DAR File No. 27615

Administrative Services, Facilities Construction and Management

R23-3

Planning and Programming for Capital Projects

NOTICE OF PROPOSED RULE

DAR File No.: 27615
Filed: 12/23/2004, 04:02
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of the amendment is to modify an existing restriction that prevents a firm that prepares an architectural program for a division project from then participating in the design of that project. This change was requested by the architecture profession and was supported by a committee that reviewed the division's procurement practices.

Summary of the rule or change:

The existing rule prohibits, in most cases, a firm that prepares an architectural program for a Division of Facilities Construction and Management (DFCM) project from then being eligible for consideration in the selection of a design team for that project. The amendment provides that the firm preparing the program for a DFCM project is generally eligible to participate in the design of that project. The amendment also provides for exceptions where the programming firm would not be eligible to do the design.

State statutory or constitutional authorization for this rule:

Sections 63A-5-103 and 63A-5-211, and Subsection 63A-5-103(1)

Anticipated cost or savings to:

the state budget:

Some efficiencies may be gained in the design process for some projects as a result of the change. The amount of any savings will depend on the circumstances of the project and cannot be estimated.

local governments:

This rule does not affect local government. Therefore, the Division does not anticipate any cost or savings to local government.

other persons:

A limited reduction in cost may be achieved if the same firm is selected for both the programming and the design phases. Any savings that are achieved are expected to flow to the state through reduced fees.

Compliance costs for affected persons:

The change modifies the "playing field" for the selection of consultants on state building projects. This may have a limited impact on the marketing costs of firms seeking contracts with DFCM. Depending on the circumstances of the firm, the minor impact could be positive or negative. The net amount cannot be estimated.

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

This rule change was requested by the architectural community and was supported by a committee of architects, engineers, legislators, Building Board members, and state employees who reviewed the division's procurement practices. Many of the design firms have indicated that this change will improve the procurement process for the design of state building construction projects.

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.

R23-3. Planning and Programming for Capital Projects.

R23-3-7. Restrictions of Programming Firm.

[(1) A firm that prepares a program for a project may not be selected as the lead design firm or be a subconsultant to the lead design firm or contractor of that project.

(2) The restriction contained in subsection (1) does not apply to:

(a) a subconsultant to the firm preparing the program unless the procurement documents for the selection of the programming firm state otherwise;

(b) a single selection of a firm to provide both the programming and design services for a project;

(c) the selection of a design firm if the scope and cost of the design services are small enough to be procured under the small purchase of architect/engineer services contained in Section R23-2-19;

(d) firms entering into contracts for programming services prior to the effective date of this rule in which case the programming firm will be subject to any restrictions contained in the solicitation or contract for those programming services; or

(e) projects where the Director makes a determination that it is in the best interests of the State to waive the requirements of this Section.](1) Except as provided in Subsections 2 and 3, neither a firm that prepares a program for a project nor its subconsultants may be prohibited from being considered for selection as the lead design firm or a member of the design team for that project unless the procurement documents for the selection of the firm for the programming services or the contract with the firm for the programming services contains such a restriction.

(2) In general, a firm that prepares a program for a project that is expected to be developed using the design-build method described in Section R23-1-45 may not be a member of the design-build team for that project. In order for this restriction to take effect, this restriction must be stated in the procurement documents for the selection of the firm for the programming services or the contract with the firm for the programming services. This restriction shall not apply to a subconsultant of the programming firm unless the procurement documents contain such a restriction.

(3) A restriction, as provided for in this Section may be waived if the Director makes a written determination that it is in the best interests of the State to waive this requirement.

KEY: planning, public buildings, design, procurement

[March 24, 2003]2005

Notice of Continuation July 28, 2004

63A-5-103

63A-5-211

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.