R23-7. State Construction Contracts and Drug and Alcohol Testing, R23. Administrative Services, Facilities Construction and Management, Utah Administrative Code

Utah Administrative Code (Current through November 1, 2019)

R23. Administrative Services, Facilities Construction and Management

R23-7. State Construction Contracts and Drug and Alcohol Testing

R23-7-1. Purpose

Latest version.

The purpose of this rule is to comply with the provisions of Section 63G-6a-1303 of the Utah Procurement Code.

R23-7-2. Authority

Latest version.

This rule is authorized under Subsection 63A-5-103(1)(e), which directs the Utah State Building Board to make rules necessary for the discharge of the duties of the Division of Facilities Construction and Management as well as Subsection 63G-6a-1303(4) of the Utah Procurement Code.

R23-7-3. Definitions

Latest version.

(1) The following definitions of Section 63G-6-604 shall apply to any term used in this Rule R23-7:

(a) "Contractor" means a person who is or may be awarded a state construction contract.

(b) "Covered individual" means an individual who:

(i) on behalf of a contractor or subcontractor provides services directly related to design or construction under a state construction contract; and

(ii) is in a safety sensitive position, including a design position that has responsibilities that directly affect the safety of an improvement to real property that is the subject of a state construction contract.

(c) "Drug and alcohol testing policy" means a policy under which a contractor or subcontractor tests a covered individual to establish, maintain, or enforce the prohibition of:

(i) the manufacture, distribution, dispensing, possession, or use of drugs or alcohol, except the medically prescribed possession and use of a drug; or

(ii) the impairment of judgment or physical abilities due to the use of drugs or alcohol.

(d) "Random testing" means that a covered individual is subject to periodic testing for drugs and alcohol:

(i) in accordance with a drug and alcohol testing policy; and

(ii) on the basis of a random selection process.

(e) "State Executive Entity" means a state executive branch:

(i) department;

(ii) division including the Division of Facilities Construction and Management;

(iii) agency;

(iv) board;

(v) commission;

(vi) council;

(vii) committee;

(viii) institution; or

(ix) a state institution of higher education, as defined under Section 53B-3-102.

(f) "State construction contract" means a contract for design or construction entered into by the Division.

(g)(i) "Subcontractor" means a person under contract with a contractor or another subcontractor to provide services or labor for design or construction.

(ii) "Subcontractor" includes a trade contractor or specialty contractor.

(iii) "Subcontractor" does not include a supplier who provides only materials, equipment, or supplies to a contractor or subcontractor.

(2) In addition:

(a) "Board" means the State Building Board established pursuant to Section 63A-5-101.

(b) "Director" means the Director of the Division, including, unless otherwise stated, the Director's duly authorized designee.

(c) "Division" means the Division of Facilities Construction and Management established pursuant to Section 63A-5-201 as well as entities entering into state construction contracts under delegation authority by the Board or Director.

R23-7-4. Applicability

Latest version.

(1) Except as provided in Rule R23-7-5, on and after July 1, 2010, the Division may not enter into a state construction contract (includes a contract for design or construction) unless the state construction contract requires that the contractor (including designer) demonstrate to the Division that the Contractor:

(a) has and will maintain a drug and alcohol testing policy during the period of the state construction contract that applies to the covered individuals hired by the contractor;

(b) posts in one or more conspicuous places notice to covered individuals hired by the contractor that the contractor has the drug and alcohol testing policy described in Rule R23-7-4(1)(a);

(c) subjects the covered individuals to random testing under the drug and alcohol testing policy described in Subsection R23-7-4(1)(a) if at any time during the period of the state construction contract there are ten or more individuals who are covered individuals hired by the contractor; and

(d) requires that as a condition of contracting with the contractor, a subcontractor:

(i) has and will maintain a drug and alcohol testing policy during the period of the state construction contract that applies to the covered individuals hired by the subcontractor;

(ii) posts in one or more conspicuous places notice to covered individuals hired by the subcontractor that the subcontractor has the drug and alcohol testing policy described in Rule R23-7-4(d)(i); and

(iii) subjects the covered individuals hired by the subcontractor to random testing under the drug and alcohol testing policy described in Rule R23-7-4(d)(i) if at any time during the period of the state construction contract there are 10 or more individuals who are covered individuals hired by the subcontractor.

(2) A contractor shall demonstrate to the Division under Rule 23-7-4(1) above, by a provision in the contract where the contractor acknowledges this Rule R23-7 and agrees to comply with all aspects of this Rule R23-7 and that the contractor require this compliance by a subcontractor, which includes consultants under contract with the designer.

(2)(a) Except as otherwise provided in this Rule R23-7-4(2), if a contractor or subcontractor fails to comply with Rule R23-7-4(1), the contractor or subcontractor may be suspended or debarred in accordance with the Utah Procurement Code, Title 63G, Chapter 6a, Utah Code.

(b) On and after July 1, 2010, the Division shall include in a state construction contract a reference to this Rule R23-7.

(c)(i) A contractor is not subject to penalties for the failure of a subcontractor to comply with Rule R23-7-4(1).

(ii) A subcontractor is not subject to penalties for the failure of a contractor to comply with Rule R23-7-4(1).

(3)(a) The requirements and procedures a contractor shall follow to comply with Subsection R23-7-4(1)is that the contractor, by executing the construction contract with the Division, is deemed to certify to the Division that the contractor, and all subcontractors under the contractor that are subject to Rule R23-7-4(1), shall comply with all provisions of this Rule R23-7 as well as Section 63G-6a-1303 of the Utah Procurement Code.

(b) A contractor or subcontractor may be suspended or debarred in accordance with the applicable Utah statutes and rules, if the contractor or subcontractor violates a provision of Section 63G-6a-1303 of the Utah Procurement Code or this Rule. The contractor or subcontractor shall be provided reasonable notice and opportunity to cure a violation of 63G-6a-1303 of the Utah Procurement Code or this Rule before suspension or debarment of the contractor or subcontractor in light of the circumstances of the state construction contract or the violation.

(4) The failure of a contractor or subcontractor to meet the requirements of Subsection R23-7-4(1):

(a) may not be the basis for a protest or other action from a prospective bidder, offeror, or contractor under Part 17, Procurement Appeals Board, or Part 18, Appeals to Court and Court Proceedings; and

(b) may not be used by a state executive entity, a prospective bidder, an offeror, a contractor, or a subcontractor as a basis for an action that would suspend, disrupt, or terminate the design or construction under a state construction contract.

(5)(a) After the Division enters into a state construction contract in compliance with Section 63G-6a-1303, the state (including the Division) is not required to audit, monitor, or take any other action to ensure compliance with Section 63G-6a-1303.

(b) The state is not liable in any action related to Section 63G-6a-1303 and this Rule R23-7, including not being liable in relation to:

(i) a contractor or subcontractor having or not having a drug and alcohol testing policy;

(ii) failure to test for a drug or alcohol under a contractor's or subcontractor's drug and alcohol testing policy;

(iii) the requirements of a contractor's or subcontractor's drug and alcohol testing policy;

(iv) a contractor's or subcontractor's implementation of a drug and alcohol testing policy, including procedures for:

(A) collection of a sample;

(B) testing of a sample;

(D) disciplinary or rehabilitative action on the basis of a test result;

(v) an individual being under the influence of drugs or alcohol; or

(vi) an individual under the influence of drugs or alcohol harming another person or causing property damage.

R23-7-5. Non-applicability

Latest version.

(1) This Rule R23-7 and Section 63G-6a-1303 does not apply if the State Executive Entity (including the Division) determines that the application of this Rule R23-7 or Section 63G-6a-1303 would severely disrupt the operation of a procurement unit to the detriment of the procurement unit or the general public, including:

(a) jeopardizing the receipt of federal funds;

(b) causing the state construction contract to be a sole source contract; or

R23-7-6. Not Limit Other Lawful Policies

Latest version.

(1) If a contractor or subcontractor meets the requirements of Section 63G-6a-1303 and this Rule R23-7, Section 63G-6a-1303 and this Rule R23-7 may not be construed to restrict the contractor's or subcontractor's ability to impose or implement an otherwise lawful provision as part of a drug and alcohol testing policy.