No. 38758 (Amendment): Rule R33-24. Unlawful Conduct

(Amendment)

DAR File No.: 38758
Filed: 08/13/2014 04:21:39 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The reason for the amendments are to add additional sections to further clarify what constitutes unlawful conduct for procurement professionals and what does not, as well as the action a procurement professional shall take if they are participating in social activities that are prohibited under Subsection R33-24-104(1).

Summary of the rule or change:

The reason for the amendments are to add the following sections to the rule: Section R33-24-105 - Financial Conflict of Interest Prohibited; Section R33-24-106 - Personal Relationship, Favoritism, or Bias Participation Prohibitions; and Section R33-24-107 - Professional Relationships and Social Acquaintances Not Prohibited. The Division is also changing Section R33-24-104 to state that procurement professional shall not participate with vendors or contractors that will (instead of may) interfere with the proper performance of the procurement professional's duties; participate in social activities with vendors or contractors that will (instead of may) lead to unreasonably frequent disqualification of the procurement professional from the procurement process. In addition, the Division is adding that if an executive branch procurement professional participates in a social activity that is prohibited under Subsection R33-24-104(1) or has a close relationship with a vendor or contractor, they shall promptly notify their supervisor and the supervisor shall take the appropriate action which may include removal of the procurement professional from the procurement or contract administration process that is affected.

State statutory or constitutional authorization for this rule:

• Title 63G, Chapter 6a

Anticipated cost or savings to:

the state budget:

The state budget will not be affected, because the changes are simply amending the rule to make tighter standards for procurement professionals when they are involved in social activities with vendors or contractors, as well as adding sections to clarify unlawful conduct for procurement professionals.

local governments:

Local governments' budgets will not be affected, because the changes are simply amending the rule to make tighter standards for procurement professionals when they are involved in social activities with vendors or contractors, as well as adding sections to clarify unlawful conduct for procurement professionals.

small businesses:

These amendments will not affect small businesses, because the changes are simply amending the rule to make tighter standards for procurement professionals when they are involved in social activities with vendors or contractors, as well as adding sections to clarify unlawful conduct for procurement professionals.

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

No other person's budget will be affected, because the changes are simply amending the rule to make tighter standards for procurement professionals when they are involved in social activities with vendors or contractors, as well as adding sections to clarify unlawful conduct for procurement professionals.

Compliance costs for affected persons:

There are no compliance costs for any persons, because the changes are simply amending the rule to make tighter standards for procurement professionals when they are involved in social activities with vendors or contractors, as well as adding sections to clarify unlawful conduct for procurement professionals.

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

There is no fiscal impact on businesses. If there is any impact it is created by the statute. This rule merely implements the statute.

Kimberly K. 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
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:

• 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]
• Paul Mash at the above address, by phone at 801-538-3138, by FAX at 801-538-3882, 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:

10/01/2014

This rule may become effective on:

10/08/2014

Authorized by:

Kent Beers, Director

RULE TEXT

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

R33-24. Unlawful Conduct.

R33-24-101. Unlawful Conduct.

Unlawful conduct shall be governed in accordance with the requirements set forth in Sections 63G-6a-2401 through 2407. 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.

 

R33-24-102. Laws and Executive Orders Pertaining to Gifts, Meals, and Gratuities for Executive Branch Procurement Professionals.

(1) Each executive branch employee classified as a "Procurement Professional" shall be governed by:

(a) Part 24 of the Utah Procurement Code, "Unlawful Conduct and Penalties["]."

(b) Executive Order EO/003/2010 issued by the Governor (http://www.rules.utah.gov/execdocs/2010/ExecDoc149415.htm);

(c) Title 67, Part 16 "Utah Public Officers' and Employees' Ethics Act["];"

(d) Section 76-8-103, "Bribery or Offering a Bribe["];" and

(e) any other applicable law.

 

R33-24-103. Laws and Executive Orders Pertaining to Gifts, Meals, and Gratuities for Executive Branch Employees.

(1) Each executive branch employee not classified as a "Procurement Professional" shall be governed by:

(a) Executive Order EO/003/2010 issued by the Governor (http://www.rules.utah.gov/execdocs/2010/ExecDoc149415.htm);

(c) Title 67, Part 16 "Utah Public Officers' and Employees' Ethics Act["];"

(d) Section 76-8-103, "Bribery or Offering a Bribe["];" and

(e) any other applicable law.

 

R33-24-104. Socialization [W]with Vendors and Contractors.

(1) A procurement professional shall not:

(a) participate in social activities with vendors or contractors that [may]will interfere with the proper performance of the procurement professional's duties;

(b) participate in social activities with vendors or contractors that [may]will lead to unreasonably frequent disqualification of the procurement professional from the procurement process; or

(c) participate in social activities with vendors or contractors that would appear to a reasonable person to undermine the procurement professional's independence, integrity, or impartiality.

(2) If an executive branch procurement professional participates in a social activity prohibited under R33-24-104(1), or has a close personal relationship with a vendor or contractor, the procurement professional shall promptly notify their supervisor and the supervisor shall take the appropriate action, which may include removal of the procurement professional from the procurement or contract administration process that is affected.

 

R33-24-105. Financial Conflict of Interests Prohibited.

(1) A procurement conflict of interest is a situation in which the potential exists for an executive branch employee's personal financial interests, or for the personal financial interests of a family member, to influence, or have the appearance of influencing, the employee's judgment in the execution of the employee's duties and responsibilities when conducting a procurement or administering a contract.

(2) In order to preserve the integrity of the State's procurement process, an executive branch employee may not take part in any procurement process, contracting or contract administration decision:

(a) relating to the employee or a family member of the employee; or

(b) relating to any entity in which the employee or a family member of the employee is an officer, director or partner, or in which the employee or a family member of the employee owns or controls 10% or more of the stock of such entity or holds or directly or indirectly controls an ownership interest of 10% or more in such entity.

(3) If a procurement process, contracting or contract administration matter arises relating to the employee or a family member of the employee, the employee must advise his or her supervisor of the relationship, and must be recused from any and all discussions or decisions relating to the procurement, contracting or administration matter. The employee must also comply with all disclosure requirements in Utah Code Title 67 Chapter 16, Utah Public Offers' and Employees' Ethics Act.

 

R33-24-106. Personal Relationship, Favoritism, or Bias Participation Prohibitions.

(1) Executive branch employees are prohibited from participating in any and all discussions or decisions relating to the procurement, contracting or administration process if they have any type of personal relationship, favoritism, or bias that would appear to a reasonable person to influence their independence in performing their assigned duties and responsibilities relating to the procurement process, contracting or contract administration or prevent them from fairly and objectively evaluating a proposal in response to a bid, RFP or other solicitation. This provision shall not be construed to prevent an employee from having a bias based on the employee's review of a response to the solicitation in regard to the criteria in the solicitation.

(2) If an executive branch employee has a personal relationship, favoritism, or bias toward any individual, group, organization, or vendor responding to a bid, RFP or other solicitation, the employee must make a written disclosure to the supervisor and the supervisor shall take appropriate action, which may include recusing the employee from any and all discussions or decisions relating to the solicitation, contracting or administration matter in question. This provision shall not be construed to prevent an employee from having a bias based on the employee's review of a response to the solicitation in regard to the criteria in the solicitation.

 

R33-24-107. Professional Relationships and Social Acquaintances Not Prohibited.

(1) It is not a violation for an executive branch employee who participates in discussions or decisions relating to the procurement, contracting or administration process to have a professional relationship or social acquaintance with a person, contractor or vendor responding to a solicitation, or that is under contract with the State, provided that there is compliance with Rule R33-24-105, Rule R33-24-106, the Utah Public Officers' and Employees' Ethics Act, The Governor's Executive Order (EO 002 2014) "Establishing an Ethics Policy for Executive Branch Agencies and Employees," and other applicable State laws.

 

KEY: executive branch employees procurement code, procurement professionals, unlawful conduct

Date of Enactment or Last Substantive Amendment: [July 8, ]2014

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

 

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