The best and final offer process described in this section:
Terms Used In Utah Code 63G-6a-707.5
Approved vendor: means a person who has been approved for inclusion on an approved vendor list through the approved vendor list process. See Utah Code 63G-6a-103
Offeror: means a person who submits a proposal in response to a request for proposals. See Utah Code 63G-6a-103
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
Request for proposals: means a document used to solicit proposals to provide a procurement item to a procurement unit, including all other documents that are attached to that document or incorporated in that document by reference. See Utah Code 63G-6a-103
Request for proposals process: means the procurement process described in 7. 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
Responsive: means conforming in all material respects to the requirements of a solicitation. 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
may be used only in a request for proposals process, whether the request for proposals process is used independently or after the establishment of an approved vendor list through the approved vendor list process; and
(b)
may not be used in any other standard procurement process, whether the other standard procurement process is used independently or after the establishment of an approved vendor list through the approved vendor list process.
(2)
Subject to Subsection (3), a conducting procurement unit may request best and final offers from responsible offerors:
(a)
only with the approval of the procurement official; and
(b)
if:
(i)
no single proposal adequately addresses all the specifications stated in the request for proposals;
(ii)
all proposals are unclear or deficient in one or more respects;
(iii)
all cost proposals exceed the identified budget or the procurement unit’s available funding; or
(iv)
two or more proposals receive an identical evaluation score that is the highest score.
(3)
A conducting procurement unit may request a best and final offer from, and a best and final offer may be submitted to the conducting procurement unit by, only a responsible offeror that has submitted a responsive proposal that meets the minimum mandatory criteria stated in the request for proposals required to be considered in the stage of the procurement process at which best and final offers are being requested.
(4)
The best and final offer process may not be used to change:
(a)
a determination that an offeror is not responsible to a determination that the offeror is responsible; or
(b)
a determination that a proposal is not responsive to a determination that the proposal is responsive.
(5)
(a)
This Subsection (5) applies if a request for best and final offers is issued because all cost proposals exceed the identified budget or the procurement unit’s available funding.
(b)
(i)
The conducting procurement unit may, in the request for best and final offers:
(A)
specify the scope of work reductions the procurement unit is making in order to generate proposals that are within the identified budget or the procurement unit’s available funding; or
(B)
invite offerors submitting best and final offers to specify the scope of work reductions being made so that the reduced cost proposal is within the identified budget or the procurement unit’s available funding.
(ii)
The conducting procurement unit is not required to accept a scope of work reduction that an offeror has specified in the offeror’s best and final offer.
(c)
A best and final offer submitted with a reduced cost proposal shall include an itemized list identifying specific reductions in the offeror’s proposed scope of work that correspond to the offeror’s reduced cost proposal.
(d)
A reduction in the scope of work may not:
(i)
eliminate a component identified in the request for proposals as a minimum mandatory requirement; or
(ii)
alter the nature of the original request for proposals to the extent that a request for proposals for the reduced scope of work would have likely attracted a significantly different set of offerors submitting proposals in response to the request for proposals.
(6)
If a request for best and final offers is issued because two or more proposals received an identical evaluation score that is the highest score:
(a)
the request may be issued only to offerors who submitted a proposal receiving the highest score; and
(b)
an offeror submitting a best and final offer may revise:
(i)
the technical aspects of the offeror’s proposal;
(ii)
the offeror’s cost proposal, as provided in Subsection (5); or
(iii)
both the technical aspects of the offeror’s proposal and, as provided in Subsection (5), the offeror’s cost proposal.
(7)
In a request for best and final offers, the conducting procurement unit shall:
(a)
clearly specify:
(i)
the issues that the procurement unit requests the offerors to address in their best and final offers; and
(ii)
how best and final offers will be evaluated and scored in accordance with Section 63G-6a-707.5;
(b)
establish a deadline for an offeror to submit a best and final offer; and
(c)
if applicable, establish a schedule and procedure for conducting discussions with offerors concerning the best and final offers.
(8)
In conducting a best and final offer process under this section, a conducting procurement unit shall:
(a)
maintain confidential the information the procurement unit receives from an offeror, including any cost information, until a contract has been awarded or the request for proposals canceled;
(b)
ensure that each offeror receives fair and equal treatment; and
(c)
safeguard the integrity of the scope of the original request for proposals, except as specifically provided otherwise in this section.
(9)
In a best and final offer, an offeror:
(a)
may address only the issues described in the request for best and final offers; and
(b)
may not correct a material error or deficiency in the offeror’s proposal or address any issue not described in the request for best and final offers.
(10)
If an offeror fails to submit a best and final offer, the conducting procurement unit shall treat the offeror’s original proposal as the offeror’s best and final offer.
(11)
After the deadline for submitting best and final offers has passed, the evaluation committee shall evaluate the best and final offers submitted using the criteria described in the request for proposals.
(12)
An offeror may not make and a conducting procurement unit may not consider a best and final offer that the conducting procurement unit has not requested under this section.
(13)
To implement the best and final offer process described in this section, a rulemaking authority may make rules consistent with this section and the other provisions of this chapter.
