DAR File No. 39825

Administrative Services, Facilities Construction and Management

Rule R23-7

State Construction Contracts and Drug and Alcohol Testing

Notice of Proposed Rule

(Amendment)

DAR File No.: 39825
Filed: 10/15/2015 01:47:50 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to comply with the provisions of Section 63G-6a-1303 of the Utah Procurement Code.

Summary of the rule or change:

Section references for the Utah Procurement Code were updated, and the definition section, as well as Section R23-7-4 were amended to comply with the Utah Procurement Code.

State statutory or constitutional authorization for this rule:

• Subsection 63A-5-103(1)(e)

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings that are expected. The rule was amended to update section references, as well as comply with the changes in the Utah Procurement Code as it relates to State Construction Contracts and Drug and Alcohol Testing.

local governments:

There are no anticipated costs or savings that are expected. The rule was amended to update section references, as well as comply with the changes in the Utah Procurement Code as it relates to State Construction Contracts and Drug and Alcohol Testing.

small businesses:

There are no anticipated costs or savings that are expected. The rule was amended to update section references, as well as comply with the changes in the Utah Procurement Code as it relates to State Construction Contracts and Drug and Alcohol Testing.

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

There are no anticipated costs or savings that are expected. The rule was amended to update section references, as well as comply with the changes in the Utah Procurement Code as it relates to State Construction Contracts and Drug and Alcohol Testing.

Compliance costs for affected persons:

There are no compliance costs for the affected persons. The rule was amended to update section references, as well as comply with the changes in the Utah Procurement Code as it relates to State Construction Contracts and Drug and Alcohol Testing.

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

There are no anticipated fiscal impacts that the rule may have on businesses. There are no anticipated costs or savings that are expected. The rule was amended to update section references, as well as comply with the changes in the Utah Procurement Code as it relates to State Construction Contracts and Drug and Alcohol Testing.

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:

12/01/2015

This rule may become effective on:

12/08/2015

Authorized by:

Bruce Whittington, Acting Director

R23. Administrative Services, Facilities Construction and Management.

R23-7. State Construction Contracts and Drug and Alcohol Testing.

R23-7-1. Purpose.

The purpose of this rule is to comply with the provisions of Section 63G-6a-1303 of the Utah Procurement Code[63G-6-604].

 

R23-7-2. Authority.

This rule is authorized under Subsection 63A-5-103(1)(e), which directs the Utah State Building Board to make rules necessary for the discharge of the duties of the Division of Facilities Construction and Management as well as Subsection 63G-6a-1303(4) of the Utah Procurement Code[63G-6-604(4)].

 

R23-7-3. Definitions.

(1) The following definitions of Section 63G-6-604 shall apply to any term used in this Rule R23-7:

(a) "Contractor" means a person who is or may be awarded a state construction contract.

(b) "Covered individual" means an individual who:

(i) on behalf of a contractor or subcontractor provides services directly related to design or construction under a state construction contract; and

(ii) is in a safety sensitive position, including a design position that has responsibilities that directly affect the safety of an improvement to real property that is the subject of a state construction contract.

(c) "Drug and alcohol testing policy" means a policy under which a contractor or subcontractor tests a covered individual to establish, maintain, or enforce the prohibition of:

(i) the manufacture, distribution, dispensing, possession, or use of drugs or alcohol, except the medically prescribed possession and use of a drug; or

(ii) the impairment of judgment or physical abilities due to the use of drugs or alcohol.

(d) "Random testing" means that a covered individual is subject to periodic testing for drugs and alcohol:

(i) in accordance with a drug and alcohol testing policy; and

(ii) on the basis of a random selection process.

(e) [For purposes of Subsection R23-7-4(5), ]" State Executive Entity[state]" means a state executive branch: [includes any of the following of the state:]

(i) [a ]department;

(ii) [a ]division including the Division of Facilities Construction and Management;

(iii) [an ]agency;

(iv) [a ]board;

(v) [a ]commission;

(vi) [a ]council;

(vii) [a ]committee;[and]

(viii) [an ]institution[,]; or

(ix) [including ]a state institution of higher education, as defined under Section 53B-3-102.

(f) "State construction contract" means a contract for design or construction entered into by the Division.

(g)(i) "Subcontractor" means a person under contract with a contractor or another subcontractor to provide services or labor for design or construction.

(ii) "Subcontractor" includes a trade contractor or specialty contractor.

(iii) "Subcontractor" does not include a supplier who provides only materials, equipment, or supplies to a contractor or subcontractor.

(2) In addition:

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

(b) "Director" means the Director of the Division, including, unless otherwise stated, the Director's duly authorized designee.

(c) "Division" means the Division of Facilities Construction and Management established pursuant to Section 63A-5-201 as well as entities entering into state construction contracts under delegation authority by the Board or Director.

[(d) "State" as used throughout Rule R23-7 means the State of Utah except that it also includes those entities described in Subsection R23-7-3(1)(e) as the term "state" is used in Subsection R23-7-4(5).

]

R23-7-4. Applicability.

(1) Except as provided in Rule[Section] R23-7-5, on and after July 1, 2010, the Division may not enter into a state construction contract (includes a contract for design or construction) unless the state construction contract requires that the contractor (including designer) demonstrate to the Division that the Contractor[the following]:

[(a) A contractor shall demonstrate to the state public procurement unit that the contractor:

] ( a[i]) has and will maintain a drug and alcohol testing policy during the period of the state construction contract that applies to the covered individuals hired by the contractor;

( b[ii]) posts in one or more conspicuous places notice to covered individuals hired by the contractor that the contractor has the drug and alcohol testing policy described in Rule[Subsection] R23-7-4(1)(a)[(i)];[ and]

( c[iii]) subjects the covered individuals to random testing under the drug and alcohol testing policy described in Subsection R23-7-4(1)(a)[(i)] if at any time during the period of the state construction contract there are ten or more individuals who are covered individuals hired by the contractor[.]; and

(d) requires that as a condition of contracting with the contractor, a subcontractor:

(i) has and will maintain a drug and alcohol testing policy during the period of the state construction contract that applies to the covered individuals hired by the subcontractor;

(ii) posts in one or more conspicuous places notice to covered individuals hired by the subcontractor that the subcontractor has the drug and alcohol testing policy described in Rule R23-7-4(d)(i); and

(iii) subjects the covered individuals hired by the subcontractor to random testing under the drug and alcohol testing policy described in Rule R23-7-4(d)(i) if at any time during the period of the state construction contract there are 10 or more individuals who are covered individuals hired by the subcontractor.

( 2[b]) A contractor shall demonstrate to the Division under Rule 23-7-4(1) above, [which shall be demonstrated ]by a provision in the contract where the contractor acknowledges this Rule R23-7 and agrees to comply with all aspects of this Rule R23-7 and that the contractor require this compliance by[, that the contractor requires that as a condition of contracting with the contractor,] a subcontractor, which includes consultants under contract with the designer .[:]

[(i) has and will maintain a drug and alcohol testing policy during the period of the state construction contract that applies to the covered individuals hired by the subcontractor;

(ii) posts in one or more conspicuous places notice to covered individuals hired by the subcontractor that the subcontractor has the drug and alcohol testing policy described in Subsection R23-7-4(1)(b)(i); and

(iii) subjects the covered individuals hired by the subcontractor to random testing under the drug and alcohol testing policy described in Subsection R23-7-4(1)(b)(i) if at any time during the period of the state construction contract there are ten or more individuals who are covered individuals hired by the subcontractor.

] (2)(a) Except as otherwise provided in this Rule[Subsection] R23-7-4(2), if a contractor or subcontractor fails to comply with Rule[Subsection] R23-7-4(1), the contractor or subcontractor may be suspended or debarred in accordance with the Utah Procurement Code, Title 63G, Chapter 6a, Utah Code[is Rule R23-7].

(b) On and after July 1, 2010, the Division shall include in a state construction contract a reference to this Rule R23-7.

(c)(i) A contractor is not subject to penalties for the failure of a subcontractor to comply with Rule[Subsection] R23-7-4(1).

(ii) A subcontractor is not subject to penalties for the failure of a contractor to comply with Rule[Subsection] R23-7-4(1).

(3)(a) The requirements and procedures a contractor shall follow to comply with Subsection R23-7-4(1)is that the contractor, by executing the construction contract with the Division, is deemed to certify to the Division that the contractor, and all subcontractors under the contractor that are subject to Rule R23-7-4(1), shall comply with all provisions of this Rule R23-7 as well as Section 63G-6a-1303 of the Utah Procurement Code.[63G-6-604; and that the contractor shall on a semi-annual basis throughout the term of the contract, report to the Division in writing information that indicates compliance with the provisions of Rule R23-7 and Section 63G-6-604.]

(b) A contractor or subcontractor may be suspended or debarred in accordance with the applicable Utah statutes and rules, if the contractor or subcontractor violates a provision of Section 63G-6a-1303 of the Utah Procurement Code or this Rule.[63G-6-604.] The contractor or subcontractor shall be provided reasonable notice and opportunity to cure a violation of 63G-6a-1303 of the Utah Procurement Code or this Rule[Section 63G-6-604] before suspension or debarment of the contractor or subcontractor in light of the circumstances of the state construction contract or the violation.[The greater the risk to person(s) or property as a result of noncompliance, the shorter this notice and opportunity to cure shall be, including the possibility that the notice may provide for immediate compliance if necessary to protect person(s) or property.]

(4) The failure of a contractor or subcontractor to meet the requirements of Subsection R23-7-4(1):

(a) may not be the basis for a protest or other action from a prospective bidder, offeror, or contractor under Part 17, Procurement Appeals Board, or Part 18, Appeals to Court and Court Proceedings;[Part 8, Legal and Contractual Remedies;] and

(b) may not be used by a state executive entity,[public procurement unit,] a prospective bidder, an offeror, a contractor, or a subcontractor as a basis for an action that would suspend, disrupt, or terminate the design or construction under a state construction contract.

(5)(a) After the Division enters into a state construction contract in compliance with Section 63G-6a-1303[63G-6-604], the state (including the Division) is not required to audit, monitor, or take any other action to ensure compliance with Section 63G-6a-1303[63G-6-604].

(b) The state is not liable in any action related to Section 63G-6a-1303[63G-6-604] and this Rule R23-7, including not being liable in relation to:

(i) a contractor or subcontractor having or not having a drug and alcohol testing policy;

(ii) failure to test for a drug or alcohol under a contractor's or subcontractor's drug and alcohol testing policy;

(iii) the requirements of a contractor's or subcontractor's drug and alcohol testing policy;

(iv) a contractor's or subcontractor's implementation of a drug and alcohol testing policy, including procedures for:

(A) collection of a sample;

(B) testing of a sample;

(C) evaluation of a test; or

(D) disciplinary or rehabilitative action on the basis of a test result;

(v) an individual being under the influence of drugs or alcohol; or

(vi) an individual under the influence of drugs or alcohol harming another person or causing property damage.

 

R23-7-5. Non-applicability.

(1) This Rule R23-7 and Section 63G-6a-1303[63G-6-604] does not apply if the State Executive Entity (including the Division ) determines that the application of this Rule R23-7 or Section 63G-6a-1303[63G-6-604] would severely disrupt the operation of a procurement unit[state agency] to the detriment of the procurement unit[state agency] or the general public, including:

(a) jeopardizing the receipt of federal funds;

(b) causing the state construction contract to be[being] a sole source contract; or

(c) causing the state construction contract to be[being] an emergency procurement.

 

R23-7-6. Not Limit Other Lawful Policies.

(1) If a contractor or subcontractor meets the requirements of Section 63G-6a-1303[63G-6-604] and this Rule R23-7, Section 63G-6a-1303 and this Rule R23-7 may not be construed to restrict the contractor's or subcontractor's ability to impose or implement an otherwise lawful provision as part of a drug and alcohol testing policy.

 

KEY: drug and alcohol testing, contracts, contractors

Date of Enactment or Last Substantive Amendment: [July 8, 2010]2015

Notice of Continuation: June 30, 2015

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