Transportation, Operations, Maintenance

Rule R918-5

Construction or Improvement of Highway

Notice of Proposed Rule

(New Rule)

DAR File No.: 34693
Filed: 04/14/2011 02:19:39 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of the rule is to comply with the requirements of Subsection 72-6-107(5) to establish procedures for hearing evidence that a region within the department violated the construction bid limit and administering sanctions for a violation.

Summary of the rule or change:

The rule establishes procedures for hearing evidence that a region within the department violated the construction bid limit and administering sanctions for a violation.

State statutory or constitutional authorization for this rule:

• Section 72-6-107
• Section 72-1-201
• Section 72-6-109

Anticipated cost or savings to:

the state budget:

There are no anticipated cost or savings to the state budget because the procedures are handled within the department and sanctions for violations are imposed among its regions.

local governments:

There are no anticipated cost or savings to local government because the procedures are handled within the department and sanctions for violations are imposed among its regions.

small businesses:

There are no anticipated cost or savings to small business because the procedures are handled within the department and sanctions for violations are imposed among its regions.

persons other than small businesses, businesses, or local governmental entities:

There are no anticipated cost or savings to persons other than small businesses, businesses, or local government entities because the procedures are handled within the department and sanctions for violations are imposed among its regions.

Compliance costs for affected persons:

There are no anticipated costs or savings to affected persons because the procedures are handled within the department and sanctions for violations are imposed among its regions.

Comments by the department head on the fiscal impact the rule may have on businesses:

There are no anticipated cost or savings to businesses because the procedures are handled within the department and sanctions for violations are imposed among its regions.

John Njord, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Transportation
Operations, Maintenance
4501 S 2700 W
SALT LAKE CITY, UT 84119-5998

Direct questions regarding this rule to:

• Linda Barrow at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/31/2011

This rule may become effective on:

06/07/2011

Authorized by:

John Njord, Executive Director

R918. Transportation, Operations, Maintenance.

R918-5. Construction or Improvement of Highway.

R918-5-1. Authority.

This rule is required by Section 72-6-107 and is enacted under the authority of Title 63G, Chapter 3, Utah Administrative Rulemaking Act and Section 72-1-201.

 

R918-5-2. Purpose and Background.

Section 72-6-107 requires that any construction or improvement project whose estimated cost for labor and materials exceeds the Bid Limit defined in Section 72-6-109 shall be performed under contract awarded to the lowest responsible bidder. Construction or improvement projects with estimated costs for labor and materials lower than that Bid Limit may be performed by force account. That same section also directs the Department to establish a procedure whereby evidence that a region violated that law may be heard, and also directs the Department to establish sanctions for a region found to be in violation. This rule establishes those procedures and sanctions.

 

R918-5-3. Definitions.

(1) "Bid Limit" is the dollar amount set forth in Section 72-6-109 .

(2) "Department" means the Utah Department of Transportation.

(3) "Region" means one of the four regions of the Utah Department of Transportation.

(4) "Project" means the performance of a clearly identifiable group of associated road construction activities or the same type of maintenance process, where the construction or maintenance is performed on any one road, within a half-mile proximity and occurs within the same calendar year.

 

R918-5-4. Process to Hear Evidence of Violations.

(1) There is established within the Department a "Bid Limit Hearing Board" (the Board), consisting of persons in the following positions:

(a) Director of Operations (Chair);

(b) Engineer for Construction;

(c) Engineer for Maintenance;

(d) Director of Project Development;

(e) UDOT Internal Auditor;

(f) One UDOT Region Director (appointed by the Deputy Director on a case-by-case basis); and

(g) Deputy Engineer for Maintenance (Secretary/Recorder, non-voting).

(2) Any person, corporation, government agency, or UDOT group, having reasonable evidence that a region violated any provision of Section 72-6-107, may request that the Board be convened to hear that evidence, by making a written request/complaint to the Department's Deputy Director.

(3) Upon receiving a complaint of an alleged violation, the Deputy Director shall direct the Board to convene, by notifying the Chair that a complaint has been received.

(4) The Board shall convene no later than 30 days after the Deputy Director receives the complaint.

(5) During the hearing, the complainant shall present objective evidence that the estimated cost of the project for labor and materials exceeded the Bid Limit. The evidence shall include credible cost data to support the allegation. The accused region shall be afforded the opportunity to defend itself against any and all allegations, by presenting credible evidence of its own.

(6) Having heard evidence from both parties, the Board shall privately deliberate on the evidence heard, and return a verdict either supporting the complainant's claim of a violation, or finding the claim unsubstantiated. The verdict shall be based on a simple majority vote. The Board shall then notify the Deputy Director of its verdict and recommendation for sanction.

(7) The Deputy Director, upon receiving the Board's verdict of a violation and recommendation for sanction, shall administer a sanction against the region in violation. The Deputy Director has discretion to administer either the standard sanction outlined in Section R918-5-5, or whatever other corrective action he or she deems appropriate.

 

R918-5-5. Standard Sanction for Violation.

The standard sanction for a region found in violation of the provisions of Section 72-6-107 by exceeding the Bid Limit for labor and materials, is a penalty to be taken from that region's Operations budget (commonly known as the "Code 1" budget), and distributed equally among the other three regions. The standard amount of the penalty is the larger of:

(1) the total cost of the project for labor and materials, less the Bid Limit in effect at the time the project began, or

(2) $100,000.

 

KEY: maintenance, construction, improvement projects, bid limits

Date of Enactment or Last Substantive Amendment: 2011

Authorizing, and Implemented or Interpreted Law: 72-1-201, 72-6-107, 72-6-109