DAR File No. 31098

Administrative Services, Facilities Construction and Management

R23-2

Procurement of Architect-Engineer Services

NOTICE OF PROPOSED RULE

DAR File No.: 31098
Filed: 04/01/2008, 12:08
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

Section R23-2-20 is being amended to increase the small purchases limits authorized for the procurement of architectural and engineering services. Other technical corrections and housekeeping changes are being made for clarification and consistency throughout the rule.

Summary of the rule or change:

Section R23-2-20 is being amended to increase the small purchases limits authorized for the procurement of architectural and engineering services. The increase to the small purchase limits will allow the Division of Facilities Construction and Management (DFCM) to issue direct award contracts to architects or engineers when the fee is less than $100,000 or the construction cost of the project is less than $1,500,000. Other changes are being made for clarification and consistency, and to make corrections to the cited authorized and interpreted laws.

State statutory or constitutional authorization for this rule:

Sections 63A-5-103 et seq. and 63-2-101 et seq., and Subsection 63-56-208(2)

Anticipated cost or savings to:

the state budget:

The amendments to this rule provide an increase to the small purchases limits. The increased limits will allow DFCM to issue direct award contracts to architects or engineers provided the fees, negotiated in accordance with DFCM's fee schedule, are less than the small purchases' limits. Selection will not be required and contract costs will not increase. Other changes being made are for clarification and consistency and do not result in any anticipated cost or savings impact. Therefore, DFCM determines that there are no cost or savings impact as result of these amendments.

local governments:

The amendments to this rule do not create any direct cost or savings impact to local governments because they are not directly affected by the rule. Nor are local governments indirectly impacted because the rule does not require services from local governments.

small businesses and persons other than businesses:

The amendments to this rule provide an increase to the small purchases limits, and makes technical corrections, clarifications, and housekeeping changes. The amendments do not impose any additional requirements on persons, nor generate a cost or saving impact to other persons.

Compliance costs for affected persons:

The amendments to this rule provide an increase to the small purchases limits to allow DFCM to issue direct award contracts to architects or engineers, and make technical corrections, clarifications, and housekeeping changes. DFCM determines that there are no compliance costs for affected persons.

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

The amendments to this rule provide an increase to the small purchases limits. The increased limits will allow DFCM to issue direct award contracts to architects or engineers provided the fees, negotiated in accordance with DFCM's fee schedule, are less than the small purchases' limits. Other changes are for clarification and housekeeping. Therefore, the amendments to this rule do not create an impact on businesses. Kimberly Hood, Executive Director

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

Administrative Services
Facilities Construction and Management
Room 4110 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

Debbie Merrill, Priscilla Anderson, or Alan Bachman at the above address, by phone at 801-538-3240, 801-538-9595, or 801-538-3105, by FAX at 801-538-3313, 801-538-3378, or 801-538-3313, or by Internet E-mail at debramerrill@utah.gov, phanderson@utah.gov, or abachman@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:

05/15/2008

This rule may become effective on:

05/22/2008

Authorized by:

D. Gregg Buxton, Director

R23. Administrative Services, Facilities Construction and Management.

R23-2. Procurement of Architect-Engineer Services.

R23-2-2. Definitions.

(1) Except as otherwise stated in this rule, terms used in this rule are defined in Section 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]or 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]or engineers seeking to provide architect-engineer services to the Division.

(g) "State" means the State of Utah.

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

 

R23-2-3. Register of Architectural[/] or Engineering Firms.

(1) Architects [and]or 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.

 

R23-2-5. Submittal Preparation Time.

Submittal preparation time is the period of time between the date of first publication of the public notice, and the date and time set for the receipt of submittals by the Division. In each case, the submittal preparation time shall be set to provide architects [and]or engineers a reasonable time to prepare their submittals. The time between the first publication of the public notice and the earlier of the first required submittal of information or any mandatory meeting shall be not less than ten calendar days, unless a shorter time is deemed necessary for a particular procurement as determined, in writing, by the Director.

 

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.

 

R23-2-8. Modification or Withdrawal of Submittals.

(1) Submittals may be modified prior to the due dates established in the solicitation.

(2) Architects [and]or engineers may withdraw from consideration until a contract is executed.

 

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

After the date established for the first submittal of information, a register of submitting architects [and]or engineers shall be prepared and open to public inspection. Prior to award, 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 Submittals, Performance Evaluations, and References.

(1) Except as provided in this rule, submittals shall be open to public inspection after notice of the selection results.

(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 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 performance evaluations and reference information are classified as protected records under the provisions of Subsection 63-2-304(6) and shall be disclosed only to those persons involved with the performance evaluation, the architect[-] or 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[-] or 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.

 

R23-2-12. Selection Committee.

(1) The Board delegates to the director the authority to appoint a selection committee, which may include representatives of the Board, the Division, the using agency, and architects[,] or engineers and[ others of] the general public.

(2) Each member of the selection committee shall certify as to his lack of conflicts of interest.

 

R23-2-13. Evaluation and Ranking.

(1) The selection committee shall evaluate the relative competence and qualifications of architects [and]or 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[-] or engineer and the architect[-] or 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.

 

R23-2-16. 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 services contracts entered into since its previous report and the method of selection used. This shall be for the information of the Board.

 

R23-2-17. Performance Evaluation.

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

(2) This evaluation shall become a part of the record of that architectural[/] or engineering firm within the Division. The architectural[/] or engineering firm shall be 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 R23-2-11(3).

 

R23-2-19. Direct Awards.

(1) The Director may award a contract to an architectural[/] or 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[/] or engineering firm;

(b) The architectural[/] or 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.

 

R23-2-20. Small Purchases.

(1) If the Director determines that [the]architect-engineer services[ of architects and engineers] can be procured for less than $[50,000,]100,000, or if the estimated construction cost of the project is less than $[500,000,]1,500,000, 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]or 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.

 

KEY: procurement, architects, engineers

Date of Enactment or Last Substantive Amendment: [June 1, 2006]2008

Notice of Continuation: December 23, 2004

Authorizing, and Implemented or Interpreted Law: 63A-5-103 et seq.; 63-2-101 et seq.; 63-56-[14]208(2)