|R23. Administrative Services, Facilities Construction and Management.
R23-1. Procurement Rules with Numbering Related to the Procurement Code.
R23-1-101. Scope of the Rules and Compliance by Using Agencies.
(1) Rule R23-1 applies to procurements by the Division of Facilities Construction and Management. This includes the procurement of construction, architects, engineers, design services and all other professional services and procurements related to design or construction by the Division of Facilities Construction and Management as well as other procurement items within the rule authorization of the Division of Facilities Construction and Management. Using Agencies are required to comply with these rules to extent required by the Utah Code.
(2) The statutory provisions governing the procurement referred to in R23-1-101(1) above are provided in the Utah Procurement Code, Title 63G, Chapter 6a of the Utah Code as well as Title 63A, Chapter 5 of the Utah Code.
Terms used in this R23-1 are defined in Sections 63G-6a-103 and 104 of the Utah Procurement Code. In addition:
(1) "Actual Costs" means direct and indirect costs which have been incurred for services rendered, supplies delivered, or construction built, as distinguished from allowable costs.
(2) "Adequate Price" Competition means:
(a) when a minimum of two competitive bids, proposals, or quotes are received from responsive bidders or offerors.
(3) "Acquiring Agency" is a conducting procurement unit subject to Section 63F-1-205 acquiring new technology or technology as therein defined.
(4) "Bid Bond" is an insurance agreement, accompanied by a monetary commitment, by which a third party (the Surety) accepts liability and guarantees that the bidder will not withdraw the bid. The bidder will furnish bonds in the required amount and if the contract is awarded to the bonded bidder, the bidder will accept the contract as bid, or else the surety will pay a specific amount.
(5) "Bid Rigging" means agreement among potential competitors to manipulate the competitive bidding process, for example, by agreeing not to bid, to bid a specific price, to rotate bidding, or to give kickbacks.
(6) "Bid Security" means the deposit of cash, certified check, cashier's check, bank draft, money order, or bid bond submitted with a bid and serving to guarantee to the owner that the bidder, if awarded the contract, will execute such contract in accordance with the bidding requirements and the contract documents.
(7) "Board" means the State Building Board established pursuant to Section 63A-5-101.
(8) "Brand Name or Equal Specification" means a specification which uses a brand name specification to describe the standard of quality, performance, and other characteristics being solicited, and which invites the submission of equivalent products.
(9) "Brand Name Specification" means a specification identifying one or more products by manufacturer name, product name, unique product identification number, product description, SKU or catalogue number.
(10) "Collusion" means when two or more persons act together to achieve a fraudulent or unlawful act. Collusion inhibits free and open competition in violation of law.
(11) "Cost Analysis" means the evaluation of cost data for the purpose of arriving at estimates of costs to be incurred, prices to be paid, costs to be reimbursed, or costs actually incurred.
(12) "Cost Data" means factual information concerning the cost of labor, material, overhead, and other cost elements which are expected to be incurred or which have been actually incurred by the contractor in performing the contract.
(13) "Cronyism" is an anticompetitive practice that may violate federal and state antitrust and procurement laws. Cronyism in government contracting is a form of favoritism where contracts are awarded on the basis of friendships, associations or political connections instead of fair and open competition.
(14) "Director" means the Director of the Division, including, unless otherwise stated, the Director's duly authorized designee.
(15) "Division" means the Division of Facilities Construction and Management established pursuant to Section 63A-5-201.
(16) "Mandatory Requirement" means a condition set out in the specifications/statement of work that must be met without exception.
(17) "Minor Irregularity" is a variation from the solicitation that does not affect the price of the bid, offer, or contract or does not give a bidder/offeror an advantage or benefit not shared by other bidders/offerors, or does not adversely impact the interests of the procurement unit.
(18) "New Technology" means any invention, discovery, improvement, or innovation, that was not available to the acquiring agency on the effective date of the contract, whether or not patentable, including, but not limited to, new processes, emerging technology, machines, and improvements to, or new applications of, existing processes, machines, manufactures and software. Also included are new computer programs, and improvements to, or new applications of, existing computer programs, whether or not copyrightable and any new process, machine, including software, and improvements to, or new applications of, existing processes, machines, manufactures and software.
(19) "Participating Addendum" means an agreement issued in conjunction with a Cooperative Contract that authorizes a public entity to use the Cooperative Contract.
(20) "Payment Bond" is a bond that guarantees payment for labor and materials expended on the contract.
(21) "Price Analysis" means the evaluation of price data without analysis of the separate cost components and profit.
(22) "Price Data" means factual information concerning prices for procurement items.
(23) Record" shall have the meaning defined in Section 63G-2-103 of the Government Records Access and Management Act (GRAMA).
(24) "Section and Subsection" refers to the Utah Code.
(25) "Solicitations," in addition to the definition in 63G-6a -103 (48) also includes all documents, whether attached or incorporated by reference to the solicitation.
(26) "Surety bond" (performance bond) means a promise to pay one the oblige (owner) a certain amount if the principal (contractor) fails to meet some obligation, such as fulfilling the terms of a contract. The surety bond protects the oblige (owner) against losses resulting from the principal's failure to meet the obligation. In the event that the obligations are not met, the oblige (owner), will recover its losses via the bond.
(27) "Technology" means any type of technology defined in Section 63F-1-102(8).
(28) "Using Agency" means any state agency or any political subdivision of the state which utilizes the services procured under this Rule 23-1.
R23-1-103. Division is Issuing and Conducting Procurement Unit.
The Division is both the issuing and conducting procurement unit for procurements under this Rule R23-1.
R23-1-201. Director Appoint to Policy Board, Building Board Rules Authority.
(1) The Director shall appoint a representative to serve on the Utah State Procurement Policy Board.
(2) In accordance with Section 63G-6a-204(2), the Board rules governing procurement of construction, architect-engineer services, and leases apply to the procurement of construction, architect-engineer services, and leases of real property by the Division.
R23-1-301. Relationship with the Division of Purchasing and General Services.
(1) The Division recognizes the provisions of Part 3 of the Utah Procurement Code regarding the Chief Procurement Officer. The Division may participate as needed or required with trainings provided by the Division of Purchasing and General Services.
(2) The Director's responsibilities are provided in Title 63a, Chapter 5 of the Utah Code.
R23-1-401. Prequalification of Potential Vendors.
General procurement provisions, including prequalification of potential vendors, approved vendor lists, and small purchases shall be conducted in accordance with the requirements set forth in Sections 63G-6a-402 through 408. All definitions in the Utah Procurement Code shall apply to this Rule R23-1-4-4 unless otherwise specified in Rule 23-1. This Rule R23-4 provides additional requirements and procedures and must be used in conjunction with the Procurement Code.
R23-1-402. Thresholds for Approved Vendor Lists.
(1) Public entities may establish approved vendor lists in accordance with the requirements of Sections 63G-6a-403 and 63G-6a-404.
(a) Contracts or purchases from an approved vendor list may not exceed the following thresholds:
(i) Construction Projects: $2,500,000 per contract, for direct construction costs, including design and allowable furniture or equipment costs, awarded using an invitation for bids or a request for proposals;
(ii) Professional and General Services, including architectural and engineering services: $100,000; and
(b) Thresholds for other approved vendor lists may be established by the Director.
(1) Solicitation documents shall include specifications for the procurement item(s).
(2) Specifications shall be drafted with the objective of clearly describing the Division's requirements and encouraging competition.
(a) Specifications shall emphasize the functional or performance criteria necessary to meet the needs of the Division.
(3) Persons with a conflict of interest, or who anticipate responding to the proposal for which the specifications are written, may not participate in writing specifications. The Division may retain the services of a person to assist in writing specifications, scopes of work, requirements, qualifications, or other components of a solicitation. However the person assisting in writing specifications shall not, at any time during the procurement process, be employed in any capacity by, nor have an ownership interest in, an individual, public or private corporation, governmental entity, partnership, or unincorporated association bidding on or submitting a proposal in response to the solicitation.
(a) This Rule R23-1-403(3) does not apply to the following:
(i) a design build construction project;
(ii) provisions in specifications provided by the designer when the source of the specification is identified and it is not designed to be an impermissible sole source (a sole source that does not comply with the Utah Procurement Code and the applicable administrative rules); and
(iii) other procurements determined in writing by the Director.
(b) Violations of this Rule R23-1-403(3) may result in:
(i) the bidder or offeror being declared ineligible for award of the contract;
(ii) the solicitation being canceled;
(iii) termination of an awarded contract; or
(iv) any other action determined to be appropriate by the Director.
(4) Brand Name or Equal Specifications.
(a) Brand name or equal specifications may be used when:
(i) "or equivalent" reference is included in the specification; and,
(ii) as many other brand names as practicable are also included in the specification.
(b) Brand name or equal specifications shall include a description of the particular design and functional or performance characteristics which are required. Specifications unique to the brands shall be described in sufficient detail that another person can respond with an equivalent brand.
(c) When a manufacturer's specification is used in a solicitation, the solicitation shall state the minimum acceptable requirements of an equivalent. When practicable, the Division shall name at least three manufacturer's specifications.
(5) Brand Name Sole Source Requirements.
(a) If only one brand can meet the requirement, the Division shall conduct the procurement in accordance with 63G-6a-802 and shall solicit from as many providers of the brand as practicable; and.
(b) If there is only one provider that can meet the requirement, the Division shall conduct the procurement in accordance with Section 63G-6a-802.
R23-1-404. Small Purchases (Commodities).
Small purchases shall be conducted in accordance with the requirements set forth in Section 63G-6a-408. This administrative rule provides additional requirements and procedures and must be used in conjunction with the Procurement Code.
(1) "Small Purchase" means a procurement conducted by the Division that does not require the use of a standard procurement process.
(2) Small Purchase thresholds for commodities:
(a) The "Individual Procurement" threshold is a maximum amount of $1,000 for a procurement item;
(i) For individual procurement item(s) costing up to $1,000, the Division may select the best source by direct award and without seeking competitive bids or quotes.
(a) The single procurement aggregate threshold is a maximum amount of $5,000 for multiple procurement item(s) purchased from one source at one time; and
(b) The annual cumulative threshold from the same source is a maximum amount of $50,000.
(3) Whenever practicable, the Division shall use a rotation system or other system designed to allow for competition when using the small purchases process for commodities.
R23-1-405. Small Purchases Threshold for Architectural and Engineering Services.
(1) The small purchase threshold for architectural or engineering services is a maximum amount of $100,000.
(2) Architectural or engineering services may be procured up to a maximum of $100,000, by direct negotiation.
(3) The Division shall follow the process described in Section 63G-6a-403 to prequalify potential vendors and Section 63G-6a-404 if the Division develops an approved vendor list, or Part 15 of the Utah Procurement Code for the selection of architectural and engineering services.
(4) The Division shall include minimum specifications when using the small purchase threshold for architectural and engineering services.
R23-1-406. Small Purchases Threshold for Construction Projects.
(1) The small construction project threshold is a maximum of $2,500,000 for direct construction costs, including design and allowable furniture or equipment costs;
(2) The Division shall follow the process described in the Section 63G-6a-403 to prequalify potential vendors and Section 63G-6a-404 to develop an Approved Vendor List or other applicable selection methods described in the Utah Procurement Code for construction services.
(3) The Division shall include minimum specifications when using the small purchases threshold for construction projects.
(4) The Director may procure small construction projects up to a maximum of $25,000 by direct award without seeking competitive bids or quotes after documenting that all building code approvals, licensing requirements, permitting, and other construction related requirements are met. The awarded contractor must certify that they are capable of meeting the minimum specifications of the project.
(5) The Director may procure small construction projects costing more than $25,000 up to a maximum of $100,000 by obtaining a minimum of two competitive quotes that include minimum specifications and shall award to the contractor with the lowest quote that meets the specifications after documenting that all applicable building code approvals, licensing requirements, permitting and other construction related requirements are met.
(6) The Division shall procure construction projects over $100,000 using an invitation to bid, request for proposals, approved vendor list, or other approved source selection method provided in the Utah Procurement Code.
R23-1-407. Quotes for Small Purchases of Commodities from $1,001 to $50,000.
The following applies to commodities:
(1) For procurement item(s) where the cost is greater than $1,000 but up to a maximum of $5,000, the Division shall obtain a minimum of two competitive quotes, which may be by email, phone or verbal, that include minimum specifications and shall purchase the procurement item from the responsible vendor offering the lowest quote that meets the specifications.
(2) For procurement item(s) where the cost is greater than $5,000 up to a maximum of $50,000, the Division shall obtain a minimum of two competitive quotes, that include minimum specifications, which must be communicated to the proposed vendors in writing, and shall purchase the procurement item from the responsible vendor offering the lowest quote that meets the specifications.
(3) For procurement item(s) costing over $50,000, the Division shall conduct an invitation for bids or other procurement process outlined in the Utah Procurement Code.
(4) The names of the vendors offering quotations and bids and the date and amount of each quotation or bid shall be recorded and maintained as a governmental record.
R23-1-408. Small Purchases of Services of Professionals, Providers, and Consultants.
(1) The small purchase threshold for professional service providers and consultants is a maximum amount of $100,000.
(2) After reviewing the qualifications, the Director may obtain professional services or consulting services up to a maximum of $100,000 by direct negotiation.
R23-1-501. Request for Information.
In addition to the requirements of Part 5 of the Utah Procurement Code, a Request for Information should indicate the procedure for business confidentiality claims and other protections provided by the Utah Government Records and Access Management Act.
R23-1-601. Competitive Sealed Bidding; Multiple Stage Bidding; Reverse Auction.
Competitive Sealed Bidding shall be conducted in accordance with the requirements set forth in Sections 63G-6a-601 through 63G-6a-612. 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.
R23-1-602. Bidder Submissions.
(1) The invitation for bids shall include the information required by Section 63G-6a-603 and shall also include a "Bid Form" or forms, which shall provide lines for each of the following:
(a) the bidder's bid price;
(b) the bidder's acknowledged receipt of addenda issued by the procurement unit;
(c) the bidder to identify other applicable submissions; and (d) the bidder's signature
(2) Bidders may be required to submit descriptive literature and/or product samples to assist the Director in evaluating whether a procurement item meets the specifications and other requirements set forth in the invitation to bid.
(a) Product samples must be furnished free of charge unless otherwise stated in the invitation for bids, and if not destroyed by testing, will upon written request within any deadline stated in the invitation for bids, be returned at the bidder's expense. Samples must be labeled or otherwise identified as specified in the invitation for bids by the procurement unit.
(3) The provisions of Rule R23-1-705 shall apply to protected records.
(4) Bid, payment and performance bonds or other security may be required for procurement items as set forth in the invitation for bids. Bid, payment and performance bond amounts shall be as prescribed by applicable law or must be based upon the estimated level of risk associated with the procurement item and may not be increased above the estimated level of risk with the intent to reduce the number of qualified bidders.
R23-1-603. Pre-Bid Conferences and Site Visits.
(1) Except as authorized in writing by the Director, pre-bid conferences and site visits must require mandatory attendance by all bidders.
(a) A pre-bid conference may be attended via the following:
(i) attendance in person;
(ii) teleconference participation;
(iii) webinar participation;
(iv) participation through other electronic media approved by the Director.
(b) Mandatory site visits must be attended in person.
(c) All pre-bid conferences and site visits must be attended by an authorized representative of the person or vendor submitting a bid and as may be further specified in the procurement documents.
(d) The solicitation must state that failure to attend a mandatory pre-bid conference shall result in the disqualification of any bidder that does not have an authorized representative attend the entire duration of the mandatory pre-bid conference.
(e) The solicitation must state that failure to attend a mandatory site visit shall result in the disqualification of any bidder that does not have an authorized representative attend the entire duration of the mandatory site visit.
(f) At the discretion of the conducting procurement unit, audio or video recordings of pre-bid conferences and site visits may be used.
(g) Listening to or viewing audio or video recordings of a mandatory pre-bid conference or site visit may not be substituted for attendance.
(2) If a pre-bid conference or site visit is held, the Division shall maintain:
(a) an attendance log including the name of each attendee, the entity the attendee is representing, and the attendee's contact information;
(b) minutes, if there are any, of the pre-bid conference or site visit;
(c) copies of any documents distributed by the Division to the attendees at the pre-bid conference or site visit; and
(d) any verbal modifications made to any of the solicitation documents. All verbal modifications to the solicitation documents shall be reduced to writing.
(3) The Division shall publish as an Addendum to the solicitation, the information in R23-1-603 (2)(a) above.
R23-1-604. Addenda to Invitation for Bids.
Prior to the submission of bids, a procurement unit may issue addenda which may modify any aspect of the Invitation for Bids.
(1) Addenda shall be distributed within a reasonable time to allow prospective bidders to consider the addenda in preparing bids.
(2) After the due date and time for submitting bids, at the discretion of the Director, addenda to the Invitation for Bids may be limited to bidders that have submitted bids, provided the addenda does not make a substantial change to the Invitation for Bids that, in the opinion of the Director, likely would have impacted the number of bidders responding to the Invitation for Bids.
R23-1-605. Bids and Modifications to a Bid Received After the Due Date and Time.
(1) Bids and modifications to a bid submitted electronically or by physical delivery, after the established due date and time, will not be accepted for any reason, except as determined in R23-1-605(4).
(2) When submitting a bid or modification electronically, bidders must allow sufficient time to complete the online forms and upload documents. The solicitation will end at the closing time posted in the electronic system. If a bidder is in the middle of uploading a bid when the closing time arrives, the system will stop the process and the bid or modification to the bid will not be accepted.
(3) When submitting a bid or modification to a bid by physical delivery (U.S. Mail, courier service, hand-delivery, or other physical means) bidders are solely responsible for meeting the deadline. Delays caused by a delivery service or other physical means will not be considered as an acceptable reason for a bid or modification to a bid being late.
(4) All bids or modifications to bids received by physical delivery will be date and time stamped by the procurement unit.
(5) To the extent that an error on the part of the Division results in a bid or modification to a bid not being received by the established due date and time, the bid or modification to a bid shall be accepted as being on time.