Contractor: means a person who is awarded a contract with a procurement unit. See Utah Code 63G-6a-103
Days: means calendar days, unless expressly provided otherwise. See Utah Code 63G-6a-103
Embezzlement: In most states, embezzlement is defined as theft/larceny of assets (money or property) by a person in a position of trust or responsibility over those assets. Embezzlement typically occurs in the employment and corporate settings. Source: OCC
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Forgery: The fraudulent signing or alteration of another's name to an instrument such as a deed, mortgage, or check. The intent of the forgery is to deceive or defraud. Source: OCC
Indictment: The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies.
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
Pleadings: Written statements of the parties in a civil case of their positions. In the federal courts, the principal pleadings are the complaint and the answer.
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
Procurement official: means :
(a)
for a procurement unit other than an independent procurement unit, the chief procurement officer;
(b)
for a legislative procurement unit, the individual, individuals, or body designated in a policy adopted by the Legislative Management Committee;
(c)
for a judicial procurement unit, the Judicial Council or an individual or body designated by the Judicial Council by rule;
(d)
for a local government procurement unit:
(i)
the legislative body of the local government procurement unit; or
(ii)
an individual or body designated by the local government procurement unit;
(e)
for a special district, the board of trustees of the special district or the board of trustees' designee;
(f)
for a special service district, the governing body of the special service district or the governing body's designee;
(g)
for a local building authority, the board of directors of the local building authority or the board of directors' designee;
(h)
for a conservation district, the board of supervisors of the conservation district or the board of supervisors' designee;
(i)
for a public corporation, the board of directors of the public corporation or the board of directors' designee;
(j)
for a school district or any school or entity within a school district, the board of the school district or the board's designee;
(k)
for a charter school, the individual or body with executive authority over the charter school or the designee of the individual or body;
(l)
for an institution of higher education described in Section 53B-2-101, the president of the institution of higher education or the president's designee;
(m)
for the State Board of Education, the State Board of Education or the State Board of Education's designee;
(n)
for the Utah Board of Higher Education, the Commissioner of Higher Education or the designee of the Commissioner of Higher Education;
(o)
for the Utah Communications Authority, established in Section 63H-7a-201, the executive director of the Utah Communications Authority or the executive director's designee; or
(p)
(i)
for the facilities division, and only to the extent of procurement activities of the facilities division as an independent procurement unit under the procurement authority provided under Title 63A, Chapter 5b, Administration of State Facilities, the director of the facilities division or the director's designee;
(ii)
for the attorney general, and only to the extent of procurement activities of the attorney general as an independent procurement unit under the procurement authority provided under Title 67, Chapter 5, Attorney General, the attorney general or the attorney general's designee;
(iii)
for the Department of Transportation created in Section 72-1-201, and only to the extent of procurement activities of the Department of Transportation as an independent procurement unit under the procurement authority provided under Title 72, Transportation Code, the executive director of the Department of Transportation or the executive director's designee; or
(iv)
for any other executive branch department, division, office, or entity that has statutory procurement authority outside this chapter, and only to the extent of the procurement activities of the department, division, office, or entity as an independent procurement unit under the procurement authority provided outside this chapter for the department, division, office, or entity, the chief executive officer of the department, division, office, or entity or the chief executive officer's designee. See Utah Code 63G-6a-103
Responsible: means being capable, in all respects, of:
(a)
meeting all the requirements of a solicitation; and
(b)
fully performing all the requirements of the contract resulting from the solicitation, including being financially solvent with sufficient financial resources to perform the contract. See Utah Code 63G-6a-103
Rulemaking authority: means :
(a)
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
Solicitation: means an invitation for bids, request for proposals, or request for statement of qualifications. 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
Testimony: Evidence presented orally by witnesses during trials or before grand juries.
Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(a)
Subject to Subsection (1)(b), a procurement official may:
(i)
debar a person for cause from consideration for award of contracts for a period not to exceed three years; or
(ii)
suspend a person from consideration for award of contracts if there is cause to believe that the person has engaged in any activity that might lead to debarment.
(b)
Before debarring or suspending a person under Subsection (1)(a), a procurement official shall:
(i)
consult with:
(A)
the procurement unit involved in the matter for which debarment or suspension is sought; and
(B)
the attorney general, if the procurement unit is in the state executive branch, or the procurement unit’s attorney, if the procurement unit is not in the state executive branch;
(ii)
give the person at least 10 days‘ prior written notice of:
(A)
the reasons for which debarment or suspension is being considered; and
hold an informal hearing in accordance with Subsection (1)(c).
(c)
(i)
At an informal hearing under Subsection (1)(b)(iii), a procurement official may:
(A)
subpoena witnesses and compel their attendance at the hearing;
(B)
subpoena documents for production at the hearing;
(C)
obtain additional factual information; and
(D)
obtain testimony from experts, the person who is the subject of the proposed debarment or suspension, representatives of the procurement unit, or others to assist the procurement official to make a decision on the proposed debarment or suspension.
(ii)
The Rules of Evidence do not apply to an informal hearing under Subsection (1)(b)(iii).
(iii)
A procurement official shall:
(A)
record a hearing under Subsection (1)(b)(iii); and
(B)
preserve all records and other evidence relied upon in reaching a decision until the decision becomes final.
(iv)
The holding of an informal hearing under Subsection (1)(b)(iii) or the issuing of a decision under Subsection (1)(c)(v) does not affect a person’s right to later question or challenge the jurisdiction of the procurement official to hold a hearing or issue a decision.
(v)
A procurement official shall:
(A)
promptly issue a written decision regarding a proposed debarment or suspension, unless the matter is settled by mutual agreement; and
(B)
mail, email, or otherwise immediately furnish a copy of the decision to the person who is the subject of the decision.
(vi)
A written decision under Subsection (1)(c)(v) shall:
(A)
state the reasons for the debarment or suspension, if debarment or suspension is ordered; and
(B)
inform the person who is debarred or suspended of the right to judicial review as provided in this chapter.
(vii)
A decision of debarment or suspension is final and conclusive unless the decision is overturned by a court under Subsection (4).
(2)
A suspension under this section may not be for a period exceeding three months, unless an indictment has been issued for an offense which would be a cause for debarment under Subsection (3), in which case the suspension shall, at the request of the attorney general, if the procurement unit is in the state executive branch, or the procurement unit’s attorney, if the procurement unit is not in the state executive branch, remain in effect until after the trial of the suspended person.
(3)
The causes for debarment include the following:
(a)
conviction of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract or in the performance of a public or private contract or subcontract;
(b)
conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a contractor for the procurement unit;
(c)
conviction under state or federal antitrust statutes;
(d)
failure without good cause to perform in accordance with the terms of the contract;
(e)
a violation of this chapter; or
(f)
any other cause that the procurement official determines to be so serious and compelling as to affect responsibility as a contractor for the procurement unit, including debarment by another governmental entity.
(4)
(a)
A person who is debarred or suspended under this section may seek judicial review of the debarment or suspension by filing a petition for judicial review in district court.
is a complaint governed by the Utah Rules of Civil Procedure;
(ii)
shall name the procurement unit as respondent;
(iii)
shall be accompanied by a copy of the written decision as to which judicial review is sought; and
(iv)
is barred unless filed in district court within 30 days after the date of the issuance of the written decision of suspension or debarment under Subsection (1)(c)(v).
(c)
A district court’s review of a petition under Subsection (4)(a) shall be de novo.
(d)
A district court shall, without a jury, determine all questions of fact and law, including any constitutional issue, presented in the pleadings.
(5)
A procurement unit may consider a cause for debarment under Subsection (3) as the basis for determining that a person responding to a solicitation is not responsible:
(a)
independent of any effort or proceeding under this section to debar or suspend the person; and
(b)
even if the procurement unit does not choose to seek debarment or suspension.
(6)
A rulemaking authority may make rules pertaining to the suspension and debarment process under this section, including rules governing an informal hearing under Subsection (1)(b)(iii).
