Utah

Key Agency(ies): The Utah Division of Purchasing and General Services is the central authority for Executive branch procurement. It is led by the Chief Procurement Officer, who is designated by statute to direct statewide purchasing activities.

Key Statute: Utah’s procurement law is codified in the Utah Procurement Code, Title 63G. Chapter 6a of the Utah Code (Utah Code Ann.).

Key Regulations: General procurement regulations for Executive agencies are located in the Utah Administrative Code (Utah Admin. Code), Title 33R (Purchasing and General Services). These rules are promulgated by the State Procurement Policy Board.

Procurement Types/Highlights: Under Utah Code Ann. § 63G-6a-108, agencies generally cannot conduct their own procurements unless the purchase is under the Division’s control or the agency has independent authority under statute.

Competitive Sealed Bidding (IFB) and Competitive Sealed Proposals (RFP): IFBs are typically required for commodities and straightforward services where price can serve as the deciding factor. RFPs are used when factors other than price are evaluated to determine best value. In Utah, proposals are scored by an evaluation committee against published criteria and may enter negotiations or request a best and final offer.

Utah allows for simplified procurements for low-dollar purchases. Under Utah Admin. Code § R33-5-104, thresholds are $5,000 per item or $10,000 per order, with an annual limit of $50,000 per vendor for recurring needs without competition. Small purchases do not require a formal solicitation or public notice, however agencies are expected to promote competition.

Bid Protests:

Regs Governing Bid Protests:

• Rules for bid protests are set forth in Part 16 of the Utah Code Ann. §§ 63G-6a-1601 through 1604.

Timeliness Rules:

• Protests challenging the contents of a solicitation must be filed before bid opening or before the RFP submission deadline.
• Protests challenging an award decision must be filed within seven days after the vendor knows or should have known the basis for their protest. Any protests filed late must be dismissed by statute.

Protest Process:

• Protests are filed with the designated protest officer for the procurement. Often, the CPO serves as the protest officer for procurements conducted by the Division.
• Once a timely protest is filed, an automatic stay of the contract award or performance is imposed. The stay can be overridden by a written determination by the chief procurement officer that immediate award is necessary to protect a substantial state interest.
• The protest officer must evaluate the protest and issue a written decision. The officer may hold an informal protest hearing, or they may issue a decision without a hearing. The written decision must be issued within 30 calendar days after the protest was filed.

Appeals:

• If a protest is denied, the protester may file an administrative appeal to the Utah Procurement Policy Board. The protester must file a written notice of appeal with the Board within seven days after receiving the protest decision.
• The Board will appoint a Procurement Appeals Panel to adjudicate the appeal. The Appeals Panel will review the protest record and may hold an informal hearing. The Panel must issue a written decision within seven days after concluding its review.

Claims: Utah has waived sovereign immunity for breaches of express contracts. If no settlement can be reached, the contractor’s recourse is to pursue a legal remedy in Utah District Courts. Contractors may commence an action against the state in district court, although they are subject to any contractually related dispute resolution steps and any agency specific rules.

Suspension & Debarment: Utah’s procedures regarding suspension and debarment are governed by Utah Code Ann. § 63G-6a-904. The state Chief Procurement Officer as well as the heads of agencies with independent procurement authority are authorized to issue suspension or debarment orders. Debarments may last no more than three years per violation, and suspensions generally cannot exceed three months.

Causes of debarment can include criminal convictions relating to procurement or business integrity, contract breach or performance failures without good cause, violations of the Procurement Code or regulations, or other serious causes that affect the contractor’s present responsibility.

Before a debarment or suspension is imposed, the vendor is entitled to notice and an opportunity to respond. A vendor who is debarred may appeal the decision to the Procurement Policy Board’s appeals panel. Under Utah Code Ann. § 63G-6a-904, the vendor must file an appeal within seven days of the debarment notice. The appeals panel will hold a hearing and issue a decision on the debarment.

Interesting/Distinctions: A procurement unit seeking to procure design professional services must negotiate such contracts on the basis of demonstrated competence and qualification for the type of services required and at fair and reasonable prices. Utah Code Ann. § 63G-6a-1502.

For RFPs, procurement units appoint evaluation committees of at least three members to evaluate proposals in accordance with the process outlined in the RFP.  Utah Code Ann. § 63G-6a-707(1), (2). The evaluation committee members are forbidden from knowing or accessing info about the cost of the proposal until after the committee has submitted its recommendation based on the scores of all criteria except for cost. Id. at (7)(a).

If after the award of a contract it is determined that the procurement or award is in violation of law, and the person awarded the contract did not act in bad faith, the contract may be affirmed if it is in the best interests of the procurement unit, or the contract may be terminated and the person compensated for actual expenses reasonably incurred. Utah Code Ann. § 63G-6a-1907(1)(a). Even if the person awarded the contract acted in bad faith, the contract may still be affirmed if it is in the best interests of the procurement unit.  Id. at (1)(b).

If before the award of a contract it is determined that the procurement or proposed award is in violation of law, the procurement or proposed award shall be canceled or revised to comply with the law.