DAR File No. 39961

School and Institutional Trust Lands, Administration

Rule R850-11

Procurement

Notice of Proposed Rule

(Amendment)

DAR File No.: 39961
Filed: 11/25/2015 11:28:15 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The changes to this rule accommodate the account coding of legal services, which differs from other professional services, as required by the Division of Finance; and to increase the dollar thresholds to remain efficient and consistent with the State of Utah revised procurement rules regarding goods and services.

Summary of the rule or change:

A definition for legal services has been added to the rule to allow for the account coding of legal services required by the Division of Finance, and which differs from other professional services. In addition, the agency is increasing the dollar thresholds from $20,000 to $50,000 in an effort to remain efficient and consistent with the State of Utah revised procurement rules regarding goods and services.

State statutory or constitutional authorization for this rule:

• Subsection 53C-1-201(3)

Anticipated cost or savings to:

the state budget:

It is not anticipated that there will be any additional cost or savings to the state budget as a result of these changes as the agency will continue using the already established methods for procuring professional and legal services. Only the threshold amounts will be increased which will also make the agency rule consistent with the procurement rule for the State of Utah.

local governments:

The changes being made to the agency's procurement rule should not bring about any additional cost or savings to local government beyond what may already exist.

small businesses:

The changes being made to the agency's procurement rule should not bring about any additional cost or savings to small businesses beyond what may already exist.

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

The changes being made to the agency's procurement rule should not bring about any additional cost or savings to persons other than small businesses, businesses, or local government entities beyond what may already exist.

Compliance costs for affected persons:

There shouldn't be any additional compliance costs for affected persons beyond what may already exist.

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

It is not anticipated that this rule will have any significant impact on business. The modification brings Administration rules into sync with existing state procurement rules.

Kevin S. Carter, Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

School and Institutional Trust Lands
AdministrationRoom 500
675 E 500 S
SALT LAKE CITY, UT 84102-2818

Direct questions regarding this rule to:

• Ron Carlson at the above address, by phone at 801-538-5131, by FAX at 801-538-5118, or by Internet E-mail at rcarlson@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:

01/14/2016

This rule may become effective on:

01/21/2016

Authorized by:

Kevin Carter, Director

R850. School and Institutional Trust Lands, Administration.

R850-11. Procurement.

R850-11-100. Authorities.

This rule is authorized by Sections 6, 8, 10, and 12 of the Utah Enabling Act; Articles X and XX of the Utah Constitution, and Subsection 53C-1-201(3)(e).

 

R850-11-150. Purposes.

Subsection 53C-1-201(3)(e) permits the agency to be exempted from the Utah Procurement Code upon board approval and adoption of alternative procurement procedures. This rule provides alternative procurement procedures that the agency may follow when procuring any goods and services related to the administration of the agency or the management, development, leasing or sale of trust lands. Nothing in this rule shall be deemed to prevent the agency from procuring goods and services pursuant to the Utah Procurement Code or other applicable law whenever deemed advisable by the agency, or in circumstances where this rule is not applicable.

 

R850-11-200. Definitions.

For the purposes of this rule:

1. Provider: means an individual or firm engaged in the business of providing goods or services deemed necessary by the agency.

2. Professional Services: any professional services related to the administration of the agency or the management, development, leasing or sale of trust lands, including management consulting, accounting, auditing, [legal, ]engineering, land planning, marketing, environmental, geological, mining engineering, architectural, surveying, appraisal, archaeological, real estate brokerage, planning, or such other services as needed.

3. Legal Services: a licensed professional service provided by attorneys or law firms to address issues of law, whether litigation or otherwise.

 

R850-11-300. Professional or Legal Services.

1. The agency may from time to time request providers of professional or legal services to submit a statement of qualifications containing information that the agency deems relevant to the provider's ability to provide quality services and the provider's hourly rates. At least once annually, the agency will advertise statewide its intent to accept statements of qualifications, and will maintain a list of qualified providers with approved rates.

2. The purpose of prequalification is to provide the agency with basic information regarding providers for the agency's convenience. The agency is not required to solicit each or any prequalified provider for a particular service when it undertakes a procurement.

3. When the procurement of professional or legal services is estimated to cost less than [$20,000]$50,000, the agency may select the provider directly from either the list of providers who have submitted annual statements of qualifications, or from other qualified providers if necessary.

4. When the procurement is estimated to exceed [$20,000]$50,000, a written request for proposal (RFP) shall be prepared which describes the agency's requirements and sets forth the evaluation criteria for the procurement. Consideration shall be given to publishing the RFP in a newspaper of general circulation or otherwise advertising the RFP to elicit additional responses from potential providers. The agency shall select the provider offering, as determined in the discretion of the director, the best combination of price, expertise, and other relevant factors. The director shall make a written determination, supported by the following reasons, that the selected provider is best qualified to provide the particular services being procured by the agency:

(a) competence to perform the services as reflected by technical training and education, general experience, experience in providing the required services and the qualifications and competence of persons who would be assigned to perform the services;

(b) ability to perform the services as reflected by workload and the availability of adequate personnel, equipment, and facilities to perform the services expeditiously;

(c) past performance as reflected by the services of the firm with respect to factors such as responsiveness, control of costs, quality of work, and an ability to meet deadlines; and

(d) a determination that the provider's fees are reasonable.

5. The agency may in its discretion issue contracts for professional or legal services by competitive bid pursuant to R850-11-400 or R850-11-500 instead of utilizing the procedures in this section.

 

R850-11-400. Bidding Procedures - Other Procurements.

1. Competitive bids are not required for procurements under $3,000 unless the responsible agency staff member believes that the potential financial benefit to the trust beneficiaries from obtaining bids outweighs the staff time and costs associated with soliciting bids.

2. For procurements over $3,000 and less than [$20,000]$50,000, except for procurements of professional or legal services undertaken pursuant to R850-11-300, the responsible agency staff member shall seek to obtain no less than two competitive bids. Bids may be solicited and received by telephone or other means, but shall be noted in writing by the responsible agency staff member.

3. The provider offering the lowest bid shall be selected unless the director makes a written determination that a provider submitting a higher bid is better qualified to provide the particular services being procured by the agency.

4. Nothing in this rule shall prevent the agency from using existing statewide contracts for supplies, services and construction as set forth in R33-3-301(2).

 

R850-11-450. Bidding Procedures - Large Contracts.

1. For procurements anticipated to exceed [$20,000]$50,000, except for procurements of professional or legal services undertaken pursuant to R850-11-300, the agency shall prepare a written request for proposals (RFP) or invitation to bid describing information required by the agency in evaluating the proposal, which may include a description of the services required, a statement of the provider's experience and qualifications, any performance schedule or deadlines, billing rates, bid specifications, and other information relevant to the particular project.

2. The responsible agency staff member shall seek to obtain at least three written responses to the RFP. Consideration shall be given to publishing the RFP in a newspaper of general circulation or otherwise advertising the RFP to elicit additional responses from potential providers.

3. The provider offering the lowest bid shall be selected unless the director makes a written determination, supported by detailed reasons, that a provider submitting a higher bid is better qualified to provide the particular services being procured by the agency.

 

R850-11-500. Sole Source Procurements.

Where the agency has identified a provider that has special familiarity or qualifications with respect to a project, or that has previously worked on a related project, the agency may hire the provider without soliciting bids from other providers if the director finds in writing that hiring the particular provider is in the best interests of the trust beneficiaries, and that the provider's fee is reasonable.

 

R850-11-600. Real Estate Brokerage Services.

1. The agency is not required to solicit bids for real estate brokerage services, and may list trust lands with a licensed Utah broker as it sees fit.

2. Where the agency has not listed a property with a broker, but has undertaken internal marketing efforts, the agency is authorized but not obligated to pay a commission or finder's fee no greater than the prevailing market rates in the area to real estate brokers who have previously registered their client as directed by the agency, and who are the procuring cause of:

(a) the sale of trust lands; or

(b) a development transaction entered into by the agency pursuant to R850-140.

3. Commission amounts will be determined in the discretion of the agency based on type of transaction, prevailing market conditions, and any other relevant factors.

 

R850-11-700. Debt and Equity Investments.

Debt and equity investments made by the agency shall be exempt from the Utah Procurement Code, provided that such investments are part of a development transaction reviewed by the board and entered into by the agency pursuant to R850-140.

 

R850-11-800. Documentation.

The agency will determine, based on the type of service requested and complexity of the project, the level of contractual documentation necessary in order to adequately protect the best interests of the trust. Formal contract documentation shall be subject to approval as to form by a representative of the attorney general's office.

 

R850-11-900. Bonding for Construction Services.

1. For construction services costing $50,000 or higher, the agency shall require the chosen provider to deliver to the agency a performance bond and a payment bond in amounts equal to 100% of the price specified in the contract and executed by a surety company authorized to do business in this state or in any other form satisfactory to the agency;

2. For construction services costing less than $50,000, the agency may require a performance bond and a payment bond as described in R850-11-700(1) if it determines that requiring such bonds is in the best interests of the trust.

 

R850-11-1000. Conflicts of Interest.

The agency shall not enter into any contract with a provider which violates or, on account of the factual circumstances or person involved, gives the appearance of a conflict of interest or a potential violation of the Utah Public Officer's and Employee's Ethics Act.

 

R850-11-1100. Appeals.

Appeals of agency procurement decisions shall be governed by 63G-6. All initial appeals shall be directed to the director of the agency, with a copy to the Director of the Division of Purchasing. The disposition of any appeal shall take into account the intended purpose of Subsection 53C-1-201(3)(a)(iv), which is to provide the agency with broad discretion and flexibility in procurement to facilitate businesslike management of trust lands.

 

KEY: government purchasing

Date of Enactment or Last Substantive Amendment: [October 18, 2005]January 21, 2016

Notice of Continuation: April 24, 2012

Authorizing, and Implemented or Interpreted Law: 53C-1-201(3)