Utah State Bulletin, January 15, 2012, Vol. 2012, No. 2

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NOTICES OF PROPOSED RULES DAR File No. 35613acceptable during the first phase have their price bids considered. Itis designed to obtain the benefits of competitive sealed bidding byaward of a contract to the lowest responsive, responsible bidder, andat the same time obtain the benefits of the competitive sealedproposals procedure through the solicitation of technical offers andthe conduct of discussions to arrive at technical offers and termsacceptable to the purchasing agency and suitable for competitivepricing.(2) Use. The multi-step sealed bidding method will beused when the procurement officer deems it to the advantage of thepurchasing agency. Multi-step sealed bidding will thus be usedwhen it is considered desirable:(a) to invite and evaluate technical offers to determinetheir acceptability to fulfill the purchase description requirements;(b) to conduct discussions for the purposes of facilitatingunderstanding of the technical offer and purchase descriptionrequirements and, where appropriate, obtain supplementalinformation, permit amendments of technical offers, or amend thepurchase description;(c) to accomplish subsections (a) and (b) of this sectionprior to soliciting priced bids; and(d) to award the contract to the lowest responsive andresponsible bidder in accordance with the competitive sealedbidding procedures.3-115 Pre-Bid Conferences in Multi-Step Sealed Bidding.Prior to the submission of unpriced technical offers, a prebidconference as contemplated by section 3-106 may be conductedby the procurement officer. The procurement officer may also holda conference of all bidders in accordance with section 3-106 at anytime during the evaluation of the unpriced technical offers.3-116 Procedure for Phase One of Multi-Step SealedBidding.(1) Form. Multi-step sealed bidding shall be initiated bythe issuance of an Invitation for Bids in the form required by section3-101. In addition to the requirements set forth in section 3-101, themulti-step Invitation for Bids shall state:(a) that unpriced technical offers are requested;(b) whether price bids are to be submitted at the sametime as unpriced technical offers; if they are, the price bids shall besubmitted in a separate sealed envelope;(c) that it is a multi-step sealed bid procurement, andpriced bids will be considered only in the second phase and onlyfrom those bidders whose unpriced technical offers are foundacceptable in the first phase;(d) the criteria to be used in the evaluation of theunpriced technical offers;(e) that the purchasing agency, to the extent theprocurement officer finds necessary, may conduct oral or writtendiscussions of the unpriced technical offers;(f) that bidders may designate those portions of theunpriced technical offers which contain trade secrets or otherproprietary data which are to remain confidential; and(g) that the item being procured shall be furnishedgenerally in accordance with the bidder's technical offer as found tobe finally acceptable and shall meet the requirements of theInvitation for Bids.(2) Amendments to the Invitation for Bids. After receiptof unpriced technical offers, amendments to the Invitation for Bidsshall be distributed only to bidders who submitted unpricedtechnical offers and they shall be allowed to submit new unpricedtechnical offers or to amend those submitted. If, in the opinion ofthe procurement officer, a contemplated amendment willsignificantly change the nature of the procurement, the Invitationfor Bids shall be canceled in accordance with Subsection R33-3-112(1) of these rules and a new Invitation for Bids issued.(3) Receipt and Handling of Unpriced Technical Offers.Unpriced technical offers shall be opened publicly, identifying onlythe names of the bidders. Technical offers and modifications shallbe time stamped upon receipt and held in a secure place until theestablished due date. After the date established for receipt of bids, aregister of bids shall be open to public inspection and shall includethe name of each bidder, and a description sufficient to identify thesupply, service, or construction item offered. Prior to the award ofthe selection of the lowest responsive and responsible bidderfollowing phase two, technical offerors shall be shown only topurchasing agency personnel having a legitimate interest in them.Bidders may request nondisclosure of trade secrets and otherproprietary data identified in writing.(4) Evaluation of Unpriced Technical Offers. Theunpriced technical offers submitted by bidders shall be evaluatedsolely in accordance with the criteria set forth in the Invitation forBids. The unpriced technical offers shall be categorized as:(a) acceptable;(b) potentially acceptable, that is, reasonably susceptibleof being made acceptable; or(c) unacceptable. The procurement officer shall record inwriting the basis for finding an offer unacceptable and make it partof the procurement file.The procurement officer may initiate phase two of theprocedure if, in the procurement officer's opinion, there aresufficient acceptable unpriced technical offers to assure effectiveprice competition in the second phase without modification oralteration of the offers. If the procurement officer finds that this isnot the case, the procurement officer shall issue an amendment tothe Invitation for Bids or engage in technical discussions as set forthin subsection (5) of this section.(5) Discussion of Unpriced Technical Offers. Discussionof its technical offer may be conducted by the procurement officerwith any bidder who submits an acceptable or potentially acceptabletechnical offer. During the course of these discussions theprocurement officer shall not disclose any information derived fromone unpriced technical offer to any other bidder. Once discussionsare begun, any bidder who has not been notified that its offer hasbeen finally found unacceptable may submit supplementalinformation modifying or otherwise amending its technical offer atany time until the closing date established by the procurementofficer. This submission may be made at the request of theprocurement officer or upon the bidder's own initiative.(6) Notice of Unacceptable Unpriced Technical Offer.When the procurement officer determines a bidder's unpricedtechnical offer to be unacceptable, the officer shall notify the bidder.The bidders shall not be afforded an additional opportunity tosupplement technical offers.3-117 Mistakes During Multi-Step Sealed Bidding.Mistakes may be corrected or bids may be withdrawnduring phase one:(a) before unpriced technical offers are considered;10 UTAH STATE BULLETIN, January 15, 2012, Vol. 2012, No. 2
DAR File No. 35613NOTICES OF PROPOSED RULES(b) after any discussions have commenced under section3-116(5) (procedure for Phase One of Multi- Step Sealed Bidding,Discussion of Unpriced Technical Offers); or(c) when responding to any amendment of the Invitationfor Bids. Otherwise mistakes may be corrected or withdrawalpermitted in accordance with section 3-111.3-118 Carrying Out Phase Two.(1) Initiation. Upon the completion of phase one, theprocurement officer shall either:(a) open price bids submitted in phase one from bidderswhose unpriced technical offers were found to be acceptable;provided, however, that the offers have remained unchanged, andthe Invitation for Bids has not been amended; or(b) invite each acceptable bidder to submit a price bid.(2) Conduct. Phase two is to be conducted as any othercompetitive sealed bid procurement except:(a) as specifically set forth in section 3-114 throughsection 3-120 of these rules; and(b) no public notice need be given of this invitation tosubmit.3-119 Procuring Governmental Produced Supplies orServices.Purchasing agency requirements may be fulfilled byprocuring supplies produced or services performed incident toprograms such as industries of correctional or other governmentalinstitutions. The procurement officer shall determine whether thesupplies or services meet the purchasing agency's requirements andwhether the price represents a fair market value for the supplies orservices. If it is determined that the requirements cannot thus bemet or the price is not fair and reasonable, the procurement may bemade from the private sector in accordance with the UtahProcurement Code. When procurements are made from othergovernmental agencies, the private sector need not be solicited tocompete against them.3-120 Purchase of Items Separately from ConstructionContract.The procurement officer is authorized to determinewhether a supply item or group of supply items shall be included asa part of, or procured separately from, any contract for construction.3-121 Exceptions to Competitive Sealed Bid Process.(1) The Chief Procurement Officer, head of a purchasingagency or designee may utilize alternative procurement methods topurchase items such as the following when determined to be morepracticable or advantageous to the state.(a) Used vehicles(b) Livestock(2) Alternative procurement methods including informalprice quotations and direct negotiations may be used by the ChiefProcurement Officer, head of the purchasing agency or designee forthe following:(a) Hotel conference facilities and services(b) Speaker honorariums(3) Subject to the provisions of Section 63F-1-205,testing of new technology for a duration not to exceed themaximum time necessary to evaluate the technology may bepermitted. Public notice of the test and testing period shall beconducted under R33-3-4. Unless otherwise approved by the chiefprocurement officer or head of a purchasing agency, in no eventshall a contract entered into under this part or any testing periodexceed twelve consecutive months. Upon conclusion of the testperiod:(a) a determination has been made by the acquiringagency that the new technology is not advantageous to the acquiringagency; or(b) an open procurement shall be conducted under theserules.[(3)](4) Documentation of the alternative procurementmethod utilized shall be part of the contract file.3-130 Reverse Auctions.(1) Definition. In accordance with Utah Code AnnotatedSection 63G-6-402 a "reverse auction" means a process where:(a) contracts are awarded in a open and interactiveenvironment, which may include the use of electronic media; and(b) bids are opened and made public immediately, andbidders given opportunity to submit revised, lower bids, until thebidding process is complete.(2) Reverse auction is a two-phase process consisting of atechnical first phase composed of one or more steps in whichbidders submit unpriced technical offers to be evaluated against theestablished criteria by the purchasing agency, and a second phase inwhich those bidders whose technical offers are determined to beacceptable during the first phase submit their price bids through areverse auction.(3) Use. The reverse auction method will be used whenthe procurement officer deems it to the advantage of the purchasingagency.3-131 Pre-Bid Conferences in Reverse Auctions.Prior to the submission of unpriced technical offers, a prebidconference as contemplated by section 3-106 may be conductedby the procurement officer. The procurement officer may also holda conference of all bidders in accordance with section 3-106 at anytime during the evaluation of the unpriced technical offers, or toexplain the reverse auction process.3-132 Procedure for Phase One of Reverse Auctions.(1) Form. A reverse auction shall be initiated by theissuance of an Invitation for Bids in the form required by section 3-101. In addition to the requirements set forth in section 3-101, thereverse auction Invitation for Bids shall state:(a) that unpriced technical offers are requested;(b) that it is a reverse auction procurement, and pricedbids will be considered only in the second phase and only fromthose bidders whose unpriced technical offers are found acceptablein the first phase;(c) the criteria to be used in the evaluation of the unpricedtechnical offers;(d) that the purchasing agency, to the extent theprocurement officer finds necessary, may conduct oral or writtendiscussions of the unpriced technical offers;(e) that bidders may designate those portions of theunpriced technical offers which contain trade secrets or otherproprietary data which are to remain confidential; and(f) the manner which the second phase reverse auctionwill be conducted.(2) Amendments to the Invitation for Bids. After receiptof unpriced technical offers, amendments to the Invitation for Bidsshall be distributed only to bidders who submitted unpricedtechnical offers and they shall be allowed to submit new unpricedtechnical offers or to amend those submitted. If, in the opinion ofUTAH STATE BULLETIN, January 15, 2012, Vol. 2012, No. 2 11
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Utah State Bulletin, January 15, 2012, Vol. 2012, No. 2

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