i. Definitions
i.1. Utah Charter Academies (UCA): The governing board representing American Preparatory Academy schools
i.2. American Preparatory Schools (APS): The management company contracted by UCA to manage the academic, fiscal, operations, and other activities of American Preparatory Academy schools.
i.3. American Preparatory Academy (APA): The system of charter schools governed by UCA.
i.4. UCA Designee: Employees of APA and/or APS authorized by position or name in this policy to perform purchasing duties as outlined in this policy on behalf of UCA.
i.5. CFO Designee: Employees of APA and/or APS authorized by position or name in this policy to perform purchasing functions as outlined in this policy on behalf of UCA.
i.6. Non-service purchase: Procurement of tangible goods
i.7. Service purchase: Procurement of services from a vendor, software, or individual.
i.8. Sole Source situations: A sole source exists when it is determined that only one vendor can provide a specific item. The Chief Financial Officer (CFO) or Executive Director is responsible for designating a sole source.
i.9. Multiyear contract: A contract that extends beyond a one-year period, including a contract that permits renewal of the contract, without competition, beyond the first year of the contract (per 63G-6a-103).
i.10. Emergency procurement: A procurement procedure where the procurement unit is authorized to obtain a procurement item without using a standard competitive procurement process.
i.11. Conflict of interest: For purposes of this policy, a conflict of interest exists when any employee puts his/her interest or the interests of some other individual(s) or entity ahead of or in opposition to the interests of APA.
1. Board Directive
1.1. Purpose
1.1.A. UCA recognizes the need for policy to govern the procurement of supplies, curriculum, textbooks, equipment, services, professional services, construction, and other aspects of conducting business on behalf of APA. These policies provide for qualitative and pricing considerations and comply with all applicable state and federal procurement laws. UCA grants APS authority to procure items and services on behalf of APA schools as denoted in this policy. Purchases and indebtedness may only be incurred by APS, APA, or other officers authorized to perform those functions by UCA. Utah Code 53G-4-405
1.2. Public Trust
1.2.A. Notwithstanding the size or type of procurement, a Designee shall consider reasonableness, necessity, allowability, and timeliness when making purchasing decisions.
1.3. Adoption
1.3.A. UCA adopts the rules and procedures set forth in the Utah Procurement Administrative Rule R33, adopted by the Chief Procurement Officer of the State of Utah. This election is made pursuant to Utah Code Title 63G-6a also known as the “Utah Procurement Code” (UPC).
1.4. Purchasing Authority
1.4.A. UCA, in adopting this policy, acts pursuant to 63G-6a-103(39) and hereby grants approval and authority to the Executive Director and other designees in this policy to fulfill the obligations stated herein.
1.5. UCA Approval
1.5.A. UCA shall approve procurement through any of the following methods:
1.5.A.1. UCA shall approve an annual budget for APA in an Open Meeting. All appropriation(s) for procurement(s) identified in the approved budget, that fall under the Level IV threshold or below, are summarily approved by that action; or
1.5.A.2. UCA may approve a revised budget for APA in an Open Meeting. All appropriation(s) for procurement(s) identified in the approved revised budget, that fall under the Level IV threshold or below, are summarily approved by that action; or
1.5.A.3. UCA may approve individual procurements in an Open Meeting. Utah Code 53G-4-405
1.6. Conflict of Interest
1.6.A. For purposes of this policy, a conflict of interest exists when any employee puts his/her interest or the interests of some other individual(s) or entity ahead of or in opposition to the interests of APA.
1.6.A.1. Employees must avoid all situations that create even the appearance of a conflict of interest.
1.6.A.2. Conflict of interest restrictions shall apply to all members of the UCA, Officers of the Board, Administrators of Schools, school and district-level administration, or any employee of APA.
1.6.A.3. No one who has a financial or other interest in the transaction shall participate in the selection, award, or administration of a contract or purchase agreement.
1.6.A.4. UCA Designees shall comply with and be subject to Part 24 of the Utah Procurement Code, titled “Unlawful Conduct and Penalties.”
1.6.A.5. Knowing and willful violation of the Conflict of Interest policy by APA employees is cause for personnel action and, in accordance with due process procedures, may result in termination.
1.7. Compliance with State and Federal Law and Exemptions from Chapter
1.7.A. When procurement involves the expenditure of federal assistance or contract funds, Designees shall comply with mandatory applicable federal law and regulations not reflected in this policy (Utah Code 63G-6a-107.) This policy shall not prevent Designees from complying with the terms and conditions of any grant, gift, or bequest that is otherwise consistent with the law. This policy is not applicable to grants awarded by the State of Utah or contracts between the State of Utah and UCA where the grant specifically requires expenditures to specific vendors for predetermined products. This policy is not applicable to funds administered under the Percent-for-Art Program of the Utah Percent-for-Art Act.
1.8. Organization
1.8.A. The Purchasing Department shall be staffed by administrators and support personnel as deemed necessary by the Executive Director. Purchasing Department personnel may take any reasonable actions to advance the economic well-being and efficient operation of APA, so long as that action is in compliance with UCA Procurement Policies, the Utah Procurement Code, Utah Procurement Rules, Utah Public Officers’ and Employees’ Ethics Act, and policies of the Utah State Board of Education.
1.8.B. The Executive Director is designated to direct the procurement functions of APA and to ensure such functions are in accordance with established policies and written procedures. The Executive Director may designate, in writing, purchasing authority to other APS and/or APA employees, as necessary, to fulfill the purpose of this policy, as well as the authority to withdraw such designations.
2. PURCHASING
2.1. General Information
2.1.A. Use authorized Utah vendors when available (search contracts.utah.gov) and utilize competitive quotes.
2.1.B. Schools and departments are to foster a competitive procurement environment by seeking multiple quotes or bids prior to making a purchase as required by these guidelines.
2.1.C. Not all purchases (photography services, building rentals, banquets, etc.) lend themselves to a formal bidding process. However, care should be taken to select vendors who make an effort to serve public entities by competitively pricing their goods and services.
2.1.D. All on-going purchasing procedures and arrangements should be periodically reviewed to permit vendors the opportunity to be part of a competitive procurement environment.
2.1.E. Direct purchases should be based on the lowest price that meets quality, specifications, and service requirements.
2.1.F. Preferred documentation is a Purchase Order processed through the approved financial software system.
2.1.G. Quote documentation, identification of authorized Utah vendor, and any sole source documentation/justification should be included with and attached to the Netsuite PO.
2.1.H. Purchases may not be divided in order to avoid next level threshold requirements.
2.1.I. Refer to Accounting & Finance manual for additional procedural guidance.
2.1.J. Receipts must be maintained for individual purchases.
2.1.K. Sales tax may not be reimbursed.
2.1.L. Funding source should be indicated for each expense.
2.1.M. Any products or services obtained from vendors under an incentive or loyalty program (including $0 dollar items or orders), will be processed by the Purchasing Department as regular purchases.
2.2. Purchasing Thresholds
2.2.A. Small Purchases (Non-Construction, Non-Professional Service Providers)
2.2.A.1. Purchase of items costing less than $50,000 is designated a small purchase and must be approved by the Purchasing Department in accordance with the UCA Finance & Accounting Manual, the Utah Procurement Code, and standard procurement processes best suited for APA’s purposes, except:
2.2.A.1.1. Sole source procurements,
2.2.A.1.2. Emergency procurements,
2.2.A.1.3. Bids approved by the Executive Director under $50,000, or
2.2.A.1.4. Cooperative Contracts
2.2.A.2. Procurements shall not be artificially subdivided so as to constitute a small purchase (Utah Procurement Code 63G-6a-506).
2.2.B. The following chart outlines the procedures to be followed according to the amount of the purchase:
2.2.C. Level I – $0 to $1,000
2.2.C.1. Authorized Designees: Pre-approval required by Purchasing Department, Director-level employee or above.
2.2.C.2. A designee may select the best source by direct award and without seeking competitive bids or quotes (R33-5-104).
2.2.C.3. The single procurement aggregate threshold is a maximum amount of $10,000 for multiple procurement item(s) purchased from one source at one time (R33-5-104). Purchases may not be divided in order to avoid additional requirements.
2.2.C.4. Preferred documentation is a Purchase Order processed through Netsuite.
2.2.D. Level II – $1,001 to $5,000
2.2.D.1. Approval by Authorized Designees: Purchasing Department, Director-level employee or above.
2.2.D.2. Two (2) competitive quotes should be obtained.
2.2.D.3. The single procurement aggregate threshold is a maximum amount of $10,000 for multiple procurement item(s) purchased from one source at one time (R33-5-104).
2.2.D.4. The annual cumulative small purchase threshold for purchases made from the same source is $50,000. Level VI threshold applies to purchases from the same source above $50,000 requested within the same fiscal year (R33-5-104).
2.2.E. Level III – $5,001 to $10,000
2.2.E.1. Approval by a campus director, Purchasing Director, Controller, and CFO with notification to applicable departments (i.e. IT, curriculum, and asset accounting).
2.2.E.2. Must obtain two (2) competitive quotes
2.2.E.3. The single procurement aggregate threshold is $10,000 for multiple individual procurement items purchased from one source at one time unless the procurement official determines a lower amount (R33-5-104).
2.2.E.4. The annual cumulative threshold for small purchases made from the same source is $50,000. Level VI threshold applies to purchases from the same source above $50,000 requested within the same fiscal year (R33-5-104).
2.2.F. Level IV – $10,001 to $25,000
2.2.F.1. Approval by a campus director, Purchasing Director, Controller, and CFO with notification to applicable departments (i.e. IT, curriculum, and asset accounting).
2.2.F.2. Purchasing department to obtain three (3) competitive quotes with selection based on lowest price that meets quality, specifications, and service.
2.2.F.3. The annual cumulative threshold for small purchases made from the same source is $50,000. Level VI threshold applies to purchases from the same source above $50,000 requested within the same fiscal year (R33-5-104).
2.2.G. Level V – $25,000 to $50,000
2.2.G.1. Approval by a campus director, Purchasing Director, Controller, and CFO with notification to applicable departments (i.e. IT, curriculum, and asset accounting).
2.2.G.2. Purchasing department to obtain three (3) competitive quotes with selection based on lowest price that meets quality, specifications, and service
2.2.G.3. The annual cumulative threshold for small purchases made from the same source is $50,000. Level VI threshold applies to purchases from the same source above $50,000 requested within the same fiscal year (R33-5-104).
2.2.H. Level VI – $50,000 and above
2.2.H.1. Approval by a campus director, Purchasing Director, Controller, and CFO with notification to applicable departments (i.e. IT, curriculum, and asset accounting).
2.2.H.2. Purchasing department to conduct a competitive bid process in compliance with Utah Code, 63G-6a, sections 602-608, and 701-712, or send an RFP to approved vendors in compliance with Utah Code, 63G-6a, sections 401-409. PO processed through Netsuite and quote documentation retained.
2.2.H.3. Selection based on lowest price that meets quality, specifications, and service. Retain bid/RFP documentation.
2.2.H.4. UCA Board approval required prior to purchase commitment.
3. Purchased Professional Services
3.1. Small Purchases of Professional Service Providers and Consultants under $100,000
3.1.A. Approval by a campus director, Purchasing Director, Controller, and CFO with notification to applicable departments (i.e. IT, curriculum, and asset accounting).
3.1.B. Professional service providers and consultants may be procured up to a maximum for $100,000, by direct negotiation after reviewing the qualifications of a minimum of three firms or individuals.
3.1.C. If, during a fiscal year, it seems likely that a professional service provider may exceed the maximum of $100,000, an RFP process should be initiated (Utah Rule R33-5-108).
3.2. $100,000 and over
3.2.A. Approval by a campus director, Purchasing Director, Controller, and CFO with notification to applicable departments (i.e. IT, curriculum, and asset accounting).
3.2.B. Purchasing department to conduct a competitive bid process in compliance with Utah Code, 63G-6a, sections 602-608, and 701-712, or send an RFP to approved vendors in compliance with Utah Code, 63G-6a, sections 401-409. PO processed through Netsuite and quote documentation retained.
3.2.C. Selection based on lowest price that meets quality, specifications, and service. Retain bid/RFP documentation.
3.2.D. UCA Board approval required prior to service commitment
4. Sole Source Procurement
4.1. A contract may be awarded for a supply, service, or construction item without using a standard procurement process when the Director or CFO determines in writing that there is only one source for the required supply, service, or construction; transitional costs are a significant consideration in selecting a procurement item; and
4.2. the results of a cost-benefit analysis demonstrate that transitional costs are unreasonable or cost-prohibitive, and that the award of a contract without engaging in a standard procurement process is in the best interest of APA per 63G-6a-802.
5. Emergency Procurement
5.1. An executive-level director or designee may authorize an emergency procurement without using a standard procurement process when an emergency condition exists. When the Director authorizes an emergency procurement, he/she shall:
5.1.A. Ensure the procurement is made with as much competition as reasonably practicable while avoiding harm, or a risk of harm, to the public health, safety, welfare, or property; or protecting the legal interests of APA
5.1.B. Prepare a written document explaining the emergency condition that necessitated the emergency procurement (Utah Procurement Code 63G-6a-804).
6. Purchasing (Credit) Cards
6.1. The purpose of purchasing (credit) cards is to provide a more efficient, cost-effective method of purchasing and payment for small-dollar transactions. The purchase card is designed to replace a variety of processes including petty cash and small dollar purchase orders.
6.1.A. Only designated employees may, in the process of conducting District business, use APA’s authorized purchase cards for purchases in strict accordance with APA’s purchase card policies and procedures as found in APA’s Finance & Accounting Manual.
6.1.B. Card usage will be audited regularly.
7. Contracts
7.1. Multi-year Contracts All multi-year contracts, regardless of the source of the money to be expended or received, must be approved by the CFO or designee, according to procedures outlined in APA’s Financial Accounting Manual.
7.2. Cooperative Contracts
7.2.A. When appropriate, APA may utilize cooperative contracts with the state or with other authorized cooperative contracting organizations. If pricing, terms, or timeliness of delivery offered under a cooperative contract are found not to be in the best interest of APA, then requests for proposal, bids, or quotations consistent with Utah Code 63G-6a may be solicited by the Purchasing Department.
7.3. Description and Specification Development
7.3.A. Product and service specifications for RFPs are to be drafted by the requesting school or department, with any necessary assistance by the Purchasing Department, and submitted with a purchase request to the Purchasing Department.
7.3.B. Specifications shall seek to promote the overall economy and best use for the purposes intended and encourage competition in satisfying the needs of APA, and may not be unduly restrictive (63G-6a-111).
8. Construction and Related Services
8.1. The rules and procedures regarding the procurement of goods and services under Sections 1 &2 of this policy shall apply to the procurement of construction services, except as outlined below.
8.1.A. Direct Award without Competition
8.1.A.1. $0 to $4,999
8.1.A.1.1. Direct purchase using a signed and authorized purchase order by the originating department entered in the non-printed comments on the electronic purchase order system.
8.1.A.2. $5000 to $19,999
8.1.A.2.1. Direct purchase using a signed and authorized purchase order by the originating department selected from a list of prequalified vendors solicited by the Purchasing Department.
8.1.A.3. $20,000 to $79,999
8.1.A.3.1. Competition must be solicited either using at least three (3) written quotes or following the standard bid process outlined in the Utah Procurement Code.
8.2. Solicitation Type
8.2.A. The Purchasing Department shall determine which method of construction contracting management is to be used for each particular project. The Department shall execute and include in the contract file a written statement setting forth the facts, which led to the selection of a particular method of construction contracting management for each project (Utah Procurement Code 63G-6a-1302).
8.3. Architects and Engineers
8.3.A. Licensed architect or engineer shall prepare the plans and specifications for the construction or alteration of school buildings.
8.3.B. The selection of an architect or engineer shall follow the most recent adoption of the Utah Procurement Code and Utah State Board of Education rules and requirements.
8.3.C. Architect and engineering services estimated to be under $80,000 will be selected from a prequalified pool of firms to provide design services.
8.3.D. Architect services estimated to be $80,000 and above must be approved by the Board of Education. Contracts may be signed by the CFO after a project has been approved by the Board, as all fees are negotiated between APA and the architect, since the final dollar amount of the contract is often undetermined and based upon a percentage of the construction bid price.
8.4. Limited Compliance with Local Zoning Ordinances
8.4.A. APA shall comply with local zoning and land use ordinances except as follows:
8.4.B. APA is not required to comply with a local municipality or county regarding its land use or zoning ordinances with respect to:
8.4.B.1. Landscaping;
8.4.B.2. Fencing;
8.4.B.3. Aesthetic considerations;
8.4.B.4. Construction methods or materials;
8.4.B.5. Building codes;
8.4.B.6. Building use for educational services; or
8.4.B.7. Use or construction of temporary classrooms on school property (per UCA 10-9a-305).
8.4.C. APA, at its discretion, is not required to participate in the cost of any study or construction of any sidewalk unless:
8.4.C.1. The sidewalk is necessary for the safety of school children; or;
8.4.C.2. The sidewalk is on or contiguous to school property.
8.4.D. APA is not required to participate in the cost of any study or construction of any roadway unless the roadway is necessary to connect an otherwise isolated school site to an existing roadway.
8.4.E. APA shall not pay fees to either the county or a local municipality unless:
8.4.E.1. APA has elected not to provide its own inspectors to inspect school construction or otherwise fails to provide for inspections; in such case, APA must pay local municipal inspection fees;
8.4.E.2. The fee relates to an impact fee for an improvement project that is reasonably related to the impact of APA’s project upon the need that the improvement is to address; or
8.4.E.3. The cost imposed is necessary to avoid unreasonable risks to health or safety.
8.4.E.4. APA shall select an inspector in compliance with procurement and school construction rules at the time of procurement.
8.5. Change Orders
8.5.A. Under a construction contract, any change order which increases the contract amount shall be subject to prior written certification that the change order is within the determined project or contract budget. The certification shall be made by the Director. The change order shall be signed by the CFO.
8.5.B. If the certification discloses a resulting increase in the total project or contract budget, the CFO shall not execute or make the change order unless sufficient funds are available for the scope of the project or the contract is adjusted to permit the degree of completion feasible within the total project or contract budget as it existed prior to the change order under consideration (63G-6a-1207).
8.5.C. In order to assure that construction work proceeds without interruption, the CFO is authorized to approve change orders up to $20,000 without prior approval, if the change order is within the budget
9. Protests and Remedies
9.1. The following provisions apply to all competitive bids or competitive requests for proposals, including construction procurement.
9.1.A. Protest Officer
9.1.A.1. The Director of Purchasing is designated as the protest officer for APA, and as such will follow requirements outlined in 63G-6a-1603 and the rules defined in the Utah Administrative Code section R33-16.
9.1.B. Submitted in Writing
9.1.B.1. Any actual or prospective bidder, offer or contractor who is aggrieved in connection with the solicitation or award of the contract may protest to the Director of Purchasing.
9.1.B.2. A protest with respect to a standard procurement shall be submitted in writing prior to the opening of bids or the closing date for proposals unless the aggrieved person did not know or should not have known of the facts giving rise to the protest prior to bid opening or the closing date for proposals.
9.1.B.3. The protest shall be submitted in writing within seven (7) calendar days after the aggrieved person knows or should have known of the facts giving rise to the protest.
9.1.B.4. The Director has the authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve the protest.
9.1.B.5. Failure to submit a timely protest shall constitute a waiver of such right (Utah Code 63G-6a-1602).
9.2. Stay of Proceedings
9.2.A. In the event of a timely protest, the Department shall not proceed further with the solicitation or with the award of the contract until all administrative and judicial remedies have been exhausted or until the Director makes a written determination that the award of the contract without delay is necessary to protect substantial interests of APA.
9.3. Appeal of Decision
9.3.A. Under provisions outlined in 63G-6a-1702, any person that has successfully submitted a protest under the above requirements may appeal to the Utah State Procurement Policy Board if a decision made by the protest officer is not in their favor.
REFERENCES
Utah Code Ann. §63G-6a-101 et seq., Utah Procurement Code
Utah Code Ann. §67-16-1 et seq., Utah Public Officers’ and Employees’ Ethics Act
Utah Admin. Code R33, Administrative Services, Purchasing, and General Services
Utah Admin. Code R277-113, LEA Fiscal Policies, and Accountability
