Utah Code 63G-6a-802. Award of contract without engaging in a standard procurement process — Notice — Duty to negotiate contract terms in best interest of procurement unit
63G-6a-802. Award of contract without engaging in a standard procurementprocess — Notice — Duty to negotiate contract terms in best interest of procurement unit.
(1)
A procurement unit may award a contract for a procurement item without engaging in a standard procurement process if the procurement official determines in writing that:
Terms Used In Utah Code 63G-6a-802
Contract: A legal written agreement that becomes binding when signed.
Contractor: means a person who is awarded a contract with a procurement unit. 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 item: means an item of personal property, a technology, a service, or a construction project. 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
Rule: includes a policy or regulation adopted by the rulemaking authority, if adopting a policy or regulation is the method the rulemaking authority uses to adopt provisions that govern the applicable procurement unit. 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
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
Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
there is only one source for the procurement item;
(b)
(i)
transitional costs are a significant consideration in selecting a procurement item; and
(ii)
the results of a cost-benefit analysis demonstrate that transitional costs are unreasonable or cost-prohibitive, and that the award of a contract without engaging in a standard procurement process is in the best interest of the procurement unit;
(c)
the award of a contract is under circumstances, described in rules adopted by the rulemaking authority, that make awarding the contract through a standard procurement process impractical and not in the best interest of the procurement unit; or
(d)
the procurement item is intended to be used for, or in connection with the establishment of, a state store, as defined in Section 32B-1-102.
(2)
Transitional costs associated with a trial use or testing of a procurement item under a trial use contract awarded under Section 63G-6a-802.3 may not be included in a consideration of transitional costs under Subsection (1)(b).
(3)
(a)
Subject to Subsection (3)(b), a rulemaking authority shall make rules regarding the publication of notice for a procurement under this section that, at a minimum, require publication of notice of the procurement, in accordance with Section 63G-6a-112, if the cost of the procurement exceeds $50,000.
(b)
Publication of notice under Section 63G-6a-112 is not required for:
(i)
the procurement of public utility services pursuant to a sole source contract; or
(ii)
other procurements under this section for which an applicable rule provides that notice is not required.
(4)
A procurement official who awards a contract under this section shall negotiate with the contractor to ensure that the terms of the contract, including price and delivery, are in the best interest of the procurement unit.
