DAR File No. 39328

Administrative Services, Purchasing and General Services

Rule R33-8

Exceptions to Procurement Requirements

Notice of Proposed Rule

(Amendment)

DAR File No.: 39328
Filed: 04/30/2015 04:25:11 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to add additional waivers to the requirement for publications of notice for a sole source procurement, and remove the alternative procurement methods section.

Summary of the rule or change:

Additional waivers have been added to the requirement for publications of notice for a sole source procurement, and the section addressing alternative procurement methods is being deleted.

State statutory or constitutional authorization for this rule:

• Section 63G-6a-802

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings that are expected. This change only addresses additional waivers to the requirement for publications of notice for a sole source procurement, and the section addressing alternative procurement methods is being deleted.

local governments:

There are no anticipated costs or savings that are expected. This change only addresses additional waivers to the requirement for publications of notice for a sole source procurement, and the section addressing alternative procurement methods is being deleted.

small businesses:

There are no anticipated costs or savings that are expected. This change only addresses additional waivers to the requirement for publications of notice for a sole source procurement, and the section addressing alternative procurement methods is being deleted.

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

There are no anticipated costs or savings that are expected. This change only addresses additional waivers to the requirement for publications of notice for a sole source procurement, and the section addressing alternative procurement methods is being deleted.

Compliance costs for affected persons:

There will be no compliance costs because this amendment simply adds additional waivers to the requirement for publications of notice for a sole source procurement, and the section addressing alternative procurement methods is being deleted.

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

There are no anticipated affects that the rule will have on businesses. The amendment simply adds additional waivers to the requirement for publications of notice for a sole source procurement, and the section addressing alternative procurement methods is being deleted.

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:

• 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
• Nicole Alder at the above address, by phone at 801-538-3240, by FAX at , or by Internet E-mail at nicolealder@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:

06/15/2015

This rule may become effective on:

06/22/2015

Authorized by:

Kimberly Hood, Executive Director

R33. Administrative Services, Purchasing and General Services.

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 as applicable, the 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 as applicable, 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 as applicable, 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]of $50,000 or less are not required to be published but may be published at the discretion of the chief procurement officer, or as applicable, the head of a procurement unit with independent procurement authority.

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

(i) [for ]public utility services;

(ii) conference and convention facilities and services;

(iii) conference fees, including materials;

(iv) membership dues;

(v) speakers or trainers and associated training materials;

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

(vii) promotion by a public entity;

(viii) an award when the Legislature identifies the intended recipient of a contract;

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

[(iii)](x) [for ]other circumstances as determined in writing by the chief procurement officer, or as applicable, the 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 as applicable, the 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 as applicable, the 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.]Reserved.

[(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 as applicable, the 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: [July 8, 2014]2015

Notice of Continuation: July 8, 2014

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