Utah Admin. Code R33-101-101 - Definitions

(1) Terms used in the procurement rules are defined in Section 63G-6a-103.

(2) In addition:

(a) "Award" means the identification and selection of a vendor who may, upon satisfying the procurement unit's due diligence inquiry, contract with the state or procurement unit as the result of a standard procurement process or an exception allowed under Title 63G, Chapter 6a, Part 8, Exceptions to procurement requirements. Unless otherwise explicitly written in the standard procurement process or exception award documentation, an award or notice of an award does not create or constitute a binding contract until the resulting contract has been fully executed by each party and approving authority, or the purchase order documentation has been signed and delivered to the awarded vendor.

(b) "Bias" means:

(i) a predisposition or a preconceived opinion that prevents an individual from impartially performing any duty or responsibility in Title 63G, Chapter 6a, Utah Procurement Code, or other applicable law or rule; or

(ii) a prejudice in favor of or against a thing, individual, or group that results in an action or treatment that a reasonable person would consider to be unfair or have the appearance of being unfair.

(c) "Bid Bond" is an insurance agreement, accompanied by a monetary commitment, by which a third party accepts liability and guarantees that the bidder will not withdraw the bid. The bidder will furnish bonds in the required amount and if the contract is awarded to the bonded bidder, the bidder will accept the contract as bid, or else the surety will pay a specific amount.

(d) "Bid Rigging" means an agreement among potential competitors to manipulate the competitive bidding process, for example, by agreeing not to bid, to bid a specific price, to rotate bidding, or to give kickbacks.

(e) "Bid Security" means the deposit of cash, certified check, cashier's check, bank draft, money order, or bid bond submitted with a bid and serving to guarantee to the owner that the bidder, if awarded the contract, will execute such contract in accordance with the bidding requirements and the contract documents.

(f) "Brand Name or Equal Specification" means a specification which uses a brand name specification to describe the standard of quality, performance, and other characteristics being solicited, and which invites the submission of equivalent products.

(g) "Brand Name Specification" means a specification identifying one or more products by manufacturer name, product name, unique product identification number, product description, SKU, or catalog number.

(h) "Collusion" means when two or more persons act together to achieve a fraudulent or unlawful act. Collusion inhibits free and open competition in violation of law.

(i) "Cost Analysis" means the evaluation of cost data to arrive at estimates of costs to be incurred, prices to be paid, costs to be reimbursed, or costs actually incurred.

(j) "Cost Data" means factual information concerning the cost of labor, material, overhead, and other cost elements expected to be incurred or that have been actually incurred by the contractor in performing the contract.

(k) "Evaluation Criteria" means the objective or subjective criteria that will be used to evaluate a vendor's solicitation response.

(l) "Mandatory Requirement" means a condition set out in the specifications or statement of work that must be met without exception.

(m) "New Technology" means any invention, discovery, improvement, or innovation, that was not available to the acquiring agency on the effective date of the contract, whether or not patentable, including:

(i) new processes, emerging technology, machines, and improvements to, or new applications of, existing processes, machines, manufactures, and software;

(ii) new computer programs, and improvements to, or new applications of, existing computer programs, whether or not copyrightable; and;

(iii) any new process, machine, including software, and improvements to, or new applications of, existing processes, machines, manufactures, and software.

(n) "Objective Criteria" means the solicitation criteria that will be evaluated and scored based solely on the measurable and verifiable facts, evidence, and documentation provided in each vendor's solicitation response.

(o) "Payment Bond" is a bond that guarantees payment for labor and materials expended on the contract.

(p) "Performance Bond" means a promise to pay the obligee or owner a certain amount if the principal or contractor fails to meet some obligation, such as fulfilling the terms of a contract.

(q) "Person" means:

(i) an individual;

(ii) an association;

(iii) an institution;

(iv) a corporation;

(v) a company;

(vi) a trust;

(vii) a limited liability company;

(viii) a partnership;

(ix) a political subdivision;

(x) a government office, department, division, bureau, or other body of government; and

(xi) any other organization or entity.

(r) "Price Analysis" means the evaluation of price data without analysis of the separate cost components and profit.

(s) "Price Data" means factual information concerning prices for procurement items.

(t) "Reasonable Person Standard" means an objective test to determine if a reasonably prudent person who exercises an average degree of care, skill, and judgment would be justified in drawing the same conclusions under the same circumstances or having knowledge of the same facts.

(u) "Subjective Criteria" means the solicitation criteria that will be evaluated and scored based on the personal judgment, interpretations, and opinions of the evaluators after reviewing and analyzing the information provided in each vendor's solicitation response.

(v) "Steering a Contract to a Favored Vendor" is defined as a person involved in any phase of the procurement process who acts with bias or prejudice in violation of the law to favor one vendor over another vendor in awarding a government contract. Steering a contract to a favored vendor includes:

(i) taking part in collusion or manipulation of the procurement process.

(ii) accepting any form of illegal gratuity, bribe, or kickback from a vendor in exchange for a contract award.

(iii) awarding a contract to a vendor without engaging in a standard procurement process without proper justification.

(iv) involvement in a bid rigging scheme.

(v) writing specifications that are overly restrictive, beyond the reasonable needs of the procurement unit, or that gives an unfair advantage to a particular vendor without proper justification.

(vi) intentionally dividing a purchase to avoid engaging in a standard competitive procurement process as set forth in Subsection 63G-6a-506(8).

(vii) leaking solicitation or other information to a particular vendor that is prejudicial to other vendors.

(viii) improperly avoiding engaging in a standard procurement process to extend the duration of a vendor's existing contract through means of a contract extension; or

(ix) participating in the procurement process while having a financial conflict of interest as set forth in Section R33-124-105.

(w) "Technology" means any type of technology defined as "Information Technology" in Subsection 63A-16-102(8).

Notes

Utah Admin. Code R33-101-101

Adopted by Utah State Bulletin Number 2024-21, effective 10/22/2024