Utah Division of Purchasing Procurement Code Training Special Service Districts November, 2014

Notice Some sections of the Utah Procurement Code and Administrative Rules quoted in this presentation are paraphrased due to space restrictions. It is strongly recommended that participants read the entire Procurement Code and Administrative Rule R33 review its contents with their attorney. All examples in this presentation are hypothetical and not based on any actual solicitation or any firm’s actual proposal.

Utah Procurement Code 63G-6a Applies to Special Districts Special Service Districts Must Follow the Procurement Code

Utah Code 63G-6a-104 Definitions "Procurement unit" means: (vi) a local district; (vii) a special service district;

Utah Code 63G-6a-106 (4) (a) A procurement unit listed in Subsection (4)(b) may, without the supervision, interference, oversight, control, or involvement of the division or the chief procurement officer, but in accordance with the requirements of this chapter: [Utah Procurement Code] (i) engage in a standard procurement process; (ii) procure an item under an exception, as provided in this chapter, to the requirement to use a standard procurement process; or (iii) otherwise engage in an act authorized or required by this chapter. (b) The procurement units to which Subsection (4)(a) applies are: (vii) a local district; (ix) a special service district; (c) A procurement unit with independent procurement authority shall comply with the requirements of this chapter. [Utah Procurement Code]

State of Utah “Best Value” Cooperative Contracts

Utah Code 63G-6a-2105 Cooperative Procurements (1) The chief procurement officer may, in accordance with the requirements of this chapter, enter into a cooperative procurement, and a contract that is awarded as a result of a cooperative procurement, with: (a) another state; (b) a cooperative purchasing organization; or (c) a public entity inside or outside the state.

Utah Code 63G-6a-2105 Cooperative Procurements (2) A public entity, nonprofit organization, or, as permitted under federal law, an agency of the federal government, may obtain a procurement item from a state cooperative contract or a contract awarded by the chief procurement officer under Subsection (1), without signing a participating addendum if the solicitation issued by the chief procurement officer to obtain the contract includes a statement indicating that the resulting contract will be issued for the benefit of public entities and, as applicable, nonprofit organizations and agencies of the federal government.

Utah Code 63G-6a-2105 Cooperative Procurements (5) A procurement unit may not obtain a procurement item under a contract that results from a cooperative procurement described in Subsection (4), if the procurement unit: (a) is not identified under Subsection (4)(b)(iii)(B) or (4)(c)(iii)(B); or (b) does not sign a participating addendum to the contract as required by this section. (4)(b)(iii) the solicitation: (B) identifies each party that may purchase under the resulting contract; (4)(c)(iii) the solicitation: (B) identifies each party that may purchase under the resulting contract;

Question: Can I buy from XYZ Purchasing Cooperative? Answer: Yes, if you can document the following: The contract was entered into by Utah’s Chief Procurement Officer; Or A cooperative purchasing agreement was signed between your public entity and XYZ purchasing cooperative describing the rights and duties of each party; and The XYZ’s procurement was conducted in accordance with the all of requirements of the Utah Procurement Code (Example: bid or RFP was advertised in UT); and XYZ’s solicitation: (A) clearly indicated that the procurement is a cooperative procurement; and (B) identifies each party that may purchase under the resulting contract; and Your public entity and XYZ signed a participating addendum describing each party’s rights and obligations in relation to the contract.

Utah’s Purchasing Cooperative “Best Value” Cooperative Contracts

Service Districts $28M usage (voluntary use) Higher Education $262M usage (voluntary use) State Agencies $575M usage (required use) School Districts $389M usage (voluntary use) Cities $188M usage (voluntary use) Counties $212M usage (voluntary use) State Purchasing 750 “Best Value” Cooperative Contracts $1.6 Billion Total Usage

State of Utah “Best Value” Contracts Utah’s Purchasing Cooperative State Agencies $575 million School Districts $389 million Higher Education $262 million Counties $212 million Cities $188 million Service Districts $28 million By joining together, public entities in Utah receive volume discount pricing and improved contract terms and conditions. If the cooperative did not exist, public entities in Utah would pay hundreds of millions in higher prices for goods and services and incur millions in added costs associated with conducting hundreds of individual bids and RFPs.

Best Value 1.Volume Discount Pricing – One procurement conducted for an in behalf of all public entities – saves $$$ 2.Quality Goods/Services – Large spend volume = Leverage to dictate higher quality product specifications 3. Contract Terms & Conditions Designed to Protect the State – Approved by A.G. Protect Utah Governmental Entities 4.Superior Maintenance/Service – Large and small public entities receive same excellent maintenance/service 5. Protection Against Procurement Fraud – Every State Contract is 100% in Compliance with Utah Procurement Code – State Contracts Reduces Illegal Kickbacks, Buying Without Competition, Conflicts of Interest

State Contracts Reduce Personnel Expense of Public Entities Estimated Added Annual Personnel Costs incurred by public entities in Utah if Utah’s “Best Value” Purchasing Cooperative did not exist and public entities had to conduct their own procurements for the millions of items available on State contract. Public EntityNumber of Added FTEsSalary Annual Personnel Cost Public Ed 39 Districts (1FTE) x $70,000 = $2.7 million Higher Ed 15 Schools (1 FTE) x $70,000 = $1.0 million Cities (over 5,000) 83 Cities (3/4 FTE) x $46,000 = $3.8 million Cities (under 5,000) 160 Cities (1/4 FTE) x $18,000 = $2.8 million Counties 29 Counties (3/4 FTE) x $46,000 = $1.3 million Total Added Annual Personnel Expense $11.6 million Note: Former Director of Purchasing for Salt Lake Co. indicated that if State Cooperative contracts did not exist, he would have to hire a minimum of 2 additional purchasing agents.

Cost Of Conducting A Procurement Cost To Obtain Quotes = $100 to $500 Cost To Conduct A Bid = $1,000 to $5,000 Cost To Conduct An RFP = $10,000 to $20,000 Cost To Negotiate Ts/Cs =$5,000 to $30,000 State Purchasing incurs the expense of conducting one procurement for and in behalf of all public entities in Utah. Without State Contracts, public entities in Utah would incur the expense of conducting thousands of quotes, hundreds of bids and dozens of RFPs. They would also incur the expense of negotiating contract terms & conditions for every procurement.

Best Value: Vendors on State Contracts Agree to More than Price Vendor On State Contract I Vendor Not On State Contract “I can beat State Contract price.” “No, I didn’t respond to the Bid/RFP.” “No, I can’t agree to the Ts & Cs, maintenance/service agreement or warranty.” “No, I can’t guarantee pricing on replacement parts or system upgrades over the 5 years of the contract.” “But I can beat the State Contract price.” Contract Terms & Conditions Protect Interests of Public Entities Maintenance/Service Agreements Warranties Life Cycle Cost Analysis Prices Locked In for 5 Years System Upgrades Price of Upgrades Locked In for 5 Years Vendor Not On State Contract Price Guaranteed for 5-Year Life of Contract Price Immediate Quote Not Guaranteed Beyond Current Quote

Best Value = Ts & Cs that Protect Utah Public Entities Terms and conditions on State Contracts are drafted by the Attorney General’s Office to protect the legal interest of public entities in the State of Utah. State Contract = Drafted by Attorney General Protect Interests of the State Vendor Contract = Drafted by Vendor’s Attorney Protect Interests of Vendor “Using a vendor’s contract, without having it reviewed by the Attorney General’s Office, exposes the State to significant risk” Alan Bachman, Asst A.G.

Best Value = Superior Maintenance/Service Agreements The large spend volume on state contracts enables State Purchasing to negotiate for improved maintenance and Service agreements. Without the leverage of state cooperative contracts, single item procurements by State agencies and small public entities in rural areas are a very low priority in terms of vendor customer service. Vendors on state contract value the prospect of future sales from the State contracts so greatly that all public entities are a high priority and receive excellent customer service regardless of the number of items purchased or the size/location of the public entity.

How State Contracts Are Developed 1.Requests From State Agencies 2.Requests From Other Public Entities (Public Entities, EdPAC, UPAC) 3. Vendors (Documented Spend on Items Not On State Contract)

Administrative Rule R Discount Pricing for Large Volume Purchases for Items on State Contract (1) Users of state cooperative contracts may seek additional volume discount pricing for large volume orders if vendors on contract are willing to give additional discounts for large orders.

Services Provided By State Purchasing Bids and RFPs The Division of Purchasing will, at no charge, conduct bids and RFPs for procurement items not available on State contract for small public entities in Utah that do not have full-time procurement officers. Special Districts UCAT Cities Counties School Districts Charter Schools

Contact Information Nancy Orton Phone: Vinessa Baldwin Phone:

NASPO Public Procurement Seminars Utah Division of Purchasing 1.Four Seminars Per Year (6 to 8 hrs per session) 2.Registration Fee Paid by NASPO (Lunch Provided by NASPO) 3.NASPO Certified Trainers 4.Training Qualifies for CPPB and CPPO Certification

New Administrative Rules R : Socialization with Vendors and Contractors R : Financial Conflict of Interests Prohibited R : Personal Relationship, Favoritism, or Bias Prohibitions R : Professional Relationships/Social Acquaintances Not Prohibited R : Pre-Bid Conferences and Site Visits R : Pre-Proposal Conferences and Site Visits R : Best and Final Offers

Socialization with Vendors and Contractors (R ) (1) A procurement professional shall not: (a) participate in social activities with vendors or contractors that will interfere with the proper performance of the procurement professional's duties; (b) participate in social activities with vendors or contractors that will lead to unreasonably frequent disqualification of the procurement professional from the procurement process; or (c) 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. (2) If an executive branch procurement professional participates in a social activity prohibited under R (1), or has a close personal relationship with a vendor or contractor, the procurement professional shall promptly notify their supervisor and the supervisor shall take the appropriate action, which may include removal of the procurement professional from the procurement or contract administration process that is affected.

Financial Conflict of Interests Prohibited (R ) (1)A procurement conflict of interest is a situation in which the potential exists for an executive branch employee's personal financial interests, or for the personal financial interests of a family member, to influence, or have the appearance of influencing, the employee's judgment in the execution of the employee's duties and responsibilities when conducting a procurement or administering a contract. (2)To preserve the integrity of the procurement process, an Ex. Branch employee may not take part in any procurement process, contracting or contract administration decision: (a) relating to the employee or a family member of the employee; or (b) relating to any entity in which the employee or family member is an officer, director or partner, or in which the employee or family member owns, holds or controls an ownership or stock interest of 10% or more in such entity.

Financial Conflict of Interests Prohibited (R ) (3) If a procurement process, contracting or contract administration matter arises relating to the employee or a family member of the employee, the employee must advise his or her supervisor of the relationship, and must be recused from any and all discussions or decisions relating to the procurement, contracting or administration matter. The employee must also comply with all disclosure requirements in Utah Code Title 67 Chapter 16, Utah Public Offers' and Employees' Ethics Act.

Personal Relationship, Favoritism, or Bias Prohibitions (R ) (1)Executive branch employees are prohibited from participating in any and all discussions or decisions relating to the procurement, contracting or administration process if they have any type of personal relationship, favoritism, or bias that would appear to a reasonable person to influence their independence in performing their assigned duties and responsibilities relating to the procurement process, contracting or contract administration or prevent them from fairly and objectively evaluating a proposal in response to a bid, RFP or other solicitation. This provision shall not be construed to prevent an employee from having a bias based on the employee's review of a response to the solicitation in regard to the criteria in the solicitation.

Personal Relationship, Favoritism, or Bias Prohibitions (R ) (2) If an executive branch employee has a personal relationship, favoritism, or bias toward any individual, group, organization, or vendor responding to a bid, RFP or other solicitation, the employee must make a written disclosure to the supervisor and the supervisor shall take appropriate action, which may include recusing the employee from any and all discussions or decisions relating to the solicitation, contracting or administration matter in question. This provision shall not be construed to prevent an employee from having a bias based on the employee's review of a response to the solicitation in regard to the criteria in the solicitation.

Professional Relationships/Social Acquaintances Not Prohibited (R ) (1) It is not a violation for an executive branch employee who participates in discussions or decisions relating to the procurement, contracting or administration process to have a professional relationship or social acquaintance with a person, contractor or vendor responding to a solicitation, or that is under contract with the State, provided that there is compliance with Rule R , Rule R , the Utah Public Officers' and Employees' Ethics Act, The Governor's Executive Order (EO ) "Establishing an Ethics Policy for Executive Branch Agencies and Employees," and other applicable State laws.

Pre-Bid/Pre-Proposal Conferences and Site Visits (R & R ) (1)Mandatory pre-bid/pre-proposal conferences and site visits may be held to explain the procurement requirements in accordance with the following: (a)Except as authorized in writing by the chief procurement officer or the head of a procurement unit with independent procurement authority, pre-bid/pre-proposal conferences and site visits must require mandatory attendance by all bidders/proposers. (b)Except as authorized in writing by the chief procurement officer or the head of a procurement unit with independent procurement authority, pre-bid/pre-proposal conferences and site visits allowing optional attendance by bidders/proposers are not permitted.

Pre-Bid/Pre-Proposal Conferences and Site Visits (R & R ) (c) A pre-bid/pre-proposal conference may be attended via: (i) attendance in person; (ii) teleconference participation; (iii) webinar participation; (iv) participation through other electronic media approved by the chief procurement officer or head of a procurement unit with independent procurement authority. (d) Mandatory site visits must be attended in person. (e) All pre-bid/pre-proposal conferences and site visits must be attended by an authorized representative of the person or vendor submitting a bid and as may be further specified in the procurement documents.

Pre-Bid/Pre-Proposal Conferences and Site Visits (R & R ) (f) The solicitation must state that failure to attend a mandatory pre- bid/pre-proposal conference shall result in the disqualification of any bidder that does not have an authorized representative attend the entire duration of the mandatory pre-bid/pre-proposal conference. (g) The solicitation must state that failure to attend a mandatory site visit shall result in the disqualification of any bidder that does not have an authorized representative attend the entire duration of the mandatory site visit. (h) At the discretion of the conducting procurement unit, audio or video recordings of pre-bid/pre-proposal conferences and site visits may be used.

Pre-Bid/Pre-Proposal Conferences and Site Visits (R & R ) (i) Listening to or viewing audio or video recordings of a mandatory pre-bid/pre-proposal conference or site visit may not be substituted for attendance. If the chief procurement officer or the head of a procurement unit with independent procurement authority grants an exception to the mandatory requirement in writing, the procurement unit may require all bidders/proposers that do not have an authorize representative in attendance for the entire pre-bid/pre-proposal conference or site visit to review any audio or video recording made.

Pre-Bid Conferences and Site Visits (R ) (2)(a) If a pre-bid conference or site visit is held, the conducting procurement unit shall maintain: (i) an attendance log including the name of each attendee, the entity the attendee is representing, and the attendee's contact information; (ii) minutes of the pre-bid conference or site visit; and (iii) copies of any documents distributed by the conducting procurement unit to the attendees at the pre-bid conference or site visit.

Pre-Bid Conferences and Site Visits (R ) (b) The issuing procurement unit shall publish as an addendum to the solicitation: (i) the attendance log; (ii) minutes of the pre-bid conference or site visit; (iii) copies of any documents distributed to attendees at the pre-bid conference or site visit; and (iv) any verbal modifications made to any of the solicitation documents. All verbal modifications to the solicitation documents shall be reduced to writing.

Best and Final Offers (R ) Best and Final Offers shall be conducted in accordance with the requirements set forth in Section 63G-6a of the Utah Procurement Code. This administrative rule provides additional requirements and procedures and must be used in conjunction with the Procurement Code.

Best and Final Offers (BAFO) (R ) (1)The BAFO process is an optional step in the evaluation phase of the RFP process in which offerors are requested to modify their proposals. (a) An evaluation committee may request a BAFO when: (i) no single proposal addresses all the specifications; (ii) all or a significant number of the proposals received are unclear and the evaluation committee requires further clarification; (iii) additional information is needed in order for the evaluation committee to make a decision; (iv) differences between proposals are too slight to distinguish; (v) all cost proposals are too high or over the budget; (vi) multiple contract awards are necessary to achieve regional or statewide coverage for an RFP and there are insufficient cost proposals within the budget to award the number of contracts needed.

Best and Final Offers (R ) (2) Only offerors meeting the minimum qualifications or scores described in the RFP are eligible to respond to a BAFO. (3)Proposal modifications submitted in response to a BAFO may only address specific issues or sections of the RFP described in the BAFO. (a) Offerors may not use the BAFO process to correct deficiencies in proposals not addressed in the BAFO issued by the procurement unit. (4) When a request for a BAFO is issued to reduce cost proposals, offerors shall submit itemize cost proposals clearly indicating the tasks or scope reductions that can be accomplished to bring costs within the available budget. (a) Cost information of one offeror may not be disclosed to competing offerors during the BAFO process and further, such cost information shall not be shared with other offerors until the contract is awarded. (b) A procurement unit shall ensure that auction tactics are not used in the discussion process, including discussing and comparing the costs and features of other proposals.

Best and Final Offers (R ) (5)A BAFO may not be conducted as part of the contract negotiation process. It may only be conducted during the evaluation phase of the RFP process. (6)A procurement unit may not use a BAFO to allow offerors a second opportunity to respond to the RFP. (7)If a proposal modification is made orally during an interview, the modification must be confirmed in writing. (8) A BAFO issued by a procurement unit shall: (a) comply with all public notice requirements in 63G-6a-406; (b) include a deadline for submission that allows offerors a reasonable opportunity for the preparation and submission of their responses; (c) indicate how modifications in response to the BAFO will be evaluated; (9) If an offeror does not submit a BAFO, its previous proposal will be its BAFO; (10) Unsolicited BAFOs will not be accepted.

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Utah Procurement Code Part 24 Unlawful Conduct and Penalties (Illegal Gratuities and Kickbacks)

"Procurement Professional” Means an individual who is an employee, and not an independent contractor, of a procurement unit, and who, by title or primary responsibility: (i) has procurement decision making authority; and (ii) is assigned to be engaged in, or is engaged in: (A) the procurement process; or (B) 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;

“Procurement Professional” Excludes: (i)any individual who, by title or primary responsibility, does not have procurement decision making authority; (ii) an individual holding an elective office; (iii) a member of a governing body; (iv) a chief executive of a public entity or a chief assistant or deputy of the chief executive, if the chief executive, chief assistant, or deputy, respectively, has a variety of duties and responsibilities beyond the management of the procurement process or the contract or grant administration process;

“Procurement Professional” Excludes: (v)the superintendent, business administrator, principal, or vice principal of a school district or charter school, or the chief assistant or deputy of the superintendent, business administrator, principal, or vice principal; (vi)a university or college president, vice president, business administrator, or dean; (vii) a chief executive of a local district, as defined in Section 17B-1-102, a special service district, as defined in Section 17D-1-102, or a political subdivision created under Title 11, Chapter 13, Interlocal Cooperation Act;

“Procurement Professional” Excludes: (viii) an employee of a public entity with: (A) an annual budget of $1,000,000 or less; or (B) no more than four full-time employees; and (ix) an executive director or director of an executive branch procurement unit who: (A) by title or primary responsibility, does not have procurement decision making authority; (B) is not assigned to engage in, and is not engaged in, the procurement process.

“Contract Administration Professional” Means an individual who is: (A) directly under contract with a procurement unit; or (B) employed by a person under contract with a procurement unit; Means an individual who has responsibility in: (A) developing a solicitation or grant, or conducting the procurement process; or (B) supervising or overseeing the administration or management of a contract or grant; and (c) Is NOT an employee of the procurement unit.

Gratuities and Kickbacks Procurement Professionals All Other Public Employees Utah Code 63G-6a, Part 24 Utah Procurement Code Utah Code Title 67, Part 16 Public Officers/Employees Ethics Act Utah Code Section Bribery or Offering a Bribe Governor’s Executive Order EO/003/2010 Any Other Applicable Law or Policy

“Contribution” Means a voluntary gift or donation of money, service, or anything else of value, to a public entity for the public entity's use and not for the primary use of an individual employed by the public entity and includes: (i) a philanthropic donation; (ii) admission to a seminar, vendor fair, charitable event, fundraising event, or similar event that relates to the function of the public entity; (iii) the purchase of a booth or other display space at an event sponsored by the public entity or a group of which the public entity is a member; and (iv) the sponsorship of an event that is organized by the public entity.

"Gratuity” Means anything of value given: (i) without anything provided in exchange; or (ii) in excess of the market value of that which is provided in exchange;

Gratuity Includes: (i) a gift or favor; (ii) money; (iii) 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; (iv) anything of value provided with an award, other than a certificate, plaque, or trophy; (v) employment; (vi) admission to an event; (vii) a meal, lodging, or travel; (viii) entertainment for which a charge is normally made; (ix) a raffle, drawing for a prize, or lottery;

Gratuity Does Not Include: (i)an item, including a meal in association with a training seminar, that is: (A) included in a contract or grant; or (B) provided in the proper performance of a requirement of a contract or grant; (ii)an item requested to evaluate properly the award of a contract or grant; (iii)a rebate, coupon, discount, airline travel award, dividend, or other offering included in the price of a procurement item; (iv) 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;

Gratuity Does Not Include: (v) a product sample submitted to a public entity to assist the public entity to evaluate a solicitation; (vi)a political campaign contribution; (vii) an item generally available to the public; or (viii) anything of value that one public agency provides to another public agency.

Unlawful Conduct 63G-6a-2404 (1)(a) It is unlawful for a person who has or is seeking a contract with or a grant from a public entity knowingly to give, or offer, promise, or pledge to give, a gratuity or kickback to: (i) the public entity; (ii) a procurement professional or contract administration professional; or (iii) an individual who the person knows is a family member of an individual of a procurement professional or contract administration professional. (b) It is not unlawful for a public agency to give, offer, promise, or pledge to give a contribution to another public agency.

Unlawful Conduct 63G-6a-2404 (c) A person is not guilty of unlawful conduct for: (i) giving or offering, promising, or pledging to give a contribution to a public entity, unless done with the intent to induce the public entity, in exchange, to: (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; or (ii) giving or offering, promising, or pledging to give something of value to an organization to which a procurement professional or contract administration professional belongs, unless done with the intent to induce a public entity, in exchange, to: (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.

Unlawful Conduct 63G-6a-2404 (2)(a) It is unlawful 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 with or a grant from a public entity. (b) An individual is not guilty of unlawful conduct under Subsection (2)(a) for receiving or accepting, offering or agreeing to receive or accept, or asking for a promise or pledge of a contribution on behalf of a public entity, unless done with the intent that the public entity, in exchange: (i) award a contract or grant; (ii) make a procurement decision; or (iii) take an action relating to the administration of a contract or grant.

Unlawful Conduct 63G-6a-2404 (3) It is not unlawful 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: (a) the total value of the hospitality gift is less than $10; and (b) the aggregate value of all hospitality gifts from the person to the recipient in a calendar year is less than $50.

Classification of Offenses 63G-6a-2404 (4) A person who engages in the conduct made unlawful under Subsection (1) or (2) is guilty of: (a) a second degree felony, if the total value of the gratuity or kickback is $1,000 or more; (b) a third degree felony, if the total value of the gratuity or kickback is $250 or more but less than $1,000; (c) a class A misdemeanor, if the total value of the gratuity or kickback is $100 or more but less than $250; and (d) a class B misdemeanor, if the total value of the gratuity or kickback is less than $100.

Classification of Offenses 63G-6a-2404 (5) The criminal sanctions described in Subsection (4) do not preclude the imposition of other penalties for conduct made unlawful under this part, in accordance with other applicable law, including: (a) dismissal from employment or other disciplinary action; (b) for an elected officer listed in Section , removal from office as provided in Title 77, Chapter 6, Removal by Judicial Proceedings; (c) requiring the public officer or employee to return the value of the unlawful gratuity or kickback; and (d) any other civil penalty provided by law.

Duty to Report Unlawful Conduct 63G-6a-2407 (1)A procurement professional shall notify the attorney general or other appropriate prosecuting attorney if the procurement professional has actual knowledge that a person has engaged in: (a) conduct made unlawful under this part; or (b) 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. (2) A procurement professional who fails to comply with the requirement of Subsection (1) is subject to any applicable disciplinary action or civil penalty identified in Subsection 63G-6a-2404(5).