Bill Summary – FastDemocracy

Enrolled Copy                                                                            H.B. 343
      DESIGN PROFESSIONAL SERVICES PROCUREMENT AMENDMENTS
                                           2024 GENERAL SESSION
                                                STATE OF UTAH
                                       Chief Sponsor: Bridger Bolinder Senate Sponsor: Daniel McCay
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  LONG TITLE
  General Description:
      This bill modifies provisions of the Utah Procurement Code.
  Highlighted Provisions:
      This bill:
      ▸ modifies the definition of design professional, for purposes of the Utah Procurement
  Code, to include landscape architects.
  Money Appropriated in this Bill:
      None
  Other Special Clauses:
      None
  Utah Code Sections Affected:
  AMENDS:
      63G-6a-103, as last amended by Laws of Utah 2023, Chapter 16
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  Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 63G-6a-103 is amended to read:
        63G-6a-103 . Definitions.
    As used in this chapter:
  (1) "Approved vendor" means a person who has been approved for inclusion on an
      approved vendor list through the approved vendor list process.
  (2) "Approved vendor list" means a list of approved vendors established under Section
      63G-6a-507.
  (3) "Approved vendor list process" means the procurement process described in Section
      63G-6a-507.
  (4) "Bidder" means a person who submits a bid or price quote in response to an invitation
     H.B. 343                                                                                 Enrolled Copy
       for bids.
   (5) "Bidding process" means the procurement process described in Part 6, Bidding.
   (6) "Board" means the Utah State Procurement Policy Board, created in Section 63G-6a-202.
   (7) "Change directive" means a written order signed by the procurement officer that directs
       the contractor to suspend work or make changes, as authorized by contract, without the
       consent of the contractor.
   (8) "Change order" means a written alteration in specifications, delivery point, rate of
       delivery, period of performance, price, quantity, or other provisions of a contract, upon
       mutual agreement of the parties to the contract.
   (9) "Chief procurement officer" means the individual appointed under Section 63A-2-102.
   (10) "Conducting procurement unit" means a procurement unit that conducts all aspects of a
       procurement:
       (a) except:
            (i) reviewing a solicitation to verify that it is in proper form; and
            (ii) causing the publication of a notice of a solicitation; and
       (b) including:
            (i) preparing any solicitation document;
            (ii) appointing an evaluation committee;
            (iii) conducting the evaluation process, except the process relating to scores
                   calculated for costs of proposals;
            (iv) selecting and recommending the person to be awarded a contract;
            (v) negotiating the terms and conditions of a contract, subject to the issuing
                   procurement unit's approval; and
            (vi) contract administration.
   (11) "Conservation district" means the same as that term is defined in Section 17D-3-102.
   (12) "Construction project":
       (a) means a project for the construction, renovation, alteration, improvement, or repair of
            a public facility on real property, including all services, labor, supplies, and materials
            for the project; and
       (b) does not include services and supplies for the routine, day-to-day operation, repair,
            or maintenance of an existing public facility.
   (13) "Construction manager/general contractor":
       (a) means a contractor who enters into a contract:
            (i) for the management of a construction project; and
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     Enrolled Copy                                                                                  H.B. 343
          (ii) that allows the contractor to subcontract for additional labor and materials that are
              not included in the contractor's cost proposal submitted at the time of the
              procurement of the contractor's services; and
      (b) does not include a contractor whose only subcontract work not included in the
          contractor's cost proposal submitted as part of the procurement of the contractor's
          services is to meet subcontracted portions of change orders approved within the
          scope of the project.
  (14) "Construction subcontractor":
      (a) means a person under contract with a contractor or another subcontractor to provide
          services or labor for the design or construction of a construction project;
      (b) includes a general contractor or specialty contractor licensed or exempt from
          licensing under Title 58, Chapter 55, Utah Construction Trades Licensing Act; and
      (c) does not include a supplier who provides only materials, equipment, or supplies to a
          contractor or subcontractor for a construction project.
  (15) "Contract" means an agreement for a procurement.
  (16) "Contract administration" means all functions, duties, and responsibilities associated
      with managing, overseeing, and carrying out a contract between a procurement unit and
      a contractor, including:
      (a) implementing the contract;
      (b) ensuring compliance with the contract terms and conditions by the conducting
          procurement unit and the contractor;
      (c) executing change orders;
      (d) processing contract amendments;
      (e) resolving, to the extent practicable, contract disputes;
      (f) curing contract errors and deficiencies;
      (g) terminating a contract;
      (h) measuring or evaluating completed work and contractor performance;
      (i) computing payments under the contract; and
      (j) closing out a contract.
  (17) "Contractor" means a person who is awarded a contract with a procurement unit.
  (18) "Cooperative procurement" means procurement conducted by, or on behalf of:
      (a) more than one procurement unit; or
      (b) a procurement unit and a cooperative purchasing organization.
  (19) "Cooperative purchasing organization" means an organization, association, or alliance
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      H.B. 343                                                                                Enrolled Copy
       of purchasers established to combine purchasing power in order to obtain the best value
       for the purchasers by engaging in procurements in accordance with Section 63G-6a-2105.
   (20) "Cost-plus-a-percentage-of-cost contract" means a contract under which the contractor
       is paid a percentage of the total actual expenses or costs in addition to the contractor's
       actual expenses or costs.
   (21) "Cost-reimbursement contract" means a contract under which a contractor is
       reimbursed for costs which are allowed and allocated in accordance with the contract
       terms and the provisions of this chapter, and a fee, if any.
   (22) "Days" means calendar days, unless expressly provided otherwise.
   (23) "Definite quantity contract" means a fixed price contract that provides for a specified
       amount of supplies over a specified period, with deliveries scheduled according to a
       specified schedule.
   (24) "Design professional" means:
       (a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
            Licensing Act;
       (b) an individual licensed as a professional engineer or professional land surveyor under
            Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors
            Licensing Act;
       (c) an individual licensed under Title 58, Chapter 53, Landscape Architects Licensing
            Act, to engage in the practice of landscape architecture, as defined in Section
            58-53-102; or
       [(c)] (d) an individual certified as a commercial interior designer under Title 58, Chapter
            86, State Certification of Commercial Interior Designers Act.
   (25) "Design professional procurement process" means the procurement process described
       in Part 15, Design Professional Services.
   (26) "Design professional services" means:
       (a) professional services within the scope of the practice of architecture as defined in
            Section 58-3a-102;
       (b) professional engineering as defined in Section 58-22-102;
       (c) master planning and programming services;
       (d) professional services within the scope of the practice of landscape architecture, as
            defined in Section 58-53-102; or
       [(d)] (e) services within the scope of the practice of commercial interior design, as
            defined in Section 58-86-102.
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      Enrolled Copy                                                                                   H.B. 343
  (27) "Design-build" means the procurement of design professional services and
      construction by the use of a single contract.
  (28) "Division" means the Division of Purchasing and General Services, created in Section
      63A-2-101.
  (29) "Educational procurement unit" means:
      (a) a school district;
      (b) a public school, including a local school board or a charter school;
      (c) the Utah Schools for the Deaf and the Blind;
      (d) the Utah Education and Telehealth Network;
      (e) an institution of higher education of the state described in Section 53B-1-102; or
      (f) the State Board of Education.
  (30) "Established catalogue price" means the price included in a catalogue, price list,
      schedule, or other form that:
      (a) is regularly maintained by a manufacturer or contractor;
      (b) is published or otherwise available for inspection by customers; and
      (c) states prices at which sales are currently or were last made to a significant number of
          any category of buyers or buyers constituting the general buying public for the
          supplies or services involved.
  (31) (a) "Executive branch procurement unit" means a department, division, office,
      bureau, agency, or other organization within the state executive branch.
      (b) "Executive branch procurement unit" does not include the Colorado River Authority
          of Utah as provided in Section 63M-14-210.
  (32) "Facilities division" means the Division of Facilities Construction and Management,
      created in Section 63A-5b-301.
  (33) "Fixed price contract" means a contract that provides a price, for each procurement
      item obtained under the contract, that is not subject to adjustment except to the extent
      that:
      (a) the contract provides, under circumstances specified in the contract, for an
          adjustment in price that is not based on cost to the contractor; or
      (b) an adjustment is required by law.
  (34) "Fixed price contract with price adjustment" means a fixed price contract that provides
      for an upward or downward revision of price, precisely described in the contract, that:
      (a) is based on the consumer price index or another commercially acceptable index,
          source, or formula; and
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      H.B. 343                                                                                 Enrolled Copy
       (b) is not based on a percentage of the cost to the contractor.
   (35) "Grant" means an expenditure of public funds or other assistance, or an agreement to
       expend public funds or other assistance, for a public purpose authorized by law, without
       acquiring a procurement item in exchange.
   (36) "Immaterial error":
       (a) means an irregularity or abnormality that is:
            (i) a matter of form that does not affect substance; or
            (ii) an inconsequential variation from a requirement of a solicitation that has no, little,
                or a trivial effect on the procurement process and that is not prejudicial to other
                vendors; and
       (b) includes:
            (i) a missing signature, missing acknowledgment of an addendum, or missing copy of
                a professional license, bond, or insurance certificate;
            (ii) a typographical error;
            (iii) an error resulting from an inaccuracy or omission in the solicitation; and
            (iv) any other error that the procurement official reasonably considers to be
                immaterial.
   (37) "Indefinite quantity contract" means a fixed price contract that:
       (a) is for an indefinite amount of procurement items to be supplied as ordered by a
            procurement unit; and
       (b) (i) does not require a minimum purchase amount; or
            (ii) provides a maximum purchase limit.
   (38) "Independent procurement unit" means:
       (a) (i) a legislative procurement unit;
            (ii) a judicial branch procurement unit;
            (iii) an educational procurement unit;
            (iv) a local government procurement unit;
            (v) a conservation district;
            (vi) a local building authority;
            (vii) a special district;
            (viii) a public corporation;
            (ix) a special service district; or
            (x) the Utah Communications Authority, established in Section 63H-7a-201;
       (b) the facilities division, but only to the extent of the procurement authority provided
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      Enrolled Copy                                                                                   H.B. 343
          under Title 63A, Chapter 5b, Administration of State Facilities;
      (c) the attorney general, but only to the extent of the procurement authority provided
          under Title 67, Chapter 5, Attorney General;
      (d) the Department of Transportation, but only to the extent of the procurement authority
          provided under Title 72, Transportation Code; or
      (e) any other executive branch department, division, office, or entity that has statutory
          procurement authority outside this chapter, but only to the extent of that statutory
          procurement authority.
  (39) "Invitation for bids":
      (a) means a document used to solicit:
          (i) bids to provide a procurement item to a procurement unit; or
          (ii) quotes for a price of a procurement item to be provided to a procurement unit; and
      (b) includes all documents attached to or incorporated by reference in a document
          described in Subsection (39)(a).
  (40) "Issuing procurement unit" means a procurement unit that:
      (a) reviews a solicitation to verify that it is in proper form;
      (b) causes the notice of a solicitation to be published; and
      (c) negotiates and approves the terms and conditions of a contract.
  (41) "Judicial procurement unit" means:
      (a) the Utah Supreme Court;
      (b) the Utah Court of Appeals;
      (c) the Judicial Council;
      (d) a state judicial district; or
      (e) an office, committee, subcommittee, or other organization within the state judicial
          branch.
  (42) "Labor hour contract" is a contract under which:
      (a) the supplies and materials are not provided by, or through, the contractor; and
      (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and profit
          for a specified number of labor hours or days.
  (43) "Legislative procurement unit" means:
      (a) the Legislature;
      (b) the Senate;
      (c) the House of Representatives;
      (d) a staff office of the Legislature, the Senate, or the House of Representatives; or
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      H.B. 343                                                                                 Enrolled Copy
       (e) a committee, subcommittee, commission, or other organization:
            (i) within the state legislative branch; or
            (ii) (A) that is created by statute to advise or make recommendations to the
                Legislature;
                (B) the membership of which includes legislators; and
                (C) for which the Office of Legislative Research and General Counsel provides
                    staff support.
   (44) "Local building authority" means the same as that term is defined in Section 17D-2-102.
   (45) "Local government procurement unit" means:
       (a) a county, municipality, or project entity, and each office of the county, municipality,
            or project entity, unless:
            (i) the county or municipality adopts a procurement code by ordinance; or
            (ii) the project entity adopts a procurement code through the process described in
                Section 11-13-316;
       (b) (i) a county or municipality that has adopted this entire chapter by ordinance, and
            each office or agency of that county or municipality; and
            (ii) a project entity that has adopted this e