DAR File No. 41646

Education, Administration

Rule R277-122

Board of Education Procurement

Notice of Proposed Rule

(New Rule)

DAR File No.: 41646
Filed: 05/15/2017 04:15:49 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this new Rule R277-122 is to provide standards and procedures for the Utah State Board of Education (Board) to be an independent procurement authority. This new rule is in response to S.B. 127 from the 2017 General Session, which designates the Board as an independent procurement authority.

Summary of the rule or change:

This new Rule R277-122 provides for the Board to adopt and incorporate by reference certain provisions of Title R33, Purchasing and General Services; provides for a Board employee to be the manager of procurement; designates the manager of procurement as the head of the procurement unit for the Board; and provides exceptions to Title R33.

Statutory or constitutional authorization for this rule:

• Title 63G, Chapter 6a
• Art X, Sec 3
• Section 53A-1-401

This rule or change incorporates by reference the following material:

• Adds Title R33, Purchasing and General Services, published by Office of Administrative Rules, 04/01/2017

Anticipated cost or savings to:

the state budget:

There will be some increased costs incurred by the Board as a result of becoming its own procurement unit. Any costs and responsibilities associated with implementation of this rule will be absorbed within existing budgets and with existing staff.

local governments:

This new rule affects the state. There is likely no anticipated cost or savings to local government resulting from implementation of this rule.

small businesses:

This new rule affects the state. There is likely no anticipated cost or savings to small businesses resulting from implementation of this rule.

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

This new rule affects the state. There is likely no anticipated cost or savings to persons other than small businesses, businesses, or local government entities resulting from implementation of this rule.

Compliance costs for affected persons:

This new rule affects the state. There is likely no compliance costs for affected persons resulting from implementation of this rule.

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

To the best of my knowledge, there should be no fiscal impact on businesses resulting from this new rule.

Sydnee Dickson, State Superintendent

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

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Angela Stallings at the above address, by phone at 801-538-7656, by FAX at 801-538-7768, 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:

07/03/2017

This rule may become effective on:

07/10/2017

Authorized by:

Angela Stallings, Deputy Superintendent, Policy and Communication

R277. Education, Administration.

R277-122. Board of Education Procurement.

R277-122-1. Authority and Purpose.

(1) This rule is authorized by:

(a) Utah Constitution Article X, Section 3, which vests general control and supervision over public education in the Board;

(b) Section 53A-1-401, which allows the Board to make rules to execute the Board's duties and responsibilities under the Utah Constitution and state law; and

(c) Title 63G, Chapter 6a, Utah Procurement Code.

(2) The purpose of this rule is to adopt and incorporate by reference Title R33, Purchasing and General Services, with exceptions as described in this rule.

 

R277-122-2. Definitions.

(1) "Manager of procurement" means a Board employee designated by the Board to be the head of the procurement unit as described in Section R277-122-4 and Section R33-1-3.

(2) "Responsible" means the same as that term is defined in Subsection 63G-6a-103 (75).

(3) "Responsive" means the same as that term is defined in Subsection 63G-6a-103 (76).

 

R277-122-3. Incorporation of Title R33 With Exceptions.

(1) The Board adopts and incorporates by reference Title R33, Purchasing and General Services, as in effect on April 1, 2017, with the exceptions described in this section.

(2) The Board does not adopt Section R33-8-101b.

(3) The Board adopts Section R277-122-5 in place of Section R33-9-103.

(4) The Board adopts Section R277-122-6 in place of Section R33-12-201.

(5) The Board adopts Section R277-122-8 in place of Section R33-12-608.

(6) The Board adopts Section R277-122-9 in place of Subsections:

(a) R33-16-101a (2)(a); and

(b) R33-16-301 (4).

 

R277-122-4. Head of the Procurement Unit Designated.

The Board designates the manager of procurement as the head of the procurement unit.

 

R277-122-5. Cancellation Before Award.

(1) A solicitation may be cancelled prior to a contract award if the head of the procurement unit determines the cancellation is:

(a) in the best interest of the Board; and

(b) supported by a reasonable and good faith justification.

(2) The head of the procurement unit shall include notice of the Board's right of cancellation described in Subsection (1) in each Board solicitation.

 

R277-122-6. Establishment of Terms and Conditions.

The head of the procurement unit shall develop standard terms and conditions for use with Board contracts and agreements.

 

R277-122-7. Requirements for Cost or Pricing Data.

(1) If cost or pricing data is required by Section 63G-6a-1206 or Section R33-12-601, the head of the procurement unit shall require the person who seeks a cost-based contract to submit:

(a) factual and verifiable information related to the contractor's estimated cost for completing a project on:

(i) the date the contract is signed by both parties; or

(ii) an earlier date agreed to by both parties that is:

(A) as close as practicable to the date described in Subsection (1)(a)(i); and

(B) before prudent buyers and sellers would reasonably expect price negotiations to be affected significantly; and

(b) underlying data related to a contractor's estimate that can be reasonably expected to contribute to the soundness of estimates of future costs and the validity of determinations of costs already incurred, including:

(i) vendor quotations;

(ii) nonrecurring costs;

(iii) information on changes in production methods and in production or purchasing volume;

(iv) data supporting projections of business prospects and objectives and related operations costs;

(v) unit-cost trends such as those associated with labor efficiency;

(vi) make-or-buy decisions;

(vii) estimated resources to attain business goals; or

(viii) information on management decisions that could have a significant bearing on costs.

(2) Submission of certified cost or pricing data applies to contracts of $50,000.00 or greater if the contract price is not established by:

(a) adequate price competition;

(b) established catalogue or market prices; or

(c) law or regulation.

 

R277-122-8. Use of Federal Cost Principles.

The head of the procurement unit shall apply the federal cost principles described in 2 CFR Part 200, Subpart E in determining which costs expended under Board contracts are reasonable, allocable, and allowable.

 

R277-122-9. Grounds for Protest -- Intervention in a Protest.

(1) A bidder who files a protest shall include in the bidder's submission a concise statement of the grounds for the protest, which shall include the facts leading the protestor to contend that a grievance has occurred, including but not limited to specifically referencing:

(a) the circumstances described in Subsections R33-16-101a(2)(a) (i) through (iii);

(b) a provision of the solicitation alleged to be:

(i) unduly restrictive;

(ii) anticompetitive; or

(iii) unlawful;

(c) an alleged material error made by the evaluation committee or conducting procurement unit; or

(d) the circumstances described in Subsections R33-16-101a(2)(a)(vi) and (vii).

(2) A motion to intervene in a post-award protest may only be made by the announced awardee.

(3) A person may intervene in a pre-award protest, if the person's proposal:

(a) was evaluated;

(b) found to be responsive; and

(c) the head of the procurement unit finds the person to be responsible.

 

KEY: procurement, efficiency

Date of Enactment or Last Substantive Amendment: 2017

Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 53A-1-401; 63G-6a