Utah 2023 Regular Session

Utah House Bill HB0561 Compare Versions

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11 H.B. 561
22 LEGISLATIVE GENERAL COUNSEL
33 6 Approved for Filing: E.A. Evans 6
44 6 02-24-23 12:46 PM 6
55 H.B. 561
66 1 DEPARTMENT OF HEALTH AND HUMAN SERVI CES
77 2 PROCUREMENT AMENDMENTS
88 3 2023 GENERAL SESSION
99 4 STATE OF UTAH
1010 5 Chief Sponsor: Andrew Stoddard
1111 6 Senate Sponsor: ____________
1212 7
1313 8LONG TITLE
1414 9General Description:
1515 10 This bill addresses procurements by the Department of Health and Human Services
1616 11(department).
1717 12Highlighted Provisions:
1818 13 This bill:
1919 14 <creates and modifies definitions;
2020 15 <provides that the department is an independent procurement unit under the Utah
2121 16Procurement Code for certain human services procurements;
2222 17 <exempts the department from the Utah Procurement Code for certain medical
2323 18supply purchases;
2424 19 <addresses the following for human services procurements:
2525 20 Cpublic notice;
2626 21 Cprotest appeals;
2727 22 Cdirect purchases without solicitation;
2828 23 Cinvitations for contract awards through an open enrollment, noncompetitive
2929 24process; and
3030 25 Cdetermining debarment and suspension;
3131 26 <authorizes the executive director of the department to appoint a procurement
3232 27advisory council;
3333 *HB0561* H.B. 561 02-24-23 12:46 PM
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3535 28 <grants administrative rulemaking authority; and
3636 29 <makes technical and conforming changes.
3737 30Money Appropriated in this Bill:
3838 31 None
3939 32Other Special Clauses:
4040 33 None
4141 34Utah Code Sections Affected:
4242 35AMENDS:
4343 36 63G-6a-103, as last amended by Laws of Utah 2022, Chapters 421, 422
4444 37 63G-6a-107.6, as last amended by Laws of Utah 2021, Chapter 179
4545 38 63G-6a-107.7, as enacted by Laws of Utah 2020, Chapter 257
4646 39 63G-6a-1702, as last amended by Laws of Utah 2017, Chapter 348
4747 40ENACTS:
4848 41 63G-6a-2501, Utah Code Annotated 1953
4949 42 63G-6a-2502, Utah Code Annotated 1953
5050 43 63G-6a-2503, Utah Code Annotated 1953
5151 44 63G-6a-2504, Utah Code Annotated 1953
5252 45 63G-6a-2505, Utah Code Annotated 1953
5353 46 63G-6a-2506, Utah Code Annotated 1953
5454 47 63G-6a-2507, Utah Code Annotated 1953
5555 48
5656 49Be it enacted by the Legislature of the state of Utah:
5757 50 Section 1. Section 63G-6a-103 is amended to read:
5858 51 63G-6a-103. Definitions.
5959 52 As used in this chapter:
6060 53 (1) "Approved vendor" means a person who has been approved for inclusion on an
6161 54approved vendor list through the approved vendor list process.
6262 55 (2) "Approved vendor list" means a list of approved vendors established under Section
6363 5663G-6a-507.
6464 57 (3) "Approved vendor list process" means the procurement process described in
6565 58Section 63G-6a-507. 02-24-23 12:46 PM H.B. 561
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6767 59 (4) "Bidder" means a person who submits a bid or price quote in response to an
6868 60invitation for bids.
6969 61 (5) "Bidding process" means the procurement process described in Part 6, Bidding.
7070 62 (6) "Board" means the Utah State Procurement Policy Board, created in Section
7171 6363G-6a-202.
7272 64 (7) "Change directive" means a written order signed by the procurement officer that
7373 65directs the contractor to suspend work or make changes, as authorized by contract, without the
7474 66consent of the contractor.
7575 67 (8) "Change order" means a written alteration in specifications, delivery point, rate of
7676 68delivery, period of performance, price, quantity, or other provisions of a contract, upon mutual
7777 69agreement of the parties to the contract.
7878 70 (9) "Chief procurement officer" means the individual appointed under Section
7979 7163A-2-102.
8080 72 (10) "Conducting procurement unit" means a procurement unit that conducts all
8181 73aspects of a procurement:
8282 74 (a) except:
8383 75 (i) reviewing a solicitation to verify that it is in proper form; and
8484 76 (ii) causing the publication of a notice of a solicitation; and
8585 77 (b) including:
8686 78 (i) preparing any solicitation document;
8787 79 (ii) appointing an evaluation committee;
8888 80 (iii) conducting the evaluation process, except the process relating to scores calculated
8989 81for costs of proposals;
9090 82 (iv) selecting and recommending the person to be awarded a contract;
9191 83 (v) negotiating the terms and conditions of a contract, subject to the issuing
9292 84procurement unit's approval; and
9393 85 (vi) contract administration.
9494 86 (11) "Conservation district" means the same as that term is defined in Section
9595 8717D-3-102.
9696 88 (12) "Construction project":
9797 89 (a) means a project for the construction, renovation, alteration, improvement, or repair H.B. 561 02-24-23 12:46 PM
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9999 90of a public facility on real property, including all services, labor, supplies, and materials for the
100100 91project; and
101101 92 (b) does not include services and supplies for the routine, day-to-day operation, repair,
102102 93or maintenance of an existing public facility.
103103 94 (13) "Construction manager/general contractor":
104104 95 (a) means a contractor who enters into a contract:
105105 96 (i) for the management of a construction project; and
106106 97 (ii) that allows the contractor to subcontract for additional labor and materials that are
107107 98not included in the contractor's cost proposal submitted at the time of the procurement of the
108108 99contractor's services; and
109109 100 (b) does not include a contractor whose only subcontract work not included in the
110110 101contractor's cost proposal submitted as part of the procurement of the contractor's services is to
111111 102meet subcontracted portions of change orders approved within the scope of the project.
112112 103 (14) "Construction subcontractor":
113113 104 (a) means a person under contract with a contractor or another subcontractor to provide
114114 105services or labor for the design or construction of a construction project;
115115 106 (b) includes a general contractor or specialty contractor licensed or exempt from
116116 107licensing under Title 58, Chapter 55, Utah Construction Trades Licensing Act; and
117117 108 (c) does not include a supplier who provides only materials, equipment, or supplies to a
118118 109contractor or subcontractor for a construction project.
119119 110 (15) "Contract" means an agreement for a procurement.
120120 111 (16) "Contract administration" means all functions, duties, and responsibilities
121121 112associated with managing, overseeing, and carrying out a contract between a procurement unit
122122 113and a contractor, including:
123123 114 (a) implementing the contract;
124124 115 (b) ensuring compliance with the contract terms and conditions by the conducting
125125 116procurement unit and the contractor;
126126 117 (c) executing change orders;
127127 118 (d) processing contract amendments;
128128 119 (e) resolving, to the extent practicable, contract disputes;
129129 120 (f) curing contract errors and deficiencies; 02-24-23 12:46 PM H.B. 561
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131131 121 (g) terminating a contract;
132132 122 (h) measuring or evaluating completed work and contractor performance;
133133 123 (i) computing payments under the contract; and
134134 124 (j) closing out a contract.
135135 125 (17) "Contractor" means a person who is awarded a contract with a procurement unit.
136136 126 (18) "Cooperative procurement" means procurement conducted by, or on behalf of:
137137 127 (a) more than one procurement unit; or
138138 128 (b) a procurement unit and a cooperative purchasing organization.
139139 129 (19) "Cooperative purchasing organization" means an organization, association, or
140140 130alliance of purchasers established to combine purchasing power in order to obtain the best
141141 131value for the purchasers by engaging in procurements in accordance with Section 63G-6a-2105.
142142 132 (20) "Cost-plus-a-percentage-of-cost contract" means a contract under which the
143143 133contractor is paid a percentage of the total actual expenses or costs in addition to the
144144 134contractor's actual expenses or costs.
145145 135 (21) "Cost-reimbursement contract" means a contract under which a contractor is
146146 136reimbursed for costs which are allowed and allocated in accordance with the contract terms and
147147 137the provisions of this chapter, and a fee, if any.
148148 138 (22) "Days" means calendar days, unless expressly provided otherwise.
149149 139 (23) "Definite quantity contract" means a fixed price contract that provides for a
150150 140specified amount of supplies over a specified period, with deliveries scheduled according to a
151151 141specified schedule.
152152 142 (24) "Design professional" means:
153153 143 (a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
154154 144Licensing Act;
155155 145 (b) an individual licensed as a professional engineer or professional land surveyor
156156 146under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing
157157 147Act; or
158158 148 (c) an individual certified as a commercial interior designer under Title 58, Chapter 86,
159159 149State Certification of Commercial Interior Designers Act.
160160 150 (25) "Design professional procurement process" means the procurement process
161161 151described in Part 15, Design Professional Services. H.B. 561 02-24-23 12:46 PM
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163163 152 (26) "Design professional services" means:
164164 153 (a) professional services within the scope of the practice of architecture as defined in
165165 154Section 58-3a-102;
166166 155 (b) professional engineering as defined in Section 58-22-102;
167167 156 (c) master planning and programming services; or
168168 157 (d) services within the scope of the practice of commercial interior design, as defined
169169 158in Section 58-86-102.
170170 159 (27) "Design-build" means the procurement of design professional services and
171171 160construction by the use of a single contract.
172172 161 (28) "Division" means the Division of Purchasing and General Services, created in
173173 162Section 63A-2-101.
174174 163 (29) "Educational procurement unit" means:
175175 164 (a) a school district;
176176 165 (b) a public school, including a local school board or a charter school;
177177 166 (c) the Utah Schools for the Deaf and the Blind;
178178 167 (d) the Utah Education and Telehealth Network;
179179 168 (e) an institution of higher education of the state described in Section 53B-1-102; or
180180 169 (f) the State Board of Education.
181181 170 (30) "Established catalogue price" means the price included in a catalogue, price list,
182182 171schedule, or other form that:
183183 172 (a) is regularly maintained by a manufacturer or contractor;
184184 173 (b) is published or otherwise available for inspection by customers; and
185185 174 (c) states prices at which sales are currently or were last made to a significant number
186186 175of any category of buyers or buyers constituting the general buying public for the supplies or
187187 176services involved.
188188 177 (31) (a) "Executive branch procurement unit" means a department, division, office,
189189 178bureau, agency, or other organization within the state executive branch.
190190 179 (b) "Executive branch procurement unit" does not include the Colorado River
191191 180Authority of Utah as provided in Section 63M-14-210.
192192 181 (32) "Facilities division" means the Division of Facilities Construction and
193193 182Management, created in Section 63A-5b-301. 02-24-23 12:46 PM H.B. 561
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195195 183 (33) "Fixed price contract" means a contract that provides a price, for each
196196 184procurement item obtained under the contract, that is not subject to adjustment except to the
197197 185extent that:
198198 186 (a) the contract provides, under circumstances specified in the contract, for an
199199 187adjustment in price that is not based on cost to the contractor; or
200200 188 (b) an adjustment is required by law.
201201 189 (34) "Fixed price contract with price adjustment" means a fixed price contract that
202202 190provides for an upward or downward revision of price, precisely described in the contract, that:
203203 191 (a) is based on the consumer price index or another commercially acceptable index,
204204 192source, or formula; and
205205 193 (b) is not based on a percentage of the cost to the contractor.
206206 194 (35) "Grant" means an expenditure of public funds or other assistance, or an agreement
207207 195to expend public funds or other assistance, for a public purpose authorized by law, without
208208 196acquiring a procurement item in exchange.
209209 197 (36) "Human services procurement item" means a procurement item used to provide
210210 198services or support to:
211211 199 (a) a child, family, or adult at home, school, work, or in the community;
212212 200 (b) an individual in secure care, as defined in Section 80-1-102; or
213213 201 (c) an individual at the Utah State Hospital or the Utah State Developmental Center.
214214 202 [(36)] (37) "Immaterial error":
215215 203 (a) means an irregularity or abnormality that is:
216216 204 (i) a matter of form that does not affect substance; or
217217 205 (ii) an inconsequential variation from a requirement of a solicitation that has no, little,
218218 206or a trivial effect on the procurement process and that is not prejudicial to other vendors; and
219219 207 (b) includes:
220220 208 (i) a missing signature, missing acknowledgment of an addendum, or missing copy of a
221221 209professional license, bond, or insurance certificate;
222222 210 (ii) a typographical error;
223223 211 (iii) an error resulting from an inaccuracy or omission in the solicitation; and
224224 212 (iv) any other error that the procurement official reasonably considers to be immaterial.
225225 213 [(37)] (38) "Indefinite quantity contract" means a fixed price contract that: H.B. 561 02-24-23 12:46 PM
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227227 214 (a) is for an indefinite amount of procurement items to be supplied as ordered by a
228228 215procurement unit; and
229229 216 (b) (i) does not require a minimum purchase amount; or
230230 217 (ii) provides a maximum purchase limit.
231231 218 [(38)] (39) "Independent procurement unit" means:
232232 219 (a) (i) a legislative procurement unit;
233233 220 (ii) a judicial branch procurement unit;
234234 221 (iii) an educational procurement unit;
235235 222 (iv) a local government procurement unit;
236236 223 (v) a conservation district;
237237 224 (vi) a local building authority;
238238 225 (vii) a local district;
239239 226 (viii) a public corporation;
240240 227 (ix) a special service district; or
241241 228 (x) the Utah Communications Authority, established in Section 63H-7a-201;
242242 229 (b) the facilities division, but only to the extent of the procurement authority provided
243243 230under Title 63A, Chapter 5b, Administration of State Facilities;
244244 231 (c) the attorney general, but only to the extent of the procurement authority provided
245245 232under Title 67, Chapter 5, Attorney General;
246246 233 (d) the Department of Transportation, but only to the extent of the procurement
247247 234authority provided under Title 72, Transportation Code; [or]
248248 235 (e) the Department of Health and Human Services, but only for a human services
249249 236procurement item; or
250250 237 [(e)] (f) any other executive branch department, division, office, or entity that has
251251 238statutory procurement authority outside this chapter, but only to the extent of that statutory
252252 239procurement authority.
253253 240 [(39)] (40) "Invitation for bids":
254254 241 (a) means a document used to solicit:
255255 242 (i) bids to provide a procurement item to a procurement unit; or
256256 243 (ii) quotes for a price of a procurement item to be provided to a procurement unit; and
257257 244 (b) includes all documents attached to or incorporated by reference in a document 02-24-23 12:46 PM H.B. 561
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259259 245described in Subsection [(39)(a).] (40)(a).
260260 246 [(40)] (41) "Issuing procurement unit" means a procurement unit that:
261261 247 (a) reviews a solicitation to verify that it is in proper form;
262262 248 (b) causes the notice of a solicitation to be published; and
263263 249 (c) negotiates and approves the terms and conditions of a contract.
264264 250 [(41)] (42) "Judicial procurement unit" means:
265265 251 (a) the Utah Supreme Court;
266266 252 (b) the Utah Court of Appeals;
267267 253 (c) the Judicial Council;
268268 254 (d) a state judicial district; or
269269 255 (e) an office, committee, subcommittee, or other organization within the state judicial
270270 256branch.
271271 257 [(42)] (43) "Labor hour contract" is a contract under which:
272272 258 (a) the supplies and materials are not provided by, or through, the contractor; and
273273 259 (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
274274 260profit for a specified number of labor hours or days.
275275 261 [(43)] (44) "Legislative procurement unit" means:
276276 262 (a) the Legislature;
277277 263 (b) the Senate;
278278 264 (c) the House of Representatives;
279279 265 (d) a staff office of the Legislature, the Senate, or the House of Representatives; or
280280 266 (e) a committee, subcommittee, commission, or other organization:
281281 267 (i) within the state legislative branch; or
282282 268 (ii) (A) that is created by statute to advise or make recommendations to the Legislature;
283283 269 (B) the membership of which includes legislators; and
284284 270 (C) for which the Office of Legislative Research and General Counsel provides staff
285285 271support.
286286 272 [(44)] (45) "Local building authority" means the same as that term is defined in Section
287287 27317D-2-102.
288288 274 [(45)] (46) "Local district" means the same as that term is defined in Section
289289 27517B-1-102. H.B. 561 02-24-23 12:46 PM
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291291 276 [(46)] (47) "Local government procurement unit" means:
292292 277 (a) a county, municipality, or project entity, and each office of the county, municipality,
293293 278or project entity, unless:
294294 279 (i) the county or municipality adopts a procurement code by ordinance; or
295295 280 (ii) the project entity adopts a procurement code through the process described in
296296 281Section 11-13-316;
297297 282 (b) (i) a county or municipality that has adopted this entire chapter by ordinance, and
298298 283each office or agency of that county or municipality; and
299299 284 (ii) a project entity that has adopted this entire chapter through the process described in
300300 285Subsection 11-13-316; or
301301 286 (c) a county, municipality, or project entity, and each office of the county, municipality,
302302 287or project entity that has adopted a portion of this chapter to the extent that:
303303 288 (i) a term in the ordinance is used in the adopted chapter; or
304304 289 (ii) a term in the ordinance is used in the language a project entity adopts in its
305305 290procurement code through the process described in Section 11-13-316.
306306 291 [(47)] (48) "Multiple award contracts" means the award of a contract for an indefinite
307307 292quantity of a procurement item to more than one person.
308308 293 [(48)] (49) "Multiyear contract" means a contract that extends beyond a one-year
309309 294period, including a contract that permits renewal of the contract, without competition, beyond
310310 295the first year of the contract.
311311 296 [(49)] (50) "Municipality" means a city, town, or metro township.
312312 297 [(50)] (51) "Nonadopting local government procurement unit" means:
313313 298 (a) a county or municipality that has not adopted Part 16, Protests, Part 17,
314314 299Procurement Appeals Board, Part 18, Appeals to Court and Court Proceedings, and Part 19,
315315 300General Provisions Related to Protest or Appeal; and
316316 301 (b) each office or agency of a county or municipality described in Subsection [(50)(a).]
317317 302(51)(a).
318318 303 [(51)] (52) "Offeror" means a person who submits a proposal in response to a request
319319 304for proposals.
320320 305 [(52)] (53) "Preferred bidder" means a bidder that is entitled to receive a reciprocal
321321 306preference under the requirements of this chapter. 02-24-23 12:46 PM H.B. 561
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323323 307 [(53)] (54) "Procure" means to acquire a procurement item through a procurement.
324324 308 [(54)] (55) "Procurement" means the acquisition of a procurement item through an
325325 309expenditure of public funds, or an agreement to expend public funds, including an acquisition
326326 310through a public-private partnership.
327327 311 [(55)] (56) "Procurement item" means an item of personal property, a technology, a
328328 312service, or a construction project.
329329 313 [(56)] (57) "Procurement official" means:
330330 314 (a) for a procurement unit other than an independent procurement unit, the chief
331331 315procurement officer;
332332 316 (b) for a legislative procurement unit, the individual, individuals, or body designated in
333333 317a policy adopted by the Legislative Management Committee;
334334 318 (c) for a judicial procurement unit, the Judicial Council or an individual or body
335335 319designated by the Judicial Council by rule;
336336 320 (d) for a local government procurement unit:
337337 321 (i) the legislative body of the local government procurement unit; or
338338 322 (ii) an individual or body designated by the local government procurement unit;
339339 323 (e) for a local district, the board of trustees of the local district or the board of trustees'
340340 324designee;
341341 325 (f) for a special service district, the governing body of the special service district or the
342342 326governing body's designee;
343343 327 (g) for a local building authority, the board of directors of the local building authority
344344 328or the board of directors' designee;
345345 329 (h) for a conservation district, the board of supervisors of the conservation district or
346346 330the board of supervisors' designee;
347347 331 (i) for a public corporation, the board of directors of the public corporation or the board
348348 332of directors' designee;
349349 333 (j) for a school district or any school or entity within a school district, the board of the
350350 334school district or the board's designee;
351351 335 (k) for a charter school, the individual or body with executive authority over the charter
352352 336school or the designee of the individual or body;
353353 337 (l) for an institution of higher education described in Section 53B-2-101, the president H.B. 561 02-24-23 12:46 PM
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355355 338of the institution of higher education or the president's designee;
356356 339 (m) for the State Board of Education, the State Board of Education or the State Board
357357 340of Education's designee;
358358 341 (n) for the Utah Board of Higher Education, the Commissioner of Higher Education or
359359 342the designee of the Commissioner of Higher Education;
360360 343 (o) for the Utah Communications Authority, established in Section 63H-7a-201, the
361361 344executive director of the Utah Communications Authority or the executive director's designee;
362362 345or
363363 346 (p) (i) for the facilities division, and only to the extent of procurement activities of the
364364 347facilities division as an independent procurement unit under the procurement authority
365365 348provided under Title 63A, Chapter 5b, Administration of State Facilities, the director of the
366366 349facilities division or the director's designee;
367367 350 (ii) for the attorney general, and only to the extent of procurement activities of the
368368 351attorney general as an independent procurement unit under the procurement authority provided
369369 352under Title 67, Chapter 5, Attorney General, the attorney general or the attorney general's
370370 353designee;
371371 354 (iii) for the Department of Transportation created in Section 72-1-201, and only to the
372372 355extent of procurement activities of the Department of Transportation as an independent
373373 356procurement unit under the procurement authority provided under Title 72, Transportation
374374 357Code, the executive director of the Department of Transportation or the executive director's
375375 358designee; [or]
376376 359 (iv) for the Department of Health and Human Services, and only to the extent of the
377377 360procurement activities of the Department of Health and Human Services as an independent
378378 361procurement unit, the executive director of the Department of Health and Human Services or
379379 362the executive director's designee; or
380380 363 [(iv)] (v) for any other executive branch department, division, office, or entity that has
381381 364statutory procurement authority outside this chapter, and only to the extent of the procurement
382382 365activities of the department, division, office, or entity as an independent procurement unit
383383 366under the procurement authority provided outside this chapter for the department, division,
384384 367office, or entity, the chief executive officer of the department, division, office, or entity or the
385385 368chief executive officer's designee. 02-24-23 12:46 PM H.B. 561
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387387 369 [(57)] (58) "Procurement unit":
388388 370 (a) means:
389389 371 (i) a legislative procurement unit;
390390 372 (ii) an executive branch procurement unit;
391391 373 (iii) a judicial procurement unit;
392392 374 (iv) an educational procurement unit;
393393 375 (v) the Utah Communications Authority, established in Section 63H-7a-201;
394394 376 (vi) a local government procurement unit;
395395 377 (vii) a local district;
396396 378 (viii) a special service district;
397397 379 (ix) a local building authority;
398398 380 (x) a conservation district; and
399399 381 (xi) a public corporation; and
400400 382 (b) except for a project entity, to the extent that a project entity is subject to this chapter
401401 383as described in Section 11-13-316, does not include a political subdivision created under Title
402402 38411, Chapter 13, Interlocal Cooperation Act.
403403 385 [(58)] (59) "Professional service" means labor, effort, or work that requires specialized
404404 386knowledge, expertise, and discretion, including labor, effort, or work in the field of:
405405 387 (a) accounting;
406406 388 (b) administrative law judge service;
407407 389 (c) architecture;
408408 390 (d) construction design and management;
409409 391 (e) engineering;
410410 392 (f) financial services;
411411 393 (g) information technology;
412412 394 (h) the law;
413413 395 (i) medicine;
414414 396 (j) psychiatry; or
415415 397 (k) underwriting.
416416 398 [(59)] (60) "Protest officer" means:
417417 399 (a) for the division or an independent procurement unit: H.B. 561 02-24-23 12:46 PM
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419419 400 (i) the procurement official;
420420 401 (ii) the procurement official's designee who is an employee of the procurement unit; or
421421 402 (iii) a person designated by rule made by the rulemaking authority; or
422422 403 (b) for a procurement unit other than an independent procurement unit, the chief
423423 404procurement officer or the chief procurement officer's designee who is an employee of the
424424 405division .
425425 406 [(60)] (61) "Public corporation" means the same as that term is defined in Section
426426 40763E-1-102.
427427 408 [(61)] (62) "Project entity" means the same as that term is defined in Section
428428 40911-13-103.
429429 410 [(62)] (63) "Public entity" means the state or any other government entity within the
430430 411state that expends public funds.
431431 412 [(63)] (64) "Public facility" means a building, structure, infrastructure, improvement,
432432 413or other facility of a public entity.
433433 414 [(64)] (65) "Public funds" means money, regardless of its source, including from the
434434 415federal government, that is owned or held by a procurement unit.
435435 416 [(65)] (66) "Public transit district" means a public transit district organized under Title
436436 41717B, Chapter 2a, Part 8, Public Transit District Act.
437437 418 [(66)] (67) "Public-private partnership" means an arrangement or agreement, occurring
438438 419on or after January 1, 2017, between a procurement unit and one or more contractors to provide
439439 420for a public need through the development or operation of a project in which the contractor or
440440 421contractors share with the procurement unit the responsibility or risk of developing, owning,
441441 422maintaining, financing, or operating the project.
442442 423 [(67)] (68) "Qualified vendor" means a vendor who:
443443 424 (a) is responsible; and
444444 425 (b) submits a responsive statement of qualifications under Section 63G-6a-410 that
445445 426meets the minimum mandatory requirements, evaluation criteria, and any applicable score
446446 427thresholds set forth in the request for statement of qualifications.
447447 428 [(68)] (69) "Real property" means land and any building, fixture, improvement,
448448 429appurtenance, structure, or other development that is permanently affixed to land.
449449 430 [(69)] (70) "Request for information" means a nonbinding process through which a 02-24-23 12:46 PM H.B. 561
450450 - 15 -
451451 431procurement unit requests information relating to a procurement item.
452452 432 [(70)] (71) "Request for proposals" means a document used to solicit proposals to
453453 433provide a procurement item to a procurement unit, including all other documents that are
454454 434attached to that document or incorporated in that document by reference.
455455 435 [(71)] (72) "Request for proposals process" means the procurement process described
456456 436in Part 7, Request for Proposals.
457457 437 [(72)] (73) "Request for statement of qualifications" means a document used to solicit
458458 438information about the qualifications of a person interested in responding to a potential
459459 439procurement, including all other documents attached to that document or incorporated in that
460460 440document by reference.
461461 441 [(73)] (74) "Requirements contract" means a contract:
462462 442 (a) under which a contractor agrees to provide a procurement unit's entire requirements
463463 443for certain procurement items at prices specified in the contract during the contract period; and
464464 444 (b) that:
465465 445 (i) does not require a minimum purchase amount; or
466466 446 (ii) provides a maximum purchase limit.
467467 447 [(74)] (75) "Responsible" means being capable, in all respects, of:
468468 448 (a) meeting all the requirements of a solicitation; and
469469 449 (b) fully performing all the requirements of the contract resulting from the solicitation,
470470 450including being financially solvent with sufficient financial resources to perform the contract.
471471 451 [(75)] (76) "Responsive" means conforming in all material respects to the requirements
472472 452of a solicitation.
473473 453 [(76)] (77) "Rule" includes a policy or regulation adopted by the rulemaking authority,
474474 454if adopting a policy or regulation is the method the rulemaking authority uses to adopt
475475 455provisions that govern the applicable procurement unit.
476476 456 [(77)] (78) "Rulemaking authority" means:
477477 457 (a) for a legislative procurement unit, the Legislative Management Committee;
478478 458 (b) for a judicial procurement unit, the Judicial Council;
479479 459 (c) (i) only to the extent of the procurement authority expressly granted to the
480480 460procurement unit by statute:
481481 461 (A) for the facilities division, the facilities division; H.B. 561 02-24-23 12:46 PM
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483483 462 (B) for the Office of the Attorney General, the attorney general;
484484 463 (C) for the Department of Transportation created in Section 72-1-201, the executive
485485 464director of the Department of Transportation; [and]
486486 465 (D) for the Department of Health and Human Services, the executive director of the
487487 466Department of Health and Human Services; and
488488 467 [(D)] (E) for any other executive branch department, division, office, or entity that has
489489 468statutory procurement authority outside this chapter, the governing authority of the department,
490490 469division, office, or entity; and
491491 470 (ii) for each other executive branch procurement unit, the board;
492492 471 (d) for a local government procurement unit:
493493 472 (i) the governing body of the local government unit; or
494494 473 (ii) an individual or body designated by the local government procurement unit;
495495 474 (e) for a school district or a public school, the board, except to the extent of a school
496496 475district's own nonadministrative rules that do not conflict with the provisions of this chapter;
497497 476 (f) for a state institution of higher education, the Utah Board of Higher Education;
498498 477 (g) for the State Board of Education or the Utah Schools for the Deaf and the Blind, the
499499 478State Board of Education;
500500 479 (h) for a public transit district, the chief executive of the public transit district;
501501 480 (i) for a local district other than a public transit district or for a special service district,
502502 481the board, except to the extent that the board of trustees of the local district or the governing
503503 482body of the special service district makes its own rules:
504504 483 (i) with respect to a subject addressed by board rules; or
505505 484 (ii) that are in addition to board rules;
506506 485 (j) for the Utah Educational Savings Plan, created in Section 53B-8a-103, the Utah
507507 486Board of Higher Education;
508508 487 (k) for the School and Institutional Trust Lands Administration, created in Section
509509 48853C-1-201, the School and Institutional Trust Lands Board of Trustees;
510510 489 (l) for the School and Institutional Trust Fund Office, created in Section 53D-1-201,
511511 490the School and Institutional Trust Fund Board of Trustees;
512512 491 (m) for the Utah Communications Authority, established in Section 63H-7a-201, the
513513 492Utah Communications Authority board, created in Section 63H-7a-203; or 02-24-23 12:46 PM H.B. 561
514514 - 17 -
515515 493 (n) for any other procurement unit, the board.
516516 494 [(78)] (79) "Service":
517517 495 (a) means labor, effort, or work to produce a result that is beneficial to a procurement
518518 496unit;
519519 497 (b) includes a professional service; and
520520 498 (c) does not include labor, effort, or work provided under an employment agreement or
521521 499a collective bargaining agreement.
522522 500 [(79)] (80) "Small purchase process" means the procurement process described in
523523 501Section 63G-6a-506.
524524 502 [(80)] (81) "Sole source contract" means a contract resulting from a sole source
525525 503procurement.
526526 504 [(81)] (82) "Sole source procurement" means a procurement without competition
527527 505pursuant to a determination under Subsection 63G-6a-802(1)(a) that there is only one source
528528 506for the procurement item.
529529 507 [(82)] (83) "Solicitation" means an invitation for bids, request for proposals, or request
530530 508for statement of qualifications.
531531 509 [(83)] (84) "Solicitation response" means:
532532 510 (a) a bid submitted in response to an invitation for bids;
533533 511 (b) a proposal submitted in response to a request for proposals; or
534534 512 (c) a statement of qualifications submitted in response to a request for statement of
535535 513qualifications.
536536 514 [(84)] (85) "Special service district" means the same as that term is defined in Section
537537 51517D-1-102.
538538 516 [(85)] (86) "Specification" means any description of the physical or functional
539539 517characteristics or of the nature of a procurement item included in an invitation for bids or a
540540 518request for proposals, or otherwise specified or agreed to by a procurement unit, including a
541541 519description of:
542542 520 (a) a requirement for inspecting or testing a procurement item; or
543543 521 (b) preparing a procurement item for delivery.
544544 522 [(86)] (87) "Standard procurement process" means:
545545 523 (a) the bidding process; H.B. 561 02-24-23 12:46 PM
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547547 524 (b) the request for proposals process;
548548 525 (c) the approved vendor list process;
549549 526 (d) the small purchase process; or
550550 527 (e) the design professional procurement process.
551551 528 [(87)] (88) "State cooperative contract" means a contract awarded by the division for
552552 529and in behalf of all public entities.
553553 530 [(88)] (89) "Statement of qualifications" means a written statement submitted to a
554554 531procurement unit in response to a request for statement of qualifications.
555555 532 [(89)] (90) "Subcontractor":
556556 533 (a) means a person under contract to perform part of a contractual obligation under the
557557 534control of the contractor, whether the person's contract is with the contractor directly or with
558558 535another person who is under contract to perform part of a contractual obligation under the
559559 536control of the contractor; and
560560 537 (b) includes a supplier, distributor, or other vendor that furnishes supplies or services
561561 538to a contractor.
562562 539 [(90)] (91) "Technology" means the same as "information technology," as defined in
563563 540Section 63A-16-102.
564564 541 [(91)] (92) "Tie bid" means that the lowest responsive bids of responsible bidders are
565565 542identical in price.
566566 543 [(92)] (93) "Time and materials contract" means a contract under which the contractor
567567 544is paid:
568568 545 (a) the actual cost of direct labor at specified hourly rates;
569569 546 (b) the actual cost of materials and equipment usage; and
570570 547 (c) an additional amount, expressly described in the contract, to cover overhead and
571571 548profit, that is not based on a percentage of the cost to the contractor.
572572 549 [(93)] (94) "Transitional costs":
573573 550 (a) means the costs of changing:
574574 551 (i) from an existing provider of a procurement item to another provider of that
575575 552procurement item; or
576576 553 (ii) from an existing type of procurement item to another type;
577577 554 (b) includes: 02-24-23 12:46 PM H.B. 561
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579579 555 (i) training costs;
580580 556 (ii) conversion costs;
581581 557 (iii) compatibility costs;
582582 558 (iv) costs associated with system downtime;
583583 559 (v) disruption of service costs;
584584 560 (vi) staff time necessary to implement the change;
585585 561 (vii) installation costs; and
586586 562 (viii) ancillary software, hardware, equipment, or construction costs; and
587587 563 (c) does not include:
588588 564 (i) the costs of preparing for or engaging in a procurement process; or
589589 565 (ii) contract negotiation or drafting costs.
590590 566 [(94)] (95) "Vendor":
591591 567 (a) means a person who is seeking to enter into a contract with a procurement unit to
592592 568provide a procurement item; and
593593 569 (b) includes:
594594 570 (i) a bidder;
595595 571 (ii) an offeror;
596596 572 (iii) an approved vendor;
597597 573 (iv) a design professional; and
598598 574 (v) a person who submits an unsolicited proposal under Section 63G-6a-712.
599599 575 Section 2. Section 63G-6a-107.6 is amended to read:
600600 576 63G-6a-107.6. Exemptions from chapter.
601601 577 (1) Except for this Subsection (1), the provisions of this chapter do not apply to:
602602 578 (a) a public entity's acquisition of a procurement item from another public entity; or
603603 579 (b) a public entity that is not a procurement unit, including the Colorado River
604604 580Authority of Utah as provided in Section 63M-14-210.
605605 581 (2) Unless otherwise provided by statute and except for this Subsection (2), the
606606 582provisions of this chapter do not apply to the acquisition or disposal of real property or an
607607 583interest in real property.
608608 584 (3) Except for this Subsection (3) and Part 24, Unlawful Conduct and Penalties, the
609609 585provisions of this chapter do not apply to: H.B. 561 02-24-23 12:46 PM
610610 - 20 -
611611 586 (a) funds administered under the Percent-for-Art Program of the Utah Percent-for-Art
612612 587Act;
613613 588 (b) a grant;
614614 589 (c) medical supplies or medical equipment, including service agreements for medical
615615 590equipment, obtained by the University of Utah Hospital or the Department of Health and
616616 591Human Services through a purchasing consortium if:
617617 592 (i) the consortium uses a competitive procurement process; and
618618 593 (ii) the chief administrative officer of the hospital or the Department of Health and
619619 594Human Services makes a written finding that the prices for purchasing medical supplies and
620620 595medical equipment through the consortium are competitive with market prices;
621621 596 (d) the purchase of firefighting supplies or equipment by the Division of Forestry, Fire,
622622 597and State Lands, created in Section 65A-1-4, through the federal General Services
623623 598Administration or the National Fire Cache system;
624624 599 (e) supplies purchased for resale to the public; or
625625 600 (f) activities related to the management of investments by a public entity granted
626626 601investment authority by law.
627627 602 (4) This chapter does not supersede the requirements for retention or withholding of
628628 603construction proceeds and release of construction proceeds as provided in Section 13-8-5.
629629 604 (5) Except for this Subsection (5), the provisions of this chapter do not apply to a
630630 605procurement unit's hiring a mediator, arbitrator, or arbitration panel member to participate in
631631 606the procurement unit's dispute resolution efforts.
632632 607 Section 3. Section 63G-6a-107.7 is amended to read:
633633 608 63G-6a-107.7. Procurement rules.
634634 609 (1) (a) Subject to Subsection (1)(b), the rulemaking authority for a procurement unit
635635 610shall make rules relating to the management and control of procurements and procurement
636636 611procedures by the procurement unit.
637637 612 (b) Building board rules governing procurement of construction projects, design
638638 613professional services, and leases apply to the procurement of construction projects, design
639639 614professional services, and leases of real property, respectively, by the Division of Facilities
640640 615Construction and Management.
641641 616 (2) A rulemaking authority may not adopt rules, policies, or regulations that are 02-24-23 12:46 PM H.B. 561
642642 - 21 -
643643 617inconsistent with this chapter.
644644 618 (3) An individual or body that makes rules as required or authorized in this chapter
645645 619shall make the rules:
646646 620 (a) in accordance with Chapter 3, Utah Administrative Rulemaking Act, if the
647647 621individual or body is subject to Chapter 3, Utah Administrative Rulemaking Act; or
648648 622 (b) in accordance with the established process for making rules or their equivalent, if
649649 623the individual or body is not subject to Chapter 3, Utah Administrative Rulemaking Act.
650650 624 (4) The rules of the rulemaking authority for the executive branch procurement unit
651651 625shall require, for each contract and request for proposals, the inclusion of a clause that requires
652652 626the issuing procurement unit, for the duration of the contract, to make available contact
653653 627information of the winning contractor to the Department of Workforce Services in accordance
654654 628with Section 35A-2-203. This requirement does not preclude a contractor from advertising job
655655 629openings in other forums throughout the state.
656656 630 (5) The Department of Transportation may make rules governing the procurement of a
657657 631highway construction project or highway improvement project.
658658 632 (6) The rulemaking authority for a public transit district may make rules governing the
659659 633procurement of a transit construction project or a transit improvement project.
660660 634 (7) The Department of Health and Human Services may make rules governing the
661661 635procurement of a human services procurement item.
662662 636 Section 4. Section 63G-6a-1702 is amended to read:
663663 637 63G-6a-1702. Appeal to Utah State Procurement Policy Board -- Appointment of
664664 638procurement appeals panel -- Proceedings.
665665 639 (1) [This] Except as provided in Section 63G-6a-1702, this part applies to all
666666 640procurement units other than:
667667 641 (a) a legislative procurement unit;
668668 642 (b) a judicial procurement unit;
669669 643 (c) a nonadopting local government procurement unit; or
670670 644 (d) a public transit district.
671671 645 (2) (a) Subject to Section 63G-6a-1703, a protestor may appeal to the board a protest
672672 646decision of a procurement unit that is subject to this part by filing a written notice of appeal
673673 647with the chair of the board within seven days after: H.B. 561 02-24-23 12:46 PM
674674 - 22 -
675675 648 (i) the day on which the written decision described in Section 63G-6a-1603 is:
676676 649 (A) personally served on the party or the party's representative; or
677677 650 (B) emailed or mailed to the address or email address provided by the party under
678678 651Subsection 63G-6a-1602(4); or
679679 652 (ii) the day on which the 30-day period described in Subsection 63G-6a-1603(9) ends,
680680 653if a written decision is not issued before the end of the 30-day period.
681681 654 (b) A notice of appeal under Subsection (2)(a) shall:
682682 655 (i) include the address of record and email address of record of the party filing the
683683 656notice of appeal; and
684684 657 (ii) be accompanied by a copy of any written protest decision.
685685 658 (c) The deadline for appealing a protest decision may not be modified.
686686 659 (3) A person may not base an appeal of a protest under this section on:
687687 660 (a) a ground not specified in the person's protest under Section 63G-6a-1602; or
688688 661 (b) new or additional evidence not considered by the protest officer.
689689 662 (4) (a) A person may not appeal from a protest described in Section 63G-6a-1602,
690690 663unless:
691691 664 (i) a decision on the protest has been issued; or
692692 665 (ii) a decision is not issued and the 30-day period described in Subsection
693693 66663G-6a-1603(9), or a longer period agreed to by the parties, has passed.
694694 667 (b) A procurement unit may not appeal a protest decision or other determination made
695695 668by the procurement unit's protest officer.
696696 669 (5) (a) Within seven days after the chair of the board receives a written notice of an
697697 670appeal under this section, the chair shall submit a written request to the protest officer for the
698698 671protest appeal record.
699699 672 (b) Within seven days after the chair receives the protest appeal record from the protest
700700 673officer, the appointing officer shall, in consultation with the attorney general's office:
701701 674 (i) review the appeal to determine whether the appeal complies with the requirements
702702 675of Subsections (2), (3), and (4) and Section 63G-6a-1703; and
703703 676 (ii) (A) dismiss any claim asserted in the appeal, or dismiss the appeal, without holding
704704 677a hearing if the appointing officer determines that the claim or appeal, respectively, fails to
705705 678comply with any of the requirements listed in Subsection (5)(b)(i); or 02-24-23 12:46 PM H.B. 561
706706 - 23 -
707707 679 (B) appoint a procurement appeals panel to conduct an administrative review of any
708708 680claim in the appeal that has not been dismissed under Subsection (5)(b)(ii)(A), if the appointing
709709 681officer determines that one or more claims asserted in the appeal comply with the requirements
710710 682listed in Subsection (5)(b)(i).
711711 683 (c) A procurement appeals panel appointed under Subsection (5)(a) shall consist of an
712712 684odd number of at least three individuals, each of whom is:
713713 685 (i) a member of the board; or
714714 686 (ii) a designee of a member appointed under Subsection (5)(c)(i), if the designee is
715715 687approved by the chair of the board.
716716 688 (d) The appointing officer shall appoint one of the members of the procurement
717717 689appeals panel to serve as the coordinator of the panel.
718718 690 (e) The appointing officer may:
719719 691 (i) appoint the same procurement appeals panel to hear more than one appeal; or
720720 692 (ii) appoint a separate procurement appeals panel for each appeal.
721721 693 (f) The appointing officer may not appoint a person to a procurement appeals panel if
722722 694the person is employed by the procurement unit responsible for the solicitation, contract award,
723723 695or other action that is the subject of the protestor's protest.
724724 696 (g) The appointing officer shall, at the time the procurement appeals panel is
725725 697appointed, provide appeals panel members with a copy of the notice of appeal filed under
726726 698Subsection (2) and the protest decision record.
727727 699 (6) (a) A procurement appeals panel described in Subsection (5):
728728 700 (i) shall conduct an administrative review of the appeal within 30 days after the day on
729729 701which the procurement appeals panel is appointed, or before a later date that all parties agree
730730 702upon, unless the appeal is dismissed under Subsection (8)(a); and
731731 703 (ii) (A) may, as part of the administrative review and at the sole discretion of the
732732 704procurement appeals panel, conduct an informal hearing, if the procurement appeals panel
733733 705considers a hearing to be necessary; and
734734 706 (B) if the procurement appeals panel conducts an informal hearing, shall, at least seven
735735 707days before the hearing, mail, email, or hand-deliver a written notice of the hearing to the
736736 708parties to the appeal.
737737 709 (b) A procurement appeals panel may, during an informal hearing, ask questions and H.B. 561 02-24-23 12:46 PM
738738 - 24 -
739739 710receive responses regarding the appeal and the protest appeal record to assist the procurement
740740 711appeals panel to understand the basis of the appeal and information contained in the protest
741741 712appeal record, but may not otherwise take any additional evidence or consider any additional
742742 713ground for the appeal.
743743 714 (7) A procurement appeals panel shall consider and decide the appeal based solely on:
744744 715 (a) the notice of appeal and the protest appeal record; and
745745 716 (b) responses received during an informal hearing, if an informal hearing is held and to
746746 717the extent allowed under Subsection (6)(b).
747747 718 (8) A procurement appeals panel:
748748 719 (a) may dismiss an appeal if the appeal does not comply with the requirements of this
749749 720chapter; and
750750 721 (b) shall uphold the protest decision unless the protest decision is arbitrary and
751751 722capricious or clearly erroneous.
752752 723 (9) The procurement appeals panel shall, within seven days after the day on which the
753753 724procurement appeals panel concludes the administrative review:
754754 725 (a) issue a written decision on the appeal; and
755755 726 (b) mail, email, or hand-deliver the written decision on the appeal to the parties to the
756756 727appeal and to the protest officer.
757757 728 (10) (a) The deliberations of a procurement appeals panel may be held in private.
758758 729 (b) If the procurement appeals panel is a public body, as defined in Section 52-4-103,
759759 730the procurement appeals panel shall comply with Section 52-4-205 in closing a meeting for its
760760 731deliberations.
761761 732 (11) A procurement appeals panel may continue an administrative review under this
762762 733section beyond the 30-day period described in Subsection (6)(a)(i) if the procurement appeals
763763 734panel determines that the continuance is in the interests of justice.
764764 735 (12) If a procurement appeals panel determines that the decision of the protest officer is
765765 736arbitrary and capricious or clearly erroneous, the procurement appeals panel:
766766 737 (a) shall remand the matter to the protest officer, to cure the problem or render a new
767767 738decision;
768768 739 (b) may recommend action that the protest officer should take; and
769769 740 (c) may not order that: 02-24-23 12:46 PM H.B. 561
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771771 741 (i) a contract be awarded to a certain person;
772772 742 (ii) a contract or solicitation be cancelled; or
773773 743 (iii) any other action be taken other than the action described in Subsection (12)(a).
774774 744 (13) The board shall make rules relating to the conduct of an appeals proceeding,
775775 745including rules that provide for:
776776 746 (a) expedited proceedings; and
777777 747 (b) electronic participation in the proceedings by panel members and participants.
778778 748 (14) The Rules of Evidence do not apply to a hearing held by a procurement appeals
779779 749panel.
780780 750 (15) Part 20, Records, applies to the records involved in the process described in this
781781 751section, including the decision issued by a procurement appeals panel.
782782 752 Section 5. Section 63G-6a-2501 is enacted to read:
783783 753 Part 25. Human Services Procurements
784784 754 63G-6a-2501. Definitions.
785785 755 As used in this part:
786786 756 (1) "Department" means the Department of Health and Human Services.
787787 757 (2) "Executive director" means the executive director of the department.
788788 758 Section 6. Section 63G-6a-2502 is enacted to read:
789789 759 63G-6a-2502. Procurement advisory council -- Appointment.
790790 760 The executive director may appoint an advisory council to advise and make
791791 761recommendations to the department on the procurement of a human services procurement item,
792792 762including recommendations regarding persons to be debarred or suspended under Section
793793 76363G-6a-2504.
794794 764 Section 7. Section 63G-6a-2503 is enacted to read:
795795 765 63G-6a-2503. Direct purchase procurement process requirements -- Payment
796796 766information on website.
797797 767 (1) The department may, without issuing a solicitation, directly purchase from, or
798798 768contract with, another person for the following human services procurement items:
799799 769 (a) medical, dental, behavioral, psychological, psychiatric, or substance use evaluation
800800 770and treatment for an individual;
801801 771 (b) assistance payments on behalf of an individual that are intended to keep the H.B. 561 02-24-23 12:46 PM
802802 - 26 -
803803 772individual out of a higher level of care or prevent or reduce the need for additional department
804804 773services;
805805 774 (c) services for which the individual receiving the services has the right to choose the
806806 775person who provides the services;
807807 776 (d) services for which the department makes a written determination, made available to
808808 777the public, that the individual's need to receive services from a particular provider outweigh the
809809 778public interest in issuing a competitive procurement;
810810 779 (e) adoption subsidy and maintenance payments;
811811 780 (f) child placing services for an individual adoption;
812812 781 (g) death investigation services; or
813813 782 (h) residential treatment services for an individual after all providers under contract
814814 783from a competitive procurement are exhausted.
815815 784 (2) The department shall:
816816 785 (a) maintain a written record of the name of all persons who provide services under this
817817 786section; and
818818 787 (b) annually publish on the department's website the total amount paid to each person
819819 788under this section during the immediately preceding five-year period.
820820 789 Section 8. Section 63G-6a-2504 is enacted to read:
821821 790 63G-6a-2504. Open enrollment procurement process requirements.
822822 791 (1) The department may contract with another person for a human services
823823 792procurement item in accordance with the open enrollment invitation process described in this
824824 793section.
825825 794 (2) (a) The department may issue an open enrollment invitation for applications to
826826 795provide the department a human services procurement item that includes:
827827 796 (i) a description of the human services procurement item the department is seeking to
828828 797obtain;
829829 798 (ii) the time period for which the invitation will remain open for applications;
830830 799 (iii) the requirements for submission of an application;
831831 800 (iv) the payment rate or a description of the process for determining the payment rate
832832 801for the human services procurement item;
833833 802 (v) the requirements a provider is required to meet to be awarded a contract for the 02-24-23 12:46 PM H.B. 561
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835835 803human service procurement item; and
836836 804 (vi) the required terms and conditions of a contract if awarded.
837837 805 (b) The department shall publish the invitation in accordance with the notice
838838 806requirements for a solicitation described in Section 63G-6a-2506.
839839 807 (c) The department may:
840840 808 (i) keep an invitation open for an indeterminate or specified time period;
841841 809 (ii) close an invitation if the need for additional providers for a human services
842842 810procurement item no longer exists; or
843843 811 (iii) reissue an invitation after closing the invitation.
844844 812 (d) The department may provide technical application assistance to a person applying
845845 813to an invitation.
846846 814 (3) (a) Upon receipt of an application to an invitation, the department shall:
847847 815 (i) review the application to determine compliance with the requirements described in
848848 816Subsection (2)(a);
849849 817 (ii) award a contract to a person whose application complies with Subsection (2)(a);
850850 818and
851851 819 (iii) reject an application that does not comply with Subsection (2)(a).
852852 820 (b) If the department closes an invitation, the department may reject an application
853853 821submitted before the invitation is closed.
854854 822 (c) The department may allow a person to correct deficiencies in an application during
855855 823the department's review of the application under Subsection (3)(a).
856856 824 (4) If a person's application is rejected under Subsection (3):
857857 825 (a) the department shall notify the person of the rejection in writing; and
858858 826 (b) the person may not reapply to the same invitation for at least 12 months after the
859859 827day on which the rejection is issued.
860860 828 (5) The department shall make rules to establish procedures to ensure the open
861861 829enrollment invitation process described in this section is administered in an open and fair
862862 830manner that provides any interested, qualified provider the ability to obtain a contract.
863863 831 Section 9. Section 63G-6a-2505 is enacted to read:
864864 832 63G-6a-2505. Debarred or suspension from consideration for award of contract.
865865 833 (1) The executive director may: H.B. 561 02-24-23 12:46 PM
866866 - 28 -
867867 834 (a) debar or suspend a person from consideration for award of contracts for a human
868868 835services procurement item for any amount of time in accordance with the process described in
869869 836Subsection 63G-6a-904(1); and
870870 837 (b) obtain the recommendation of the council before debarring or suspending the
871871 838person.
872872 839 (2) The council shall recommend that the executive director debar or suspend a person
873873 840for award of contracts for a human services procurement item if the person:
874874 841 (a) is convicted of a criminal offense:
875875 842 (i) for actions taken to obtain or perform under a public or private contract;
876876 843 (ii) for embezzlement, fraud, theft, forgery, bribery, falsification or destruction of
877877 844records, or receiving stolen property; or
878878 845 (iii) under Title 76, Chapter 10, Part 31, Utah Antitrust Act, or another antitrust law;
879879 846 (b) fails, without good cause, to perform in accordance with the terms of a contract
880880 847with the department;
881881 848 (c) commits two or more violations of department rules made in accordance with Title
882882 84963G, Chapter 3, Utah Administrative Rulemaking Act;
883883 850 (d) violates this chapter;
884884 851 (e) poses a significant risk of harm to department clients or the department;
885885 852 (f) is barred or suspended from providing services to another governmental agency; or
886886 853 (g) takes another action that the council determines is fraudulent or substantially affects
887887 854the person's ability to perform under a contract with the department for a human services
888888 855procurement item.
889889 856 Section 10. Section 63G-6a-2506 is enacted to read:
890890 857 63G-6a-2506. Public notice requirements.
891891 858 (1) The department may post notice of a solicitation in accordance with Subsection
892892 85963G-6a-112(1) at least three days before the day of the deadline for submission of a solicitation
893893 860response.
894894 861 (2) The department may reduce the three-day period described in Subsection (1) in
895895 862accordance with Subsection 63G-6a-112(2).
896896 863 Section 11. Section 63G-6a-2507 is enacted to read:
897897 864 63G-6a-2507. Human services procurement appeals process. 02-24-23 12:46 PM H.B. 561
898898 - 29 -
899899 865 (1) A protester may appeal a protest decision to the department in the same manner a
900900 866protest may be appealed to the board under Part 17, Procurement Appeals Board.
901901 867 (2) In conducting an appeal under Subsection (1), the executive director has the same
902902 868powers and authority as the chair of the board and the appointing officer in an appeal
903903 869conducted under Part 17, Procurement Appeals Board, including the power to appoint a
904904 870procurement appeals panel to conduct a review of a claim in the appeal.