Process: means a writ or summons issued in the course of a judicial proceeding. See Utah Code 68-3-12.5
Procurement: means the acquisition of a procurement item through an expenditure of public funds, or an agreement to expend public funds, including an acquisition through a public-private partnership. See Utah Code 63G-6a-103
for a legislative procurement unit, the Legislative Management Committee;
(b)
for a judicial procurement unit, the Judicial Council;
(c)
(i)
only to the extent of the procurement authority expressly granted to the procurement unit by statute:
(A)
for the facilities division, the facilities division;
(B)
for the Office of the Attorney General, the attorney general;
(C)
for the Department of Transportation created in Section 72-1-201, the executive director of the Department of Transportation; and
(D)
for any other executive branch department, division, office, or entity that has statutory procurement authority outside this chapter, the governing authority of the department, division, office, or entity; and
(ii)
for each other executive branch procurement unit, the board;
(d)
for a local government procurement unit:
(i)
the governing body of the local government unit; or
(ii)
an individual or body designated by the local government procurement unit;
(e)
for a school district or a public school, the board, except to the extent of a school district's own nonadministrative rules that do not conflict with the provisions of this chapter;
(f)
for a state institution of higher education, the Utah Board of Higher Education;
(g)
for the State Board of Education or the Utah Schools for the Deaf and the Blind, the State Board of Education;
(h)
for a public transit district, the chief executive of the public transit district;
(i)
for a special district other than a public transit district or for a special service district, the board, except to the extent that the board of trustees of the special district or the governing body of the special service district makes its own rules:
(i)
with respect to a subject addressed by board rules; or
(ii)
that are in addition to board rules;
(j)
for the Utah Educational Savings Plan, created in Section 53B-8a-103, the Utah Board of Higher Education;
(k)
for the School and Institutional Trust Lands Administration, created in Section 53C-1-201, the School and Institutional Trust Lands Board of Trustees;
(l)
for the School and Institutional Trust Fund Office, created in Section 53D-1-201, the School and Institutional Trust Fund Board of Trustees;
(m)
for the Utah Communications Authority, established in Section 63H-7a-201, the Utah Communications Authority board, created in Section 63H-7a-203; or
Sole source contract: means a contract resulting from a sole source procurement. See Utah Code 63G-6a-103
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
(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)
“State executive entity” means:
(i)
a state executive branch:
(A)
department;
(B)
division;
(C)
agency;
(D)
board;
(E)
commission;
(F)
council;
(G)
committee; or
(H)
institution; or
(ii)
a state institution of higher education, as defined in Section 53B-3-102.
(f)
“State construction contract” means a contract for design or construction entered into by a state executive entity.
(2)
Except as provided in Subsection (7), a state executive entity may not enter into a state construction contract unless the public construction contract requires that the contractor demonstrate to the state executive entity that the contractor:
(a)
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)
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 Subsection (2)(a);
(c)
subjects the covered individuals to random testing under the drug and alcohol testing policy described in Subsection (2)(a) 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 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 Subsection (2)(d)(i); and
(iii)
subjects the covered individuals hired by the subcontractor to random testing under the drug and alcohol testing policy described in Subsection (2)(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.
(3)
(a)
Except as otherwise provided in this Subsection (3), if a contractor or subcontractor fails to comply with Subsection (2), the contractor or subcontractor may be suspended or debarred in accordance with this chapter.
(b)
A state executive entity shall include in a state construction contract:
(i)
a reference to the rules described in Subsection (4)(b); or
(ii)
if the rulemaking authority has not made the rules described in Subsection (4)(b), a process that provides a contractor or subcontractor reasonable notice and opportunity to cure a violation of this section before suspension or debarment of the contractor or subcontractor in light of the circumstances of the state construction contract or the violation.
(c)
(i)
A contractor is not subject to penalties for the failure of a subcontractor to comply with Subsection (2).
(ii)
A subcontractor is not subject to penalties for the failure of a contractor to comply with Subsection (2).
(4)
A rulemaking authority:
(a)
may make rules that establish the requirements and procedures a contractor is required to follow to comply with Subsection (2); and
(b)
shall make rules that establish:
(i)
the penalties that may be imposed in accordance with Subsection (3); and
(ii)
a process that provides a contractor or subcontractor reasonable notice and opportunity to cure a violation of this section before suspension or debarment of the contractor or subcontractor in light of the circumstances of the state construction contract or the violation.
(5)
The failure of a contractor or subcontractor to meet the requirements of Subsection (2):
(a)
may not be the basis for a protest or other action from a prospective bidder, offeror, or contractor under 17, or 18; and
(b)
may not be used by a state executive entity, 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.
(6)
(a)
After a state executive entity enters into a state construction contract in compliance with this section, the state is not required to audit, monitor, or take any other action to ensure compliance with this section.
(b)
The state is not liable in any action related to this section, 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.
(7)
This section does not apply if the state executive entity determines that the application of this section would severely disrupt the operation of a procurement unit to the detriment of the procurement unit or the general public, including:
(a)
jeopardizing the receipt of federal funds;
(b)
causing the state construction contract to be a sole source contract; or
(c)
causing the state construction contract to be an emergency procurement.
(8)
If a contractor or subcontractor meets the requirements of this section, this section 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.
