DAR File No. 38974

Administrative Services, Purchasing and General Services

Section R33-1-1

Definitions

Notice of Proposed Rule

(Amendment)

DAR File No.: 38974
Filed: 11/24/2014 03:20:23 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to add new definitions and update the numbering of the definitions.

Summary of the rule or change:

This change is to include a "Favorite Vendor" definition.

State statutory or constitutional authorization for this rule:

• Title 63G, Chapter 6a

Anticipated cost or savings to:

the state budget:

There is no anticipated cost or savings to the state budget. This change simply adds terms and renumbers terms used in the procurement rules that are defined in Sections 63G-6a-103 and 63G-6a-104.

local governments:

There is no anticipated cost or savings to local government. This change simply adds terms and renumbers terms used in the procurement rules that are defined in Sections 63G-6a-103 and 63G-6a-104.

small businesses:

There is no anticipated cost or savings to small business. This change simply adds terms and renumbers terms used in the procurement rules that are defined in Sections 63G-6a-103 and 63G-6a-104.

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

There is no anticipated cost or savings to small businesses, businesses, or local government entities. This change simply adds terms and renumbers terms used in the procurement rules that are defined in Sections 63G-6a-103 and 63G-6a-104.

Compliance costs for affected persons:

There is no anticipated cost for affected persons. This change simply adds terms and renumbers terms used in the procurement rules that are defined in Sections 63G-6a-103 and 63G-6a-104.

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

These amendments have no fiscal impact of businesses.

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

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:

01/14/2015

This rule may become effective on:

01/21/2015

Authorized by:

Kent Beers, Director

R33. Administrative Services, Purchasing and General Services.

R33-1. Utah Procurement Rules, "General Procurement Provisions," Definitions.

R33-1-1. Definitions.

(A) Terms used in the procurement rules are defined in Sections 63G-6a-103 and 104.

(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:

(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) "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.

(8) "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.

(9) "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.

(10) "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.

(11) "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.

(12) "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.

(13) "Favored vendor" means, as it relates to this administrative rule, a situation wherein a procurement officer, evaluation committee member, contract administrator, or public employee unfairly, by means of deceit or in violation of law, favor one vendor over another vendor(s) in the process of awarding a public contract. Examples of ways in which public contracts are improperly steered to a "favored vendor" include, but are not limited to:

(a) Collusion or manipulation of the procurement to steer a contract award to a particular vendor;

(b) Illegal bribes or kickbacks paid by a vendor in exchange for a contract award;

(c) Unjustified sole source contract awards to a vendor;

(d) Bid rigging schemes;

(e) Writing specifications that are overly restrictive or in a way that gives an unfair advantage to a particular vendor;

(f) Improperly splitting purchases to avoid the standard competitive procurement process;

(g) Leaking bid or proposal information to a particular vendor at the exclusion of other vendors; or

(h) Not following established policies and procedures when approving changes orders.

[(13)](14) "Mandatory Requirement" means a condition set out in the specifications/statement of work that must be met without exception.

[(14)](15) "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.

[(15)](16) "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.

[(16)](17) "Participating Addendum" means an agreement issued in conjunction with a Cooperative Contract that authorizes a public entity to use the Cooperative Contract.

[(17)](18) "Payment Bond" is a bond that guarantees payment for labor and materials expended on the contract.

[(18)](19) "Price Analysis" means the evaluation of price data without analysis of the separate cost components and profit.

[(19)](20) "Price Data" means factual information concerning prices for procurement items.

[(20)](21) "Section and Subsection" refers to the Utah Code.

[(21)](22) "S urety 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.

[(22)](23) "Technology" means any type of technology defined in Section 63F-1-102(8).

 

KEY: government purchasing, Utah procurement rules, general procurement provisions, definitions

Date of Enactment or Last Substantive Amendment: [July 8, 2014]2015

Notice of Continuation: July 8, 2014

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