DAR File No. 38507

Administrative Services, Purchasing and General Services

Rule R33-8

Property Management

Notice of Proposed Rule

(Repeal and Reenact)

DAR File No.: 38507
Filed: 05/13/2014 11:10:18 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The reason for the repeal and reenactment is because the Division of Purchasing and General Services is updating this rule to comply with the provisions of the Procurement Code, Title 63G, Chapter 6a, and to match recent legislation (S.B. 179 of the 2014 General Legislative Session, including S.B. 190 from the 2013 General Legislative Session, and S.B. 153 from the 2012 General Legislative Session).

Summary of the rule or change:

This rule establishes the exceptions to procurement requirements and shall be conducted in accordance with the requirements set forth in the Utah Procurement Code. This rule is being updated to comply with the provisions of the Utah Procurement Code, Title 63G, Chapter 6a, and to match recent legislation. The substantive changes in this rule are that property management has been deleted and modifications have been made to the sole source and emergency procurement provisions.

State statutory or constitutional authorization for this rule:

• Title 63G, Chapter 6a

Anticipated cost or savings to:

the state budget:

The state's budget will not be affected, because this rule simply establishes the exceptions to procurement requirements and shall be conducted in accordance with the requirements set forth in the Utah Procurement Code. If there is any impact, it is created by the statute. This rule merely implements the statute.

local governments:

Local governments' budgets will not be affected, because this rule simply establishes the exceptions to procurement requirements and shall be conducted in accordance with the requirements set forth in the Utah Procurement Code. If there is any impact, it is created by the statute. This rule merely implements the statute.

small businesses:

Small businesses' budgets will not be affected, because this rule simply establishes the exceptions to procurement requirements and shall be conducted in accordance with the requirements set forth in the Utah Procurement Code. If there is any impact, it is created by the statute. This rule merely implements the statute.

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

No other person's budget will be affected, because this rule simply establishes the exceptions to procurement requirements and shall be conducted in accordance with the requirements set forth in the Utah Procurement Code. If there is any impact, it is created by the statute. This rule merely implements the statute.

Compliance costs for affected persons:

There are no compliance costs for any person, because this rule simply establishes the exceptions to procurement requirements and shall be conducted in accordance with the requirements set forth in the Utah Procurement Code. If there is any impact, it is created by the statute. This rule merely implements the statute.

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

There is no fiscal impact on businesses. If there is any impact, it is created by the statute. This rule merely implements the statute.

Kimberly 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:

• Alan Bachman at the above address, by phone at 801-538-3105, by FAX at 801-538-3313, or by Internet E-mail at abachman@utah.gov
• 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
• Chiarina Bautista at the above address, by phone at 801-538-3240, by FAX at 801-538-3313, or by Internet E-mail at cgleed@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:

07/01/2014

This rule may become effective on:

07/08/2014

Authorized by:

Kent Beers, Director

R33. Administrative Services, Purchasing and General Services.

[R33-8. Property Management.

R33-8-101. Quality Assurance, Inspection, and Testing.

The procurement officer shall take steps to ascertain or verify that supplies, services, or construction items conform to specifications. In performing this duty, the procurement officer may establish inspection and testing facilities, employ inspection personnel, enter into arrangements for the joint or cooperative use of laboratories, and contract with others for inspection or testing work as needed. In accordance with section 63G-6-205, the procurement officer may delegate responsibility for inspection and testing to using agencies.

 

R33-8-102. Warehousing and Storage.

Purchasing agencies are delegated the authority to exercise supervision of any receiving, storage, and distribution facilities and services within their purview.

 

R33-8-103. Inventory Management.

Purchasing agencies are delegated the authority to exercise supervision of all inventories of tangible personal property belonging to them. All property located in warehouses and similar storage areas shall be inventoried annually, and accountability for the property shall reside with the respective agencies.

 

R33-8-201. Surplus Property.

For the disposition of surplus property refer to R28.]

R33-8. Exceptions to Procurement Requirements.

R33-8-101. Sole Source - Award of Contract Without Competition.

(1) Sole source procurements shall be conducted in accordance with the requirements set forth in Section 63G-6a-802, Utah Procurement Code. 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 should be used in conjunction with the Procurement Code.

(2) A sole source procurement may be conducted if:

(a) there is only one source for the procurement item;

(b) the award to a specific supplier, service provider, or contractor is a condition of a donation or grant that will fund the full cost of the supply, service, or construction item; or

(c) the procurement item is needed for trial use or testing to determine whether the procurement item will benefit the procurement unit.

(3) An urgent or unexpected circumstance or requirement for a procurement item does not justify the award of a sole source procurement.

(4) Requests for a procurement to be conducted as a sole source shall be submitted in writing to the chief procurement officer or head of a procurement unit with independent procurement authority for approval.

(5) The sole source request shall be submitted to the chief procurement officer or the head of a procurement unit with independent procurement authority and shall include:

(a) a description of the procurement item;

(b) the total dollar value of the procurement item, including, when applicable, the actual or estimated full lifecycle cost of maintenance and service agreements;

(c) the duration of the proposed sole source contract;

(d) an authorized signature of the conducting procurement unit;

(e) unless the sole source procurement is conducted under Rule R33-8-101-2(b) or (c), research completed by the conducting procurement unit documenting that there are no other competing sources for the procurement item;

(f) any other information requested by the chief procurement officer or the head of a procurement unit with independent procurement authority; and

(6) a sole source request form containing all of the requirements of Rule R33-8-101(5) shall be available on the division's website.

(7) Except as provided in (b), sole source procurements over $50,000 shall be published in accordance with Section 63G-6a-406.

(a) Sole source procurements under $50,000 are not required to be published but may be published at the discretion of the chief procurement officer or head of a procurement unit with independent procurement authority.

(b) The requirement for publication of notice for a sole source procurement is waived:

(i) for public utility services;

(ii) if the award to a specific supplier, service provider, or contractor is a condition of a donation or grant that will fund the full cost of the supply, service, or construction item; or

(iii) for other circumstances as determined in writing by the chief procurement officer or head of a procurement unit with independent procurement authority.

(8) A person may contest a sole source procurement prior to the closing of the public notice period set forth in Section 63G-6a-406 by submitting the following information in writing to the chief procurement officer or head of a procurement unit with independent procurement authority:

(a) the name of the contesting person; and

(b) a detailed explanation of the challenge, including documentation showing that there are other competing sources for the procurement item.

(9) Upon receipt of information contesting a sole source procurement, the chief procurement officer or head of a procurement unit with independent procurement authority shall conduct an investigation to determine the validity of the challenge and make a written determination either supporting or denying the challenge.

 

R33-8-201. Trial Use or Testing of a Procurement Item, Including New Technology.

The trial use or testing of a procurement item, including new technology, shall be conducted as set forth in Section 63G-6a-802, Utah Procurement Code.

 

R33-8-301. Alternative Procurement Methods.

(1) The chief procurement officer or head of a procurement unit with independent procurement authority, may utilize alternative procurement methods to acquire procurement items such as those listed below when it is determined in writing by the chief procurement officer or head of a procurement unit with independent procurement authority, to be more practicable or advantageous to the procurement unit:

(a) used vehicles;

(b) livestock;

(c) hotel conference facilities and services;

(d) speaker honorariums;

(e) hosting out-of-state and international dignitaries;

(f) international promotion of the state; and

(g) any other procurement item for which a standard procurement method is not reasonably practicable.

(2) When making this determination, the chief procurement officer or head of a procurement unit with independent procurement authority may take into consideration whether:

(a) the potential cost of preparing, soliciting and evaluating bids or proposals is expected to exceed the benefits normally associated with such solicitations;

(b) the procurement item cannot be acquired through a standard procurement process; and

(c) the price of the procurement item is fair and reasonable.

(3) In the event that it is so determined, the chief procurement officer or head of a procurement unit with independent procurement authority may elect to utilize an alternative procurement method which may include:

(a) informal price quotations;

(b) direct negotiations; and,

(c) direct award.

 

R33-8-401. Emergency Procurement.

(1) Emergency procurements shall be conducted in accordance with the requirements set forth in Section 63G-6a-803, and this rule.

(2) An emergency procurement is a procurement procedure where the procurement unit is authorized to obtain a procurement item without using a standard competitive procurement process.

(3) An emergency procurement may only be used when circumstances create harm or risk of harm to public health, welfare, safety, or property.

(a) Circumstances that may create harm or risk to health, welfare, safety, or property include:

(i) damage to a facility or infrastructure resulting from flood, fire, earthquake, storm, or explosion;

(ii) failure or eminent failure of a public building, equipment, road, bridge or utility;

(iii) terrorist activity;

(iv) epidemics;

(v) civil unrest;

(vi) events that impair the ability of a public entity to function or perform required services;

(vii) situations that may cause harm or injury to life or property; or

(viii) other conditions as determined in writing by the chief procurement officer or head of a procurement unit with independent procurement authority.

(4) Emergency procurements are limited to those procurement items necessary to mitigate the emergency.

(5) While a standard procurement process is not required under an emergency procurement, when practicable, procurement units should seek to obtain as much competition as possible through use of phone quotes, internet quotes, limited invitations to bid, or other selection methods while avoiding harm, or risk of harm, to the public health, safety, welfare, property, or impairing the ability of a public entity to function or perform required services.

(6) The procurement unit shall make a written determination documenting the basis for the emergency and the selection of the procurement item. A record of the determination and selection shall be kept in the contract file. The documentation may be made after the emergency condition has been alleviated.

 

R33-8-501. Declaration of "Official State of Emergency".

Upon a declaration of an "Official State of Emergency" by the authorized state official, the chief procurement officer shall implement the division's Continuity of Operations Plan, or COOP. When activated, the division shall follow the procedures outlined in the plan and take appropriate actions as directed by the procurement unit responsible for authorizing emergency acquisitions of procurement items.

 

KEY: government purchasing, exceptions to procurement requirements, emergency procurement, alternative procurement methods

Date of Enactment or Last Substantive Amendment: [1991]2014

Notice of Continuation: July 2, 2012

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