No. 40473 (Emergency Rule): Rule R918-5. Construction or Improvement of Highway

DAR File No.: 40473
Filed: 06/08/2016 03:24:46 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Rule R918-5 expired but is required by Utah Code Section 72-6-107. This Notice of 120-day (Emergency) Rule is being filed to avoid violation of state law.

Summary of the rule or change:

This emergency filing on Rule R918-5 is the same as the current Rule R918-5 that expired. Nothing is changed.

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Justification: Utah Code Section 72-6-107 requires the Department to have a rule that does what emergency Rule R918-5 does. Without this emergency rule, the Department will be operating in violation of the statute.

State statutory or constitutional authorization for this rule:

• Section 72-6-107

Anticipated cost or savings to:

the state budget:

This emergency rule will not cause a change to the state budget because it is identical to the rule that expired.

local governments:

This emergency rule will not cause a change to the budget of local governments because it is identical to the rule that expired.

small businesses:

Small businesses will not experience any change in costs attributable to this emergency rule because it is identical to the rule that expired.

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

Persons other than small businesses, businesses, or local government entities will not experience any change in costs attributable to this emergency rule because it is identical to the rule that expired.

Compliance costs for affected persons:

Affected persons will not incur any change in costs because this emergency rule is identical to the rule that expired.

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

This emergency rule will have no fiscal impact on businesses.

Carlos Braceras, Executive Director

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

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

Direct questions regarding this rule to:

• James Palmer at the above address, by phone at 801-965-4000, by FAX at 801-965-4338, or by Internet E-mail at [e-mail]

This rule is effective on:

06/08/2016

Authorized by:

Carlos Braceras, Executive Director

RULE TEXT

R918. Transportation, Operations, Maintenance.

R918-5. Construction or Improvement of Highway.

R918-5-1. Authority.

This rule is required by Section 72-6-107 and is enacted under the authority of Title 63G, Chapter 3, Utah Administrative Rulemaking Act and Section 72-1-201.

 

R918-5-2. Purpose and Background.

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

 

R918-5-3. Definitions.

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

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

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

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

 

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

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

(a) Director of Operations (Chair);

(b) Engineer for Construction;

(c) Engineer for Maintenance;

(d) Director of Project Development;

(e) UDOT Internal Auditor;

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

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

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

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

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

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

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

(7) The Deputy Director, upon receiving the Board's verdict of a violation and recommendation for sanction, shall administer a sanction against the region in violation. The Deputy Director has discretion to administer either the standard sanction outlined in Section R918-5-5, or whatever other corrective action he or she deems appropriate.

 

R918-5-5. Standard Sanction for Violation.

The standard sanction for a region found in violation of the provisions of Section 72-6-107 by exceeding the Bid Limit for labor and materials, is a penalty to be taken from that region's Operations budget (commonly known as the "Code 1" budget), and distributed equally among the other three regions. The standard amount of the penalty is the larger of:

(1) the total cost of the project for labor and materials, less the Bid Limit in effect at the time the project began, or

(2) $100,000.

 

KEY: maintenance, construction, improvement projects, bid limits

Date of Enactment or Last Substantive Amendment: June 8, 2016

Authorizing, and Implemented or Interpreted Law: 72-1-201; 72-6-107; 72-6-109

 

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