§ 63A-5b-605 — Requirement for bidders to list subcontractors -- Changing subcontractors -- Bidders as subcontractors.

(1) As used in this section:

(1)(a) "First-tier subcontractor" means a subcontractor who contracts directly with the prime contractor.
(1)(b) (1)(b)(i) "Subcontractor" means a person under contract with a contractor or another subcontractor to provide services or labor for the construction, installation, or repair of an improvement to real property.
(1)(b)(ii) "Subcontractor" includes a trade contractor or specialty contractor.
(1)(b)(iii) "Subcontractor" does not include a supplier that provides only materials, equipment, or supplies to a contractor or subcontractor.
(2) The director shall apply the provisions of this section to achieve fair and competitive bidding and to discourage bid-shopping by contractors.
(3) (3)(a) (3)(a)(i) (3)(a)(i)(A) On a public construction project, the director shall, except as provided in Subsection (3)(a)(ii), require the apparent lowest three bidders to submit a list of their first-tier subcontractors indicating each first-tier each subcontractor's name, bid amount, and other information required by rule.
(3)(a)(i)(B) A bidder that is not one of the apparent lowest three bidders may also submit a list of the bidder's first-tier subcontractors containing the information required by this Subsection (3).
(3)(a)(ii) A bidder is not required to list a first-tier subcontractor if:

(3)(a)(ii)(A) the bidder's total bid is less than $500,000 and the first-tier subcontractor's bid is less than $20,000; or
(3)(a)(ii)(B) the bidder's total bid is $500,000 or more and the first-tier subcontractor's bid is less than $35,000.
(3)(b) A bidder shall submit the list required under this section within 24 hours after the bid opening time, not including Saturday, Sunday, and any state holiday.
(3)(c) A list submitted under this section does not limit the director's right to authorize a change in the listing of any subcontractor.
(4) The director may not consider a bid submitted by a bidder that fails to submit a list meeting the requirements of this section.
(5) A bidder shall verify that all subcontractors listed as part of the bidder's bid are licensed as required by state law.
(6) (6)(a) After 24 hours after the bid opening, a bidder may change the bidder's subcontractors only after:
(6)(a)(i) receiving permission from the director; and
(6)(a)(ii) establishing:

(6)(a)(ii)(A) that the change is in the best interest of the state; and
(6)(a)(ii)(B) the reasons for the change that meet the standards established by the director.
(6)(b) If the director approves a change in subcontractors that results in a net lower contract price for subcontracted work, the director may require the bidder to reduce the total of the prime contract to reflect the change.
(7) (7)(a) A bidder may list the bidder as a subcontractor if:
(7)(a)(i) the bidder is currently licensed to perform the portion of the work for which the bidder lists the bidder as a subcontractor; and
(7)(a)(ii) (7)(a)(ii)(A) the bidder intends to perform the work of a subcontractor; or
(7)(a)(ii)(B) the bidder intends to obtain a subcontractor at a later date to perform the work because the bidder was unable to obtain a bid from a qualified subcontractor or from a qualified subcontractor at a cost that the bidder considers to be reasonable.
(7)(b) (7)(b)(i) If the bidder intends to perform the work of a subcontractor, the director may, by written request, require that the bidder provide the director with information indicating the bidder's:

(7)(b)(i)(A) previous experience in the type of work to be performed; and
(7)(b)(i)(B) qualifications for performing the work.
(7)(b)(ii) A bidder shall respond in writing within five business days after receiving the director's written request under Subsection (7)(b)(i).
(7)(b)(iii) If the information a bidder submits under Subsection (7)(b)(ii) causes the director to reasonably believe that the bidder's performance of the portion of the work is likely to result in a substandard finished product, the director shall:

(7)(b)(iii)(A) require the bidder to use a subcontractor for the portion of the work in question and obtain the subcontractor bid under the supervision of the director; or
(7)(b)(iii)(B) reject the bidder's bid.
(8) (8)(a) If a bidder intends to obtain a subcontractor at a later date to perform work described in the bidder's bid, the bidder shall provide documentation with the subcontractor list required under this section:
(8)(a)(i) describing the bidder's efforts to obtain a bid of a qualified subcontractor at a reasonable cost; and
(8)(a)(ii) explaining why the bidder was unable to obtain a qualified subcontractor bid.
(8)(b) If a bidder who intends to obtain a subcontractor at a later date to perform the work described in a bid is awarded a contract, the director:
(8)(b)(i) shall supervise the bidder's efforts to obtain a qualified subcontractor bid; and
(8)(b)(ii) may not adjust the amount of the contract awarded in order to reflect the actual amount of the subcontractor's bid.
(9) The division may not disclose any subcontractor bid amounts obtained under this section until the division has awarded the project to a contractor.
(10) In addition to all other reasons allowed by statute or rule, the director may reject all bids if all of the bidders whose bids are within the budget of the project fail to submit a subcontractor list as required under this section.

Legislative History

Renumbered and Amended by Chapter 152, 2020 General Session