R23-7-4. Applicability

  (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;

  (C) evaluation of a test; or

  (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.