House Bill hb1945

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    Florida House of Representatives - 2001                HB 1945

        By the Committee on State Administration and
    Representative Brummer





  1                      A bill to be entitled

  2         An act relating to procurement of commodities

  3         and contractual services; amending s. 287.012,

  4         F.S.; revising definitions; amending s.

  5         287.042, F.S.; limiting challenges of terms,

  6         conditions, and specifications of certain

  7         requests or invitations; including invitations

  8         to negotiate and requests for quotes within

  9         provisions relating to competitive processes;

10         requiring the Department of Management Services

11         to develop certain competitive procurement

12         processes procedures; providing additional

13         criteria for methods of securing competitive

14         sealed bids, responses, quotes, and proposals;

15         amending s. 287.057, F.S.; providing for

16         procurement by invitation to negotiate and for

17         provision by request for a quote under certain

18         circumstances; amending ss. 61.1826, 287.022,

19         287.058, 394.457, 394.47865, 402.73, 408.045,

20         445.024, and 455.2177, F.S.; correcting cross

21         references; providing an effective date.

22

23  Be It Enacted by the Legislature of the State of Florida:

24

25         Section 1.  Subsections (15), (16), and (17) of section

26  287.012, Florida Statutes, are amended, and subsections (20)

27  and (21) are added to said section, to read:

28         287.012  Definitions.--The following definitions shall

29  apply in this part:

30         (15)  "Request for proposals" means a written

31  solicitation for competitive sealed proposals with the title,

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  1  date, and hour of the public opening designated. A written

  2  solicitation includes a solicitation published or transmitted

  3  by electronic means. The request for proposals is used when

  4  the agency is incapable of specifically defining the scope of

  5  work for which the commodity, group of commodities, or

  6  contractual service is required and when the agency is

  7  requesting that a qualified proposer of offeror propose a

  8  commodity, group of commodities, or contractual service to

  9  meet the specifications of the solicitation document.  A

10  request for proposals includes, but is not limited to, general

11  information, applicable laws and rules, functional or general

12  specifications, statement of work, proposal instructions, and

13  evaluation criteria. Requests for proposals shall state the

14  relative importance of price and any other evaluation

15  criteria.

16         (16)  "Responsive bid" or "responsive proposal" means a

17  bid or proposal submitted by a responsive, and responsible or

18  qualified, bidder or proposer offeror which conforms in all

19  material respects to the invitation to bid or request for

20  proposals.

21         (17)  "Responsive bidder" or "responsive proposer

22  offeror" means a person who has submitted a bid or proposal

23  which conforms in all material respects to the invitation to

24  bid or request for proposals.

25         (20)  "Invitation to negotiate" means a written

26  solicitation that calls for responses to select one or more

27  persons or business entities with which to commence

28  negotiations for the procurement of commodities or contractual

29  services.

30         (21)  "Request for a quote" means a solicitation that

31  calls for pricing information for purposes of competitively

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  1  selecting and procuring commodities and contractual services

  2  from qualified or registered vendors.

  3         Section 2.  Paragraph (d) is added to subsection (2) of

  4  section 287.042, Florida Statutes, paragraphs (b) and (c) of

  5  subsection (4) of said section are amended and paragraph (f)

  6  is added to said subsection, and paragraph (a) of subsection

  7  (5) of said section is amended, to read:

  8         287.042  Powers, duties, and functions.--The department

  9  shall have the following powers, duties, and functions:

10         (2)

11         (d)  The terms, conditions, and specifications of a

12  request for proposal, invitation to bid, or invitation to

13  negotiate, including any provisions governing the methods for

14  ranking proposals, awarding contracts, reserving rights of

15  further negotiation, or the modification or amendment of any

16  contract, are subject to challenge only by filing a protest

17  within 72 hours after the notice of the terms, conditions, or

18  specifications as provided in s. 120.57(3)(b).

19         (4)  To establish a system of coordinated, uniform

20  procurement policies, procedures, and practices to be used by

21  agencies in acquiring commodities and contractual services,

22  which shall include, but not be limited to:

23         (b)  Development of procedures for the releasing of

24  requests for proposals, invitations to bid, invitations to

25  negotiate, and other competitive acquisitions which procedures

26  shall include, but are not limited to, notice by publication

27  in the Florida Administrative Weekly, on Government Services

28  Direct, or by mail at least 10 days before the date set for

29  submittal of proposals or bids. The Office of Supplier

30  Diversity may consult with agencies regarding the development

31  of bid distribution procedures to ensure that maximum

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  1  distribution is afforded to certified minority business

  2  enterprises as defined in s. 288.703.

  3         (c)  Development of procedures for the receipt and

  4  opening of bids, responses, quotes, or proposals by an agency.

  5  Such procedures shall provide the Office of Supplier Diversity

  6  an opportunity to monitor and ensure that the contract award

  7  is consistent with the requirements of s. 287.09451 original

  8  request for proposal or invitation to bid, in accordance with

  9  s. 287.0945(6), and subject to the review of bid responses

10  within standard timelines.

11         (f)  Development of procedures to be used by an agency

12  for issuing invitations to bid, invitations to negotiate,

13  requests for a proposal, requests for a quote, or other

14  competitive procurement processes.

15         (5)(a)  To prescribe the methods of securing

16  competitive sealed bids, responses, quotes, and proposals.

17  Such methods may include, but are not limited to, procedures

18  for identifying vendors; setting qualifications; evaluating

19  responses, bids, and proposals; ranking respondents and

20  proposers; selecting invitees and proposers; and conducting

21  negotiations, or negotiating and awarding commodity and

22  contractual services contracts, unless otherwise provided by

23  law.

24         Section 3.  Subsection (2) of section 287.057, Florida

25  Statutes, is amended, subsections (3) through (22) of said

26  section are renumbered as subsections (4) through (23),

27  respectively, a new subsection (3) is added to said section,

28  and present subsections (3) and (15) of said section are

29  amended, to read:

30         287.057  Procurement of commodities or contractual

31  services.--

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  1         (2)  When an agency determines in writing that the use

  2  of competitive sealed bidding is not practicable, commodities

  3  or contractual services shall be procured by competitive

  4  sealed proposals.  A request for proposals which includes a

  5  statement of the commodities or contractual services sought

  6  and all contractual terms and conditions applicable to the

  7  procurement of commodities or contractual services, including

  8  the criteria, which shall include, but need not be limited to,

  9  price, to be used in determining acceptability of the proposal

10  shall be issued.  If the agency contemplates renewal of the

11  commodities or contractual services contract, it shall be so

12  stated in the request for proposals.  The submitted proposal

13  shall include the price for each year for which the contract

14  may be renewed.  Evaluation of proposals shall include

15  consideration of the total cost for each year as quoted by the

16  proposer offeror.  To assure full understanding of and

17  responsiveness to the solicitation requirements, discussions

18  may be conducted with qualified proposers offerors.  The

19  proposers offerors shall be accorded fair and equal treatment

20  prior to the submittal date specified in the request for

21  proposals with respect to any opportunity for discussion and

22  revision of proposals.  The award shall be made to the

23  responsible proposer offeror whose proposal is determined in

24  writing to be the most advantageous to the state, taking into

25  consideration the price and the other criteria set forth in

26  the request for proposals.  The contract file shall contain

27  the basis on which the award is made.

28         (3)  If the agency determines that the use of an

29  invitation to bid or a request for a proposal is not

30  practical, commodities or contractual services may be procured

31

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  1  by an invitation to negotiate or provided by a request for a

  2  quote.

  3         (4)(3)  When the purchase price of commodities or

  4  contractual services exceeds the threshold amount provided in

  5  s. 287.017 for CATEGORY TWO, no purchase of commodities or

  6  contractual services may be made without receiving competitive

  7  sealed bids, or competitive sealed proposals, or responses to

  8  an invitation to negotiate or a request for a quote unless:

  9         (a)  The agency head determines in writing that an

10  immediate danger to the public health, safety, or welfare or

11  other substantial loss to the state requires emergency action.

12  After the agency head makes such a written determination, the

13  agency may proceed with the procurement of commodities or

14  contractual services necessitated by the immediate danger,

15  without competition. However, such emergency procurement shall

16  be made with such competition as is practicable under the

17  circumstances. The agency shall furnish copies of the written

18  determination certified under oath and any other documents

19  relating to the emergency action to the department.  A copy of

20  the statement shall be furnished to the Comptroller with the

21  voucher authorizing payment.  The individual purchase of

22  personal clothing, shelter, or supplies which are needed on an

23  emergency basis to avoid institutionalization or placement in

24  a more restrictive setting is an emergency for the purposes of

25  this paragraph, and the filing with the department of such

26  statement is not required in such circumstances.  In the case

27  of the emergency purchase of insurance, the period of coverage

28  of such insurance shall not exceed a period of 30 days, and

29  all such emergency purchases shall be reported to the

30  department.

31

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  1         (b)  Purchasing agreements and contracts executed by

  2  the department or by agencies under authority delegated by the

  3  department in writing are excepted from bid requirements.

  4         (c)  Commodities or contractual services available only

  5  from a single source may be excepted from the bid requirements

  6  if it is determined that such commodities or services are

  7  available only from a single source and such determination is

  8  documented. However, if such contract is for an amount greater

  9  than the threshold amount provided in s. 287.017 for CATEGORY

10  FOUR, the agency head shall file a certification of conditions

11  and circumstances with the department and shall obtain the

12  prior approval of the department. The failure of the

13  department to approve or disapprove the request of an agency

14  for prior approval within 21 days after receiving such request

15  or within 14 days after receiving from the agency additional

16  materials requested by the department shall constitute prior

17  approval of the department.  To the greatest extent

18  practicable, but no later than 45 days after authorizing the

19  exception in writing, the department shall combine

20  single-source procurement authorizations for identical

21  information technology resources for which the purchase price

22  exceeds the threshold amount provided in s. 287.017 for

23  CATEGORY FOUR, and shall negotiate and execute volume

24  purchasing agreements for such procurements on behalf of the

25  agencies.

26         (d)  When it is in the best interest of the state, the

27  Secretary of Management Services or his or her designee may

28  authorize the Support Program to purchase insurance by

29  negotiation, but such purchase shall be made only under

30  conditions most favorable to the public interest.

31

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  1         (e)  Prescriptive assistive devices for the purpose of

  2  medical, developmental, or vocational rehabilitation of

  3  clients are excepted from competitive sealed bid and

  4  competitive sealed proposal requirements and shall be procured

  5  pursuant to an established fee schedule or by any other method

  6  which ensures the best price for the state, taking into

  7  consideration the needs of the client.  Prescriptive assistive

  8  devices include, but are not limited to, prosthetics,

  9  orthotics, and wheelchairs.  For purchases made pursuant to

10  this paragraph, state agencies shall annually file with the

11  department a description of the purchases and methods of

12  procurement.

13         (f)  The following contractual services and commodities

14  are not subject to the competitive sealed bid requirements of

15  this section:

16         1.  Artistic services.

17         2.  Academic program reviews.

18         3.  Lectures by individuals.

19         4.  Auditing services.

20         5.  Legal services, including attorney, paralegal,

21  expert witness, appraisal, or mediator services.

22         6.  Health services involving examination, diagnosis,

23  treatment, prevention, medical consultation, or

24  administration.

25         7.  Services provided to persons with mental or

26  physical disabilities by not-for-profit corporations which

27  have obtained exemptions under the provisions of s. 501(c)(3)

28  of the United States Internal Revenue Code or when such

29  services are governed by the provisions of Office of

30  Management and Budget Circular A-122. However, in acquiring

31  such services, the agency shall consider the ability of the

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  1  contractor, past performance, willingness to meet time

  2  requirements, and price.

  3         8.  Medicaid services delivered to an eligible Medicaid

  4  recipient by a health care provider who has not previously

  5  applied for and received a Medicaid provider number from the

  6  Agency for Health Care Administration. However, this exception

  7  shall be valid for a period not to exceed 90 days after the

  8  date of delivery to the Medicaid recipient and shall not be

  9  renewed by the agency.

10         9.  Family placement services.

11         10.  Prevention services related to mental health,

12  including drug abuse prevention programs, child abuse

13  prevention programs, and shelters for runaways, operated by

14  not-for-profit corporations.  However, in acquiring such

15  services, the agency shall consider the ability of the

16  contractor, past performance, willingness to meet time

17  requirements, and price.

18         11.  Training and education services provided to

19  injured employees pursuant to s. 440.49(1).

20         12.  Contracts entered into pursuant to s. 337.11.

21         13.  Services or commodities provided by governmental

22  agencies.

23         (g)  Continuing education events or programs that are

24  offered to the general public and for which fees have been

25  collected that pay all expenses associated with the event or

26  program are exempt from competitive sealed bidding.

27         (16)(15)  For requests for proposals, a selection team

28  of at least three employees who have experience and knowledge

29  in the program areas and service requirements for which

30  contractual services are sought shall be appointed by the

31  agency head to aid in the evaluation of the proposals and

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  1  selection of one or more proposers contractors for contracts

  2  of more than the threshold amount provided in s. 287.017 for

  3  CATEGORY FOUR.

  4         Section 4.  Paragraph (e) of subsection (1) of section

  5  61.1826, Florida Statutes, is amended to read:

  6         61.1826  Procurement of services for State Disbursement

  7  Unit and the non-Title IV-D component of the State Case

  8  Registry; contracts and cooperative agreements; penalties;

  9  withholding payment.--

10         (1)  LEGISLATIVE FINDINGS.--The Legislature finds that

11  the clerks of court play a vital role, as essential

12  participants in the establishment, modification, collection,

13  and enforcement of child support, in securing the health,

14  safety, and welfare of the children of this state. The

15  Legislature further finds and declares that:

16         (e)  The potential loss of substantial federal funds

17  poses a direct and immediate threat to the health, safety, and

18  welfare of the children and citizens of the state and

19  constitutes an emergency for purposes of s. 287.057(4)(3)(a).

20

21  For these reasons, the Legislature hereby directs the

22  Department of Revenue, subject to the provisions of subsection

23  (6), to contract with the Florida Association of Court Clerks

24  and each depository to perform duties with respect to the

25  operation and maintenance of a State Disbursement Unit and the

26  non-Title IV-D component of the State Case Registry as further

27  provided by this section.

28         Section 5.  Subsection (1) of section 287.022, Florida

29  Statutes, is amended to read:

30         287.022  Purchase of insurance.--

31

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  1         (1)  Insurance, while not a commodity, nevertheless

  2  shall be purchased for all agencies by the department, except

  3  that agencies may purchase title insurance for land

  4  acquisition and may make emergency purchases of insurance

  5  pursuant to s. 287.057(4)(3)(a). The procedures for purchasing

  6  insurance, whether the purchase is made by the department or

  7  by the agencies, shall be the same as those set forth herein

  8  for the purchase of commodities.

  9         Section 6.  Subsection (5) of section 287.058, Florida

10  Statutes, is amended to read:

11         287.058  Contract document.--

12         (5)  Unless otherwise provided in the General

13  Appropriations Act or the substantive bill implementing the

14  General Appropriations Act, the Comptroller may waive the

15  requirements of this section for services which are included

16  in s. 287.057(4)(3)(f).

17         Section 7.  Subsection (3) of section 394.457, Florida

18  Statutes, is amended to read:

19         394.457  Operation and administration.--

20         (3)  POWER TO CONTRACT.--The department may contract to

21  provide, and be provided with, services and facilities in

22  order to carry out its responsibilities under this part with

23  the following agencies: public and private hospitals;

24  receiving and treatment facilities; clinics; laboratories;

25  departments, divisions, and other units of state government;

26  the state colleges and universities; the community colleges;

27  private colleges and universities; counties, municipalities,

28  and any other governmental unit, including facilities of the

29  United States Government; and any other public or private

30  entity which provides or needs facilities or services. Baker

31  Act funds for community inpatient, crisis stabilization,

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  1  short-term residential treatment, and screening services must

  2  be allocated to each county pursuant to the department's

  3  funding allocation methodology. Notwithstanding the provisions

  4  of s. 287.057(4)(3)(f), contracts for community-based Baker

  5  Act services for inpatient, crisis stabilization, short-term

  6  residential treatment, and screening provided under this part,

  7  other than those with other units of government, to be

  8  provided for the department must be awarded using competitive

  9  sealed bids when the county commission of the county receiving

10  the services makes a request to the department's district

11  office by January 15 of the contracting year. The district

12  shall not enter into a competitively bid contract under this

13  provision if such action will result in increases of state or

14  local expenditures for Baker Act services within the district.

15  Contracts for these Baker Act services using competitive

16  sealed bids will be effective for 3 years. Services contracted

17  for by the department may be reimbursed by the state at a rate

18  up to 100 percent.  The department shall adopt rules

19  establishing minimum standards for such contracted services

20  and facilities and shall make periodic audits and inspections

21  to assure that the contracted services are provided and meet

22  the standards of the department.

23         Section 8.  Paragraph (a) of subsection (1) of section

24  394.47865, Florida Statutes, is amended to read:

25         394.47865  South Florida State Hospital;

26  privatization.--

27         (1)  The Department of Children and Family Services

28  shall, through a request for proposals, privatize South

29  Florida State Hospital. The department shall plan to begin

30  implementation of this privatization initiative by July 1,

31  1998.

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  1         (a)  Notwithstanding s. 287.057(13)(12), the department

  2  may enter into agreements, not to exceed 20 years, with a

  3  private provider, a coalition of providers, or another agency

  4  to finance, design, and construct a treatment facility having

  5  up to 350 beds and to operate all aspects of daily operations

  6  within the facility. The department may subcontract any or all

  7  components of this procurement to a statutorily established

  8  state governmental entity that has successfully contracted

  9  with private companies for designing, financing, acquiring,

10  leasing, constructing, and operating major privatized state

11  facilities.

12         Section 9.  Subsections (1) and (5) of section 402.73,

13  Florida Statutes, are amended to read:

14         402.73  Contracting and performance standards.--

15         (1)  The Department of Children and Family Services

16  shall establish performance standards for all contracted

17  client services. Notwithstanding s. 287.057(4)(3)(f), the

18  department must competitively procure any contract for client

19  services when any of the following occurs:

20         (a)  The provider fails to meet appropriate performance

21  standards established by the department after the provider has

22  been given a reasonable opportunity to achieve the established

23  standards.

24         (b)  A new program or service has been authorized and

25  funded by the Legislature and the annual value of the contract

26  for such program or service is $300,000 or more.

27         (c)  The department has concluded, after reviewing

28  market prices and available treatment options, that there is

29  evidence that the department can improve the performance

30  outcomes produced by its contract resources. At a minimum, the

31  department shall review market prices and available treatment

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  1  options biennially. The department shall compile the results

  2  of the biennial review and include the results in its annual

  3  performance report to the Legislature pursuant to chapter

  4  94-249, Laws of Florida. The department shall provide notice

  5  and an opportunity for public comment on its review of market

  6  prices and available treatment options.

  7         (5)  When it is in the best interest of a defined

  8  segment of its consumer population, the department may

  9  competitively procure and contract for systems of treatment or

10  service that involve multiple providers, rather than procuring

11  and contracting for treatment or services separately from each

12  participating provider. The department must ensure that all

13  providers that participate in the treatment or service system

14  meet all applicable statutory, regulatory, service-quality,

15  and cost-control requirements. If other governmental entities

16  or units of special purpose government contribute matching

17  funds to the support of a given system of treatment or

18  service, the department shall formally request information

19  from those funding entities in the procurement process and may

20  take the information received into account in the selection

21  process. If a local government contributes match to support

22  the system of treatment or contracted service and if the match

23  constitutes at least 25 percent of the value of the contract,

24  the department shall afford the governmental match contributor

25  an opportunity to name an employee to the selection team

26  required by s. 287.057(16)(15). Any employee so named shall

27  qualify as one of the employees required by s.

28  287.057(16)(15). The selection team shall include the named

29  employee unless the department sets forth in writing the

30  reason such inclusion would be contrary to the best interests

31  of the state. No governmental entity or unit of special

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  1  purpose government may name an employee to the selection team

  2  if it, or any of its political subdivisions, executive

  3  agencies, or special districts, intends to compete for the

  4  contract to be awarded. The governmental funding entity or

  5  match contributor shall comply with any deadlines and

  6  procurement procedures established by the department. The

  7  department may also involve nongovernmental funding entities

  8  in the procurement process when appropriate.

  9         Section 10.  Subsection (2) of section 408.045, Florida

10  Statutes, is amended to read:

11         408.045  Certificate of need; competitive sealed

12  proposals.--

13         (2)  The agency shall make a decision regarding the

14  issuance of the certificate of need in accordance with the

15  provisions of s. 287.057(16)(15), rules adopted by the agency

16  relating to intermediate care facilities for the

17  developmentally disabled, and the criteria in s. 408.035, as

18  further defined by rule.

19         Section 11.  Paragraph (c) of subsection (5) of section

20  445.024, Florida Statutes, is amended to read:

21         445.024  Work requirements.--

22         (5)  USE OF CONTRACTS.--Regional workforce boards shall

23  provide work activities, training, and other services, as

24  appropriate, through contracts. In contracting for work

25  activities, training, or services, the following applies:

26         (c)  Notwithstanding the exemption from the competitive

27  sealed bid requirements provided in s. 287.057(4)(3)(f) for

28  certain contractual services, each contract awarded under this

29  chapter must be awarded on the basis of a competitive sealed

30  bid, except for a contract with a governmental entity as

31  determined by the regional workforce board.

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  1         Section 12.  Paragraph (d) of subsection (2) of section

  2  455.2177, Florida Statutes, is amended to read:

  3         455.2177  Monitoring of compliance with continuing

  4  education requirements.--

  5         (2)  If the compliance monitoring system required under

  6  this section is privatized, the following provisions apply:

  7         (d)  Upon the failure of a vendor to meet its

  8  obligations under a contract as provided in paragraph (a), the

  9  department may suspend the contract and enter into an

10  emergency contract under s. 287.057(4)(3).

11         Section 13.  This act shall take effect July 1, 2002.

12

13            *****************************************

14                          HOUSE SUMMARY

15
      Revises procurement of commodities and contractual
16    services provisions to limit challenges of terms,
      conditions, and specifications of requests for proposals
17    or invitation to bid or negotiate, include invitations to
      negotiate and requests for quotes within provisions
18    relating to competitive processes, require the Department
      of Management Services to develop procedures for issuing
19    invitations to bid or negotiate or requests for a
      proposal or a quote, and provide for procurement by
20    invitation to negotiate and for provision by request for
      a quote if an invitation to bid or a request for a
21    proposal is not practical. See bill for details.

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