63A-5-208 - Definitions -- Certain public construction bids to list subcontractors -- Changing subcontractors -- Bidders as subcontractors -- Dispute resolution process -- Penalties.
63A-5-208. Definitions -- Certain public construction bids to list subcontractors --Changing subcontractors -- Bidders as subcontractors -- Dispute resolution process --Penalties.
(1) As used in this section:
(a) "First-tier subcontractor" means a subcontractor who contracts directly with the primecontractor.
(b) "Subcontractor" means any person or entity under contract with a contractor oranother subcontractor to provide services or labor for the construction, installation, or repair ofan improvement to real property.
(c) "Subcontractor" includes a trade contractor or specialty contractor.
(d) "Subcontractor" does not include suppliers who provide only materials, equipment, orsupplies to a contractor or subcontractor.
(2) The director shall apply the provisions of this section to achieve fair and competitivebidding and to discourage bid-shopping by contractors.
(3) (a) (i) (A) On each public construction project, the director shall require the apparentlowest three bidders to submit a list of their first-tier subcontractors indicating eachsubcontractor's name, bid amount, and other information required by rule.
(B) Other bidders who are not one of the apparent lowest three bidders may also submit alist of their first-tier subcontractors containing the information required by this Subsection (3).
(C) The director may not consider any bid submitted by a bidder if the bidder fails tosubmit a subcontractor list meeting the requirements of this section.
(ii) On projects where the contractor's total bid is less than $500,000, subcontractorswhose bid is less than $20,000 need not be listed.
(iii) On projects where the contractor's total bid is $500,000 or more, subcontractorswhose bid is less than $35,000 need not be listed.
(b) (i) The bidders shall submit this list within 24 hours after the bid opening time, notincluding Saturdays, Sundays, and state holidays.
(ii) This list does not limit the director's right to authorize a change in the listing of anysubcontractor.
(c) The bidders shall verify that all subcontractors listed as part of their bids are licensedas required by state law.
(d) Twenty-four hours after the bid opening, the contractor may change the contractor'ssubcontractors only after:
(i) receiving permission from the director; and
(ii) establishing that:
(A) the change is in the best interest of the state; and
(B) the contractor establishes reasons for the change that meet the standards establishedby the State Building Board.
(e) If the director approves any changes in subcontractors that result in a net lowercontract price for subcontracted work, the total of the prime contract may be reduced to reflectthe changes.
(4) (a) A bidder may list himself as a subcontractor when the bidder is currently licensedto perform the portion of the work for which the bidder lists himself as a subcontractor and:
(i) the bidder intends to perform the work of a subcontractor himself; or
(ii) the bidder intends to obtain a subcontractor to perform the work at a later date
because the bidder was unable to:
(A) obtain a bid from a qualified subcontractor; or
(B) obtain a bid from a qualified subcontractor at a cost that the bidder considers to bereasonable.
(b) (i) When the bidder intends to perform the work of a subcontractor himself, thedirector may, by written request, require that the bidder provide the director with informationindicating the bidder's:
(A) previous experience in the type of work to be performed; and
(B) qualifications for performing the work.
(ii) The bidder must respond in writing within five business days of receiving thedirector's written request.
(iii) If the bidder's submitted information causes the director to reasonably believe thatself-performance of the portion of the work by the bidder is likely to yield a substandard finishedproduct, the director shall:
(A) require the bidder to use a subcontractor for the portion of the work in question andobtain the subcontractor bid under the supervision of the director; or
(B) reject the bidder's bid.
(c) (i) When the bidder intends to obtain a subcontractor to perform the work at a laterdate, the bidder shall provide documentation with the subcontractor list describing:
(A) the bidder's efforts to obtain a bid of a qualified subcontractor at a reasonable cost;and
(B) why the bidder was unable to obtain a qualified subcontractor bid.
(ii) If the bidder who intends to obtain a subcontractor to perform the work at a later dateis awarded a contract, the director shall supervise the bidder's efforts to obtain a qualifiedsubcontractor bid.
(iii) The director may not adjust the amount of the contract awarded in order to reflectthe actual amount of the subcontractor's bid.
(5) The division may not disclose any subcontractor bid amounts obtained under thissection until the division has awarded the project to a contractor.
(6) (a) The director shall, in consultation with the State Building Board, prepare draftrules establishing a process for resolving disputes involved with contracts under the division'sprocurement authority.
(b) The draft rules shall be presented to the Government Operations Interim Committeefor review, comment, and recommendations before August 31, 2004.
(c) The director shall consider, and the rules may include:
(i) requirements regarding preliminary resolution efforts between the parties directlyinvolved with the dispute;
(ii) requirements for the filing of claims, including notification, timeframes, anddocumentation;
(iii) identification of the types of costs eligible for allocation and a method for allocatingcosts among the parties to the dispute;
(iv) required time periods, not to exceed 60 days, for the resolution of the claim;
(v) provision for an independent hearing officer, panel, or arbitrator to extend the timeperiod for resolution of the claim by not to exceed 60 additional days for good cause;
(vi) provision for the extension of required time periods if the claimant agrees;
(vii) requirements that decisions be issued in writing;
(viii) provisions for administrative appeals of the decision;
(ix) provisions for the timely payment of claims after resolution of the dispute, includingany appeals;
(x) a requirement that the final determination resulting from the dispute resolutionprocess provided for in the rules is a final agency action subject to judicial review as provided inSections 63G-4-401 and 63G-4-402;
(xi) a requirement that a claim or dispute that does not include a monetary claim againstthe division or its agents is not limited to the dispute resolution process provided for in thisSubsection (6);
(xii) requirements for claims and disputes to be eligible for this dispute resolutionprocess;
(xiii) the use of an independent hearing officer, panel, arbitration, or mediation; and
(xiv) the circumstances under which a subcontractor may file a claim directly with thedivision.
(d) Persons pursuing claims under the process required by this Subsection (6):
(i) are bound by the decision reached under this process unless the decision is properlyappealed; and
(ii) may not pursue claims or disputes under the dispute resolution process established inSections 63G-6-805 through 63G-6-814.
(7) In addition to all other reasons allowed by law or rule, the director may reject all bidsif none of the bidders whose bid is within the budget of the project submit a subcontractor listthat meets the requirements of this section.
(8) Any violation of this section, or any fraudulent misrepresentation by a contractor,subcontractor, or supplier, may be grounds for:
(a) the contractor, subcontractor, or supplier to be suspended or debarred by the director;or
(b) the contractor or subcontractor to be disciplined by the Division of Professional andOccupational Licensing.
Amended by Chapter 382, 2008 General Session