2023 Utah Code › Title 63G - General Government › Chapter 6a - Utah Procurement Code › Part 7 - Request for Proposals › Section 707.5 - Best and final offers.

Effective 5/12/2020
63G-6a-707.5.
Best and final offers.
(1) The best and final offer process described in this section:
(a) may be used only in a request for proposals process, whether the request for proposals process is used independently or after the establishment of an approved vendor list through the approved vendor list process; and
(b) may not be used in any other standard procurement process, whether the other standard procurement process is used independently or after the establishment of an approved vendor list through the approved vendor list process.
(2) Subject to Subsection (3), a conducting procurement unit may request best and final offers from responsible offerors:
(a) only with the approval of the procurement official; and
(b) if:
(i) no single proposal adequately addresses all the specifications stated in the request for proposals;
(ii) all proposals are unclear or deficient in one or more respects;
(iii) all cost proposals exceed the identified budget or the procurement unit's available funding; or
(iv) two or more proposals receive an identical evaluation score that is the highest score.
(3) A conducting procurement unit may request a best and final offer from, and a best and final offer may be submitted to the conducting procurement unit by, only a responsible offeror that has submitted a responsive proposal that meets the minimum mandatory criteria stated in the request for proposals required to be considered in the stage of the procurement process at which best and final offers are being requested.
(4) The best and final offer process may not be used to change:
(a) a determination that an offeror is not responsible to a determination that the offeror is responsible; or
(b) a determination that a proposal is not responsive to a determination that the proposal is responsive.
(5)
(a) This Subsection (5) applies if a request for best and final offers is issued because all cost proposals exceed the identified budget or the procurement unit's available funding.
(b)
(i) The conducting procurement unit may, in the request for best and final offers:
(A) specify the scope of work reductions the procurement unit is making in order to generate proposals that are within the identified budget or the procurement unit's available funding; or
(B) invite offerors submitting best and final offers to specify the scope of work reductions being made so that the reduced cost proposal is within the identified budget or the procurement unit's available funding.
(ii) The conducting procurement unit is not required to accept a scope of work reduction that an offeror has specified in the offeror's best and final offer.
(c) A best and final offer submitted with a reduced cost proposal shall include an itemized list identifying specific reductions in the offeror's proposed scope of work that correspond to the offeror's reduced cost proposal.
(d) A reduction in the scope of work may not:
(i) eliminate a component identified in the request for proposals as a minimum mandatory requirement; or
(ii) alter the nature of the original request for proposals to the extent that a request for proposals for the reduced scope of work would have likely attracted a significantly different set of offerors submitting proposals in response to the request for proposals.
(6) If a request for best and final offers is issued because two or more proposals received an identical evaluation score that is the highest score:
(a) the request may be issued only to offerors who submitted a proposal receiving the highest score; and
(b) an offeror submitting a best and final offer may revise:
(i) the technical aspects of the offeror's proposal;
(ii) the offeror's cost proposal, as provided in Subsection (5); or
(iii) both the technical aspects of the offeror's proposal and, as provided in Subsection (5), the offeror's cost proposal.
(7) In a request for best and final offers, the conducting procurement unit shall:
(a) clearly specify:
(i) the issues that the procurement unit requests the offerors to address in their best and final offers; and
(ii) how best and final offers will be evaluated and scored in accordance with Section 63G-6a-707.5;
(b) establish a deadline for an offeror to submit a best and final offer; and
(c) if applicable, establish a schedule and procedure for conducting discussions with offerors concerning the best and final offers.
(8) In conducting a best and final offer process under this section, a conducting procurement unit shall:
(a) maintain confidential the information the procurement unit receives from an offeror, including any cost information, until a contract has been awarded or the request for proposals canceled;
(b) ensure that each offeror receives fair and equal treatment; and
(c) safeguard the integrity of the scope of the original request for proposals, except as specifically provided otherwise in this section.
(9) In a best and final offer, an offeror:
(a) may address only the issues described in the request for best and final offers; and
(b) may not correct a material error or deficiency in the offeror's proposal or address any issue not described in the request for best and final offers.
(10) If an offeror fails to submit a best and final offer, the conducting procurement unit shall treat the offeror's original proposal as the offeror's best and final offer.
(11) After the deadline for submitting best and final offers has passed, the evaluation committee shall evaluate the best and final offers submitted using the criteria described in the request for proposals.
(12) An offeror may not make and a conducting procurement unit may not consider a best and final offer that the conducting procurement unit has not requested under this section.
(13) To implement the best and final offer process described in this section, a rulemaking authority may make rules consistent with this section and the other provisions of this chapter.
Amended by Chapter 257, 2020 General Session