DAR File No. 28607

Administrative Services, Facilities Construction and Management

R23-2

Procurement of Architect-Engineer Services

NOTICE OF PROPOSED RULE

DAR File No.: 28607
Filed: 04/12/2006, 03:01
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This amendment updates procurement rules for design and construction complying with state law, as well as makes housekeeping adjustments.

Summary of the rule or change:

This rulemaking action provides housekeeping amendments to take into account revision in state law. It revises provisions in accordance with the guarantees recommended by the Government Records Access and Management Act (GRAMA) regarding documents submitted to the Division of Facilities Construction and Management (DFCM) in the procurement process. A major change in this proposed rule amendment is that unsuccessful proposals would become public records except for those portions properly made confidential under GRAMA. Concerns have been raised regarding the legality of a rule provision where unsuccessful proposals submitted under the competitive sealed proposals procurement method remain confidential. Representatives of the media challenged whether this provision met the requirements of GRAMA. After consideration, the Procurement Policy Board voted unanimously to substantially modify its rule. Because DFCM's procurement rules are patterned after the Division of Purchasing's rule, and currently contain provisions similar to that which was challenged, DFCM believes that similar amendments should be made to DFCM's procurement rules. These are: 1) Performance Evaluations and Reference Information - the Board had previously heard testimony and concluded that confidentiality of performance evaluations 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, shall be protected records; 2) Cost Information - for many years, the DFCM rule has provided for disclosure of the amount of cost proposals submitted in an request for proposal (RFP) process. GRAMA also provides that "bids" are to be public. While an argument can be made that the term "bids" does not apply to cost proposals submitted under the competitive proposals process, DFCM recommends that this provision of disclosure be retained; and 3) Non-Public Financial Statements - DFCM recommends that protected status be provided to financial statements which are submitted in response to a RFP if the statements are not otherwise public. Disclosing this information would impair the procurement process and harm those submitting.

State statutory or constitutional authorization for this rule:

Subsection 63-56-208(2) and Section 63-2-101 et seq.

Anticipated cost or savings to:

the state budget:

None--While there may be added costs related to fulfilling records requests they will be offset by fees charged for records requests, as well as savings from a reduction in disputes as the rule will now be revised in accordance with the GRAMA requests.

local governments:

Local governments do not bid on architect or engineering services for DFCM. As a result, this amendment does not apply to local government.

other persons:

This does not affect fees to other persons, except as already imposed by the state.

Compliance costs for affected persons:

None--It is our opinion that this rule imposes obligations that already exist under state law.

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

This rule change provides housekeeping amendments and other amendments that result in compliance with state law. This should result in no fiscal impact. D'Arcy Dixon Pignanelli, Executive Director

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:

Priscilla Anderson at the above address, by phone at 801-538-9595, by FAX at 801-538-3378, or by Internet E-mail at phanderson@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:

05/31/2006

This rule may become effective on:

06/01/2006

Authorized by:

Keith Stepan, Director

RULE TEXT

R23. Administrative Services, Facilities Construction and Management.

R23-2. Procurement of Architect-Engineer Services.

R23-2-1. Purpose and Authority.

(1) In accordance with Subsection [63-56-14(2)]63-56-208(2), this rule establishes procedures for the procurement of architect-engineer services by the Division.

(2) The statutory provisions governing the procurement of architect-engineer services by the Division are contained in Title 63, Chapter 56 and Title 63A, Chapter 5.

R23-2-2. Definitions.

(1) Except as otherwise stated in this rule, terms used in this rule are defined in Section [63-56-5]63-56-105.

(2) The following additional terms are defined for this rule.

(a) "Board" means the State Building Board established pursuant to Section 63A-5-101.

(b) "Director" means the Director of the Division, including, unless otherwise stated, his duly authorized designee.

(c) "Division" means the Division of Facilities Construction and Management established pursuant to Section 63A-5-201.

(d) "Public Notice" means the notice that is publicized pursuant to this rule to notify architects and engineers of Solicitations.

(e) "Record" shall have the meaning defined in Section 63-2-103 of the Government Records Access and Management Act (GRAMA).

(f) "Solicitations" means all documents, whether attached or incorporated by reference, used for soliciting information from architects and engineers seeking to provide architect-engineer services to the Division.

[(f)](g) "State" means the State of Utah.

[(g)](h) "Using Agency" means any state agency or any political subdivision of the state which utilizes the services procured under this rule.

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]submittals and modifications shall be shown only to procurement officials and other persons involved with the review and selection process who shall adhere to the requirements of GRAMA and this rule.

R23-2-11. Disclosure of [Contents of ]Submittals, Performance Evaluations, 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]notice of the selection results.[ 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)](2) The classification of records as protected and the treatment of such records shall be as provided in Section R23-1-35.

(3) The Board finds that it is necessary to maintain the confidentiality of [past ]performance evaluations 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, records containing [past ]performance evaluations and reference information are classified as protected records under the provisions of Subsection 63-2-304[(2) and ](6) and shall be disclosed only to those persons involved with the performance evaluation, the architect-engineer that the information addresses and persons involved with the review and selection of 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. Any other disclosure of such performance evaluations and reference information shall only be as required by applicable law.

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) 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-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.]

R23-2-14. Publicizing Selections.

(1) Notice. After the selection of the successful firm, notice of the selection shall be available in the principal office of the Division in Salt Lake City, Utah and may be available on the Internet.

(2) Information Disclosed. The following shall be disclosed with the notice of selection:

(a) the ranking of the firms;

(b) the names of the selection committee members;

(c) the final scores used by the selection committee to make the selection, except that the names of the individual scorers shall not be associated with their individual scores; and

(d) the written justification statement supporting the selection.

(3) Information Classified as Protected. After due consideration and public input, the following has been determined by the Board to impair governmental procurement proceedings or give an unfair advantage to any person proposing to enter into a contract with the Division and shall be classified as protected records:

(a) the names of individual selection committee scorers in relation to their individual scores or rankings; and

(b) non-public financial statements.

R23-2-15. Negotiation and Appointment.

The Director shall conduct negotiations as provided for in Section [63-56-44]63-56-704 until an agreement is reached.

R23-2-[15]16. Role of the Board.

(1) The Board has the responsibility to establish and monitor the selection process. It must verify the acceptability of the procedure and make changes in procedure as determined necessary by the Board.

(2) At each regular meeting of the Board, the Division shall submit a list of all architect/engineer contracts entered into since its previous report and the method of selection used. This shall be for the information of the Board.

R23-2-[16]17. Performance Evaluation.

(1) 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]evaluation 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 its performance rating]provided a copy of its evaluation at the end of the project and may enter its response in the file.

(3) Confidentiality of the evaluation information shall be addressed as provided in Subsection [R23-2-(4)]R23-2-11(3).

R23-2-[17]18. Emergency Conditions.

The Director, in consultation with the chairman of the Board, shall determine if emergency conditions exist and document his decision in writing. The Director may use any reasonable method of awarding contracts for architect-engineer services in emergency conditions.

R23-2-[18]19. Direct Awards.

(1) The Director may award a contract to an architectural/engineering firm without following the procedures of this rule if:

(a) The contract is for a project which is integrally related to, or an extension of, a project which was previously awarded to the architectural/engineering firm;

(b) The architectural/engineering firm performed satisfactorily on the related project; and

(c) The Director determines that the direct award is in the best interests of the State.

(2) The Director shall place written documentation of the reasons for the direct award in the project file and shall report the action to the Board at its next meeting.

R23-2-[19]20. Small Purchases.

(1) If the Director determines that the services of architects and engineers can be procured for less than $50,000, or if the estimated construction cost of the project is less than $500,000, the procedures contained in Subsection (2) may be used.

(2) The Director shall select a qualified firm and attempt to negotiate a contract for the required services at a fair and reasonable price. The qualified firm may be, but is not required to be, selected from the register of architectural and engineering firms provided for in Section R23-2-3. If, after negotiations on price, the parties cannot agree upon a price that, in the Director's judgment, is fair and reasonable, negotiations shall be terminated with that firm and negotiations begun with another qualified firm. This process shall continue until a contract is negotiated at a fair and reasonable price.

R23-2-[20]21. Alternative Procedures.

(1) The Division may enhance the process whenever the Director determines that it would be in the best interest of the state. This may include the use of a design competition.

(2) Any exceptions to this rule must be justified to and approved by the Board.

(3) Regardless of the process used, the using agency shall be involved jointly with the Division in the selection process.

KEY: procurement, architects, engineers

Date of Enactment or Last Substantive Amendment: [March 15, 2005]2006

Notice of Continuation: December 23, 2004

Authorizing, and Implemented or Interpreted Law: 63A-5-103 et seq.; 63-56-14(2); 63-2-101 et seq.

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For questions regarding the content or application of this rule, please contact Priscilla Anderson at the above address, by phone at 801-538-9595, by FAX at 801-538-3378, or by Internet E-mail at phanderson@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.