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Generally, In accordance with section 3.24.170 of the City Code, the Chief Procurement Officer and City Engineer have determined that the matters set forth in this section are exempt from procurement requirements and shall be procured on any reasonable basis to meet the City's needs.
A. Elevators, Escalators, Moving Walkways and People Mover Systems. Contracts for the purchase, maintenance and repair of elevators, escalators, moving walkways and people mover systems.
B. Undercover Vehicles. Contracts for the procurement, maintenance and repair of undercover vehicles used by the Salt Lake Police Department.
C. Maintenance For Existing Software Systems. Contracts to maintain existing software systems in use by the City. In addition to overall system maintenance, this exemption includes upgrades, license renewals, and subscription renewals necessary for the continued and ongoing use of existing systems by the City.
D. Original Art. Contracts relating to the selection of artists; or otherwise addressing the creation, installation, maintenance, or restoration of original works of art, including but not limited to paintings, photographs, sculptures, and any related fabrication.
E. Governmental Relations Consultants and Lobbyists. Contracts for governmental relations consulting services and lobbyist services.
F. Realtors. Contracts for realtor or broker services related to the City's acquisition or disposition of interests in real property.
G. Executive Searches. Contracts for executive search services.
H. Donations. Contracts that are awarded to a specific supplier, service provider, or contractor to satisfy a condition imposed by a donation or grant that funds the full cost of the supply, service, or construction item.
I. State of Utah Cooperative Purchasing Contracts. Procurement contracts relating to or in conjunction with State of Utah cooperative purchasing contracts for commodities, goods, or services, including construction services or construction-related supplies and services, awarded and administered by the State of Utah that are available to be used by the City.
J Development of an International Airport. Contracts, including the procurement of construction and construction-related supplies or services of the Phase IV expansion of an international airport, or as otherwise necessary to facilitate uninterrupted construction activities for cost savings and consistent facilities when necessary to support planned airline growth, as determined by the City Engineer in consultation with the Director of Airport Design and Construction Management.
K. On-Call Construction and Construction-related Contracts at an International Airport. A pre-qualified pool of on-call contracts for the construction, maintenance, or repair of an international airport, and construction-related supplies or services at an ]\international airport, in excess of bid limits as permitted under state law, which limits are to be determined and established from time to time by the City Engineer, in consultation with the Director of Airport Design and Construction Management, so long as pool participation is publicly bid at a minimum of every three years.
(Revised September 2022)
2019 Compilation - Procurement (Formerly section xx)
A. Generally: This section applies certain laws to specific areas of City procurement. In addition to these requirements, the laws themselves should be reviewed.
B. Accessing And Managing Documents: It is the City's policy that the public should have open access to City records. However, in limited circumstances, records may be protected from disclosure under the Government Records Act. This section summarizes some parts of the Government Records Act. Any person seeking to use or comply with the Government Records Act must rely on the Act and not on this summary.
1. Providing Records: Most records should be provided to the public. Departments or divisions may charge a fee for providing records as set forth in section 2.64.040 of the City Code.
2. Requests For Confidentiality: A third party can ask that records be maintained confidentially only as follows:
a. Protecting Business Records: Some records relating to trade secrets, commercial information and nonindividual financial information can be protected from public disclosure if requested by the submitter.
(1) To make a claim of business confidentiality, a person must provide to the City with the record in question a written claim of business confidentiality, and a specific statement of the reasons supporting the claim. See also Utah Code Annotated section 63G-2-309.
(2) Whenever a record is submitted with a claim of business confidentiality, the City shall mark the record "confidential" and only allow access as specified under the Government Records Act (see subsection B5 of this section). Persons who request confidentiality must defend a challenge to that classification.
b. Confidentiality Agreements: The City shall not enter confidentiality agreements except as may be determined by the City Attorney's Office. Persons desiring confidentiality should examine and rely on the provisions of the Government Records Act.
3. Disclosing Of Bids, Proposals Or Other Submissions: The City may maintain bids, proposals and other submissions confidentially during certain periods.
a. Bids: Generally, the City should make bid documents available to the public after bidding has closed and bids are opened except where there is an appropriate reason to maintain confidentiality. Bids are confidential before that time.
b. Proposals: Generally, the City should make proposal documents available to the public after a contract has been signed except where there is an appropriate reason to maintain confidentiality. All materials are confidential before that time.
c. Exceptions: Under some circumstances, the City may deny access to bid or proposal documents beyond the times stated above. Those circumstances may arise where records are classified as confidential, or where disclosure would impair a procurement proceeding or give any person an unfair advantage. The City Attorney's Office should advise on particular situations.
d. Confidential Portions: Any request to obtain information in a bid or proposal that was submitted under a claim of business confidentially must be examined by the City Attorney's Office as specified in subsection B5 of this section.
4. Other Reasons For Protected Treatment: A variety of conditions can sometimes permit the City to protect records from public disclosure. Some (not all) are summarized below. Any person receiving a written request for records that may be protected shall immediately submit it to the City Attorney's Office as specified in subsection B5 of this section.
a. Records that would impair City procurement proceedings.
b. Records that would give an unfair advantage to any person proposing to enter into a contract with the City.
c. Records that would identify real or personal property, including intellectual property, or its appraised or estimated value, prior to an acquisition, sale, exchange, lease, rental or other transaction by the City.
d. Records that would interfere with a City investigation if disclosed.
e. Records that would jeopardize the security of governmental property, programs or record keeping systems.
f. Records relating to an ongoing or planned audit.
g. Records relating to litigation or an adversarial action.
h. Records relating to the work of a City Attorney, or communications with a City Attorney.
i. Drafts of any document.
j. Records relating to investigations and analysis of loss occurrences that may be covered by a Risk Management Fund.
k. Records supplied by another governmental agency on a confidential basis.
l. Records that would reveal negotiations regarding assistance or incentives encouraging a person to expand or relocate a business in Utah.
m. Records that would reveal information relating to proprietary rights owned by the City, including patents, copyrights and trade secrets.
n. Records describing an individual's finances.
o. Records containing data on individuals, the disclosure of which would constitute an unwarranted invasion of personal privacy.
5. Requests To Disclose Confidential Or Protected Records: Any person who receives a written request to disclose a record that may be subject to protection under the Government Records Act shall:
a. Immediately direct the written request to the City Attorney's Office. The City Attorney's Office will review the record and the request, and advise regarding what may be disclosed.
b. If the request is denied, it may be appealed as provided by law.
6. Employee's Obligations: City employees shall not knowingly refuse to permit access to records which are accessible under the Act, shall not knowingly permit improper access to records, and shall not knowingly and without authority dispose of, alter or remove records or permit others to do so. Reference section 2.64.110 of the City Code.
C. Records Retention Requirements: Each procurement unit shall maintain procurement related files in the manner that it shall determine, and that complies with State and local records retention requirements. (2019 Compilation)
A. Generally: Construction related procurement shall comply with State and Federal law and this section, in addition to the other provisions of the Procurement Code and Rules.
B. State Law Requirements For Construction: Procurement shall comply with the State laws referenced below, and all construction related procurement and contracts shall comply with the following:
1. Bidding Laws; When Applicable: Construction contracts must be bid under State law when they constitute the following. Utah Code Annotated section 11-39-101:
a. Building Improvements: Contracts in excess of an amount as determined by the City Engineer, or an adjusted sum allowed by State law, for the construction or repair of a public building or structure (not including construction or repair at an international airport).
b. Public Services: Contracts in excess of an amount as determined by the City Engineer, or an adjusted sum allowed by State law, for the construction of a park or recreational facility; or a pipeline, culvert, dam, canal or other system for water, sewage, stormwater or flood control (but not including the replacement or repair of existing infrastructure on private property, or construction or repair at an international airport).
c. Special Street Requirements: Any Class B or Class C road construction with a cost as determined by the City Engineer (adjusted as allowed by State law) for labor, equipment and materials must meet the requirements stated in subsection B5 of this section. These requirements do not apply to contracts for crack sealing, patching or work incidental to work for curbs, gutters and subsurface structures.
2. Bidding Laws; Minimum Requirements: At a minimum, bid processes must include the following:
a. For building improvements or for public works, as defined above, the City must create plans, specifications and a cost estimate.
b. If the cost estimate exceeds the bid limits stated in subsection B1 of this section, then the City must publish notice at least twice, and at least five (5) days before bid opening.
c. The City must enter a contract with the lowest responsive and responsible bidder, which means a prime contractor who has submitted a bid in compliance with the City's invitation, plans and specifications; is the lowest bidder that satisfies the City's criteria relating to financial strength, past performance, integrity, reliability and other factors used by the City to assess the contractor's ability to perform fully and in good faith; has furnished a bid bond or equivalent in money; and furnishes a payment and performance bond as required by law.
d. The City may reject any or all bids submitted. Procurement shall not be manipulated to avoid these requirements. If the City solicits twice and receives no satisfactory bid under these requirements, the City may proceed as appropriate.
e. These requirements do not apply to emergency repairs (as defined by State law), projects with costs estimated to be below the bid limits stated in subsection B1 of this section, or the conduct of the City's departments. Special requirements apply for Class B and C road construction. See subsection B5 of this section and Utah Code Annotated sections 72-6-108, 72-6-109.
3. Contractor Licensing: When evaluating any construction related bid, the following shall apply:
a. To receive a contract award, a contractor must be licensed in the State of Utah at the time of submitting a bid with an appropriate license to perform the work. See also Utah Code Annotated section 58-55-301.
b. The City may impose other licensing requirements, and when appropriate, may regard a lack of subcontractor licensing at the time of the general contractor's bid as a matter relating to the responsibility of the general contractor.
4. Contract: The following shall apply to any construction contract:
a. Bonds: Construction contractors must deliver performance and payment bonds for the full contract price. A procurement official may waive this requirement after consultation with the City Attorney's Office if bonds are unnecessary for the protection of the City. See also Utah Code Annotated sections 63G-6a-1101 et seq., 14-1-18 through 14-1-20.
b. Withheld Or Retained Payments: The City may withhold payments for poor performance or other work related reasons. Special requirements apply to retainage, where sums are withheld as security under the contract. To implement retainage, first consult with the Attorney's Office.
5. Special Streets Requirements: Any Class B or C road construction with a cost as determined by the City Engineer (adjusted as allowed by State law) for labor, equipment and materials must meet the requirements stated below. These requirements do not apply to contracts for crack sealing, patching, or work incidental to work for curbs, gutters and subsurface structures.
a. Construction and maintenance must be made pursuant to plans, specifications and estimates.
b. Notice of a bid must be published in a newspaper of general circulation in the county where the work is located at least once a week for three (3) consecutive weeks. The City has the right to reject any and all bids.
c. The City will make an award to the lowest responsive and responsible bidder. The person to whom the contract is awarded is subject to all the provisions of the State Procurement Code, title 63G, chapter 6a.
d. The work must be prepared and performed under the direct supervision of a registered professional engineer, who must certify to the City that the project conforms to the design and construction standards currently adopted by the American Association of State Highway and Transportation Officials. Utah Code Annotated sections 72-6-108, 72-6-109.
C. Construction Management: The City shall have flexibility to address the City's needs when procuring and managing construction.
1. Selection Of Management Type: A procurement official shall select the type of construction management that will protect and benefit the City in light of the City's needs and resources. Factors to consider may include:
a. The type of contract that is appropriate. Factors relating to contract selection are stated in subsection 53-1A-10B of this article.
b. The need for and availability of outside consultants.
c. The experience, qualifications and availability of City personnel assigned to the project.
d. Requirements related to project financing.
e. The needs of the project.
f. The administrative burden imposed by the method selected.
2. Types Of Construction Management: The procurement official may select any combination of the following construction management methods, or other methods, as appropriate:
a. Single Prime Contractor: A single general contractor is responsible to complete an entire project in accordance with the contract, and may subcontract portions of the work.
b. Multiple Prime Contractors: A number of specialty contractors complete portions of the project pursuant to contracts with the City. The City or one of the contractors may have primary responsibility for completion or coordination of the entire project.
c. Design Build Or Turnkey: A single contractor or team is responsible to both design and construct the project to meet performance criteria specified by the City.
d. Construction Manager: A qualified person is responsible to coordinate the design and construction of the project, and may oversee a variety of functions such as time, cost, quality and administration of change orders. The person may have some construction responsibilities as well.
e. Sequential Design And Construction: The project's design is substantially completed before construction begins.
f. Phased Design And Construction Or Fast Track Construction: The project's construction begins after portions of the design are substantially complete, but design continues during the construction. (2019 Compilation)
A. General Provisions: Controversies and protests shall be conducted in accordance with the requirements set forth in title 3, chapter 3.24 of the City Code, including those parts of the Utah Procurement Code (specifically parts 16 through 19 of Utah Code Annotated chapter 63G-6a) expressly adopted under section 3.24.210 of the City Code, or its successor section. All definitions in the foregoing adopted parts of the Utah Procurement Code shall apply to this rule unless otherwise specified in this rule. This Administrative Rule provides additional requirements and procedures and must be used in conjunction with title 3, chapter 3.24 of the City Code.
B. Grounds For A Protest:
1. This rule shall apply to all protests filed under title 3, chapter 3.24 of the City Code.
2. In accordance with the requirements set forth in Utah Code Annotated section 63G-6a-1602(4)(a)(ii), a person filing a protest must include a concise statement of the grounds upon which the protest is made.
a. A concise statement of the grounds for a protest should include the relevant facts leading the protestor to contend that a grievance has occurred, including, but not limited to, specifically referencing:
(1) An alleged violation of title 3, chapter 3.24 of the City Code;
(2) An alleged violation of the City's Administrative Rules governing procurement matters;
(3) A provision of the request for proposals, invitation for bids, or other solicitation allegedly not being followed;
(4) A provision of the solicitation alleged to be:
(A) Ambiguous;
(B) Confusing;
(C) Contradictory;
(D) Unduly restrictive;
(E) Erroneous;
(F) Anticompetitive; or
(G) Unlawful;
(5) An alleged error made by the selection committee or procurement unit;
(6) An allegation of bias by the selection committee or an individual committee member; or
(7) A scoring criteria allegedly not being correctly applied or calculated.
b. "Facts and evidence" as referred to in Utah Code Annotated section 63G-6a-1602(4)(a)(ii), in addition to being relevant, must be specific enough to enable the Protest Officer to determine, if such facts are proven to be true, whether a legitimate basis for the protest exists.
c. None of the following qualify as a concise statement of the grounds for a protest:
(1) Claims made after the opening of bids or closing date of proposals that the specifications, terms and conditions, or other elements of a solicitation are ambiguous, confusing, contradictory, unduly restrictive, erroneous or anticompetitive;
(2) Vague or unsubstantiated allegations that do not reference relevant or specific facts, including, but not limited to, vague or unsubstantiated allegations by a bidder, offeror or prospective contractor that:
(A) A bidder, offeror or prospective contractor should have received a higher score or that another bidder, offeror or prospective contractor should have received a lower score;
(B) A service or product provided by a bidder, offeror or prospective contractor is better than another bidder's, offeror's or prospective contractor's service or product;
(C) Another bidder, offeror or prospective contractor cannot provide the procurement item for the price bid or perform the services described in the solicitation; or
(D) Any item listed in Utah Code Annotated section 63G-6a-1602 has occurred that is not relevant or specific;
(3) Filing a protest requesting:
(A) A detailed explanation of the thinking and scoring of selection committee members;
(B) Protected information beyond what is provided under the disclosure provisions of Utah Code Annotated section 63G-2-305 or its successor section; or
(C) Other information, documents or explanations reasonably deemed to be not in compliance with the Salt Lake City Code or this rule by the Protest Officer.
C. Dismissal: In accordance with Utah Code Annotated section 63G-6a-1603(2), a Protest Officer may dismiss a protest if the concise statement of the grounds for filing a protest does not comply with this rule.
D. Verification Of Legal Authority: A person filing a protest may be asked to verify that the person has legal authority to file a protest on behalf of the public or private corporation, governmental entity, sole proprietorship, partnership or unincorporated association.
E. Intervention In A Protest:
1. Application: This rule contains provisions applicable to intervention in a protest, including who may intervene and the time and manner of intervention.
2. Period Of Time To File: After a timely protest is filed in accordance with the Salt Lake City Code, the Protest Officer shall notify awardees of the subject procurement and may notify others of the protest. A motion to intervene must be filed with the Protest Officer no later than ten (10) days from the date such notice is sent by the Protest Officer. Only those motions to intervene made within the time prescribed in this rule will be considered timely. The entity or entities who conducted the procurement and those who are the intended beneficiaries of the procurement are automatically considered a party of record and need not file any motion to intervene.
3. Contents Of A Motion To Intervene: A copy of the motion to intervene shall also be mailed or e-mailed to the person protesting the procurement.
4. Statement: Any motion to intervene must state, to the extent known, the position taken by the person seeking intervention and the basis in fact and law for that position. A motion to intervene must also state the person's interest in sufficient factual detail to demonstrate that:
a. The person seeking to intervene has a right to participate which is expressly conferred by statute or by City rule, order or other action; and
b. The person seeking to intervene:
(1) Has or represents an interest which may be directly affected by the outcome of the proceeding, including any interest as a:
(A) Consumer;
(B) Customer;
(C) Competitor;
(D) Security holder of a party; or
(2) The person's participation is in the public interest.
5. Granting Of Status: If no written objection to the timely motion to intervene is filed with the Protest Officer within seven (7) calendar days after the motion to intervene is received by the protesting person, the person seeking intervention becomes a party at the end of this seven (7) day period if that person has otherwise complied with the requirements for intervention set forth in this subsection. If an objection is timely filed, the person seeking intervention becomes a party only when the motion is expressly granted by the Protest Officer based on a determination that a reason for intervention exists as stated in this rule. Notwithstanding any provision of this rule, an awardee of the procurement that is the subject of a protest will not be denied their motion to intervene, regardless of its content, unless it is not timely filed with the Protest Officer.
6. Late Motions: If a motion to intervene is not timely filed, the motion shall be denied by the Protest Officer.
F. Protest Officer May Correct Noncompliance, Errors And Discrepancies: At any time during the protest process, if it is discovered that a procurement is out of compliance with any part of the Salt Lake City Code or Administrative Rules, including errors or discrepancies, the Protest Officer or Chief Procurement Officer may take administrative action to correct or amend the procurement to bring it into compliance, correct errors or discrepancies or cancel the procurement.
G. Adoption Of Utah Administrative Rule R33-17, Procurement Appeals Board: The City hereby adopts the provisions of Utah Administrative Rule R33-17, Procurement Appeals Board, or its successor Administrative Rule.
H. Adoption Of Utah Administrative Rule R33-18, Appeals To Court And Court Proceedings: The City hereby adopts the provisions of Utah Administrative Rule R33-18, Appeals to Court and Court Proceedings, or its successor Administrative Rule. (2019 Compilation)
A. Generally: The City may make use of any appropriate remedies, including the following, with respect to procurement and contracts. This section shall not be construed to limit any contractual remedies or any other remedies available to the City. Notice of any actions taken or determinations made by a procurement official under this article shall be sent to the Chief Procurement Officer for operational supplies and services, or to the City Engineer for construction related supplies and services. When taking any action, a procurement official shall determine whether consultation with the City Attorney's Office may be appropriate.
B. Temporary Suspension: A procurement official may issue a temporary suspension as follows:
1. Basis For Temporary Suspension: Any matter which a procurement official reasonably believes may be detrimental to the City's interest may be the basis for a temporary suspension. Such matters may include, without limitation:
a. Allegations that the person has caused any damage to City property.
b. Allegations that the person has damaged the property of others during the pursuit of City business.
c. Allegations of a failure to perform any contractual obligation, including, without limitation, the obligation to make payment to or on behalf of the City.
d. Allegations that the person has committed a criminal, ethical or other violation that may impact the person's responsibility as a contractor, or cause the City to lose confidence in the person or the performance.
e. Allegations of a lack of adequate skill or capacity to perform, or of poor workmanship.
f. Allegations that the person is creating an unsafe condition.
2. Issuing Temporary Suspension: A procurement official may issue a temporary suspension by delivering notice of the suspension in writing to the affected party. Notice shall include the following:
a. The names of all parties affected.
b. The basis on which the City has issued the temporary suspension, including the circumstances which the affected parties must explain to the procurement official.
c. A statement that the temporary suspension will continue until the affected parties have explained the circumstances to the satisfaction of the procurement official, or until the procurement official has reviewed the circumstances and determined how to proceed.
d. A statement that the City will not permit any claims for delays or damages associated with this suspension.
e. Any conditions under which procurement or performance activities may continue, or other terms applicable to the suspension. The procurement official may impose any reasonable conditions that protect the City.
3. Effect Of Temporary Suspension: Upon receipt of a temporary suspension, the affected persons shall suspend all efforts to participate in a City procurement process or perform a City contract to the extent directed in the suspension. A suspension shall not be allowed as a reason to seek payment or damages from the City.
4. Review: The procurement official shall promptly take any actions appropriate to review the circumstances which prompted the temporary suspension. Such actions may include, without limitation:
a. Requesting any information from the affected persons that the City determines to be relevant to its inquiry. Failure to provide such information may be considered by the City in taking any action.
b. Investigating any matter.
c. Requiring the affected persons to demonstrate that the City's concerns have been adequately addressed.
5. Determination: After reviewing the circumstances, the procurement official shall promptly give the affected persons written notice of the determination, and place a copy in the procurement file. A determination may be as follows:
a. Lift Temporary Suspension: The procurement official may determine that the affected persons have adequately addressed the City's concerns, and that the temporary suspension is lifted.
b. Affected Persons' Action Required: The procurement official may determine that the affected persons must take specific actions to adequately address the City's concerns. The affected persons will continue to be temporarily suspended on terms specified by the procurement official until the specific actions have been taken, and the affected persons have demonstrated to the official's satisfaction that the City's concerns have been adequately addressed. The procurement official may partially lift the temporary suspension as appropriate.
c. Initiate Other Proceedings: The procurement official may determine that the affected persons have not adequately addressed the City's concerns, whether initially or after action by the affected persons. At such time, the procurement official may commence suspension or debarment proceedings, or may take any other appropriate action.
C. Suspension Pending Legal Processes: A procurement official may issue a suspension pending legal processes as follows:
1. Basis For Suspension Pending Legal Processes: Without limitation, the following may provide a basis for issuing this suspension when it creates concerns regarding a party's performance, cooperation, responsibility, good will or other concerns:
a. The person is involved in a litigation, administrative hearing, dispute resolution process or other legal process and that person's position is adverse to the City.
b. The person is the subject of an indictment that has bearing on procurement, contract or ethical matters.
c. The person is the subject of an investigation or debarment proceeding by another governmental entity.
d. The person is involved in legal matters that cause the City to lose confidence in the person's ability to perform, responsibility as a contractor, ability to work cooperatively with the City, or other concern.
2. Issuing Suspension Pending Legal Processes: A procurement official may issue a suspension pending legal processes by delivering notice of the suspension in writing to the affected party. Notice shall include the following:
a. The names of all persons affected.
b. The basis on which the City has issued the suspension, including the specific legal processes causing concern to the City.
c. A statement that the suspension shall remain in effect until the affected persons demonstrate to the procurement official's satisfaction that the legal process and the City's concerns have been resolved.
d. A statement that the City will not permit any claims for delays or damages associated with this suspension.
e. Any conditions applicable to the suspension. The procurement official may impose any reasonable conditions that protect the City.
3. Lifting The Suspension: The procurement official shall lift a suspension pending legal processes when the affected persons demonstrate to the official's satisfaction that there is a resolution to the legal processes in question, and the resolution resolves the City's concerns for performance, cooperation, responsibility, good will or other concerns.
D. Suspension: A procurement official may issue a suspension as follows:
1. Basis For Suspension: Cause sufficient to issue a suspension may include such matters as the following:
a. After reviewing any matter, whether or not in connection with a temporary suspension, the procurement official determines that circumstances exist that are likely to adversely impact the City's interests.
b. The procurement official determines that there has been a material violation of a contract or a procurement process.
c. The procurement official determines that circumstances exist which cause the City to lose confidence in the affected person's ability to perform, responsibility as a contractor, ability to work cooperatively or other concern.
d. Any basis for which a person could be debarred.
2. Issuing Suspension: A procurement official may issue a suspension as follows:
a. The procurement official shall notify the affected persons in writing of the allegations that the City believes may justify issuing a suspension against them.
b. The procurement official shall form a hearing panel consisting of two (2) procurement officials. The procurement officials may involve other persons that they believe may be beneficial to assisting with a determination. The City Attorney's Office shall provide legal counsel to the hearing panel.
c. The hearing panel shall provide the affected persons a reasonable opportunity to be heard in response to the City's allegations. The affected persons shall have opportunity to present all matters of fact and law in support of their objections to the City's allegations.
d. After hearing the affected persons, the hearing panel may request any information, or deliberate the matter as they shall determine.
e. The hearing panel shall make a determination, and shall deliver its written determination to the affected persons. If it issues a suspension, the notice of suspension shall include the following:
(1) The names of all persons affected.
(2) The basis on which the City has issued the suspension.
(3) Any conditions relevant to the suspension.
(4) A statement that the suspension will remain in effect until the affected persons request reinstatement, and demonstrate to the City's satisfaction that the City's concerns have been resolved. The statement shall include any specific conditions which the affected persons must demonstrate.
3. Reinstatement: The hearing panel shall lift a suspension when the affected persons request reinstatement, and demonstrate to the City's satisfaction that the City's concerns have been resolved.
E. Debarment: A procurement official may issue a debarment as follows:
1. Basis For Debarment: Causes for debarment may include, but are not limited to, the following:
a. Admission of or conviction for a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of a contract or subcontract.
b. Admission of or conviction under State or Federal Statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which seriously and directly affects responsibility as a City contractor.
c. Admission of or conviction under State or Federal Antitrust Statutes.
d. Failure without good cause to perform in accordance with the terms of a contract.
e. A violation of contract provisions which affects responsibility of the contractor or gives rise to concern for protecting the City's interest.
f. A lack of experience, or the performance of past or present work not acceptable to the City, which affects responsibility of the contractor or gives rise to concern for protecting the City's interest.
g. Violation of any local, State or Federal ethical requirements.
h. Any other cause determined to be so serious and compelling as to affect responsibility as a City contractor, including debarment by another governmental entity.
2. Issuing Debarment: A procurement official may issue a debarment as follows:
a. A procurement official shall notify the affected persons in writing of allegations the City believes may justify issuing a debarment against them.
b. The procurement official shall form a hearing panel consisting of two (2) procurement officials. The procurement officials may involve other persons that they believe may be beneficial to assisting with a determination. The City Attorney's Office shall provide legal counsel to the hearing panel.
c. The hearing panel shall provide the affected persons a reasonable opportunity to be heard in response to the City's allegations. The affected persons shall have opportunity to present all matters of fact and law in support of their objections to the City's allegations.
d. After hearing the affected persons, the hearing panel may request any information, or deliberate the matter as they shall determine.
e. The hearing panel shall make a determination, and shall deliver its written determination to the affected persons. If it issues a debarment, the notice of debarment shall include the following:
(1) The names of all persons affected.
(2) The basis on which the City has issued the debarment.
(3) Any conditions relevant to the debarment.
(4) The duration of the debarment, which shall be for no less than three (3) years.
(5) A statement that the debarment will remain in effect for the stated period, and thereafter until the affected persons request reinstatement, and demonstrate to the City's satisfaction that the City's concerns have been resolved. The statement shall include any specific conditions which the affected persons must demonstrate.
3. Reinstatement: The hearing panel shall lift a debarment after the stated duration passes and after the affected persons request reinstatement, and demonstrate to the City's satisfaction that the City's concerns have been resolved.
F. Records: The City shall maintain records under this article as follows:
1. Records Of Actions: Procurement officials who take any action under this article shall maintain records reflecting the matters reviewed and determinations issued in connection with the action.
2. Centralized List: The Chief Procurement Officer shall maintain a list showing all determinations issued under this article by any procurement official that are adverse to any person. (2019 Compilation)
A. Generally: This section is adopted to implement a Value Based Procurement Program to help the City determine who is a responsible bidder or offeror during a procurement process when bids are close. The City is implementing this program to promote the City's interests in quality, cost effective contracting. The City has examined the experience of its procurement units, and the experience of other communities, and finds that certain practices add value to the performance of City contracts. This program is therefore adopted for the following purposes:
1. To promote value in City contracting by preferring responsible contracting parties that can better provide value in contracted services.
2. To reduce the City's burden of administering poorly performed contracts and minimize overall costs to the City.
3. To encourage the development of responsible bidders and offerors in the bid pool who can deliver appropriate value to the City.
B. Applicability:
1. Generally: This section applies to contracts for operational and construction related services. However, it shall not apply to any subcontractor, or to any of the following contracts: contracts not subject to title 3, chapter 3.24 of the City Code; contracts subject to sections 3.24.115, 3.24.140, 3.24.150, 3.24.160 and 3.24.170 of the City Code; contracts subject to sections 53-1A-12, 53-1A-14 and 53-1A-15 of this article; selections based only on qualifications or where price is not the determinative factor for selecting a proposal; Federally funded contracts; and contracts for supplies.
2. Affected Dollar Range: When this program is applicable under subsection B1 of this section, this program will only affect bids or offers that fall within the following dollar ranges:
a. For contracts with an estimated value of two hundred fifty thousand dollars ($250,000.00) or less, the program will apply to all bids or offers that fall within two percent (2%) of the lowest amount submitted.
b. For contracts with an estimated value of more than two hundred fifty thousand dollars ($250,000.00) but less than one million dollars ($1,000,000.00), the program will apply to all bids or offers that fall within one-half percent (1/2%) of the lowest amount submitted, plus five thousand dollars ($5,000.00).
c. For contracts with an estimated value of one million dollars ($1,000,000.00) or more, the program will apply to all bids or offers that fall within ten thousand dollars ($10,000.00) of the lowest amount submitted.
C. Determining Responsibility:
1. The City has determined that contractors provide a more appropriate value to the City and are more responsive to the City's needs when certain practices enhance the contractor's work environment, and that a modest preference is appropriate to obtain the benefit of those practices. The City has examined the following factors and found them to be of benefit to promoting value in City contracting. The City shall therefor consider these factors when evaluating the responsibility of a bidder or proposer whenever this program applies, and shall weigh these factors according to the scale stated below.
2. When this program is applicable, and if bids or offers are otherwise responsive, responsible and proper, the City will further evaluate responsibility by determining which bidder or offeror can demonstrate the most points based on the following factors (as defined below):
Factor | Points |
Policy of nondiscrimination | 1/2 |
Sponsorship of State compliant apprenticeship program(s) | 1/2 |
Use of a pre-employment and "for cause" drug testing program | 1/2 |
Local small business | 1/2 |
D. Definition Of Factors:
1. Policy Of Nondiscrimination Factor: This factor is defined to include bidders or offerors that have adopted and implemented a written company policy stating they will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin or sexual orientation. For purposes of this factor, "sexual orientation" means the status of being lesbian, gay, transgender, bisexual or heterosexual.
2. State Compliant Apprenticeship Program Factor: This factor is defined to include bidders or offerors that have conducted an apprenticeship during the twelve (12) month period preceding the submission of a bid or offer that is consistent with the requirements of Utah Code Annotated title 35A, chapter 6 (or any successor Act), and the requirements of the U.S. Department of Labor Bureau of Apprenticeship and Training.
3. Pre-Employment And "For Cause" Drug Testing Program Factor: This factor is defined to include bidders or offerors that have adopted and implemented a written company policy creating a drug testing program for pre-employment and for testing based on cause consistent with the requirements stated in Utah Code Annotated title 34, chapter 38 (Private Employers), Utah Code Annotated title 34, chapter 41 (Local Governmental Entities) or Utah Code Annotated title 67, chapter 19 (State), or any successor Acts.
4. Local Small Business Factor: This factor is defined to include bidders or offerors that have a fixed office or distribution point within City boundaries, possess a City business license stating a City address, employ no more than thirty (30) full time employees (meaning employees working 40 hours per week, 50 weeks per year), and have annual gross revenues not in excess of one million dollars ($1,000,000.00).
E. Consideration And Award: In any procurement process subject to this program, the City will consider all of the matters set forth in section 53-1A-9 of this article before evaluating whether this program applies to a given contract. The City shall then determine whether this section applies. If it applies, the City shall apply the factors set forth in this section to further evaluate the responsibility of the bidder or proposer to provide value to the City. The City shall make an award, if any, to the bidder or proposer who meets all of the foregoing requirements that apply. The City will develop forms to assist bidders and offerors in connection with this program, and may adopt policies or other measures to help evaluate submissions and resolve protests consistent with the Procurement Code, and as determined by a procurement official. This program will not be construed to prevent the City from implementing any other procurement measures. Every provision of this section is intended to be severable for the benefit of City contracting, and if any provision is later found to be invalid or unenforceable, such a determination will not affect the remainder or any other provision of this section.
F. Contract: When the program applies, the contract for the procurement in question will require the party entering the contract to maintain its implemented policy of nondiscrimination, its apprenticeship program and its drug testing program throughout the duration of the contract if those factors were considered when awarding the contract. The contract will also provide that the City can recover liquidated damages if the party fails to maintain any factor considered when awarding the contract. (2019 Compilation)
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