CDD – Procurement Violations and Offenses
Procurement Appeals and Oversight:
Procurement Violations and Offenses
Definitions—
These terms, used in this policy, are defined as follows:
1. “Contract administration professional” means an individual who is either
directly under contract with the District or is employed by a person under
contract with the District and who has responsibility in developing a
solicitation or grant or in supervising or overseeing the administration or
management of a contract or grant. This term does not include an
employee of the District.
2. “Contribution” includes the following as applied to the District:
a. a voluntary gift or donation to the District for the District’s use, and
not for a particular person employed by the District, including a
philanthropic donation, services, money, or other items of value;
b. admission to a seminar, vendor fair, charitable event, fundraising
event, or similar event that relates to the function of the District;
c. purchase of a booth at an event sponsored by the District or a
group of which the District is a member; or
d. sponsorship of an event that is organized by the District.
3. “Gratuity” means anything of value given without anything provided in
exchange or in excess of the market value of that which is provided in
exchange, including:
a. a gift or favor;
b. money;
c. a loan at an interest rate below the market rate or with terms that
are more advantageous to the borrower than terms offered
generally on the market;
d. anything of value provided with an award other than a certificate,
plaque, or trophy;
e. employment;
f. admission to an event;
g. a meal;
h. lodging;
i. travel;
j. entertainment for which a charge is normally made; and
k. a raffle, drawing for a prize, or lottery.
The term “gratuity” does not include:
a. an item, including a meal in association with a training seminar,
that is:
i. included in a contract or grant; or
ii. provided in the proper performance of a requirement of
a contract or grant;
b. an item requested to evaluate properly the award of a contract
or grant;
c. a rebate, coupon, discount, airline travel award, dividend, or
other offering included in the price of a procurement item;
d. a meal provided by an organization or association, including a
professional or educational association, an association of
vendors, or an association composed of public agencies or
public entities, that does not, as an organization or association,
respond to solicitations;
e. a product sample submitted to a public entity to assist the public
entity to evaluate a solicitation;
f. a political campaign contribution;
g. an item generally available to the public; or
h. anything of value that one public agency provides to another
public agency.
4. “Family member” means a father, mother, husband, wife, son, daughter,
sister, brother, uncle, aunt, nephew, niece, first cousin, mother-in-law,
father-in-law, brother-in-law, sister-in-law, son-in-law, or daughter-in-law.
5. “Hospitality gift” means a token gift of minimal value, including, a pen,
pencil, stationery, toy, pin, trinket, snack, beverage, or appetizer, given for
promotional or hospitality purposes. It does not include money, a meal,
admission to an event for which a charge is normally made, entertainment
for which a charge is normally made, travel, or lodging.
6. “Kickback” means a negotiated bribe provided in connection with a
procurement or the administration of a contract or grant. It does not
include anything which is listed in the exclusions from the definition of
“gratuity,” above.
7. “Procurement” has the meaning set out in the scope section of Policy CB
except that for purposes of this policy it also includes the awarding of a
grant.
8. “Procurement professional” means an employee of the District (not an
independent contractor) who by title or primary responsibility:
a. has procurement decision making authority; and
b. is assigned to be engaged in, or is engaged in either:
i. the procurement process or
ii. the process of administering a contract or grant, including
enforcing contract or grant compliance, approving contract or
grant payments, or approving contract or grant change
orders or amendments.
9. The term “procurement professional,” as it applies to the District, does not
include:
a. members of the Board of Education
b. the superintendent, business administrator, a principal, a vice
principal, or the chief assistant or deputy of the superintendent,
business administrator, or of a principal or vice principal; or
c. any other individual who, by title or primary responsibility, does
not have procurement decision making authority.
10.“Public agency” means the following entities and all officials, employees,
and official representatives of the following entities:
a. a city, town, county, school district, local district, special service
district, or other political subdivision of the state of Utah;
b. the state of Utah or any department, division, or agency of the state
of Utah;
c. any agency of the United States;
d. any political subdivision or agency of another state or the District of
Columbia, including any interlocal cooperation or joint powers
agency formed under the authority of the laws of another state or
the District of Columbia; and
e. any Indian tribe, band, nation, or other organized group or
community which is recognized as eligible for the special programs
and services provided by the United States to Indians because of
their status as Indians.
Utah Code § 63G-6a-2402 (2017)
Unlawful Conduct and Exceptions—
It is unlawful and a violation of this policy:
1. for a person who has or is seeking a contract with the District
knowingly to give, or to offer, promise, or pledge to give, a gratuity or
kickback to
a. the District;
b. a procurement professional or contract administration
professional; or
c. an individual who the person knows is a family member of a
procurement professional or contract administration
professional.
2. for a procurement professional or contract administration professional,
or a family member of either, knowingly to receive or accept, offer or
agree to receive or accept, or ask for a promise or pledge of a gratuity
or kickback from a person who has or is seeking a contract or grant
from the District.
It is not unlawful for the District to give, offer, promise, or pledge to give a
contribution to another public agency.
It is not unlawful or a violation of this policy for a person:
1. to give or offer, promise, or pledge to give a contribution to the District
unless that is done with the intent to induce the District in exchange to
(a) award a contract, (b) make a procurement decision, or (c) take an
action relating to the administration of a contract or grant.
2. to give or offer, promise, or pledge to give something of value to an
organization to which a procurement professional or contract
administration professional belongs unless that is done with the intent
to induce the District in exchange to (a) award a contract, (b) make a
procurement decision, or (c) take an action relating to the
administration of a contract or grant.
3. on behalf of the District, to receive or accept, offer or agree to receive
or accept, or ask for a promise or pledge of a contribution unless done
with the intent that the District in exchange (a) award a contract or
grant, (b) make a procurement decision, or (c) take an action relating
to the administration of a contract or grant.
It is not unlawful or a violation of this policy for a person to give or receive,
offer to give or receive, or promise or pledge to give or ask for a promise or pledge
of a hospitality gift if:
1. the total value of the hospitality gift is less than $10; and
2. the aggregate value of all hospitality gifts from the person to the
recipient in a calendar year is less than $50.
Utah Code § 63G-6a-2404 (2014)
Voiding a Contract or Grant for Unlawful Conduct—
This section applies to procurements (a) for which public notice is provided on
or after July 1, 2014, if public notice is required, or (b) where public notice is not
required, the initial contact between the District and the potential contractor for
purposes of the procurement occurs on or after July 1, 2014.
When a contract or grant has been awarded to a person who engages in
conduct made unlawful by this policy or by Part 24 of the Procurement Code,
“Unlawful Conduct and Penalties,” the Board of Education or the superintendent
may, in their sole discretion, declare the contract or grant to be void and
unenforceable except where (a) the contract or grant relates to the issuance of a
bond or other obligation and the bond has been issued or obligation incurred; or (b)
a third party has substantially changed its position in reliance upon the contract or
grant.
Declaring a contract or grant void under this section does not affect the
District’s obligation to pay for a contractor’s proper performance completed under
the contract or grant or to pay for the value the contractor provides to the District
under the contract or grant before the contract or grant is declared void.
Utah Code § 63G-6a-2405 (2014)
Prohibited Socialization by Procurement Professionals—
A procurement professional shall not:
(1) participate in social activities with vendors or contractors that will interfere
with the proper performance of the procurement professional’s duties;
(2) participate in social activities with vendors or contractors that will lead to
unreasonably frequent disqualification of the procurement professional
from the procurement process; or
(3) participate in social activities with vendors or contractors that would
appear to a reasonable person to undermine the procurement
professional’s independence, integrity, or impartiality.
Utah Admin. Rules R33-24-104(1) (August 22, 2016)
Evaluation Committee Conflicts of Interest—
Nothing in this policy limits the District in requiring evaluation committee
members to disclose conflicts of interests or in removing evaluation committee
members for conflicts of interest.
Utah Code § 63G-6a-2406 (2014)
Required Reports of Unlawful Conduct—
“Unlawful conduct” means:
1. conduct made unlawful by this policy or Part 24 of the Procurement Code,
“Unlawful Conduct and Penalties or
2. conduct, including bid rigging, improperly steering a contract to a favored
vendor, exercising undue influence on an individual involved in the
procurement process, or participating in collusion or other anticompetitive
practices, made unlawful under other applicable law.
A procurement professional with actual knowledge that a person has engaged in
unlawful conduct shall report the unlawful conduct to the state auditor, the attorney
general, or other appropriate prosecuting attorney. A procurement professional who
fails to comply with this reporting requirement is subject to disciplinary action by the
District. Persons other than procurement professionals with actual knowledge of
unlawful conduct may report the unlawful conduct to the state auditor, the attorney
general, or other appropriate prosecuting attorney.
Utah Code § 63G-6a-2407 (2017)