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 Proposals may be modified or withdrawn prior to the established due date.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 63G-2-305 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.