3.24.115: BUILDING IMPROVEMENT OR PUBLIC WORKS PROJECTS:
A. For the purpose of this section, the following definitions shall apply:
BID LIMIT: The estimated dollar cost of a building improvement or public works project which, if exceeded, requires bids to be requested for the project. The bid limit is as follows:
1. For a building improvement:
a. For the year 2003, forty thousand dollars ($40,000.00); and
b. For each year after 2003, the amount of the bid limit for the previous year, plus an amount calculated by multiplying the amount of the bid limit for the previous year by the lesser of three percent (3%) or the actual percent change in the consumer price index during the previous calendar year; and
2. For a public works project:
a. For the year 2003, one hundred twenty five thousand dollars ($125,000.00); and
b. For each year after 2003, the amount of the bid limit for the previous year, plus an amount calculated by multiplying the amount of the bid limit for the previous year by the lesser of three percent (3%) or the actual percent change in the consumer price index during the previous calendar year.
BUILDING IMPROVEMENT: The construction or repair of a City building or structure.
CITY FUNDED: The use of funds from a budget approved by the Salt Lake City Council, including, without limitation, the library budget, to pay a contractor or subcontractor for work on a building improvement or public works project regardless of whether the City obtains funds from a State or Federal government grant, or any other source of funds, to pay the cost of a particular project.
CONSUMER PRICE INDEX: The "Consumer Price Index for All Urban Consumers" as published by the Bureau of Labor Statistics of the United States Department of Labor.
CONTRACT: A construction contract awarded by the City for a building improvement or a public works project.
CONTRACTOR: A person or entity who is or may be awarded a contract by the City.
COVERED EMPLOYEE: An individual who provides services directly related to a construction contract for a contractor or subcontractor. The employee must work at least thirty (30) hours per calendar week on the project and must meet employer eligibility waiting requirements for health care insurance, which may not exceed the first day of the calendar month following sixty (60) days after the date of hire.
DESIGN-BUILD PROJECT: A building improvement or public works project costing over two hundred fifty thousand dollars ($250,000.00) with respect to which:
1. Both design and construction are provided for in a single contract with a contractor or combination of contractors capable of providing design-build services; and
2. Does not include a building improvement or public works project:
a. That is undertaken by the City under contract with a construction manager that guarantees the contract price and is at risk for any amount over the contract price; and
b. Each component of which is competitively bid.
DESIGN-BUILD SERVICES: The engineering, architectural, and other services necessary to formulate and implement a design build project, including its actual construction.
DRUG AND ALCOHOL TESTING POLICY: A policy under which a contractor or subcontractor tests a covered employee to establish, maintain, or enforce the prohibition of:
1. The manufacture, distribution, dispensing, possession, or use of drugs or alcohol, except the medically prescribed possession and use of a drug, and
2. The impairment of judgment or physical abilities due to the use of drugs or alcohol.
HEALTH BENEFIT PLAN: An insurance policy that provides healthcare coverage, including major medical expenses, or that is offered as a substitute for hospital or medical expense insurance, such as a hospital confinement indemnity or limited benefit plan. A health benefit plan does not include an insurance policy that provides benefits solely for accidents, dental, income replacement, long term care, a medicare supplement, a specific disease, vision, or a short term limited duration where it is offered and marketed as supplemental health insurance.
LOWEST RESPONSIVE RESPONSIBLE BIDDER: A contractor who:
1. Has submitted a bid in compliance with an invitation to bid and within the requirements of the plans and specifications for a building improvement or public works project;
2. Is the lowest bidder that satisfies the requirements of this chapter relating to financial strength, past performance, integrity, reliability, and other factors used to assess the ability of a bidder to perform fully and in good faith the contract requirements;
3. Has furnished a bid bond or equivalent in money as a condition to the award of a contract; and
4. Furnishes a payment and performance bond as required by law.
PUBLIC WORKS PROJECT: The construction, replacement, or repair of:
1. A park or recreational facility;
2. A pipeline, culvert, dam, canal, or other system for water, sewage, stormwater, or flood control;
3. An airport or any part thereof;
4. A street, transit facility, or transportation facility; or
5. Any other City facility except a building improvement.
QUALIFIED HEALTH INSURANCE COVERAGE: Means the same as that term is defined in section 26-40-115, Utah Code Annotated, as amended, or its successor.
RANDOM TESTING: Periodic examination of a covered employee, selected on the basis of chance, for drugs and alcohol in accordance with a drug and alcohol testing policy.
SUBCONTRACTOR: Any person or entity who may be awarded a contract with a contractor or another subcontractor to provide services or labor for a building improvement or public works project. "Subcontractor" includes a trade contractor or specialty contractor but does not include a supplier who provides only materials, equipment, or supplies to a contractor or subcontractor.
VETERAN: An individual who:
1. Has served on active duty in the armed forces of the United States for more than one hundred eighty (180) consecutive days, or
2. Was a member of a reserve component who served in a campaign or expedition for which a campaign medal has been authorized and who has been separated or retired under honorable conditions, or
3. Any individual incurring an actual service related injury or disability in the line of duty, whether or not that person completed one hundred eighty (180) consecutive days of active duty.
B. 1. If the City intends to undertake a City funded building improvement or public works project, and
a. The estimated cost of the project exceeds the "bid limit" as defined herein; and
b. The City elects to proceed with the project;
2. Then the City shall enter into a contract for the completion of the building improvement or public works project with:
a. The lowest responsive responsible bidder; or
b. For a design-build project formulated by the City, except as provided in section 11-39-107, Utah Code Annotated, or its successor, a responsible bidder that offers design-build services; or
c. For a project involving a construction manager/general contractor, as provided in section 11-39-107 and any other applicable provision of chapter 11-39, Utah Code Annotated, or its successor, a responsible bidder that offers construction manager/general contractor services.
C. 1. This subsection C1 applies to a contractor if the contract, as determined by a City Engineer's estimate, is in the amount of two million dollars ($2,000,000.00) or more at the original execution of the contract. In its bid for the contract, the contractor shall certify, and provide appropriate documentation in a manner prescribed by the City before contract award and execution, to the procurement official as to whether the contractor has and will maintain:
a. An offer of qualified health insurance available to the contractor's covered employees and each covered employee's dependents;
b. A drug and alcohol testing policy during the period of the contract that:
(1) Applies to all covered employees of the contractor, and
(2) Requires covered employees to submit to random testing under the drug and alcohol testing policy;
c. A program to actively recruit and/or employ veterans;
d. A job training program. A Federal and State recognized job training program qualifies;
e. A safety program; and
f. A formal policy of nondiscrimination consistent with Federal, State, and local law.
2. This subsection C2 applies if the contract involves a subcontract in the amount of one million dollars ($1,000,000.00) or more at the original execution of the subcontract. In that case, the contractor shall certify, and provide appropriate documentation in a manner prescribed by the City before contract award and execution, to the procurement official as to whether: a) the subcontract requires the subcontractor to have and maintain and b) the subcontractor has and will maintain:
a. An offer of qualified health insurance available to the subcontractor's covered employees and each covered employee's dependents;
b. A drug and alcohol testing policy during the period of the subcontract that:
(1) Applies to all covered employees of the subcontractor, and
(2) Requires covered employees to submit to random testing under the drug and alcohol testing policy;
c. A program to actively recruit and/or employ veterans;
d. A job training program. A Federal and State recognized job training program qualifies;
e. A safety program; and
f. A formal policy of nondiscrimination consistent with Federal, State, and local law.
3. A bidder who certifies that it has and will maintain an offer of qualified health insurance coverage as set forth in subsection C1 of this section, who complies with subsection C2 of this section with respect to its subcontractors, if any, and whose bid is not more than ten percent (10%) higher than the bid of any other bidders who do not offer qualified health insurance coverage or do not comply with subsection C2 of this section with respect to their subcontractors, if any, will be deemed the more responsive bidder.
4. A bidder who does not certify compliance with the factors in subsections C1b to C1f of this section and, if there is a subcontract, subsections C2b to C2f of this section, shall be deemed nonresponsive and shall be disqualified.
5. The City may request a recertification by the selected contractor by submitting a written request to the contractor. The contractor shall comply with the request by providing the requested information to the City within ten (10) business days after receipt of the request. The City may not make more than two (2) such requests within any 12-month period.
6. Compliance with the requirements of this section by the bidder and all affected subcontractors at any tier is subject to audit by the City. The bidder shall provide documents as requested by the City to comply with any such audit, including documents relating to affected subcontractors.
D. 1. This section shall not apply to:
a. A change order or a modification to a contract, when the contract does not meet the initial dollar threshold required by subsection C1 of this section;
b. A sole source contract;
c. An emergency procurement contract; and
d. A contract subject to a grant requirement or other legal obligation the City must honor as a condition of receiving grant or other funds which, with regard to a particular building improvement or public works project, limits the application of one or more of the bid criteria in subsection C1 of this section.
2. The evaluation of a contract to which this section would apply, but for an exception set forth in subsection D1 of this section, shall include a written explanation that:
a. Describes the factual and legal basis for the conclusion that the exception applies, and
b. Is made a part of the bid record.
E. A contract or subcontract for a bid awarded under this section shall include provisions requiring compliance with the terms of this section.
F. A building improvement or public works project may not be subdivided into smaller parts to circumvent the requirements of subsection C1 of this section.
G. The failure of a contractor or subcontractor to meet the requirements of this section:
1. May not be the basis for a protest or other action from a prospective bidder, offeror, or contractor under this chapter;
2. May not be used as the basis for any action or suit by someone other than the City that would suspend, disrupt, or terminate a building improvement or public works project; and
3. May not be used by an employee of a contractor or subcontractor or any other third party as a basis for any private action or suit against the City for damages for the failure of a contractor or subcontractor to meet the requirements of this section.
H. 1. A contractor that fails to meet the requirements of this section during the duration of the contract is subject to the actions described below in this subsection H1 and the penalties described in subsection H2 of this section. A contractor is not subject to those actions or penalties due to the action or inaction of a subcontractor. The City Procurement Officer, at the City's sole discretion, may take any of the following actions against the contractor:
a. Order an audit, at the sole expense of the contractor, to determine the extent of such non-compliance;
b. Terminate the contractor's contract for failure to comply with the terms of the bid;
c. Immediately award the affected contract to the next lowest responsive and responsible bidder; or
d. Bring legal action against the contractor, on behalf of the City and affected employees, for monetary damages.
2. The penalties that may be imposed if a bidder or contractor to which this section applies intentionally violates the requirements of this section include:
a. For a first violation, a six-month suspension of the bidder from bidding on City projects; and
b. For a second violation, an action for debarment of the bidder from bidding on City projects. (Ord. 59-18, 2018)
