Florida Senate - 2011                             CS for SB 2090
       
       
       
       By the Committees on Governmental Oversight and Accountability;
       and Governmental Oversight and Accountability
       
       
       
       585-04611-11                                          20112090c1
    1                        A bill to be entitled                      
    2         An act relating to a review under the Open Government
    3         Sunset Review Act; amending s. 119.071, F.S., which
    4         provides an exemption from public-records requirements
    5         for bids, proposals, or replies submitted to an agency
    6         in response to a competitive solicitation; expanding
    7         the public-records exemption by extending the duration
    8         of the exemption; providing a definition; reorganizing
    9         provisions; providing for future repeal and
   10         legislative review of the exemption under the Open
   11         Government Sunset Review Act; amending s. 286.0113,
   12         F.S., which provides an exemption from public-meetings
   13         requirements for meetings at which a negotiation with
   14         a vendor is conducted and which provides an exemption
   15         from public-records requirements for recordings of
   16         exempt meetings; providing definitions; expanding the
   17         exemption to include meetings at which a negotiation
   18         with a vendor is conducted pursuant to a competitive
   19         solicitation, at which a vendor makes an oral
   20         presentation as part of a competitive solicitation, at
   21         which a vendor answers questions as part of a
   22         competitive solicitation, and at which team members
   23         discuss negotiation strategies; expanding the public
   24         records exemption to include any records presented at
   25         an exempt meeting; reorganizing provisions; providing
   26         for future repeal and legislative review under the
   27         Open Government Sunset Review Act; providing a
   28         statement of public necessity; providing an effective
   29         date.
   30  
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. Paragraph (b) of subsection (1) of section
   34  119.071, Florida Statutes, is amended to read:
   35         119.071 General exemptions from inspection or copying of
   36  public records.—
   37         (1) AGENCY ADMINISTRATION.—
   38         (b)1. For purposes of this paragraph, the term “competitive
   39  solicitation” means the process of requesting and receiving
   40  sealed bids, proposals, or replies in accordance with the terms
   41  of a competitive process, regardless of the method of
   42  procurement.
   43         2.a. Sealed bids, or proposals, or replies received by an
   44  agency pursuant to a competitive solicitation invitations to bid
   45  or requests for proposals are exempt from s. 119.07(1) and s.
   46  24(a), Art. I of the State Constitution until such time as the
   47  agency provides notice of an a decision or intended decision
   48  pursuant to s. 120.57(3)(a) or until 30 within 10 days after
   49  opening the bids, proposals, or final replies bid or proposal
   50  opening, whichever is earlier.
   51         3.b. If an agency rejects all bids, or proposals, or
   52  replies submitted in response to a competitive solicitation an
   53  invitation to bid or request for proposals and the agency
   54  concurrently provides notice of its intent to reissue the
   55  competitive solicitation invitation to bid or request for
   56  proposals, the rejected bids, or proposals, or replies remain
   57  exempt from s. 119.07(1) and s. 24(a), Art. I of the State
   58  Constitution until such time as the agency provides notice of an
   59  a decision or intended decision pursuant to s. 120.57(3)(a)
   60  concerning the reissued competitive solicitation invitation to
   61  bid or request for proposals or until the agency withdraws the
   62  reissued competitive solicitation invitation to bid or request
   63  for proposals. A bid, proposal, or reply is not exempt for
   64  longer than 12 months after the initial agency notice rejecting
   65  all bids, proposals, or replies. This sub-subparagraph is
   66  subject to the Open Government Sunset Review Act in accordance
   67  with s. 119.15 and shall stand repealed on October 2, 2011,
   68  unless reviewed and saved from repeal through reenactment by the
   69  Legislature.
   70         2.a. A competitive sealed reply in response to an
   71  invitation to negotiate, as defined in s. 287.012, is exempt
   72  from s. 119.07(1) and s. 24(a), Art. I of the State Constitution
   73  until such time as the agency provides notice of a decision or
   74  intended decision pursuant to s. 120.57(3)(a) or until 20 days
   75  after the final competitive sealed replies are all opened,
   76  whichever occurs earlier.
   77         b. If an agency rejects all competitive sealed replies in
   78  response to an invitation to negotiate and concurrently provides
   79  notice of its intent to reissue the invitation to negotiate and
   80  reissues the invitation to negotiate within 90 days after the
   81  notice of intent to reissue the invitation to negotiate, the
   82  rejected replies remain exempt from s. 119.07(1) and s. 24(a),
   83  Art. I of the State Constitution until such time as the agency
   84  provides notice of a decision or intended decision pursuant to
   85  s. 120.57(3)(a) concerning the reissued invitation to negotiate
   86  or until the agency withdraws the reissued invitation to
   87  negotiate. A competitive sealed reply is not exempt for longer
   88  than 12 months after the initial agency notice rejecting all
   89  replies.
   90         4.c. This paragraph subparagraph is subject to the Open
   91  Government Sunset Review Act in accordance with s. 119.15 and
   92  shall stand repealed on October 2, 2016 2011, unless reviewed
   93  and saved from repeal through reenactment by the Legislature.
   94         Section 2. Subsection (2) of section 286.0113, Florida
   95  Statutes, is amended to read:
   96         286.0113 General exemptions from public meetings.—
   97         (2)(a) For purposes of this subsection, the term:
   98         1. “Competitive solicitation” means the process of
   99  requesting and receiving sealed bids, proposals, or replies in
  100  accordance with the terms of a competitive process, regardless
  101  of the method of procurement.
  102         2. “Team” means a group of members established by an agency
  103  for the purpose of conducting negotiations as part of a
  104  competitive solicitation.
  105         (b)1. Any portion of a meeting at which a negotiation with
  106  a vendor is conducted pursuant to a competitive solicitation, at
  107  which a vendor makes an oral presentation as part of a
  108  competitive solicitation, or at which a vendor answers questions
  109  as part of a competitive solicitation s. 287.057(1) is exempt
  110  from s. 286.011 and s. 24(b), Art. I of the State Constitution.
  111         2. Any portion of a team meeting at which negotiation
  112  strategies are discussed is exempt from s. 286.011 and s. 24(b),
  113  Art. I of the State Constitution.
  114         (c)(b)1. A complete recording shall be made of any portion
  115  of an exempt meeting made exempt in paragraph (a). No portion of
  116  the exempt meeting may be held off the record.
  117         2. The recording of and any records presented at the exempt
  118  meeting are required under subparagraph 1. is exempt from s.
  119  119.07(1) and s. 24(a), Art. I of the State Constitution until
  120  such time as the agency provides notice of an a decision or
  121  intended decision pursuant to s. 120.57(3)(a) or until 30 20
  122  days after opening the bids, proposals, or final replies the
  123  final competitive sealed replies are all opened, whichever
  124  occurs earlier.
  125         3. If the agency rejects all bids, proposals, or sealed
  126  replies and concurrently provides notice of its intent to
  127  reissue a competitive solicitation, the recording and any
  128  records presented at the exempt meeting remain remains exempt
  129  from s. 119.07(1) and s. 24(a), Art. I of the State Constitution
  130  until such time as the agency provides notice of an a decision
  131  or intended decision pursuant to s. 120.57(3)(a) concerning the
  132  reissued competitive solicitation invitation to negotiate or
  133  until the agency withdraws the reissued competitive solicitation
  134  invitation to negotiate. A recording and any records presented
  135  at an exempt meeting are is not exempt for longer than 12 months
  136  after the initial agency notice rejecting all bids, proposals,
  137  or replies.
  138         (d)(c) This subsection is subject to the Open Government
  139  Sunset Review Act in accordance with s. 119.15 and shall stand
  140  repealed on October 2, 2016 2011, unless reviewed and saved from
  141  repeal through reenactment by the Legislature.
  142         Section 3. (1) The Legislature finds that it is a public
  143  necessity that bids, proposals, or replies submitted to an
  144  agency in response to a competitive solicitation be made
  145  temporarily exempt from public-records requirements. Such
  146  records shall be made available when the agency provides notice
  147  of an intended decision, or when the agency rejects all bids,
  148  proposals, or replies and ultimately withdraws a reissued
  149  competitive solicitation. Temporarily protecting such
  150  information ensures that the process of responding to a
  151  competitive solicitation remains fair and economical for
  152  vendors, while still preserving oversight after a competitive
  153  solicitation decision is made or withdrawn.
  154         (2) The Legislature also finds that it is a public
  155  necessity that a meeting at which a negotiation with a vendor is
  156  conducted pursuant to a competitive solicitation, at which a
  157  vendor makes an oral presentation as part of a competitive
  158  solicitation, or at which a vendor answers questions as part of
  159  a competitive solicitation, be made exempt from public-meetings
  160  requirements. In addition, it is a public necessity that any
  161  records presented at such meetings be made temporarily exempt
  162  from public-records requirements. The recording of the meeting
  163  and any such records shall be made available when the agency
  164  provides notice of an intended decision, or when the agency
  165  rejects all bids, proposals, or replies and ultimately withdraws
  166  a reissued competitive solicitation. Protecting such meetings
  167  and temporarily protecting the recording and any records
  168  presented by a vendor at such meetings ensures that the process
  169  of responding to a competitive solicitation remains fair and
  170  economical for vendors, while still preserving oversight after a
  171  competitive solicitation decision is made or withdrawn. It is
  172  unfair and inequitable to compel vendors to disclose to
  173  competitors the nature and details of their proposals during
  174  such meetings or through the minutes or records presented at
  175  such meetings. Such disclosure impedes full and frank discussion
  176  of the strengths, weaknesses, and value of a bid, proposal, or
  177  response, thereby limiting the ability of the agency to obtain
  178  the best value for the public. The public and private harm
  179  stemming from these practices outweighs the temporary delay in
  180  access to records related to the competitive solicitation.
  181         (3) The Legislature further finds that it is a public
  182  necessity that any portion of a team meeting at which
  183  negotiation strategies are discussed be made exempt from public
  184  meetings requirements. In addition, it is a public necessity
  185  that the recording of such meeting be made temporarily exempt
  186  from public-records requirements. The recording of the meeting
  187  shall be made available when the agency provides notice of an
  188  intended decision, or when the agency rejects all bids,
  189  proposals, or replies and ultimately withdraws a reissued
  190  competitive solicitation. Team members often meet to strategize
  191  about competitive solicitations and the approach to take as part
  192  of the evaluation process. Without the public-meetings exemption
  193  and the limited public-records exemption, the effective and
  194  efficient administration of the competitive solicitation process
  195  would be hindered.
  196         Section 4. This act shall take effect upon becoming a law.