DAR File No. 39752

Administrative Services, Facilities Construction and Management

Rule R23-3

Planning and Programming for Capital Projects

Notice of Proposed Rule

(Amendment)

DAR File No.: 39752
Filed: 09/15/2015 01:54:57 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to clarify the restrictions of Programming Firms and add the Standards and Requirements for a Capital Development Project Request including a feasibility study.

Summary of the rule or change:

Clarifies the Division's sole discretion based on the interest of the state, in determining whether a programming firm (person) may be able to participate in any or all of the design or other similar aspects of a project. The Standards and Requirements for a Capital Development Project Request including a feasibility study were also added to Section R23-3-10.

State statutory or constitutional authorization for this rule:

• Section 63A-5-211
• Section 63A-5-103

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings that are expected for the state budget. The changes only clarify the division's sole discretion based on the interest of the state, in determining whether a programming firm (person) may be able to participate in any or all of the design or other similar aspects of a project. The Standards and Requirements for a Capital Development Project Request including a feasibility study were also added to Section R23-3-10.

local governments:

There are no anticipated costs or savings that are expected for local government. The changes only clarify the division's sole discretion based on the interest of the state, in determining whether a programming firm (person) may be able to participate in any or all of the design or other similar aspects of a project. The Standards and Requirements for a Capital Development Project Request including a feasibility study were also added to Section R23-3-10.

small businesses:

There are no anticipated costs or savings that are expected for small businesses. The changes only clarify the division's sole discretion based on the interest of the state, in determining whether a programming firm (person) may be able to participate in any or all of the design or other similar aspects of a project. The Standards and Requirements for a Capital Development Project Request including a feasibility study were also added to R23-3-10.

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

There are no anticipated costs or savings that are expected for other persons. The changes only clarify the division's sole discretion based on the interest of the state, in determining whether a programming firm (person) may be able to participate in any or all of the design or other similar aspects of a project. The Standards and Requirements for a Capital Development Project Request including a feasibility study were also added to Section R23-3-10.

Compliance costs for affected persons:

There are no compliance costs for affected persons. The changes only clarify the division's sole discretion based on the interest of the state, in determining whether a programming firm (person) may be able to participate in any or all of the design or other similar aspects of a project. The Standards and Requirements for a Capital Development Project Request including a feasibility study were also added to Section R23-3-10.

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

There are no fiscal impacts that the rule may have on businesses. The changes only clarify the division's sole discretion based on the interest of the state, in determining whether a programming firm (person) may be able to participate in any or all of the design or other similar aspects of a project. The Standards and Requirements for a Capital Development Project Request including a feasibility study were also added to Section R23-3-10.

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
Facilities Construction and Management
Room 4110 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
• 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:

11/02/2015

This rule may become effective on:

11/09/2015

Authorized by:

Bruce Whittington, Acting Director

R23. Administrative Services, Facilities Construction and Management.

R23-3. Planning , [ and ] Programming , Request for Capitol Development Projects and Operation and Maintenance Reporting. [ for Capital Projects. ]

R23-3-1. Purpose and Authority.

(1) This rule establishes policies and procedures for the authorization, funding, and development of programs for capital development and capital improvement projects and the use and administration of the Planning Fund.

(2) The Board's authority to administer the planning process for state facilities is contained in Section 63A-5-103.

(3) The statutes governing the Planning Fund are contained in Section 63A-5-211.

(4) The Board's authority to make rules for its duties and those of the Division is set forth in Subsection 63A-5-103(1).

 

R23-3-2. Definitions.

(1) "Agency" means each department, agency, institution, commission, board, or other administrative unit of the State of Utah.

(2) "Board" means the State Building Board established pursuant to Section 63A-5-101.

(3) "Capital Development" is defined in Section 63A-5-104.

(4) "Capital Improvement" is defined in Section 63A-5-104.

(5) "Director" means the Director of the Division, including, unless otherwise stated, his duly authorized designee.

(6) "Division" means the Division of Facilities Construction and Management established pursuant to Section 63A-5-201.

(7) "Planning Fund" means the revolving fund created pursuant to Section 63A-5-211 for the purposes outlined therein.

(8) "Program" means a document containing a detailed description of the scope, the required areas and their relationships, and the estimated cost of a construction project.

(a) "Program" typically refers to an architectural program but, as used in this rule, the term "program" includes studies that approximate an architectural program in purpose and detail.

(b) "Program" does not mean feasibility studies, building evaluations, master plans, or general project descriptions prepared for purposes of soliciting funding through donations or grants.

 

R23-3-3. When Programs Are Required.

(1) For capital development projects, a program must be developed before the design may begin unless the Director determines that a program is not needed for that specific project. Examples of capital development projects that may not require a program include land purchases, building purchases requiring little or no remodeling, and projects repeating a previously used design.

(2) For capital improvement projects, the Director shall determine whether the nature of the project requires that a program be prepared.

 

R23-3-4. Authorization of Programs.

(1) The initiation of a program for a capital development project must be approved by the Legislature or the Board if it is anticipated that state funds will be requested for the design or construction of the project.

(2) When requesting Board approval, the agency shall justify the need for initiating the programming process at that point in time and also address the level of support for funding the project soon after the program will be completed.

 

R23-3-5. Funding of Programs.

Programs may be funded from one of the following sources.

(1) Funds appropriated for that purpose by the Legislature.

(2) Funds provided by the agency.

(a) This would typically be the funding source for the development of programs before the Legislature funds the project.

(b) Funds advanced by agencies for programming costs may be included in the project budget request but no assurance can be given that project funds will be available to reimburse the agency.

(c) Agencies that advance funds for programming that would otherwise lapse may not be reimbursed in a subsequent fiscal year.

(3) If an agency is able to demonstrate to the Board that there is no other funding source for programming for a project that is likely to be funded in the upcoming legislative session, it may request to borrow funds from the Planning Fund as provided for in Section R23-3-8.

 

R23-3-6. Administration of Programming.

(1) The development of programs shall be administered by the Division in cooperation with the requesting agency unless the Director authorizes the requesting agency to administer the programming.

(2) This Section R23-3-6 does not apply to projects that are exempt from the Division's administration pursuant to Subsection 63A-5-206(3).

 

R23-3-7. Restrictions of Programming Firm.

(1) The Division may in its sole discretion based on the interest of the State, determine whether a programming firm (person) may be able to participate in any or all of the design or other similar aspects of a project.

(2) If there is any restriction of a programming firm to participate in future selections of a project, the Division, shall provide this restriction in any competitive solicitation, if there is one, that may be issued for selecting a programming firm. If there is no solicitation for the selection of the programming firm (i.e. sole source, small purchase, emergency procurement, etc.), then Division may simply provide any restriction of the firm's future participation in any other aspect of the project, by placing the restriction in the contract.

(3) Notwithstanding any provision of this Rule or any other Rule of this Board, the Division may terminate or suspend programming and design contracts at any time consistent with the provisions of the contract.

[(1) Except as provided in Subsections 2 and 3, neither a firm that prepares a program for a project nor its subconsultants may be prohibited from being considered for selection as the lead design firm or a member of the design team for that project unless the procurement documents for the selection of the firm for the programming services or the contract with the firm for the programming services contains such a restriction.

(2) In general, a firm that prepares a program for a project that is expected to be developed using the design-build method described in Section R23-1-45 may not be a member of the design-build team for that project. In order for this restriction to take effect, this restriction must be stated in the procurement documents for the selection of the firm for the programming services or the contract with the firm for the programming services. This restriction shall not apply to a subconsultant of the programming firm unless the procurement documents contain such a restriction.

(3) A restriction, as provided for in this Section may be waived if the Director makes a written determination that it is in the best interests of the State to waive this requirement.

]

R23-3-8. Use and Reimbursement of Planning Fund.

(1) The Planning Fund may be used for the purposes stated in Section 63A-5-211 including the development of:

(a) facility master plans;

(b) programs; and

(c) building evaluations or studies to determine the feasibility, scope and cost of capital development and capital improvement requests.

(2) Expenditures from the Planning Fund must be approved by the Director.

(3) Expenditures in excess of $25,000 for a single planning or programming purpose must also be approved in advance by the Board.

(4) The Planning Fund shall be reimbursed from the next funded or authorized project for that agency that is related to the purposes for which the expenditure was made from the Planning Fund.

(5) The Division shall report changes in the status of the Planning Fund to the Board.

 

R23-3-9. Development and Approval of Master Plans.

(1) For each major campus of state-owned buildings, the agency with primary responsibility for operations occurring at the campus shall, in cooperation with the Division, develop and maintain a master plan that reflects the current and projected development of the campus.

(2) The purpose of the master plan is to encourage long term planning and to guide future development.

(3) Master plans for campuses and facilities not covered by Subsection (1) may be developed upon the request of the Board or when the Division and the agency determine that a master plan is necessary or appropriate.

(4) The initial master plan for a campus, and any substantial modifications thereafter, shall be presented to the Board for approval.

 

R23-3-10. Standards and Requirements for a Capital Development Project Request, Including a Feasibility Study.

(1) The Building Board Director shall establish a form for the consideration of Capital Development Projects which provides the following:

(a) the type of request, including whether it is, inwhole or part, state funded, non-state or private funded, or whether it is non-state or private funded with an operations and maintenance request;

(b) defines the appropriateness and the project scope including proposed square footage;

(c) the proposed cost of the project including the preliminary cost estimate, proposed funding, the previous state funding provided, as well as other sources;

(d) the proposed ongoing operating budget funding, new program costs and new full time employees for the operations and maintenance and other programs;

(e) an analysis of current facilities and why the proposed facility is needed;

(f) a project executive summary of why the project is needed including the purpose of the project, the benefits to the State, how it relates to the mission of the entity and related aspects;

(g) the feasibility and planning of the project that includes how it corresponds to the applicable master plan, the economic impacts of the project, pedestrian, transportation and parking issues, various impacts including economic and community impacts, the extent of site evaluation, utility and infrastructure concerns and all other aspects of a customary feasibility study for a project of the particular type, location, size and magnitude;

(h) any land banking requests; and

(i) any other federal or state statutory or rule requirements related to the project.

(2) The form referred to in subsection (1) above shall also include the scoring criteria and weighting of the scores to be used in the Board's prioritization process, including:

(a) existing building deficiencies and life safety concerns;

(b) essential program growth;

(c) cost effectiveness;

(d) project need, including the improved program effectiveness and support of critical programs/initiatives;

(e) the availability of alternative funding sources that does not include funding from the Utah legislature; and

(f) weighting for all the above criteria as published in the Five Year Building Program for State Agencies and Institution as published and submitted to the Utah Legislature for the General Session immediately preceding the prioritization of the Board unless the Board in a public meeting has approved a different criteria and/or weighting system.

(3) The Board shall verify the completion and accuracy of the feasibility study referred to in this Rule.

 

R23-3-11. Standards and Requirements for Reporting Operations and Maintenance Expenditures for State-Owned Facilities, Including Utility Metering.

(1) No later than December 31st of each calendar year, the Board shall consider, adopt and publish facility maintenance standards which shall require annual reporting by all agencies and institutions to the Building Board Director no later than December 31st of each calendar year.

(2) The facility maintenance standards shall include utility metering requirements to track the utility costs as well as all other necessary requirements to monitor facility maintenance costs.

(3) The adopted Board facility management standards including annual reporting requirements shall be published on the Division of Facilities Construction and Management website.

(4) If the Board does not adopt new or amended facility maintenance standards, the prior adopted standards on the DFCM website shall apply.

(5) The Building Board Director shall oversee the conducting of facility maintenance audit for state-owned facilities.

 

KEY: planning, public buildings, design, procurement

Date of Enactment or Last Substantive Amendment: [March 15, 2005]2015

Notice of Continuation: April 3, 2014

Authorizing, and Implemented or Interpreted Law: 63A-5-103; 63A-5-211