DAR File No. 39472

Administrative Services, Purchasing and General Services

Rule R33-4

General Procurement Provisions, Prequalifications, Specifications, and Small Purchases

Notice of Proposed Rule

(Amendment)

DAR File No.: 39472
Filed: 06/29/2015 02:32:27 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to amend the title of "architectural or engineering" to "design professional," amend Section R33-4-106, Small Purchases Threshold for Construction Projects, require the involvement of the Division of Purchasing at the beginning of the quote or solicitation process in Section R33-4-108, and to add a section on vendors with exclusive authorization to bid.

Summary of the rule or change:

The changes amend the title of "architectural or engineering" to "design professional", amend Section R33-4-106: Small Purchases Threshold for Construction Projects regarding the chief procurement officer or head of a procurement unit with independent procurement authority's responsibilities, require the involvement of the Division of Purchasing at the beginning of the quote or solicitation process in Section R33-4-108, and to add a section on vendors with exclusive authorization to bid.

State statutory or constitutional authorization for this rule:

• Title 63G, Chapter 6a

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings that are expected. The changes made to the rule simply amend the title of "architectural or engineering" to "design professional", require the chief procurement officer or head of a procurement unit with independent procurement authority to procure small construction projects costing more than $100,000 up to a maximum of $2,500,000 through a two-stage process, require the Division of Purchasing to be included at the beginning of the quote or solicitation process, and to add a section on vendors with exclusive authorization to bid.

local governments:

There are no anticipated costs or savings that are expected. The changes made to the rule simply amend the title of "architectural or engineering" to "design professional", require the chief procurement officer or head of a procurement unit with independent procurement authority to procure small construction projects costing more than $100,000 up to a maximum of $2,500,000 through a two-stage process, require the Division of Purchasing to be included at the beginning of the quote or solicitation process, and to add a section on vendors with exclusive authorization to bid.

small businesses:

There are no anticipated costs or savings that are expected. The changes made to the rule simply amend the title of "architectural or engineering" to "design professional", require the chief procurement officer or head of a procurement unit with independent procurement authority to procure small construction projects costing more than $100,000 up to a maximum of $2,500,000 through a two-stage process, require the Division of Purchasing to be included at the beginning of the quote or solicitation process, and to add a section on vendors with exclusive authorization to bid.

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

There are no anticipated costs or savings that are expected. The changes made to the rule simply amend the title of "architectural or engineering" to "design professional," require the chief procurement officer or head of a procurement unit with independent procurement authority to procure small construction projects costing more than $100,000 up to a maximum of $2,500,000 through a two-stage process, require the Division of Purchasing to be included at the beginning of the quote or solicitation process, and to add a section on vendors with exclusive authorization to bid.

Compliance costs for affected persons:

There will be no compliance costs because the changes to the rule simply amend titles, establish requirements for the chief procurement officer or head of a procurement unit with independent procurement authority, require the Division of Purchasing to be included at the beginning of the quote or solicitation process, and to add a section on vendors with exclusive authorization to bid.

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

There are no anticipated affects that this rule will have on business. The changes to the rule simply amend titles, establish requirements for the chief procurement officer or head of a procurement unit with independent procurement authority, require the Division of Purchasing to be included at the beginning of the quote or solicitation process, and to add a section on vendors with exclusive authorization to bid.

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
• 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:

08/14/2015

This rule may become effective on:

08/21/2015

Authorized by:

Kent Beers, Director

R33. Administrative Services, Purchasing and General Services.

R33-4. General Procurement Provisions, Prequalifications, Specifications, and Small Purchases.

R33-4-101. Prequalification of Potential Vendors.

General procurement provisions, including prequalification of potential vendors, approved vendor lists, and small purchases shall be conducted in accordance with the requirements set forth in Sections 63G-6a-402 through 408. 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 must be used in conjunction with the Procurement Code.

 

R33-4-101a. Vendors with Exclusive Authorization to Bid.

(1) The requirements of this rule shall only apply when a procurement unit issues a prequalification for potential vendors as set forth in Utah Code 63G-6a-403 for all qualified, responsive and responsible vendors with an exclusive dealership, franchise, distributorship, or other arrangement, from a manufacturer identifying the vendor as the only one authorized to submit bids or quotes for the specified procurement item within the State of Utah or a region within the State of Utah.

(a) Under the provisions of this rule, no vendor described in (1) may be excluded from the list of prequalified vendors, unless a determination is made by the procurement unit that a vendor is not qualified, responsive or responsible.

(b) The request for statements of qualifications shall indicate that all vendors on the prequalified vendor list will be invited to submit bids or quotes.

(2) After the prequalified list has been compiled, a procurement unit may award a contract by obtaining bids or quotes from all vendors on the prequalified list taking into consideration a best value analysis that includes, as applicable:

(a) cost;

(b) compatibility with existing equipment, technology, software, accessories, replacement parts, or service;

(c) training, knowledge and experience of employees of the procurement unit and of the vendors;

(d) past performance of vendors and pertaining to the procurement item being purchased;

(e) the costs associated with transitioning from an existing procurement item to a new procurement item; or

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

(3) Procurement units must follow the requirements in R33-4-110 when obtaining quotes and the requirements in Part 6 of the Utah Procurement Code when obtaining bids.

(4) An exception to the requirements of this rule may be authorized by the chief procurement officer or head of a procurement unit with independent procurement authority.

 

R33-4-102. Thresholds for Approved Vendor Lists.

(1) Public entities may establish approved vendor lists in accordance with the requirements of Sections 63G-6a-403 and 63G-6a-404.

(a) Contracts or purchases from an approved vendor list may not exceed the following thresholds:

(i) Construction Projects: $2,500,000 per contract, for direct construction costs, including design and allowable furniture or equipment costs, awarded using an invitation for bids or a request for proposals;

(ii) Professional and General Services, including architectural and engineering services: $100,000; and

(iii) Information Technology: $500,000

(b) Thresholds for other approved vendor lists may be established by the Chief Procurement Officer, or as applicable, the head of a procurement unit with independent procurement authority.

 

R33-4-103. Specifications.

(1) Public entities shall include in solicitation documents specifications for the procurement item(s).

(2) Specifications shall be drafted with the objective of clearly describing the procurement unit's requirements and encouraging competition.

(a) Specifications shall emphasize the functional or performance criteria necessary to meet the needs of the procurement unit.

(3) Persons with a conflict of interest, or who anticipate responding to the proposal for which the specifications are written, may not participate in writing specifications. Procurement units may retain the services of a person to assist in writing specifications, scopes of work, requirements, qualifications, or other components of a solicitation. However the person assisting in writing specifications shall not, at any time during the procurement process, be employed in any capacity by, nor have an ownership interest in, an individual, public or private corporation, governmental entity, partnership, or unincorporated association bidding on or submitting a proposal in response to the solicitation.

(a) Rule R33-4-104(3) does not apply to the following:

(i) a design build construction project; and

(ii) other procurements determined in writing by the chief procurement officer, or as applicable, the head of a procurement unit with independent procurement authority.

(b) Violations of this Rule R33-4-104(3) may result in:

(i) the bidder or offeror being declared ineligible for award of the contract;

(ii) the solicitation being canceled;

(iii) termination of an awarded contract; or

(iv) any other action determined to be appropriate by the chief procurement officer, or as applicable, the head of a procurement unit with independent procurement authority.

(4) Brand Name or Equal Specifications.

(a) Brand name or equal specifications may be used when:

(i) "or equivalent" reference is included in the specification; and,

(ii) as many other brand names as practicable are also included in the specification.

(b) Brand name or equal specifications shall include a description of the particular design and functional or performance characteristics which are required. Specifications unique to the brands shall be described in sufficient detail that another person can respond with an equivalent brand.

(c) When a manufacturer's specification is used in a solicitation, the solicitation shall state the minimum acceptable requirements of an equivalent. When practicable, the procurement unit shall name at least three manufacturer's specifications.

(5) Brand Name Sole Source Requirements.

(a) If only one brand can meet the requirement, the procurement unit shall conduct the procurement in accordance with 63G-6a-802 and shall solicit from as many providers of the brand as practicable; and.

(b) If there is only one provider that can meet the requirement, the procurement unit shall conduct the procurement in accordance with Section 63G-6a-802.

 

R33-4-104. Small Purchases.

Small purchases shall be conducted in accordance with the requirements set forth in Section 63G-6a-408. This administrative rule provides additional requirements and procedures and must be used in conjunction with the Procurement Code.

(1) "Small Purchase" means a procurement conducted by a procurement unit that does not require the use of a standard procurement process.

(2) Small Purchase thresholds:

(a) The "Individual Procurement" threshold is a maximum amount of $1,000 for a procurement item;

(i) For individual procurement item(s) costing up to $1,000, an entity subject to these rules may select the best source by direct award and without seeking competitive bids or quotes.

(a) The single procurement aggregate threshold is a maximum amount of $5,000 for multiple procurement item(s) purchased from one source at one time; and

(b) The annual cumulative threshold from the same source is a maximum amount of $50,000.

(3) Whenever practicable, the Division of Purchasing and General Services and entities subject to these rules shall use a rotation system or other system designed to allow for competition when using the small purchases process.

 

R33-4-105. Small Purchases Threshold for [Architectural and Engineering]Design Professional Services.

(1) The small purchase threshold for [architectural or engineering]design professional services is a maximum amount of $100,000.

(2) [Architectural or engineering]Design professional services may be procured up to a maximum of $100,000, by direct negotiation after reviewing the qualifications of a minimum of three [architectural or engineering]design professional firms.

[(3) Procurement units subject to these rules shall follow the process described in Section 63G-6a-403 to prequalify potential vendors and Section 63G-6a-404 of the to develop an approved vendor list or Part 15 of the Utah Procurement Code for the selection of architectural and engineering services.

] ( 3[4]) Procurement units that are subject to these rules shall include minimum specifications when using the small purchase threshold for [architectural and engineering]design professional services.

( 4[5]) Executive Branch procurement units, to the extent they do not have independent procurement authority, shall involve the Division of Purchasing in the qualification process described under Section 63G-6a-403, the approved vendor list process described under Section 63G-6a-404, and the evaluation and fee negotiation process described in Part 15 of the Utah Procurement Code in the procurement of [architectural or engineering]design professional services.

 

R33-4-106. Small Purchases Threshold for Construction Projects.

(1) The small construction project threshold is a maximum of $2,500,000 for direct construction costs, including design and allowable furniture or equipment costs;

[(2) Procurement units subject to these rules shall follow the process described in the Section 63G-6a-403 to prequalify potential vendors and Section 63G-6a-404 to develop an Approved Vendor List or other applicable selection methods described in the Utah Procurement Code for construction services.

] ( 2[3]) Procurement units subject to these rules shall include minimum specifications when using the small purchases threshold for construction projects.

( 3[4]) Executive Branch procurement units, to the extent they do not have independent procurement authority, shall involve the Division of Purchasing [and General Services]in the qualification process described under Section 63G-6a-403, the approved vendor list process described under Section 63G-6a-404, and the obtaining of quotes, bids or proposals in the procurement of small construction projects.

( 4[5]) The chief procurement officer, or as applicable, the head of a procurement unit with independent procurement authority, may procure small construction projects up to a maximum of $25,000 by direct award without seeking competitive bids or quotes after documenting that all building code approvals, licensing requirements, permitting and other construction related requirements are met. The awarded contractor must certify that [they are]it is capable of meeting the minimum specifications of the project.

( 5[6]) The chief procurement officer, or as applicable, the head of a procurement unit with independent procurement authority, may procure small construction projects costing more than $25,000 up to a maximum of $100,000 by obtaining a minimum of two competitive quotes that include minimum specifications and shall award to the contractor with the lowest quote that meets the specifications after documenting that all applicable building code approvals, licensing requirements, permitting and other construction related requirements are met.

[(7) If an approved vendor list is not established under Sections 63G-6a-403 and 404, procurement units shall procure construction projects over $100,000 using an invitation to bid or other approved source selection method outlined in the Utah Procurement Code.

] (6) Under this Rule, the chief procurement officer or head of a procurement unit with independent procurement authority shall procure small construction projects costing more than $100,000 up to a maximum of $2.5 million through a two-stage process. Stage one, qualify vendors under Section 63G-6a-403 and develop an Approved Vendor List under Section 63G-6a-404. Stage two, issue to all vendors, qualified and approved in stage one, an invitation for bids or request for proposals and use the procedures set forth therein to award a contract.

 

R33-4-107. Quotes for Small Purchases from $1,001 to $50,000.

(1) For procurement item(s) where the cost is greater than $1,000 but up to a maximum of $5,000, an entity subject to these rules shall obtain a minimum of two competitive quotes that include minimum specifications and shall purchase the procurement item from the responsible vendor offering the lowest quote that meets the specifications.

(2) For procurement item(s) where the cost is greater than $5,000 up to a maximum of $50,000, a procurement unit with independent procurement authority that is subject to these rules or the Division of Purchasing and General Services on behalf of an executive branch procurement unit without independent procurement authority, as applicable, shall obtain a minimum of two competitive quotes that include minimum specifications and shall purchase the procurement item from the responsible vendor offering the lowest quote that meets the specifications.

(3) For procurement item(s) costing over $50,000, a procurement unit with independent procurement authority that is subject to these rules or the Division of Purchasing and General Services on behalf of an executive branch procurement unit without independent procurement authority, as applicable, shall conduct an invitation for bids or other procurement process outlined in the Utah Procurement Code.

(4) Limited Purchasing Delegation for Small Purchases. The Division of Purchasing and General Services may delegate limited purchasing authority for small purchases costing more than $5,000 up to a maximum of $50,000, to an executive branch procurement unit provided that the executive branch procurement unit enters into an agreement with the Division outlining the duties and responsibilities of the unit to comply with applicable laws, rules, policies and other requirements of the Division.

(5) The names of the vendors offering quotations and bids and the date and amount of each quotation or bid shall be recorded and maintained as a governmental record.

 

R33-4-108. Small Purchases of [Services of Professionals,]Professional Service Providers[,] and Consultants.

(1) The small purchase threshold for professional service providers and consultants is a maximum amount of $100,000.

(2) After reviewing the qualifications of a minimum of two professional service providers or consultants, the chief procurement officer, or as applicable, the head of a procurement unit with independent procurement authority, may obtain professional services or consulting services:

(a) up to a maximum of $50,000 by direct negotiation; or

(b) over $50,000 up to a maximum of $100,000 by obtaining a minimum of two quotes.

(3) Executive Branch procurement units, to the extent they do not have independent procurement authority, shall involve the Division of Purchasing at the beginning of the quote or solicitation process, in the procurement of professional services or consulting services.

 

KEY: government purchasing, general procurement provisions, specifications, small purchases

Date of Enactment or Last Substantive Amendment: [June 23, ]2015

Notice of Continuation: July 8, 2014

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