Vol. 2010, No. 11 (06/01/2010) PDF - Administrative Rules - Utah.gov

NOTICES OF PROPOSED RULES DAR File No. 33649
R916. Transportation, Operations, Construction.
R916-5. Health Reform -- Health Insurance Coverage in State
Contracts -- Implementation.
R916-5-1. Purpose.
The purpose of this [R]rule is to comply with [Utah Code
Annotated ]Section 72-6-107.5 and establish the requirements and
procedures a contractor, subcontractor, consultant and subconsultant
must follow to demonstrate they will maintain an offer of health
insurance as required by Section 72-6-107.5. This[e] [R]rule also
establishes penalties for intentional violations[anyone covered by
this Rule if they intentionally violate the provisions] of Section
72-6-107.5.
R916-5-2. Authority.
This [R]rule is authorized under Section 72-6-107.5 which
requires the Utah Department of Transportation to make rules
related to health insurance in certain design and construction
contracts.
R916-5-3. Definitions.
(1) Except as otherwise stated in this rule, terms used in
this rule are defined in Section 72-6-107.5
(2) In addition:
(a) "Executive Director" means the Executive Director of
the Department of Transportation, including, unless otherwise
stated, the Executive Director's duly authorized designee.
(b) "Department" means the Department of
Transportation established pursuant to Section 72-1-201.
(c) "Employee(s)" is as defined in 72-6-107.5 and
includes only those employees that live and/or work in the State of
Utah along with their dependents. "Employee" for purposes of this
rule, shall not be construed as to be broader than that the use of the
term employee for purposes of State of Utah Workers'
Compensation laws.
(d) "State" means the State of Utah.[ The definitions
found in Section 72-6-107.5 shall apply to Rule 916-5.]
R916-5-4. Applicability of Rule.
(1) Except as provided in [Rule R916-5-4]Subsection (2)
below, this [R]rule [R916-5 ]applies to all contracts entered into by
the Department on or after July 1, 2009, and is applicable to a prime
contractor if its contract is in the amount of $1,500,000 or greater,
and to a subcontractor if its subcontract is in the amount of
$750,000 or greater.[if:
(a) the contract is for design and/or construction; and
(b)(i) the prime contract is in the amount of $1,500,000
or greater; or
(ii) a subcontract, at any tier, is in the amount of
$750,000 or greater.]
(2) This [R]rule [R916-5 ]does not apply if:
(a) the application of this [R]rule [916-5 ]jeopardizes the
receipt of federal funds;
(b) the contract is a sole source contract; or
(c) the contract is an emergency procurement; or
(d) the [R]ule is in conflict with federal law.
(3) This [R]rule [R916-5 ]does not apply to a change
order as defined in Section 63G-6-103, or a modification to a
contract, when the contract does not meet the initial threshold
required by [Rule R]Subsection R916-5-4(1).
(4) A person who intentionally uses change orders or
contract modifications to circumvent the requirements of subsection
(1) is guilty of an infraction.
R916-5-5. Contractors or Consultants to Comply with Section
72-6-107.5.
All contractors, subcontractors, consultants or
subconsultants that are subject to the requirements of Section
72-6-107.5 shall comply with all the requirements, and be subject to
the penalties and liabilities of Section 72-6-107.5.
R916-5-6. Not Basis for Protest, Suspension, Disruption, or
Termination Design or Construction.
(1) The failure of contractors, subcontractors, consultants,
or subconsultants to comply with Section 72-6-107.5:
(a) may not be the basis for a protest or other action from
a prospective bidder, offeror, or contractor or consultant under
Section 63G-6-801 or any other provision in Title 63G, Chapter 6,
Part 8, Legal and Contractual Remedies; and
(b) may not be used by the procurement entity or a
prospective bidder, offeror, or contractor or consultant as a basis for
any action or suit that would suspend, disrupt or terminate the
design or construction.
(2) A contractor who is unable to demonstrate compliance
within 14 calendar days of bid opening or when proposals are due
may be declared non-responsive and the Department may award the
contract to the lowest responsive bidder.
(3) A consultant who is unable to demonstrate
compliance within 14 calendar days of being ranked first during the
consultant selection process, may be declared non-responsive and
the Department may enter negotiations with the new first-ranked
responsive consultant.
R916-5-7. Requirements and Procedures a Contractor or
Consultant Must Follow.
(1) A contractor, or consultant, subcontractors or
subconsultants must comply with the following requirements and
procedures, and [in order to ]demonstrate, no later than the time of
execution of the contract, compliance with Section 72-6-107.5:[.]
([1]a) [Demonstrating Compliance with Health Insurance
Requirements. The following requirements must be met by a
contractor, consultants, subcontractors, and subconsultants that are
subject to the requirements of this Rule no later than the time of
execution of the contract:
(a) demonstrate compliance ]by providing a written
certification to the Executive Director that the contractor,
consultants, subcontractors, and subconsultants ha[s]ve and will
maintain for the duration of the contract an offer of qualified health
insurance coverage for the employees[, as such employees are
defined in Section 34A-2-104 for employees'] who live and/or work
within the State, along with their dependents[. Employee, for
purposes of this Rule, shall be no broader than the use of the term
employee for purposes of the State's Worker's Compensation
requirements]; and
(b) [T]the contractor or consultant shall also provide such
written certification prior to the execution of the contract, in regard
to all subcontractors or subconsultants at any tier that are subject to
the requirements of this [R]rule.
126 UTAH STATE BULLETIN, June 01, 2010, Vol. 2010, No. 11