transportation, the University of Utah and Utah State University shall report monthly to the Board on the status of its delegated projects.

(2) The Board may at any time indicate minimum requirements for reports as well as ask for further information.

(3) The above reports shall be submitted to the Building Board staff in accordance with the schedule established by the Building Board staff.

 

R23-29-20. Programming for Delegated Projects.

(1) For delegated projects within the definition of "New Facility" as defined in Title 63a, Chapter 5, Utah Code, a facility program shall be developed under the supervision of DFCM unless this requirement is waived by DFCM.

(2) For delegated projects where a program is not required under this Rule, the Entity may determine the extent of programming or scope definition required and supervise the development of these documents.

 

R23-29-21. Sharing of Resources.

DFCM and the Entity shall coordinate to share personnel resources in order to make sure that all personnel resources from both the DFCM and the Entity are sufficient for the delegated project. The Entity and DFCM shall enter into a separate agreement to accomplish this sharing of resources.

 

R23-29-22. Review of Delegated Projects.

Upon direction of the Board, DFCM staff may review the management of delegated projects and report its findings to the Board.

 

R23-29-23. Authority to Modify Delegation.

The Board may modify or repeal the authority delegated under this Rule by amending or repealing this Rule as well as by taking action to remove the delegation for a particular project when necessary to protect the interest of the State of Utah, at a Board meeting to which the applicable Entity and DFCM are given an opportunity to provide input.

 

R23-29-24. Partnering Agreements.

DFCM may execute partnering agreements with any State entity, or any public entity as allowed by law, in which the responsibilities, terms and conditions of the various parties are described. This may include, but is not limited to, allocation of specific responsibilities associated with the project in order to avoid duplicated efforts.

 

KEY: buildings, delegation[*]

Date of Enactment or Last Substantive Amendment: [October 29, 1998]2014

Notice of Continuation: June 1, 2009

Authorizing, and Implemented or Interpreted Law: 63A-5-206

 

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