Administrative Services, Purchasing and General Services

Rule R33-1

Utah State Procurement Rules Definitions

Notice of Proposed Rule

(Amendment)

DAR File No.: 35664
Filed: 01/12/2012 05:21:48 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

H.B. 476 (2011 General Session) directs that rules be drafted governing the procurement, management, and control of any and all technology to be procured by the state.

Summary of the rule or change:

This amendment adds definitions for "Acquiring Agency," "New Technology," and "Technology."

State statutory or constitutional authorization for this rule:

• Title 63G, Chapter 6

Anticipated cost or savings to:

the state budget:

The addition of definitions does not result in cost or savings; the definitions simply provide an understanding of terms pertinent to requirements elsewhere in rule. There may be costs or savings associated with amendments to Rule R33-3 (published in the January 15, 2012, Bulletin under DAR No. 35613) and Rule R33-4, and Sections R33-6-101 and R33-3-7 (published in this issue). (DAR NOTE: The proposed amendment to Rule R33-4 is under DAR No. 35665, the proposed amendment to Section R33-6-101 is under DAR No. 35666, and the proposed amendment to Section R33-3-7 is under DAR No. 35667 in this issue, February 1, 2012, of the Bulletin.)

local governments:

The addition of definitions does not result in cost or savings; the definitions simply provide an understanding of terms pertinent to requirements elsewhere in rule. There may be costs or savings associated with amendments to Rule R33-3 (published in the January 15, 2012, Bulletin under DAR No. 35613) and Rule R33-4, and Sections R33-6-101 and R33-3-7 (published in this issue).

small businesses:

The addition of definitions does not result in cost or savings; the definitions simply provide an understanding of terms pertinent to requirements elsewhere in rule. There may be costs or savings associated with amendments to Rule R33-3 (published in the January 15, 2012, Bulletin under DAR No. 35613) and Rule R33-4, and Sections R33-6-101 and R33-3-7 (published in this issue).

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

The addition of definitions does not result in cost or savings; the definitions simply provide an understanding of terms pertinent to requirements elsewhere in rule. There may be costs or savings associated with amendments to Rule R33-3 (published in the January 15, 2012, Bulletin under DAR No. 35613) and Rule R33-4, and Sections R33-6-101 and R33-3-7 (published in this issue).

Compliance costs for affected persons:

The addition of definitions does not result in compliance costs; the definitions simply provide an understanding of terms pertinent to requirements elsewhere in rule. There may be costs or savings associated with amendments to Rule R33-3 (published in the January 15, 2012, Bulletin under DAR No. 35613) and Rule R33-4, and Sections R33-6-101 and R33-3-7 (published in this issue).

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

I foresee the potential for greater efficiencies in government through the ability of government entities being able to modify existing contracts for technology-related enhancements, provided the ability to modify was contained in the original solicitation, thereby reducing procurement-related costs to vendors. Potential state contractors will have the opportunity to pilot their technology and technology-related goods and services without a lengthy competitive process.

Kimberly K. Hood, Executive Director

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

Administrative Services
Purchasing and General Services
Room 3150 STATE OFFICE BLDG
450 N STATE ST
SALT LAKE CITY, UT 84114-1201

Direct questions regarding this rule to:

• Paul Mash at the above address, by phone at 801-538-3138, by FAX at 801-538-3882, or by Internet E-mail at pmash@utah.gov

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:

03/02/2012

This rule may become effective on:

03/09/2012

Authorized by:

Kent Beers, Director

R33. Administrative Services, Purchasing and General Services.

R33-1. Utah State Procurement Rules Definitions.

R33-1-1. Definitions.

A. Terms used in the procurement rules are defined in Section 63G-6-103.

B. 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 when competitive sealed proposals are solicited and at least two responsible offerors independently contend for a contract to be awarded to the responsible offeror submitting the lowest evaluated price by submitting priced best and final offers meeting the requirements of the request for proposals. If the foregoing conditions are met, price competition shall be presumed to be "adequate" unless the procurement officer determines that there is not adequate competition.

(3) Acquiring Agency is an agency subject to Section 63F-1-205 acquiring new technology or technology as therein defined.

([3]4) 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.

([4]5) Brand Name Specification means a specification calling for one or more products by manufacturers' names or catalogue numbers.

([5]6) Chief Procurement Officer means the procurement officer for the State of Utah.

([6]7) Consultant Services means work, rendered by either individuals or firms who possess specialized knowledge, experience, and expertise to investigate assigned problems or projects and to provide counsel, review, design, development, analysis, or advise in formulating or implementing programs or services or improvements in programs or services, including but not limited to such areas as management, personnel, finance, accounting, planning, and data processing.

([7]8) Cost Analysis means the evaluation of cost data for the purpose of arriving at estimates of costs to be incurred, prices to be paid, cost to be reimbursed, or costs actually incurred.

([8]9) 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.

([9]10) Cost Objective means a function, organizational subdivision, contract, or any other work unit for which provision is made to accumulate and measure the cost of processes, products, jobs, capitalized projects, and similar items.

([10]11) Discussions as used in source selection means negotiation during which the seller or buyer may alter or otherwise change the terms, price or other provisions of the proposed contract. Discussion can be conducted under competitive sealed proposals, sole source, and emergency procurements; such discussion is not permissible under competitive sealed bidding except to the extent in the first phase of multi-step bidding.

([11]12) Electronic means, in reference to any solicitation process, only those specified electronic forms described in the Invitation for Bids, Request for Proposals or other solicitation document.

([12]13) Established Market Price means a current price, established in the usual and ordinary course of trade between buyers and sellers, which can be substantiated from sources independent of the manufacturer or supplier.

([13]14) Lease means a contract for the use of equipment or real property under which title does not pass to the purchasing agency.

(15) 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.

([14]16) Prequalification for Inclusion on Bidders Lists means determining that a prospective bidder or offeror satisfies the criteria established for receipt of solicitations when and as issued.

([15]17) Price Analysis means the evaluation of price data without analysis of the separate cost components and profit which may assist in arriving at prices to be paid or costs to be reimbursed.

([16]18) Price Data means factual information concerning prices for supplies, services, or construction substantially identical to those being procured. Prices in this definition refer to offered or proposed selling prices. The definition refers to data relevant to both prime and subcontract prices.

([17]19) Professional Services means work rendered by an independent contractor who has a professed knowledge of some department of learning or science used by its practical application to the affairs of others or in the practice of an art founded on it, including but not limited to accounting and auditing, court reporters, X-ray technicians, legal, medical, nursing, education, engineering, actuarial, architecture, veterinarians, and research. The knowledge is founded upon prolonged and specialized intellectual training which enables a particular service to be rendered. The word "professional" implies professed attainments in special knowledge as distinguished from mere skills.

([18]20) Property means all real property, personal property, or both, owned by a purchasing agency.

([19]21) Providers means suppliers of services, which might be termed "personal services", to benefit clients or citizens of the enacting jurisdiction which services otherwise might be performed by its own employees. For example, an enacting jurisdiction might contract with a school to conduct a training program for the handicapped. Similarly, the state might contract with persons to provide foster homes for children. It will be necessary to ascertain on a case-by-case basis whether the services to be rendered will involve extended analysis and significant features of judgment.

([20]22) Qualified Products List means a list of supplies, services, or construction items described by model or catalogue numbers, which, prior to solicitation, the purchasing agency has determined will meet the applicable specification requirements.

([21]23) Solicitation means an Invitation for Bids, a Request for Proposals, or any other document, such as a request for quotations, issued by the purchasing agency for the purpose of soliciting offers to perform a contract.

([22]24) Suppliers means prospective bidders or offerors, as used in section 63G-6-414 of the Utah Procurement Code.

(25) Technology means(e) any type of technology defined in63F-1-102(8) of the Utah Technology Governance Act.

 

KEY: government purchasing

Date of Enactment or Last Substantive Amendment: [February 21, 2006]2012

Notice of Continuation: November 23, 2007

Authorizing, and Implemented or Interpreted Law: 63G-6