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

DAR File No. 33650
NOTICES OF PROPOSED RULES
(e) whether the conditions of the service, product or
delivery conditions are unable to be sufficiently described in the
Invitation for Bids.
(2) Determinations.
(a) Except as provided in Section 63G-6-408 of the Utah
Procurement Code, before a solicitation may be issued for
competitive sealed proposals, the procurement officer shall
determine in writing that competitive sealed proposals is a more
appropriate method for contracting than competitive sealed bidding.
(b) The procurement officer may make determinations by
category of supply, service, or construction item rather than by
individual procurement. Procurement of the types of supplies,
services, or construction so designated may then be made by
competitive sealed proposals without making the determination
competitive sealed bidding is either not practicable or not
advantageous. The officer who made the determination may modify
or revoke it at any time and the determination should be reviewed
for current applicability from time to time.
(3) Professional Services. For procurement of
professional services, whenever practicable, the competitive sealed
proposal process shall be used. Examples of professional services
generally best procured through the RFP process are accounting and
auditing, court reporters, x-ray technicians, legal, medical, nursing,
education, actuarial, veterinarians, and research. The procurement
officer will make the determination. Architecture and engineering
professional services are to be procured in compliance with
R33-5-510.
3-202 Content of the Request for Proposals.
The Request for Proposals shall be prepared in accordance
with section 3-101 provided that it shall also include:
(a) a statement that discussions may be conducted with
offerors who submit proposals determined to be reasonably
susceptible of being selected for award, but that proposals may be
accepted without discussions; and
(b) a statement of when and how price should be
submitted.
3-203 Proposal Preparation Time.
Proposal preparation time shall be set to provide offerors a
reasonable time to prepare their proposals. A minimum of 10
calendar days shall be provided unless a shorter time is deemed
necessary for a particular procurement as determined in writing by
the procurement officer.
3-204 Form of Proposal.
The manner in which proposals are to be submitted,
including any forms for that purpose, may be designated as a part of
the Request for Proposals.
3-204.1 Protected Records.
The following are protected records and will be redacted
subject to the procedures described below. From any public
disclosure of records as allowed by the Governmental Records
Access and Management [acte]Act (GRAMA) Title 63G, Chapter 2
of the Utah Code. The protections below apply to the various
procurement records including records submitted by offerors and
their subcontractors or consultants at any tier.
(a) Trade Secrets. Trade Secrets, as defined in Section
13-24-2, will be protected and not be subject to public disclosure if
the procedures of R33-3-204.2 are met.
(b) Certain commercial information or nonindividual
financial information. Commercial information or nonindividual
financial information subject to the provisions of Section
63G-2-305(2) will be a protected record and not be subject to public
disclosure if the procedures of R33-3-204.2 are met.
(c) Other Protected Records under GRAMA. There will
be no public disclosure of other submitted records that are subject to
non-disclosure or being a protected record under a GRAMA statute
provided that the requirements of R33-3-204.2 are met unless
GRAMA requires such nondisclosure without any preconditions.
3-204.2 Process For Requesting Non-Disclosure. Any
person (firm) who believes that a record should be protected under
R33-3-204.1 shall include with their proposal or submitted
document:
(a) a written indication of which provisions of the
submittal(s) are claimed to be considered for business
confidentiality (including trade secret or other reason for nondisclosure
under GRAMA; and
(b) a concise statement of reasons supporting each
claimed provision of business confidentiality.
3-204.3 Notification. The person who complies with
R33-3-204.2 shall be notified by the governmental entity prior to
the public release of any information for which business
confidentiality has been asserted.
3.204.4 Non-Disclosure and Dispute Process. Except as
provided by court order, the governmental entity to whom the
request for a record is made under GRAMA, may not disclose a
record claimed to be protected under R33-3-204.1 but which the
governmental entity or State Records Committee determines should
be disclosed until the period in which to bring an appeal expires or
the end of the appeals process, including judicial appeal. This
R33-3-204-4 does not apply where the claimant, after notice, has
waived the claim by not appealing or intervening before the records
committee. To the extent provided by law, the parties to a dispute
regarding the release of a record may agree in writing to an
alternative dispute resolution process.
3-204.5 Timing of Public Disclosure. Any allowed
public disclosure of records submitted in the competitive sealed
proposal process will only be made after the selection of the
successful offeror(s) has been made public.
3-205 Public Notice.
Public notice shall be given by distributing the Request
for Proposals in the same manner provided for distributing an
Invitation for Bids under section 3-104.
3-206 Pre-Proposal Conferences.
Pre-proposal conferences may be conducted in accordance
with section 3-106. Any conference should be held prior to
submission of initial proposals.
3-207 Amendments to Request for Proposals.
Amendments to the Request for Proposals may be made
in accordance with section 3-107 prior to submission of proposals.
After submission of proposals, amendments to the Request for
Proposals shall be distributed only to offerors who submitted
proposals and they shall be allowed to submit new proposals or to
amend those submitted. An amendment to the Request for
Proposals may be issued through a request for submission of Best
and Final Offers. If, in the opinion of the procurement officer, a
contemplated amendment will significantly change the nature of the
procurement, the Request for Proposals shall be canceled and a new
Request for Proposals issued.
UTAH STATE BULLETIN, June 01, 2010, Vol. 2010, No. 11 29