Florida Senate - 2013                             CS for SB 1150
       
       
       
       By the Committee on Governmental Oversight and Accountability;
       and Senators Benacquisto and Brandes
       
       
       
       585-02417-13                                          20131150c1
    1                        A bill to be entitled                      
    2         An act relating to state contracting; amending s.
    3         215.971, F.S.; requiring agreements funded with state
    4         or federal financial assistance to include additional
    5         provisions; authorizing the Chief Financial Officer to
    6         audit agreements before execution and providing
    7         requirements for such audits; requiring state agencies
    8         to designate a grants manager for each agreement and
    9         providing requirements and procedures for managers;
   10         requiring the Chief Financial Officer to perform
   11         audits of executed agreements and to discuss such
   12         audits with agency officials; requiring the agency
   13         head to respond to the audit; reordering and amending
   14         s. 215.985, F.S.; revising provisions relating to the
   15         Chief Financial Officer’s intergovernmental contract
   16         tracking system under the Transparency Florida Act;
   17         requiring state agencies to post certain information
   18         in the tracking system and to update that information;
   19         requiring that exempt and confidential information be
   20         redacted from contracts and procurement documents
   21         posted on the system; authorizing the Chief Financial
   22         Officer to make available to the public the
   23         information posted on the system through a secure
   24         website; authorizing the Department of Financial
   25         Services to adopt rules; repealing s. 216.0111, F.S.,
   26         relating to a requirement that state agencies report
   27         certain contract information to the Department of
   28         Financial Services and transferring that requirement
   29         to s. 215.985, F.S.; amending s. 287.057, F.S.;
   30         requiring certain contract managers to be certified
   31         and directing the Department of Management Services to
   32         be responsible for establishing the requirements for
   33         certification; amending s. 287.058, F.S.; authorizing
   34         the Chief Financial Officer to audit contracts before
   35         execution and providing requirements for such audits;
   36         creating s. 287.136, F.S.; requiring the Chief
   37         Financial Officer to perform audits of executed
   38         contract documents and to discuss such audits with the
   39         agency officials; requiring the agency head to respond
   40         to the audit; providing an effective date.
   41  
   42  Be It Enacted by the Legislature of the State of Florida:
   43  
   44         Section 1. Section 215.971, Florida Statutes, is amended to
   45  read:
   46         215.971 Agreements funded with federal or and state
   47  assistance.—
   48         (1)For An agency agreement that provides state financial
   49  assistance to a recipient or subrecipient, as those terms are
   50  defined in s. 215.97, or that provides federal financial
   51  assistance to a subrecipient, as defined by applicable United
   52  States Office of Management and Budget circulars, must the
   53  agreement shall include all of the following:
   54         (a)(1) A provision specifying a scope of work that clearly
   55  establishes the tasks that the recipient or subrecipient is
   56  required to perform.; and
   57         (b)(2) A provision dividing the agreement into quantifiable
   58  units of deliverables that must be received and accepted in
   59  writing by the agency before payment. Each deliverable must be
   60  directly related to the scope of work and must specify the
   61  required minimum level of service to be performed and the
   62  criteria for evaluating the successful completion of each
   63  deliverable.
   64         (c)A provision specifying the financial consequences that
   65  apply if the recipient or subrecipient fails to perform the
   66  minimum level of service required by the agreement. The
   67  provision can be excluded from the agreement only if financial
   68  consequences are prohibited by the federal agency awarding the
   69  grant. Funds refunded to a state agency from a recipient or
   70  subrecipient for failure to perform as required under the
   71  agreement may be expended only in direct support of the program
   72  from which the agreement originated.
   73         (d)A provision specifying that a recipient or subrecipient
   74  of federal or state financial assistance may expend funds only
   75  for allowable costs resulting from obligations incurred during
   76  the specified agreement period.
   77         (e)A provision specifying that any balance of unobligated
   78  funds which has been advanced or paid must be refunded to the
   79  state agency.
   80         (f)A provision specifying that any funds paid in excess of
   81  the amount to which the recipient or subrecipient is entitled
   82  under the terms and conditions of the agreement must be refunded
   83  to the state agency.
   84         (g)Any additional information required pursuant to s.
   85  215.97.
   86         (2)The Chief Financial Officer may audit an agreement
   87  funded with state or federal assistance before the execution of
   88  such agreement in accordance with rules adopted by the
   89  Department of Financial Services. The audit must ensure that
   90  applicable laws have been met; that the agreement document
   91  contains a clear statement of work, quantifiable and measurable
   92  deliverables, performance measures, financial consequences for
   93  nonperformance, and clear terms and conditions that protect the
   94  interests of the state; and that the associated costs of the
   95  agreement are not unreasonable or inappropriate. The audit must
   96  ensure that all contracting laws have been met and that
   97  documentation is available to support the agreement. An
   98  agreement that does not comply with this section may be returned
   99  to the submitting agency for revision.
  100         (a)The Chief Financial Officer may establish dollar
  101  thresholds and other criteria for determining which agreements
  102  will be audited before execution. The Chief Financial Officer
  103  may revise such thresholds and other criteria for an agency or
  104  unit of an agency as he or she deems appropriate.
  105         (b)The Chief Financial Officer shall have up to 10
  106  business days after receipt of the proposed grant agreement to
  107  make a final determination of any deficiencies in the agreement
  108  and shall provide the agency with information regarding any
  109  deficiencies at the conclusion of the review. The Chief
  110  Financial Officer and the agency entering into the agreement may
  111  agree to a longer review period. The agency is responsible for
  112  addressing the deficiencies and shall have the option to
  113  resubmit the agreement for subsequent review before execution.
  114  The Chief Financial Officer shall perform a subsequent review to
  115  verify that all deficiencies have been addressed upon processing
  116  the first payment.
  117         (3)For each agreement funded with federal or state
  118  financial assistance, the state agency shall designate an
  119  employee to function as a grant manager who shall be responsible
  120  for enforcing performance of the agreement’s terms and
  121  conditions and who shall serve as a liaison with the recipient
  122  or subrecipient.
  123         (a) Each grant manager who is responsible for agreements in
  124  excess of the threshold amount for CATEGORY TWO under s. 287.017
  125  must complete the training and become a certified contract
  126  manager as provided under s. 287.057(14).
  127         (b) The Chief Financial Officer shall establish and
  128  disseminate uniform procedures for grant management pursuant to
  129  s. 17.03(3) to ensure that services have been rendered in
  130  accordance with agreement terms before the agency processes an
  131  invoice for payment. The procedures must include, but need not
  132  be limited to, procedures for monitoring and documenting
  133  recipient or subrecipient performance, reviewing and documenting
  134  all deliverables for which payment is requested by the recipient
  135  or subrecipient, and providing written certification by the
  136  grant manager of the agency’s receipt of goods and services.
  137         (c)The grant manager shall reconcile and verify all funds
  138  received against all funds expended during the grant agreement
  139  period and produce a final reconciliation report. The final
  140  report must identify any funds paid in excess of the
  141  expenditures incurred by the recipient or subrecipient.
  142         (4)The Chief Financial Officer shall perform audits of the
  143  executed state and federal grant agreement documents and grant
  144  manager’s records in order to ensure that adequate internal
  145  controls are in place for complying with the terms and
  146  conditions of such agreements and for validation and receipt of
  147  goods and services.
  148         (a)At the conclusion of the audit, the Chief Financial
  149  Officer’s designee shall discuss the audit and potential
  150  findings with the official whose office is subject to audit. The
  151  final audit report shall be submitted to the agency head.
  152         (b) Within 30 days after the receipt of the final audit
  153  report, the agency head shall submit to the Chief Financial
  154  Officer or designee, his or her written statement of explanation
  155  or rebuttal concerning findings requiring corrective action,
  156  including corrective action to be taken to preclude a
  157  recurrence.
  158         Section 2. Subsection (2) of section 215.985, Florida
  159  Statutes, is reordered and amended and subsection (16) of that
  160  section is amended, to read:
  161         215.985 Transparency in government spending.—
  162         (2) As used in this section, the term:
  163         (c)(a) “Governmental entity” means any state, regional,
  164  county, municipal, special district, or other political
  165  subdivision whether executive, judicial, or legislative,
  166  including, but not limited to, any department, division, bureau,
  167  commission, authority, district, or agency thereof, or any
  168  public school, Florida College System institution, state
  169  university, or associated board.
  170         (d)(b) “Website” means a site on the Internet which is
  171  easily accessible to the public at no cost and does not require
  172  the user to provide any information.
  173         (a)(c) “Committee” means the Legislative Auditing Committee
  174  created in s. 11.40.
  175         (b) “Contract” means any written agreement or purchase
  176  order issued for the purchase of goods or services and any
  177  written agreements for the receipt of federal or state financial
  178  assistance.
  179         (16) The Chief Financial Officer shall establish and
  180  maintain a secure, shared state contract tracking provide public
  181  access to a state contract management system.
  182         (a) Within 30 calendar days after executing a contract,
  183  each state agency as defined in s. 216.011(1) shall post all of
  184  the following that provides information and documentation
  185  relating to that contract on the contract tracking system, as
  186  required by rule: contracts procured by governmental entities.
  187         1.The names of the contracting entities.
  188         2.The procurement method.
  189         3.The contract beginning and end dates.
  190         4.The nature or type of the commodities or services
  191  purchased.
  192         5.Applicable contract unit prices and deliverables.
  193         6.Total compensation to be paid or received under the
  194  contract.
  195         7.All payments made to the contractor to date.
  196         8.Applicable contract performance measures.
  197         9.The justification for not using competitive solicitation
  198  to procure the contract, including citation to any statutory
  199  exemption or exception from competitive solicitation, if
  200  applicable.
  201         10.Electronic copies of the contract and procurement
  202  documents that have been redacted to conceal exempt or
  203  confidential information.
  204         11.Any other information required by the Chief Financial
  205  Officer.
  206         (a) The data collected in the system must include, but need
  207  not be limited to, the contracting agency; the procurement
  208  method; the contract beginning and ending dates; the type of
  209  commodity or service; the purpose of the commodity or service;
  210  the compensation to be paid; compliance information, such as
  211  performance metrics for the service or commodity; contract
  212  violations; the number of extensions or renewals; and the
  213  statutory authority for providing the service.
  214         (b) The affected state governmental agency shall update the
  215  information described in paragraph (a) in the contract tracking
  216  system within 30 calendar days after a major modification or
  217  amendment change to an existing contract or the execution of a
  218  new contract, agency procurement staff of the affected state
  219  governmental entity shall update the necessary information in
  220  the state contract management system. A major modification or
  221  amendment change to a contract includes, but is not limited to,
  222  a renewal, termination, or extension of the contract, or an
  223  amendment to the contract as determined by the Chief Financial
  224  Officer.
  225         (c) Each state agency identified in paragraph (a) shall
  226  redact, as defined in s. 119.011, exempt or confidential
  227  information from the contract or procurement documents before
  228  posting an electronic copy on the contract tracking system.
  229         1. If a state agency becomes aware that an electronic copy
  230  of a contract or procurement document that it posted has not
  231  been properly redacted, the state agency must immediately notify
  232  the Chief Financial Officer so that the contract or procurement
  233  document may be removed. Within 7 business days, the state
  234  agency shall provide the Chief Financial Officer with a properly
  235  redacted copy for posting.
  236         2. If a party to a contract, or authorized representative,
  237  discovers that an electronic copy of a contract or procurement
  238  document on the system has not been properly redacted, the party
  239  or representative may request the state agency that posted the
  240  document to redact the exempt or confidential information. Upon
  241  receipt of a request in compliance with this subparagraph, the
  242  state agency that posted the document shall redact the exempt or
  243  confidential information.
  244         a. Such request must be in writing and delivered by mail,
  245  facsimile, or electronic transmission or in person to the state
  246  agency that posted the information. The request must identify
  247  the specific document, the page numbers that include the exempt
  248  or confidential information, the information that is exempt or
  249  confidential, and the relevant statutory exemption. A fee may
  250  not be charged for a redaction made pursuant to such request.
  251         b. If necessary, a party to the contract may petition the
  252  circuit court for an order directing compliance with this
  253  paragraph.
  254         3. The Chief Financial Officer, the Department of Financial
  255  Services, or any officer, employee, or contractor thereof, is
  256  not responsible for redacting exempt or confidential information
  257  from an electronic copy of a contract or procurement document
  258  posted by another state agency on the system and is not liable
  259  for the failure of the state agency to redact the exempt or
  260  confidential information. The Chief Financial Officer may notify
  261  the posting state agency if a document posted on the tracking
  262  system contains exempt or confidential information.
  263         (d) Pursuant to ss. 119.01 and 119.07, the Chief Financial
  264  Officer may make information posted on the contract tracking
  265  system available for viewing and download by the public through
  266  a secure website. Unless otherwise provided by law, information
  267  retrieved electronically pursuant to this paragraph is not
  268  admissible in court as an authenticated document.
  269         1. The Chief Financial Officer may regulate and prohibit
  270  the posting of records that could facilitate identity theft or
  271  fraud, such as signatures; compromise or reveal an agency
  272  investigation; reveal the identity of undercover personnel;
  273  reveal proprietary confidential business information or trade
  274  secrets; reveal an individual’s medical information; or reveal
  275  any other record or information that the Chief Financial Officer
  276  believes may jeopardize the health, safety, or welfare of the
  277  public. However, such prohibition does not supersede the duty of
  278  a state agency to provide a copy of a public record upon
  279  request. The Chief Financial Officer shall use appropriate
  280  Internet security measures to ensure that no person has the
  281  ability to alter or modify records available on the website.
  282         2. Records made available on the website, including
  283  electronic copies of contracts or procurement documents, may not
  284  reveal information made exempt or confidential by law. Notice of
  285  the right of an affected party to request redaction of exempt or
  286  confidential information pursuant to paragraph (c) must be
  287  displayed on the website.
  288         (e) The posting of information on the contract tracking
  289  system or the provision of contract information on a website for
  290  public viewing and downloading does not supersede the duty of a
  291  state agency to respond to a public record request for such
  292  information or to a subpoena for such information.
  293         1. A request for a copy of a contract or procurement
  294  document or a certified copy of a contract or procurement
  295  document must be made to the state agency that is party to the
  296  contract. Such request may not be made to the Chief Financial
  297  Officer or the Department of Financial Services or any officer,
  298  employee, or contractor thereof unless the Chief Financial
  299  Officer or department is a party to the contract.
  300         2. A subpoena for a copy of a contract or procurement
  301  document or certified copy of a contract or procurement document
  302  must be served on the state agency that is a party to the
  303  contract and that maintains the original documents. The Chief
  304  Financial Officer or the Department of Financial Services or any
  305  officer, employee, or contractor thereof may not be served a
  306  subpoena for those records unless the Chief Financial Officer or
  307  the department is a party to the contract.
  308         (f) The Chief Financial Officer may adopt rules to
  309  administer this subsection.
  310         Section 3. Section 216.0111, Florida Statutes, is repealed.
  311         Section 4. Subsection (14) of section 287.057, Florida
  312  Statutes, is amended to read:
  313         287.057 Procurement of commodities or contractual
  314  services.—
  315         (14) For each contractual services contract, the agency
  316  shall designate an employee to function as contract manager who
  317  is shall be responsible for enforcing performance of the
  318  contract terms and conditions and serve as a liaison with the
  319  contractor. Each contract manager who is responsible for
  320  contracts in excess of the threshold amount for CATEGORY TWO
  321  established under s. 287.017 must be a certified contract
  322  manager. The Department of Management Services is responsible
  323  for establishing and disseminating the requirements for
  324  certification, which include completing the attend training
  325  conducted by the Chief Financial Officer for accountability in
  326  contracts and grant management. The Chief Financial Officer
  327  shall establish and disseminate uniform procedures pursuant to
  328  s. 17.03(3) to ensure that contractual services have been
  329  rendered in accordance with the contract terms before the agency
  330  processes the invoice for payment. The procedures must shall
  331  include, but need not be limited to, procedures for monitoring
  332  and documenting contractor performance, reviewing and
  333  documenting all deliverables for which payment is requested by
  334  vendors, and providing written certification by contract
  335  managers of the agency’s receipt of goods and services.
  336         Section 5. Subsection (7) is added to section 287.058,
  337  Florida Statutes, to read:
  338         287.058 Contract document.—
  339         (7) The Chief Financial Officer may audit a contract
  340  subject to this chapter before the execution of such contract in
  341  accordance with rules adopted by the Department of Financial
  342  Services. The audit must ensure that applicable laws have been
  343  met; that the contract document contains a clear statement of
  344  work, quantifiable and measurable deliverables, performance
  345  measures, financial consequences for nonperformance, and clear
  346  terms and conditions that protect the interests of the state;
  347  and that the associated costs of the contract are not
  348  unreasonable or inappropriate. The audit must ensure that all
  349  contracting laws have been met and that documentation is
  350  available to support the contract. A contract that does not
  351  comply with this section may be returned to the submitting
  352  agency for revision.
  353         (a) The Chief Financial Officer may establish dollar
  354  thresholds and other criteria for sampling the contracts that
  355  are to be audited before execution. The Chief Financial Officer
  356  may revise such thresholds and other criteria for an agency or
  357  unit of an agency as deemed appropriate.
  358         (b) The Chief Financial Officer has up to 10 business days
  359  after receipt of the proposed contract to make a final
  360  determination of any deficiencies in the contract and shall
  361  include information regarding the deficiencies in the audit
  362  report provided to the agency entering into the contract. The
  363  Chief Financial Officer and the agency entering into the
  364  contract may agree to a longer review period. The agency is
  365  responsible for addressing the deficiencies and shall have the
  366  option to resubmit the contract for subsequent review before
  367  execution. The Chief Financial Officer shall perform a
  368  subsequent review to verify that all deficiencies have been
  369  addressed upon processing the first payment.
  370         Section 6. Section 287.136, Florida Statutes, is created to
  371  read:
  372         287.136Audit of executed contract documents.—The Chief
  373  Financial Officer shall perform audits of the executed contract
  374  documents and contract manager’s records to ensure that adequate
  375  internal controls are in place for complying with the terms and
  376  conditions of the contract and for the validation and receipt of
  377  goods and services.
  378         (1)At the conclusion of the audit, the Chief Financial
  379  Officer’s designee shall discuss the audit and potential
  380  findings with the official whose office is subject to audit. The
  381  final audit report shall be submitted to the agency head.
  382         (2) Within 30 days after the receipt of the final audit
  383  report, the agency head shall submit to the Chief Financial
  384  Officer or designee, his or her written statement of explanation
  385  or rebuttal concerning findings requiring corrective action,
  386  including corrective action to be taken to preclude a
  387  recurrence.
  388         Section 7. This act shall take effect July 1, 2013.