Current through Bulletin 2024-18, September 15, 2024
(1) Considerations
for Use. Competitive sealed proposals, which shall be solicited through a
request for proposals, may be used, if:
(a)
there may be a need for price and service negotiation;
(b) there may be a need for negotiation
during performance of the contract;
(c) the relative skills or expertise of the
offerors should be evaluated;
(d)
characteristics of the product or service sought is important; or
(e) the conditions of the service, product or
delivery conditions are unable to be sufficiently described in the invitation
for bids.
(2)
Determinations.
(a) Before a contract may be
entered into by competitive sealed proposals, the executive director shall
determine in writing that the use of competitive sealed proposals is more
advantageous for state purposes than competitive sealed bidding.
(b) Determinations may be by category of
service or construction items. The executive director may modify or revoke a
determination and may review previous determinations for current applicability
at any time. Competitive sealed proposals may be used for the procurement of
services of consultants, professionals, contractors and any other entity sought
for procurement by the executive director or the board.
(3) Public Notice. Public notice of the
request for proposals shall be given in the same manner provided for giving
public notice of an invitation for bids, as provided by
R131-4-401.
(4) Proposal Preparation Time. Proposal
preparation time is the period of time between the date of first publication of
the notice and the date and time set for the receipt of proposals by the board
or executive director. For each project, a proposal preparation time-frame
shall be included to provide offerors a reasonable time to prepare their
proposals, not less than ten calendar days, unless a shorter time is deemed
necessary.
(5) Form of Proposal.
The request for proposals may state the manner in which proposals are to be
submitted, including any forms for that purpose.
(6) Addenda to Requests for Proposals.
Addenda to the requests for proposals may be made in the same manner provided
for addenda to the bidding documents in connection with invitations for bids by
this rule. Addenda may also be issued to qualified proposers after the deadline
for proposals and prior to the deadline for best and final offers.
(7) Modification or Withdrawal of Proposals.
Proposals may be modified or withdrawn prior to the established due date. For
the purposes of this rule, the established due date will be either the date and
time announced for receipt of proposals or receipt of modifications to
proposals, if any; or if discussions have begun, it is the date and time by
which best and final offers must be submitted, provided that only offerors who
submitted proposals by the time announced for receipt of proposals may submit
best and final offers.
(8) Late
Proposals, Late Withdrawals, or Late Modifications: Except for modifications
allowed pursuant to negotiation, any proposal, withdrawal, or modification
received at the place designated for receipt of proposals after the established
due date as defined in this rule shall be deemed to be late and shall not be
considered unless there are no other offerors.
(9) Receipt and Registration of Proposals.
(a) Proposals shall be opened publicly, and
shall only identify the names of the offerors in public. Proposals shall be
opened so as to avoid disclosure of contents to competing offerors during the
process of negotiation. Proposals and modifications shall be held in a secure
place until the established due date.
(b) After the date established for receipt of
proposals, a register of proposals shall be open to public inspection and shall
include for all proposals the name of each offeror, the number of addenda
received, if any, and a description sufficient to identify the supply, service,
or construction item offered. Prior to award, proposals and modifications shall
be shown only to procurement and other officials involved with the review and
selection of proposals who shall adhere to the requirements of GRAMA and this
rule.
(10) Evaluation of
Proposals.
(a) Evaluation Factors in the
Request for Proposals. The request for proposals shall be prepared in a manner
to assure maximum practicable competition, state all of the evaluation factors
as well as the relative importance of price and other evaluating
factors.
(b) Evaluation. The
evaluation shall be based on the evaluation factors set forth in the request
for proposals. Numerical rating systems may be used but are not
required.
(c) Classifying
Proposals. Proposals shall be initially classified as:
(i) Acceptable;
(ii) Potentially acceptable, that is, having
the possibility of being made acceptable; or
(iii) Unacceptable. Offerors whose proposals
are unacceptable shall be so notified.
(11) Proposal Discussions with Individual
Offerors.
(a) "Offerors" means only those
responsible persons submitting proposals that are acceptable or potentially
acceptable, the number of which may be limited to no less than the two best
proposals. This shall not include persons who submitted unacceptable
proposals.
(b) Purposes of
Discussions. Discussions may be held in order to:
(i) review the board's requirements and the
offerors' proposals; and
(ii)
facilitate the development of a contract that will be most advantageous to the
board, taking into consideration price and other evaluation factors listed in
the request for proposals.
(c) Conduct of Discussions. Offerors shall be
accorded fair and equal treatment with respect to any opportunity for
discussions and revisions of proposals. Discussions may be conducted for the
purpose of assuring full understanding of, and responsiveness to, solicitation
requirements. Offerors shall be accorded fair and equal treatment with respect
to any opportunity for discussion and revision of proposals, and revisions may
be permitted after submissions and before the contract is awarded for the
purpose of obtaining best and final offers. There shall be no disclosure of any
information derived from proposals submitted by competing offerors except as
otherwise provided by this rule or law. Any oral clarification or change of a
proposal shall be reduced to writing by the offeror.
(12) Best and Final Offers. The executive
director shall establish a common time and date to submit best and final
offers. These shall be submitted only once unless the executive director makes
a written determination before each subsequent round of best and final offers
that another round is in the best interest of the state, and additional
discussions will be conducted or the requirements may be changed. Otherwise, no
discussion of, or changes in the best and final offers shall be allowed prior
to award. If offerors do not submit a notice of withdrawal or another best and
final offer, their immediate previous offer will be construed as their best and
final offer.
(13) Mistakes in
Proposals.
(a) Mistakes discovered before the
established due date. An offeror may correct mistakes discovered before the
time and date established for receipt of proposals by withdrawing or correcting
the proposal as provided in R131-4-408.
(b) Confirmation of proposal. When it appears
from a review of the proposal before an award is made, that a mistake has been
made, the offeror shall be asked to confirm the proposal. If the offeror
alleges that a mistake occurred, the proposal may be corrected or withdrawn
during any discussions that are held or the conditions listed below, by this
rule, are met.
(c) Mistakes
discovered after receipt but before award. This Subsection defines procedures
to be applied in four situations in which mistakes in proposals may be
discovered after receipt of proposals but before award.
(i) During discussions; prior to best and
final offers. Once discussions are commenced with any offeror or after best and
final offers are requested, any offeror may freely correct any mistake by
modifying or withdrawing the proposal until the time and date set for receipt
of best and final offers.
(ii)
Minor formalities. Minor formalities, unless otherwise corrected by an offeror
as provided in this Section, shall be treated in accordance with this
rule.
(iii) Corrections of
mistakes. If discussions are not held or if the best and final offers upon
which award will be made have been received, mistakes may be corrected and the
correct offer considered only if:
(A) the
mistakes and the correct offer are clearly evident on the face of the proposal
in which event the proposal may not be withdrawn;
(B) the mistake is not clearly evident on the
face of the proposal, but the offeror submits proof of evidentiary value which
clearly and convincingly demonstrates both the existence of a mistake and the
correct offer, and the correction of the mistake would not be contrary to the
fair and equal treatment of other offerors.
(iv) Withdrawals of proposals. If discussions
are not held, or if the best and final offers upon which award will be made
have been received, offeror may be permitted to withdraw a proposal if:
(A) a mistake was made that is clearly
evident on the face of the proposal and the intended amount of the offer is not
evident; or
(B) the offeror submits
proof of evidentiary value which clearly and convincingly demonstrates that a
mistake was made that it does not demonstrate the correct offer or, if the
correct offer is also demonstrated, to allow correction on the basis the proof
provided would not be contrary to the fair and equal treatment of other
offerors.
(d)
Mistakes discovered after award. An offeror shall be bound to all terms,
conditions and statements in offeror's proposal after award of the
contract.
(14) Award.
(a) Award Documentation. A written
determination shall be made showing the basis on which the award was found to
be most advantageous to the state based on the factors set forth in the request
for proposals. No other factors or criteria shall be used in the evaluation.
The contract file shall contain the basis on which the award is made.
(b) One proposal received. If only one
proposal is received in response to a request for proposals, the executive
director may make an award or, if time permits, resolicit for the purpose of
obtaining additional competitive sealed proposals.
(15) Publicizing Awards.
(a) Notice. After the selection of the
successful offeror, notice of award shall be available in the executive
director's office in Salt Lake City, Utah and may be available on the
Internet.
(b) Information
Disclosed. The following shall be disclosed with the notice of award:
(i) the rankings of the proposals;
(ii) the names of the selection committee
members;
(iii) the amount of each
offeror's cost proposal;
(iv) the
final scores used by the selection committee to make the selection, except that
the names of the individual scorers shall not be associated with their
individual scores; and
(v) the
written justification statement supporting the selection.
(c) Information Classified as Protected.
After due consideration and public input, the following has been determined by
the board to impair governmental procurement proceedings or give an unfair
advantage to any person proposing to enter into a contract with the board and
shall be classified as protected records:
(i)
the names of individual selection committee scorers in relation to their
individual scores or rankings; and
(ii) non-public financial
statements.
(16) Confidentiality of Performance
Evaluations and Reference Information. 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 Subsections
63G-2-305 and
shall be disclosed only to those persons involved with the performance
evaluation, the contractor that the information addresses and procurement and
other officials involved with the review and selection of proposals. The
executive director may, however, provide reference information to other
governmental entities for use in their procurement activities and to other
parties when requested by the contractor 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.
