DAR File No. 27605

Administrative Services, Facilities Construction and Management

R23-2

Procurement of Architect-Engineer Services

NOTICE OF PROPOSED RULE

DAR File No.: 27605
Filed: 12/23/2004, 02:52
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The reason for the amendment is to incorporate changes in the Division's procedures for the procurement of architect-engineer services. The changes were agreed to by a comprehensive review committee that included legislators, Building Board members, architects, engineers, and state employees. In addition, several minor changes are being made that were not addressed by the review committee.

Summary of the rule or change:

The amendments modify provisions related to public access to past performance and reference information relative to architects and engineers. They also clarify the evaluation criteria and the submittal requirements.

State statutory or constitutional authorization for this rule:

Subsection 63-56-14(2); Title 63, Chapter 56; and Title 63A, Chapter 5

Anticipated cost or savings to:

the state budget:

The amendments do not make any substantive changes in the Division's procurement process. As a result, they are not expected to result in any significant costs or savings.

local governments:

This rule does not affect local government. Therefore, there is no anticipated cost or savings to local government.

other persons:

The amendments to do not make any substantive changes in the process required of architects and engineers wishing to perform work for the State. As a result, no significant costs or savings are anticipated.

Compliance costs for affected persons:

The amendments to do not make any substantive changes in the process required of architects and engineers wishing to perform work for the State. As a result, no significant changes are anticipated in compliance costs.

Comments by the department head on the fiscal impact the rule may have on businesses:

These rule changes are the product of a review of the Division's procurement processes that was performed to address concerns raised by the construction industry, legislators and the Division. While the changes to this rule are minor and have no fiscal impact, additional changes that are being made in procedures that implement the rule will result in savings to architects and engineers.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Kenneth Nye at the above address, by phone at 801-538-3284, by FAX at 801-538-3267, or by Internet E-mail at knye@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

02/14/2005

This rule may become effective on:

02/15/2005

Authorized by:

Keith Stepan, Director

RULE TEXT

R23. Administrative Services, Facilities Construction and Management.

R23-2. Procurement of Architect-Engineer Services.

R23-2-3. Register of Architectural/Engineering Firms.

(1) Architects and engineers interested in being considered for architect-engineer services procured by the Division under Section R23-2-19 may submit an annual statement of qualifications and performance data.

(2) The Division shall maintain a file of information submitted under Subsection (1).

(3) Except for services procured under Sections R23-2-17 and R23-2-19, an updated or project specific statement of qualifications shall generally be required in order to be considered in procurements of services for a specific project as provided in the solicitation.

R23-2-7. Addenda to Solicitations.

Addenda to the solicitation may be made in the same manner provided for addenda to the bidding documents in connection with Invitations for Bids set forth in Subsection R23-1-5(6) except that addenda may be issued until the selection of an architect or engineer is completed.

R23-2-10. Receipt and Registration of Submittals.

After the date established for the first submittal of information, a register of submitting architects and engineers shall be prepared and open to public inspection. Prior to award, proposals and modifications shall be shown only to procurement officials and other persons involved with the review and selection process.

R23-2-11. Disclosure of Contents of Submittals and References.

(1) Except as provided in this rule, submittals of the successful architect or engineer shall be open to public inspection after award of the contract. Submittals of architects and engineers who are not awarded contracts shall not be open to public inspection.

(2) The Solicitation may provide that certain information required to be submitted by the offeror shall be considered confidential and classified as protected if such information meets the provisions of Section 63-2-304 of the Government Records Access and Management Act.

(3) If the architect or engineer selected for award has requested in writing the non-disclosure of trade secrets and other proprietary data so identified, the Director shall examine the request to determine its validity prior to award of the contract. If the parties do not agree as to the disclosure of data in the contract, the Director shall inform the architect or engineer in writing what portion of the proposal will be disclosed and that, unless the architect or engineer withdraws the submittal, it will be disclosed.

(4) The Board finds that it is necessary to maintain the confidentiality of [individual responses from persons who are contacted as references]past performance and reference information in order to avoid competitive injury and to encourage those persons providing the information to respond in an open and honest manner without fear of retribution. Accordingly, [responses to requests for references are]records containing past performance and reference information are classified as protected records under the provisions of Subsection 63-2-304(2) and (6) and shall be disclosed only [in summary form ]to those persons involved with the performance evaluation, the architect-engineer that the information addresses and persons involved with the review and selection of [process]submittals. The Division may, however, provide reference information to other governmental entities for use in their procurement activities and to other parties when requested by the architect-engineer that is the subject of the information.[This Subsection (4) applies only to responses from references submitted by the architect or engineer.]

R23-2-13. Evaluation and Ranking.

(1) The selection committee shall evaluate the relative competence and qualifications of architects and engineers who submit the required information.

(2) The evaluation shall be based on evaluation factors set forth in the solicitation and may include:

(a) past performance and references;

(b) [references]qualifications and experience of the firm and key individuals;

(c) plans for managing and avoiding project risks;

(d) interviews; and

(e) other factors that indicate the relevant competence and qualifications of the [architect or engineer]architect-engineer and the architect-engineer's ability to satisfactorily provide the desired services.

(3) The evaluation may be conducted in two phases with the first phase identifying no less than the top three ranked firms to be evaluated further in the second phase unless less than three firms are competing for the contract.

(4) Numerical rating systems may be used but are not required.

(5) The evaluation committee shall rank at least the top three firms. Notice of the selection results shall be provided to each firm competing for the contract.

R23-2-16. Performance Evaluation.

(1) The [using agency and staff from the ]Division shall evaluate the performance of the architectural/engineering firm and shall provide an opportunity for the using agency to comment on the Division's evaluation.

(2) This rating shall become a part of the record of that architectural/engineering firm within the Division. The architectural/engineering firm shall be apprised in writing of [their]its performance rating at the end of the project and may enter [their]its response in the file.

(3) Confidentiality of the evaluation information shall be addressed as provided in Subsection R23-2-(4).

KEY: procurement[*], architects, engineers

[September 15, 2001]2005

Notice of Continuation May 4, 2000

63A-5-103 et seq.

63-56-14(2)

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Kenneth Nye at the above address, by phone at 801-538-3284, by FAX at 801-538-3267, or by Internet E-mail at knye@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.