Senate Bill sb1132c1

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    Florida Senate - 2002                           CS for SB 1132

    By the Committee on Governmental Oversight and Productivity





    302-2251B-02

  1                      A bill to be entitled

  2         An act relating to state procurement; amending

  3         s. 61.1826, F.S.; conforming a cross-reference

  4         to changes made by this act; amending s.

  5         120.57, F.S.; specifying the manner in which

  6         notice of decisions and intended decisions

  7         concerning procurement are to be provided;

  8         defining the term "electronically post";

  9         providing procedures applicable to a protest of

10         a contract solicitation or award; specifying

11         the type of notice that starts the time for

12         filing a notice of protest; providing that

13         state holidays are not included in the time for

14         filing a notice of protest; specifying the

15         types of submissions that may be considered in

16         a protest; clarifying and conforming

17         provisions; amending ss. 283.32, 283.33,

18         283.34, 283.35, F.S.; conforming the sections

19         to changes made by the act; conforming a

20         cross-reference; amending s. 287.001, F.S.;

21         clarifying legislative intent with respect to

22         state procurement; amending s. 287.012, F.S.;

23         revising definitions; defining additional

24         terms; amending s. 287.017, F.S.; eliminating

25         the requirement for annual adjustments of

26         purchasing categories; amending 287.022, F.S.;

27         conforming a cross-reference to changes made by

28         the act; amending ss. 287.032, 287.042, F.S.;

29         revising the purpose, duties, and functions of

30         the Department of Management Services;

31         clarifying and conforming provisions; providing

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  1         procedures for the listing of commodities and

  2         services offered by certain nonprofit agencies

  3         organized pursuant to ch. 413, F.S.; providing

  4         that eligible users may purchase from state

  5         term contracts; providing that the protest bond

  6         amount shall be a specified percentage of the

  7         estimated contract amount; providing that

  8         official bank checks may be accepted in lieu of

  9         a bond; providing for prevailing party's

10         attorney's fees; requiring the department to

11         develop procedures for issuing solicitations,

12         requests for information, and requests for

13         quotes; prescribing the manner in which

14         solicitations are to be noticed; providing an

15         exception for the 10-day notice requirement for

16         solicitations; requiring the department to

17         develop procedures for electronic posting;

18         requiring the department to develop methods for

19         conducting question-and-answer sessions

20         regarding solicitations; providing that the

21         Office of Supplier Diversity may consult with

22         the department regarding solicitation

23         distribution procedures; providing that rules

24         may be distributed to agencies via an

25         electronic medium; requiring written

26         documentation of certain agency decisions;

27         eliminating the department's responsibilities

28         for the management of state surplus property;

29         amending s. 287.045, F.S., relating to the

30         procurement of products and materials with

31         recycled content; clarifying and conforming

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  1         provisions; amending s. 287.056, F.S.;

  2         specifying entities that are required or

  3         permitted to purchase from purchasing

  4         agreements and state term contracts; providing

  5         for use of a request for quote to obtain

  6         pricing or services information; amending s.

  7         287.057, F.S.; clarifying and conforming

  8         provisions; revising requirements for

  9         solicitations; providing for

10         question-and-answer sessions regarding

11         solicitations;  providing requirements for

12         emergency procurements; providing that agency

13         purchases from certain existing contracts are

14         exempt from competitive-solicitation

15         requirements; providing requirements for

16         single-source procurement; conforming

17         cross-references to changes made by the act;

18         providing requirements for contract renewal;

19         clarifying that exceptional purchase contracts

20         may not be renewed; providing requirements for

21         persons appointed to evaluate proposals and

22         replies and to negotiate contracts; prohibiting

23         certain persons or entities from receiving

24         contracts; specifying the entities responsible

25         for developing an on-line procurement system;

26         amending s. 287.0572, F.S.; clarifying and

27         conforming provisions; requiring that the cost

28         of all state contracts be evaluated by

29         present-value methodology; amending s. 287.058,

30         F.S.; revising provisions relating to renewal

31         which must be contained in a contract;

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  1         clarifying that exceptional purchase contracts

  2         may not be renewed; conforming cross-references

  3         to changes made by the act; amending s.

  4         287.059, F.S.; clarifying and conforming

  5         provisions; amending s. 287.0595, F.S.;

  6         revising requirements for the Department of

  7         Environmental Protection with respect to

  8         contracts for pollution response; clarifying

  9         and conforming provisions; repealing s.

10         287.073, F.S., relating to the procurement of

11         information technology resources; amending s.

12         287.0731, F.S.; revising requirements for a

13         team for contract negotiations; amending ss.

14         287.0822, 287.084, 287.087, 287.093, 287.09451,

15         F.S., relating to procurement of beef and pork,

16         preference for state businesses and businesses

17         with drug-free-workplace programs, minority

18         business enterprises, and the Office of

19         Supplier Diversity; clarifying and conforming

20         provisions to changes made by the act;

21         repealing s. 287.121, F.S., relating to

22         assistance by the Department of Legal Affairs;

23         amending ss. 287.133, 287.134, F.S., relating

24         to prohibitions on the transaction of business

25         with certain entities convicted of

26         public-entity crimes and entities that have

27         engaged in discrimination; clarifying and

28         conforming provisions; amending s. 287.1345,

29         F.S., relating to the surcharge on users of

30         state term contracts; authorizing the

31         Department of Management Services to collect

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  1         surcharges from eligible users; amending s.

  2         373.610, F.S.; clarifying that the provision

  3         applies to contractors; amending s. 373.611,

  4         F.S.; providing that water management districts

  5         may contract to limit damages recoverable from

  6         certain entities during procurement; amending

  7         ss. 394.457, 394.47865, 402.73, 408.045,

  8         445.024, 455.2177, F.S., relating to the power

  9         to contract by the Department of Children and

10         Family Services, the Agency for Health Care

11         Administration, the Regional Work Force Boards,

12         and the Department of Business and Professional

13         Regulation and their power to privatize and

14         procure; conforming cross-references;

15         clarifying and conforming provisions; amending

16         s. 413.036, F.S.; providing that ch. 287, F.S.,

17         does not apply to purchases made from certain

18         nonprofit agencies; specifying provisions

19         required to be contained in certain state

20         procurement contracts; providing an effective

21         date.

22

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

24

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

26  61.1826, Florida Statutes, is amended to read:

27         61.1826  Procurement of services for State Disbursement

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

29  Registry; contracts and cooperative agreements; penalties;

30  withholding payment.--

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

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

  3  participants in the establishment, modification, collection,

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

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

  6  Legislature further finds and declares that:

  7         (e)  The potential loss of substantial federal funds

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

  9  welfare of the children and citizens of the state and

10  constitutes an emergency for purposes of s. 287.057(5)(a) s.

11  287.057(4)(a).

12         Section 2.  Subsection (3) of section 120.57, Florida

13  Statutes, is amended to read:

14         120.57  Additional procedures for particular cases.--

15         (3)  ADDITIONAL PROCEDURES APPLICABLE TO PROTESTS TO

16  CONTRACT SOLICITATION BIDDING OR AWARD.--Agencies subject to

17  this chapter shall use utilize the uniform rules of procedure,

18  which provide procedures for the resolution of protests

19  arising from the contract solicitation or award bidding

20  process. Such rules shall at least provide that:

21         (a)  The agency shall provide notice of a its decision

22  or intended decision concerning a bid solicitation, or a

23  contract award, or exceptional purchase by electronic posting.

24  This notice shall contain the following statement: "Failure to

25  file a protest within the time prescribed in section

26  120.57(3), Florida Statutes, shall constitute a waiver of

27  proceedings under chapter 120, Florida Statutes." as follows:

28         1.  For a bid solicitation, notice of a decision or

29  intended decision shall be given by United States mail or by

30  hand delivery.

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  1         2.  For any decision of the Department of Management

  2  Services concerning a request by an agency for approval of an

  3  exceptional purchase under part I of chapter 287 and the rules

  4  of the Department of Management Services, notice of a decision

  5  or intended decision shall be given by posting such notice in

  6  the office of the Department of Management Services.

  7         3.  For any other agency decision, notice of a decision

  8  or intended decision shall be given either by posting the bid

  9  tabulation at the location where the bids were opened or by

10  certified United States mail or other express delivery

11  service, return receipt requested.

12

13  The notice required by this paragraph shall contain the

14  following statement:  "Failure to file a protest within the

15  time prescribed in s. 120.57(3), Florida Statutes, shall

16  constitute a waiver of proceedings under chapter 120, Florida

17  Statutes."

18         (b)  Any person who is adversely affected by the agency

19  decision or intended decision shall file with the agency a

20  notice of protest in writing within 72 hours after the posting

21  of the notice of decision or intended decision bid tabulation

22  or after receipt of the notice of the agency decision or

23  intended decision and shall file a formal written protest

24  within 10 days after filing the notice of protest. With

25  respect to a protest of the terms, conditions, and

26  specifications contained in a solicitation, including any

27  provisions governing the methods for ranking bids, proposals,

28  or replies, awarding contracts, reserving rights of further

29  negotiation, or modifying or amending any contract an

30  invitation to bid or in a request for proposals, the notice of

31  protest shall be filed in writing within 72 hours after the

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  1  posting receipt of notice of the solicitation. project plans

  2  and specifications in an invitation to bid or request for

  3  proposals, and The formal written protest shall be filed

  4  within 10 days after the date the notice of protest is filed.

  5  Failure to file a notice of protest or failure to file a

  6  formal written protest shall constitute a waiver of

  7  proceedings under this chapter. The formal written protest

  8  shall state with particularity the facts and law upon which

  9  the protest is based. Saturdays, Sundays, and state legal

10  holidays shall be excluded in the computation of the 72-hour

11  time periods provided by this paragraph.

12         (c)  Upon receipt of the formal written protest that

13  which has been timely filed, the agency shall stop the bid

14  solicitation process or the contract award process until the

15  subject of the protest is resolved by final agency action,

16  unless the agency head sets forth in writing particular facts

17  and circumstances which require the continuance of the bid

18  solicitation process or the contract award process without

19  delay in order to avoid an immediate and serious danger to the

20  public health, safety, or welfare.

21         (d)1.  The agency shall provide an opportunity to

22  resolve the protest by mutual agreement between the parties

23  within 7 days, excluding Saturdays, Sundays, and state legal

24  holidays, after receipt of a formal written protest.

25         2.  If the subject of a protest is not resolved by

26  mutual agreement within 7 days, excluding Saturdays, Sundays,

27  and state legal holidays, after receipt of the formal written

28  protest, and if there is no disputed issue of material fact,

29  an informal proceeding shall be conducted pursuant to

30  subsection (2) and applicable agency rules before a person

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  1  whose qualifications have been prescribed by rules of the

  2  agency.

  3         3.  If the subject of a protest is not resolved by

  4  mutual agreement within 7 days, excluding Saturdays, Sundays,

  5  and state legal holidays, after receipt of the formal written

  6  protest, and if there is a disputed issue of material fact,

  7  the agency shall refer the protest to the division for

  8  proceedings under subsection (1).

  9         (e)  Upon receipt of a formal written protest referred

10  pursuant to this subsection, the director of the division

11  shall expedite the hearing and assign an administrative law

12  judge who shall commence a hearing within 30 days after the

13  receipt of the formal written protest by the division and

14  enter a recommended order within 30 days after the hearing or

15  within 30 days after receipt of the hearing transcript by the

16  administrative law judge, whichever is later. Each party shall

17  be allowed 10 days in which to submit written exceptions to

18  the recommended order. A final order shall be entered by the

19  agency within 30 days of the entry of a recommended order. The

20  provisions of this paragraph may be waived upon stipulation by

21  all parties.

22         (f)  In a protest to an invitation to bid or request

23  for proposals procurement competitive-procurement protest, no

24  submissions made after the bid or proposal opening which amend

25  or supplement amending or supplementing the bid or proposal

26  shall be considered. In a protest to an invitation to

27  negotiate procurement, no submissions made after the agency

28  announces its intent to award a contract, reject all replies,

29  or withdraw the solicitation which amend or supplement the

30  reply shall be considered. Unless otherwise provided by

31  statute, the burden of proof shall rest with the party

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  1  protesting the proposed agency action. In a

  2  competitive-procurement protest, other than a rejection of all

  3  bids, proposals, or replies, the administrative law judge

  4  shall conduct a de novo proceeding to determine whether the

  5  agency's proposed action is contrary to the agency's governing

  6  statutes, the agency's rules or policies, or the solicitation

  7  bid or proposal specifications. The standard of proof for such

  8  proceedings shall be whether the proposed agency action was

  9  clearly erroneous, contrary to competition, arbitrary, or

10  capricious. In any bid-protest proceeding contesting an

11  intended agency action to reject all bids, proposals, or

12  replies, the standard of review by an administrative law judge

13  shall be whether the agency's intended action is illegal,

14  arbitrary, dishonest, or fraudulent.

15         (g)  For purposes of this subsection, the definitions

16  in  s. 287.012 apply.

17         Section 3.  Section 283.32, Florida Statutes, is

18  amended to read:

19         283.32  Recycled paper to be used by each agency;

20  printing bids certifying use of recycled paper; percentage

21  preference in awarding contracts.--

22         (1)  Each agency shall purchase, when economical,

23  recycled paper if and when recycled paper can be obtained that

24  is of adequate quality for the purposes of the agency.

25         (2)  Each agency shall require that a vendor that

26  person who submits a bid for a contract for printing and that

27  who wishes to be considered for the price preference described

28  in s. 287.045 to shall certify in writing the percentage of

29  recycled content of the material used for such printing. Such

30  vendor person may certify that the material contains no

31  recycled content.

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  1         (3)  Upon evaluation of bids for each printing

  2  contract, the agency shall identify the lowest responsive bid

  3  bidder and any other responsive bids in which it has been

  4  bidders who have certified that the materials used in printing

  5  contain at least the minimum percentage of recycled content

  6  that is set forth by the department. In awarding a contract

  7  for printing, the agency may allow up to a 10-percent price

  8  preference, as provided in s. 287.045, to a responsible and

  9  responsive vendor that bidder who has certified that the

10  materials used in printing contain at least the minimum

11  percentage of recycled content established by the department.

12  If no vendors bidders offer materials for printing that

13  contain the minimum prescribed recycled content, the contract

14  shall be awarded to the responsible vendor that submits the

15  lowest responsive bid qualified bidder.

16         Section 4.  Section 283.33, Florida Statutes, is

17  amended to read:

18         283.33  Printing of publications; lowest bidder

19  awards.--

20         (1)  Publications may be printed and prepared in-house,

21  by another agency or the Legislature, or purchased on bid,

22  whichever is more economical and practicable as determined by

23  the agency. An agency may contract for binding separately when

24  more economical or practicable, whether or not the remainder

25  of the printing is done in-house. A vendor bidder may

26  subcontract for binding and still be considered a responsible

27  vendor qualified bidder or offeror, notwithstanding s.

28  287.012(24) s. 287.012(13).

29         (2)  All printing of publications that cost in excess

30  of the threshold amount provided in s. 287.017 for CATEGORY

31  TWO and purchased by agencies shall be let upon contract to

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  1  the vendor that submits the lowest responsive bid and that

  2  will bidder, who shall furnish all materials used in printing.

  3  Such contract shall specify a definite term and a definite

  4  number of copies.

  5         (3)  Except as otherwise provided for in this part, a

  6  contract for printing of a publication shall be subject to,

  7  when applicable, the definitions in s. 287.012, and shall be

  8  considered a commodity for that purpose.

  9         (4)  The provisions of s. 946.515(4) shall not apply to

10  purchases of printing.

11         Section 5.  Section 283.34, Florida Statutes, is

12  amended to read:

13         283.34  State officers not to have interests in

14  printing contract.--No member of the Legislature or other

15  officer of this state may have an interest, directly or

16  indirectly, in any printing contract as provided for in s.

17  283.33; however, nothing in this section prohibits a member of

18  the Legislature from receiving such a contract when the member

19  or his or her firm has submitted the lowest responsive bid is

20  the lowest bidder of all bidders submitting competitive bids

21  for the contract.

22         Section 6.  Section 283.35, Florida Statutes, is

23  amended to read:

24         283.35  Preference given printing within the

25  state.--Every agency shall give preference to vendors bidders

26  located within the state when awarding contracts to have

27  materials printed, whenever such printing can be done at no

28  greater expense than the expense of awarding a contract to a

29  vendor bidder located outside the state and can be done at a

30  level of quality comparable to that obtainable from a vendor

31  bidder located outside the state.

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  1         Section 7.  Section 287.001, Florida Statutes, is

  2  amended to read:

  3         287.001  Legislative intent.--The Legislature

  4  recognizes that fair and open competition is a basic tenet of

  5  public procurement; that such competition reduces the

  6  appearance and opportunity for favoritism and inspires public

  7  confidence that contracts are awarded equitably and

  8  economically; and that documentation of the acts taken and

  9  effective monitoring mechanisms are important means of curbing

10  any improprieties and establishing public confidence in the

11  process by which commodities and contractual services are

12  procured.  It is essential to the effective and ethical

13  procurement of commodities and contractual services that there

14  be a system of uniform procedures to be utilized by state

15  agencies in managing and procuring commodities and contractual

16  services; that detailed justification of agency decisions in

17  the procurement of commodities and contractual services be

18  maintained; and that adherence by the agency and the vendor

19  contractor to specific ethical considerations be required.

20         Section 8.  Section 287.012, Florida Statutes, is

21  amended to read:

22         287.012  Definitions.--As used The following

23  definitions shall apply in this part, the term:

24         (1)  "Agency" means any of the various state officers,

25  departments, boards, commissions, divisions, bureaus, and

26  councils and any other unit of organization, however

27  designated, of the executive branch of state government.

28  "Agency" does not include the University and College Boards of

29  Trustees or the state universities and colleges Board of

30  Regents or the State University System.

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  1         (2)  "Agency head" means, with respect to an agency

  2  headed by a collegial body, the executive director or chief

  3  administrative officer of the agency.

  4         (3)  "Artist" means an individual or group of

  5  individuals who profess and practice a demonstrated creative

  6  talent and skill in the area of music, dance, drama, folk art,

  7  creative writing, painting, sculpture, photography, graphic

  8  arts, craft arts, industrial design, costume design, fashion

  9  design, motion pictures, television, radio, or tape and sound

10  recording or in any other related field.

11         (4)  "Best value" means the highest overall value to

12  the state based on objective factors that include, but are not

13  limited to, price, quality, design, and workmanship.

14         (5)(4)  "Commodity" means any of the various supplies,

15  materials, goods, merchandise, food, equipment, information

16  technology, and other personal property, including a mobile

17  home, trailer, or other portable structure with floor space of

18  less than 5,000 3,000 square feet, purchased, leased, or

19  otherwise contracted for by the state and its agencies.

20  "Commodity" also includes interest on deferred-payment

21  commodity contracts approved pursuant to s. 287.063 entered

22  into by an agency for the purchase of other commodities.

23  However, commodities purchased for resale are excluded from

24  this definition. Further, a prescribed drug, medical supply,

25  or device required by a licensed health care provider as a

26  part of providing health services involving examination,

27  diagnosis, treatment, prevention, medical consultation, or

28  administration for clients at the time the service is provided

29  is not considered to be a "commodity." Printing of

30  publications shall be considered a commodity when let upon

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  1  contract pursuant to s. 283.33, whether purchased for resale

  2  or not.

  3         (6)(5)  "Competitive sealed bids," or "competitive

  4  sealed proposals," or "competitive sealed replies" mean the

  5  process of receiving refers to the receipt of two or more

  6  sealed bids, or proposals, or replies submitted by responsive

  7  vendors and qualified bidders or offerors and includes bids,

  8  or proposals, or replies transmitted by electronic means in

  9  lieu of or in addition to written bids, or proposals, or

10  replies.

11         (7)  "Competitive solicitation" or "solicitation" means

12  an invitation to bid, a request for proposals, or an

13  invitation to negotiate.

14         (8)(6)  "Contractor" means a person who contracts to

15  sell commodities or contractual services to an agency.

16         (9)(7)  "Contractual service" means the rendering by a

17  contractor of its time and effort rather than the furnishing

18  of specific commodities. The term applies only to those

19  services rendered by individuals and firms who are independent

20  contractors, and such services may include, but are not

21  limited to, evaluations; consultations; maintenance;

22  accounting; security; management systems; management

23  consulting; educational training programs; research and

24  development studies or reports on the findings of consultants

25  engaged thereunder; and professional, technical, and social

26  services. "Contractual service" does not include any contract

27  for the furnishing of labor or materials for the construction,

28  renovation, repair, modification, or demolition of any

29  facility, building, portion of building, utility, park,

30  parking lot, or structure or other improvement to real

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  1  property entered into pursuant to chapter 255 and rules

  2  adopted thereunder.

  3         (10)(8)  "Department" means the Department of

  4  Management Services.

  5         (11)  "Electronic posting" or "electronically post"

  6  means the posting of solicitations, agency decisions or

  7  intended decisions, or other matters relating to procurement

  8  on a centralized Internet website designated by the department

  9  for this purpose.

10         (12)  "Eligible user" means any person or entity

11  authorized by the department pursuant to rule to purchase from

12  state term contracts or to use the on-line procurement system.

13         (13)(9)  "Exceptional purchase" means any purchase of

14  commodities or contractual services excepted by law or rule

15  from the requirements for competitive solicitation or

16  acquisition, including, but not limited to, purchases from a

17  single source;, purchases upon receipt of less than two

18  responsive bids, or proposals, or replies; purchases made by

19  an agency, after receiving approval from the department, from

20  a contract procured, pursuant to s. 287.057(1), (2), or (3),

21  by another agency; and purchases made without advertisement in

22  the manner required by s. 287.042(3)(b) without publication of

23  notice in the Florida Administrative Weekly, and exceptions

24  granted by the department for a purchase of commodities from

25  other than a state term contract vendor.

26         (14)(10)  "Extension" means an increase in the time

27  allowed for the contract period due to circumstances which,

28  without fault of either party, make performance impracticable

29  or impossible, or which prevent a new contract from being

30  executed, with or without a proportional increase in the total

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  1  dollar amount, with any increase to be based on the method and

  2  rate previously established in the contract.

  3         (15)  "Information technology" has the meaning ascribed

  4  in s. 282.0041.

  5         (16)(11)  "Invitation to bid" means a written

  6  solicitation for competitive sealed bids with the title, date,

  7  and hour of the public bid opening designated and specifically

  8  defining the commodity, group of commodities, or services for

  9  which bids are sought. It includes instructions prescribing

10  all conditions for bidding and shall be distributed to all

11  prospective bidders simultaneously. The invitation to bid is

12  used when the agency is capable of specifically defining the

13  scope of work for which a contractual service is required or

14  when the agency is capable of establishing precise

15  specifications defining the actual commodity or group of

16  commodities required. A written solicitation includes a

17  solicitation that is electronically posted published or

18  transmitted by electronic means.

19         (17)  "Invitation to negotiate" means a written

20  solicitation for competitive sealed replies to select one or

21  more vendors with which to commence negotiations for the

22  procurement of commodities or contractual services. The

23  invitation to negotiate is used when the agency determines

24  that negotiations may be necessary for the state to receive

25  the best value. A written solicitation includes a solicitation

26  that is electronically posted.

27         (18)(12)  "Minority business enterprise" has the same

28  meaning ascribed as that provided in s. 288.703.

29         (19)  "Office" means the Office of Supplier Diversity

30  of the Department of Management Services.

31

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  1         (13)  "Qualified bidder," "responsible bidder,"

  2  "qualified offeror," or "responsible offeror" means a person

  3  who has the capability in all respects to perform fully the

  4  contract requirements and has the integrity and reliability

  5  which will assure good faith performance.

  6         (20)(14)  "Renewal" means contracting with the same

  7  contractor for an additional contract period after the initial

  8  contract period, only if pursuant to contract terms

  9  specifically providing for such renewal.

10         (21)  "Request for information" means a written request

11  made by an agency to vendors for information concerning

12  commodities or contractual services. Responses to these

13  requests are not offers and may not be accepted by the agency

14  to form a binding contract.

15         (22)(15)  "Request for proposals" means a written

16  solicitation for competitive sealed proposals with the title,

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

18  solicitation includes a solicitation published or transmitted

19  by electronic means. The request for proposals is used when it

20  is not practicable for the agency to is incapable of

21  specifically define defining the scope of work for which the

22  commodity, group of commodities, or contractual service is

23  required and when the agency is requesting that a responsible

24  vendor qualified offeror propose a commodity, group of

25  commodities, or contractual service to meet the specifications

26  of the solicitation document. A written solicitation includes

27  a solicitation that is electronically posted. A request for

28  proposals includes, but is not limited to, general

29  information, applicable laws and rules, functional or general

30  specifications, statement of work, proposal instructions, and

31  evaluation criteria. Requests for proposals shall state the

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  1  relative importance of price and any other evaluation

  2  criteria.

  3         (23)  "Request for a quote" means an oral or written

  4  request for written pricing or services information from a

  5  state term contract vendor for commodities or contractual

  6  services available on a state term contract from that vendor.

  7         (24)  "Responsible vendor" means a vendor who has the

  8  capability in all respects to fully perform the contract

  9  requirements and the integrity and reliability that will

10  assure good-faith performance.

11         (25)(16)  "Responsive bid," or "responsive proposal" or

12  "responsive reply" means a bid, or proposal, or reply

13  submitted by a responsive, and responsible vendor or

14  qualified, bidder or offeror which conforms in all material

15  respects to the solicitation invitation to bid or request for

16  proposals.

17         (26)(17)  "Responsive vendor bidder" or "responsive

18  offeror" means a vendor that person who has submitted a bid,

19  or proposal, or reply that which conforms in all material

20  respects to the solicitation invitation to bid or request for

21  proposals.

22         (27)  "State term contract" means a term contract that

23  is competitively procured by the department pursuant to s.

24  287.057 and that is used by agencies and eligible users

25  pursuant to s. 287.056.

26         (28)(18)  "Term contract" means an indefinite quantity

27  contract wherein a party agrees to furnish commodities or

28  contractual services during a defined prescribed period of

29  time, the expiration of which concludes the contract.

30         (19)  "Office" means the Office of Supplier Diversity

31  of the Department of Management Services.

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

  2  solicitation that calls for responses to select one or more

  3  persons or business entities with which to commence

  4  negotiations for the procurement of commodities or contractual

  5  services.

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

  7  calls for pricing information for purposes of competitively

  8  selecting and procuring commodities and contractual services

  9  from qualified or registered vendors.

10         (22)  "Information technology" means equipment,

11  hardware, software, firmware, programs, systems, networks,

12  infrastructure, media, and related material used to

13  automatically, electronically, and wirelessly collect,

14  receive, access, transmit, display, store, record, retrieve,

15  analyze, evaluate, process, classify, manipulate, manage,

16  assimilate, control, communicate, exchange, convert, converge,

17  interface, switch, or disseminate information of any kind or

18  form.

19         Section 9.  Subsection (2) of section 287.017, Florida

20  Statutes, is amended to read:

21         287.017  Purchasing categories, threshold amounts;

22  procedures for automatic adjustment by department.--

23         (2)  The department shall adopt rules to annually

24  adjust the amounts provided in subsection (1) based upon the

25  rate of change of a nationally recognized price index.  Such

26  rules shall include, but not be limited to, the following:

27         (a)  Designation of the nationally recognized price

28  index or component thereof used to calculate the proper

29  adjustment authorized in this section.

30         (b)  The procedure for rounding results.

31

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  1         (c)  The effective date of each annual adjustment based

  2  upon the previous calendar year data.

  3         Section 10.  Subsections (1) and (3) of section

  4  287.022, Florida Statutes, are amended to read:

  5         287.022  Purchase of insurance.--

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

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

  8  that agencies may purchase title insurance for land

  9  acquisition and may make emergency purchases of insurance

10  pursuant to s. 287.057(5)(a) s. 287.057(4)(a). The procedures

11  for purchasing insurance, whether the purchase is made by the

12  department or by the agencies, shall be the same as those set

13  forth herein for the purchase of commodities.

14         (3)  The department of Management Services and the

15  Division of State Group Insurance shall not prohibit or limit

16  any properly licensed insurer, health maintenance

17  organization, prepaid limited health services organization, or

18  insurance agent from competing for any insurance product or

19  plan purchased, provided, or endorsed by the department or the

20  division on the basis of the compensation arrangement used by

21  the insurer or organization for its agents.

22         Section 11.  Section 287.032, Florida Statutes, is

23  amended to read:

24         287.032  Purpose of department.--It shall be the

25  purpose of the Department of Management Services:

26         (1)  To promote efficiency, economy, and the

27  conservation of energy and to effect coordination in the

28  purchase of commodities and contractual services for the

29  state.

30         (2)  To provide uniform commodity and contractual

31  service procurement policies, rules, procedures, and forms for

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  1  use by the various agencies and eligible users in procuring

  2  contractual services.

  3         (3)  To procure and distribute state-owned surplus

  4  tangible personal property and federal surplus tangible

  5  personal property allocated to the state by the Federal

  6  Government.

  7         Section 12.  Section 287.042, Florida Statutes, is

  8  amended to read:

  9         287.042  Powers, duties, and functions.--The department

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

11         (1)(a)  To canvass all sources of supply, establish and

12  maintain a vendor list, and contract for the purchase, lease,

13  or acquisition in any manner, including purchase by

14  installment sales or lease-purchase contracts which may

15  provide for the payment of interest on unpaid portions of the

16  purchase price, of all commodities and contractual services

17  required by any agency under this chapter competitive bidding

18  or by contractual negotiation.  Any contract providing for

19  deferred payments and the payment of interest shall be subject

20  to specific rules adopted by the department.

21         (b)  The department may remove from its vendor list any

22  source of supply which fails to fulfill any of its duties

23  specified in a contract with the state.  It may reinstate any

24  such source of supply when it is satisfied that further

25  instances of default will not occur.

26         (c)  In order to promote cost-effective procurement of

27  commodities and contractual services, the department or an

28  agency may enter into contracts that limit the liability of a

29  vendor consistent with s. 672.719.

30         (d)  The department shall issue commodity numbers for

31  all products of the corporation operating the correctional

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  1  industry program which meet or exceed department

  2  specifications.

  3         (e)  The department shall, beginning October 1, 1991,

  4  include the products offered by the corporation on any listing

  5  prepared by the department which lists state term contracts

  6  executed by the department. The products or services shall be

  7  placed on such list in a category based upon specification

  8  criteria developed through a joint effort of the department

  9  and the corporation and approved by the department.

10         (f)  The corporation may submit products and services

11  to the department for testing, analysis, and review relating

12  to the quality and cost comparability.  If, after review and

13  testing, the department approves of the products and services,

14  the department shall give written notice thereof to the

15  corporation. The corporation shall pay a reasonable fee

16  charged for testing its products by the Department of

17  Agriculture and Consumer Services.

18         (g)  The department shall include products and services

19  that are offered by a qualified nonprofit agency for the blind

20  or for the other severely handicapped organized pursuant to

21  chapter 413 and that have been determined to be suitable for

22  purchase pursuant to s. 413.035 on any department listing of

23  state term contracts. The products and services shall be

24  placed on such list in a category based upon specification

25  criteria developed by the department in consultation with the

26  qualified nonprofit agency.

27         (h)(g)  The department may collect fees for the use of

28  its electronic information services. The fees may be imposed

29  on an individual transaction basis or as a fixed subscription

30  for a designated period of time. At a minimum, the fees shall

31  be determined in an amount sufficient to cover the

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  1  department's projected costs of such services, including

  2  overhead in accordance with the policies of the Department of

  3  Management Services for computing its administrative

  4  assessment.  All fees collected pursuant to this paragraph

  5  shall be deposited in the Grants and Donations Trust Fund for

  6  disbursement as provided by law.

  7         (2)(a)  To establish plan and coordinate purchases in

  8  volume and to negotiate and execute purchasing agreements and

  9  procure state term contracts for commodities and contractual

10  services, pursuant to s. 287.057, under which state agencies

11  shall, and eligible users may, make purchases pursuant to s.

12  287.056, and under which a federal, county, municipality,

13  institutions qualified pursuant to s. 240.605, private

14  nonprofit community transportation coordinator designated

15  pursuant to chapter 427, while conducting business related

16  solely to the Commission for the Transportation Disadvantaged,

17  or other local public agency may make purchases. The

18  department may restrict purchases from some term contracts to

19  state agencies only for those term contracts where the

20  inclusion of other governmental entities will have an adverse

21  effect on competition or to those federal facilities located

22  in this state. In such planning or purchasing the Office of

23  Supplier Diversity may monitor to ensure that opportunities

24  are afforded for contracting with minority business

25  enterprises. The department, for state term contracts, and all

26  agencies, for multiyear contractual services or term

27  contracts, shall explore reasonable and economical means to

28  utilize certified minority business enterprises. Purchases by

29  any county, municipality, private nonprofit community

30  transportation coordinator designated pursuant to chapter 427,

31  while conducting business related solely to the Commission for

                                  24

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  1  the Transportation Disadvantaged, or other local public agency

  2  under the provisions in the state purchasing contracts, and

  3  purchases, from the corporation operating the correctional

  4  work programs, of products or services that are subject to

  5  paragraph (1)(f), are exempt from the competitive solicitation

  6  sealed bid requirements otherwise applying to their purchases.

  7         (b)  As an alternative to any provision in s.

  8  120.57(3)(c), the department may proceed with the competitive

  9  bid solicitation or contract award process of a term contract

10  bid when the secretary of the department or his or her

11  designee sets forth in writing particular facts and

12  circumstances which demonstrate that the delay incident to

13  staying the solicitation bid process or contract award process

14  would be detrimental to the interests of the state.  After the

15  award of a contract resulting from a competitive solicitation

16  bid in which a timely protest was received and in which the

17  state did not prevail, the contract may be canceled and

18  reawarded to the prevailing party.

19         (c)  Any person who files an action protesting a

20  decision or intended decision pertaining to contracts

21  administered by the department, a water management district,

22  or an a state agency pursuant to s. 120.57(3)(b) shall post

23  with the department, the water management district, or the

24  state agency at the time of filing the formal written protest

25  a bond payable to the department, the water management

26  district, or state agency in an amount equal to 1 percent of

27  the estimated contract amount. department's, the water

28  management district's, or the state agency's estimate of the

29  total volume of the contract or $5,000, whichever is less,

30  which bond shall be conditioned upon the payment of all costs

31  which may be adjudged against him or her in the administrative

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  1  hearing in which the action is brought and in any subsequent

  2  appellate court proceeding. For protests of decisions or

  3  intended decisions of the department pertaining to agencies'

  4  requests for approval of exceptional purchases, the bond shall

  5  be in an amount equal to 1 percent of the estimated requesting

  6  agency's estimate of the contract amount for the exceptional

  7  purchase requested or $5,000, whichever is less. The estimated

  8  contract amount shall be based upon the contract price

  9  submitted by the protestor or, if no contract price was

10  submitted, the department, water management district, or

11  agency shall estimate the contract amount based on factors

12  including, but not limited to, the price of previous or

13  existing contracts for similar commodities or contractual

14  services, the amount appropriated by the Legislature for the

15  contract, or the fair market value of similar commodities or

16  contractual services. The agency shall provide the estimated

17  contract amount to the vendor within 72 hours, excluding

18  Saturdays, Sundays, and state holidays, after the filing of

19  the notice of protest by the vendor. The estimated contract

20  amount is not subject to protest pursuant to s. 120.57(3). The

21  bond shall be conditioned upon the payment of all costs and

22  reasonable attorney's fees that are adjudged against the

23  protestor in the administrative hearing in which the action is

24  brought and in any subsequent appellate court proceeding. In

25  lieu of a bond, the department, the water management district,

26  or state agency may, in either case, accept a cashier's check,

27  official bank check, or money order in the amount of the bond.

28  If, after completion of the administrative hearing process and

29  any appellate court proceedings, the department, water

30  management district, or agency prevails, it shall recover all

31  costs and reasonable attorney's fees, charges which shall be

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  1  included in the final order or judgment, excluding attorney's

  2  fees. This section shall not apply to protests filed by the

  3  Office of Supplier Diversity. Upon payment of such costs and

  4  reasonable attorney's fees charges by the protestor person

  5  protesting the award, the bond, cashier's check, official bank

  6  check, or money order shall be returned to the protestor him

  7  or her. If, after the completion of the administrative hearing

  8  process and any appellate court proceedings, the protestor the

  9  person protesting the award prevails, the protestor he or she

10  shall recover from the department, water management district,

11  or agency or water management district, all costs and

12  reasonable attorney's fees, charges which shall be included in

13  the final order or of judgment, excluding attorney's fees.

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

15  request for proposal, request for quote, invitation to bid, or

16  invitation to negotiate, including any provisions governing

17  the methods for ranking proposals, awarding contracts,

18  reserving rights of further negotiation, or the modification

19  of amendment of any contract, are subject to challenge only by

20  filing a protest within 72 hours after the notice of the

21  terms, conditions, or specifications as provided in s.

22  120.57(3)(b).

23         (3)  To have general supervision, through the state

24  agencies, of all storerooms and stores operated by the

25  agencies and to have supervision of inventories of all

26  commodities belonging to the state agencies.  The duties

27  imposed by this section do not relieve any state agency from

28  accountability for commodities under its control.

29         (3)(4)  To establish a system of coordinated, uniform

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

31

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  1  agencies in acquiring commodities and contractual services,

  2  which shall include, but not be limited to:

  3         (a)  Development of a list of interested vendors to be

  4  maintained by classes of commodities and contractual services.

  5  This list shall not be used to prequalify vendors or to

  6  exclude any interested vendor from bidding.

  7         (b)1.  Development of procedures for advertising

  8  solicitations. These the releasing of requests for proposals,

  9  requests for quotes, invitations to bid, invitations to

10  negotiate, and other competitive acquisitions which procedures

11  must provide for electronic posting of solicitations for shall

12  include, but are not limited to, notice by publication in the

13  Florida Administrative Weekly, on Government Services Direct,

14  or by mail at least 10 days before the date set for receipt

15  submittal of bids, proposals, or replies bids, unless the

16  department or other agency determines in writing that a

17  shorter period of time is necessary to avoid harming the

18  interests of the state. The Office of Supplier Diversity may

19  consult with the department agencies regarding the development

20  of solicitation bid distribution procedures to ensure that

21  maximum distribution is afforded to certified minority

22  business enterprises as defined in s. 288.703.

23         2.  Development of procedures for electronic posting.

24  The department shall designate a centralized website on the

25  Internet for the department and other agencies to

26  electronically post solicitations, decisions or intended

27  decisions, and other matters relating to procurement. From

28  July 1, 2002, until July 1, 2003, the department shall publish

29  a notice in each edition of the Florida Administrative Weekly

30  which indicates the specific URL or Internet address for the

31  centralized website.

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  1         (c)  Development of procedures for the receipt and

  2  opening of bids, responses, quotes, or proposals, or replies

  3  by an agency. Such procedures shall provide the Office of

  4  Supplier Diversity an opportunity to monitor and ensure that

  5  the contract award is consistent with the requirements of s.

  6  287.09451.

  7         (d)  Development of procedures to be used by an agency

  8  in deciding to contract, including, but not limited to,

  9  identifying and assessing in writing project needs and

10  requirements, availability of agency employees, budgetary

11  constraints or availability, facility equipment availability,

12  current and projected agency workload capabilities, and the

13  ability of any other state agency to perform the services.

14         (e)  Development of procedures to be used by an agency

15  in maintaining a contract file for each contract which shall

16  include, but not be limited to, all pertinent information

17  relating to the contract during the preparatory stages;, a

18  copy of the solicitation; invitation to bid or request for

19  proposals, documentation relating to the solicitation bid

20  process;, opening of bids, proposals, or replies; evaluation

21  and tabulation of bids, proposals, or replies; and

22  determination and notice of award of contract.

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

24  for issuing solicitations that include requirements to

25  describe commodities, services, scope of work, and

26  deliverables in a manner that promotes competition invitations

27  to bid, invitations to negotiate, requests for proposal,

28  requests for quote, or other competitive procurement

29  processes.

30         (g)  Development of procedures to be used by an agency

31  when issuing requests for information and requests for quotes.

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  1         (4)(5)(a)  To prescribe the methods of securing

  2  competitive sealed bids, responses, quotes, and proposals, and

  3  replies. Such methods may include, but are not limited to,

  4  procedures for identifying vendors; setting qualifications;

  5  conducting conferences or written question and answer periods

  6  for purposes of responding to vendor questions; evaluating

  7  responses, bids, and proposals, and replies; ranking and

  8  respondents and proposers; selecting vendors invitees and

  9  proposers; and conducting negotiations.

10         (b)  To prescribe, in consultation with the State

11  Technology Office, procedures for procuring information

12  technology and information technology consultant services

13  which provide for public announcement and qualification,

14  competitive solicitations selection, competitive negotiation,

15  contract award, and prohibition against contingent fees. Such

16  procedures shall be limited to information technology

17  consultant contracts for which the total project costs, or

18  planning or study activities, are estimated to exceed the

19  threshold amount provided for in s. 287.017, for CATEGORY TWO.

20         (5)(6)  To prescribe specific commodities and

21  quantities to be purchased locally.

22         (6)(7)(a)  To govern the purchase by any agency of any

23  commodity or contractual service and to establish standards

24  and specifications for any commodity.

25         (b)  Except for the purchase of insurance, the

26  department may delegate to agencies the authority for the

27  procurement of and contracting for, or the purchase, lease, or

28  acquisition of, commodities or contractual services.

29         (7)(8)  To establish definitions and classes of

30  commodities and contractual services.  Agencies shall follow

31  the definitions and classes of commodities and contractual

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  1  services established by the department in acquiring or

  2  purchasing commodities or contractual services.  The authority

  3  of the department under this section shall not be construed to

  4  impair or interfere with the determination by state agencies

  5  of their need for, or their use of, services including

  6  particular specifications.

  7         (8)(9)  To provide furnish copies of any commodity and

  8  contractual service purchasing rules to the Comptroller and

  9  all agencies through an electronic medium or other means

10  affected thereby. Agencies may The Comptroller shall not

11  approve any account or request direct any payment of any

12  account for the purchase of any commodity or the procurement

13  of any contractual service covered by a purchasing or

14  contractual service rule except as authorized therein.  The

15  department shall furnish copies of rules adopted by the

16  department to any county, municipality, or other local public

17  agency requesting them.

18         (9)(10)  To require that every agency furnish

19  information relative to its commodity and contractual services

20  purchases and methods of purchasing commodities and

21  contractual services to the department when so requested.

22         (10)(11)  To prepare statistical data concerning the

23  method of procurement, terms, usage, and disposition of

24  commodities and contractual services by state agencies. All

25  agencies shall furnish such information for this purpose to

26  the office and to the department, as the department or office

27  may call for, but no less frequently than annually, on such

28  forms or in such manner as the department may prescribe.

29         (11)(12)  To establish and maintain programs for the

30  purpose of disseminating information to government, industry,

31  educational institutions, and the general public concerning

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  1  policies, procedures, rules, and forms for the procurement of

  2  commodities and contractual services.

  3         (12)(13)  Except as otherwise provided herein, to adopt

  4  rules necessary to carry out the purposes of this section,

  5  including the authority to delegate to any state agency any

  6  and all of the responsibility conferred by this section,

  7  retaining to the department any and all authority for

  8  supervision thereof.  Such purchasing of commodities and

  9  procurement of contractual services by state agencies shall be

10  in strict accordance with the rules and procedures prescribed

11  by the department of Management Services.

12         (13)(14)  If the department determines in writing that

13  it is in the best interest of the state, to award to multiple

14  suppliers contracts for commodities and contractual services

15  established by the department for use by all agencies. Such

16  awards may be on a statewide or regional basis. If regional

17  contracts are established by the department, multiple supplier

18  awards may be based upon multiple awards for regions.

19  Agencies may award contracts to a responsible and the lowest

20  qualified responsive vendor bidder on a statewide or regional

21  basis.

22         (14)(15)  To procure and distribute state-owned surplus

23  tangible personal property and federal surplus tangible

24  personal property allocated to the state by the Federal

25  Government.

26         (15)(16)(a)  To enter into joint agreements with

27  governmental agencies, as defined in s. 163.3164(10), for the

28  purpose of pooling funds for the purchase of commodities or

29  information technology that can be used by multiple agencies.

30  However, the department shall consult with the State

31  Technology Office on joint agreements that involve the

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  1  purchase of information technology.  Agencies entering into

  2  joint purchasing agreements with the department or the State

  3  Technology Office shall authorize the department or the State

  4  Technology Office to contract for such purchases on their

  5  behalf.

  6         (b)  Each agency that has been appropriated or has

  7  existing funds for such purchases, shall, upon contract award

  8  by the department, transfer their portion of the funds into

  9  the department's Grants and Donations Trust Fund for payment

10  by the department.  These funds shall be transferred by the

11  Executive Office of the Governor pursuant to the agency budget

12  amendment request provisions in chapter 216.

13         (c)  Agencies that sign such joint agreements are

14  financially obligated for their portion of the agreed-upon

15  funds. If any agency becomes more than 90 days delinquent in

16  paying such funds, the department of Management Services shall

17  certify to the Comptroller the amount due, and the Comptroller

18  shall transfer the amount due to the Grants and Donations

19  Trust Fund of the department from any of the agency's

20  available funds. The Comptroller shall report all such

21  transfers and the reasons for such transfers to the Executive

22  Office of the Governor and the legislative appropriations

23  committees.

24         (16)(17)(a)  To evaluate contracts let by the Federal

25  Government, another state, or a political subdivision for the

26  provision of commodities and contract services, and, when it

27  is determined in writing to be cost-effective and in the best

28  interest of the state, to enter into a written agreement

29  authorizing an a state agency to make purchases under a

30  contract approved by the department and let by the Federal

31  Government, another state, or a political subdivision.

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  1         (b)  For contracts pertaining to the provision of

  2  information technology, the State Technology Office, in

  3  consultation with the department, shall assess the

  4  technological needs of a particular agency, evaluate the

  5  contracts, and determine whether to enter into a written

  6  agreement with the letting federal, state, or political

  7  subdivision body to provide information technology for a

  8  particular agency.

  9         Section 13.  Section 287.045, Florida Statutes, is

10  amended to read:

11         287.045  Procurement of products and materials with

12  recycled content.--

13         (1)(a)  The department of Management Services, in

14  cooperation with the Department of Environmental Protection,

15  shall review and revise existing procurement procedures and

16  specifications for the purchase of products and materials to

17  eliminate any procedures and specifications that explicitly

18  discriminate against products and materials with recycled

19  content except where such procedures and specifications are

20  necessary to protect the public health, safety, and welfare.

21         (b)  Each state agency shall review and revise its

22  procurement procedures and specifications for the purchase of

23  products and materials to eliminate any procedures and

24  specifications that explicitly discriminate against products

25  and materials with recycled content, except if such procedures

26  and specifications are necessary to protect the public health,

27  safety, and welfare.

28         (2)(a)  The department and each state agency shall

29  review and revise its procurement procedures and

30  specifications for the purchase of products and materials to

31  ensure to the maximum extent feasible that each agency uses

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  1  state contracts to purchase products or materials that may be

  2  recycled or reused when these products or materials are

  3  discarded.

  4         (b)  The Auditor General shall assist in monitoring the

  5  product procurement requirements.

  6         (3)  As part of the review and revision required in

  7  subsection (2), the department and each agency shall review

  8  its procurement provisions and specifications for the purchase

  9  of products and materials to determine which products or

10  materials with recycled content could be procured by the

11  department or other agencies and the amount of recycled

12  content that can technologically be contained in such products

13  or materials. The department and other agencies must use the

14  amounts of recycled content and postconsumer recovered

15  material determined by the department in issuing solicitations

16  invitations to bid for contracts for the purchase of such

17  products or materials.

18         (4)  Upon completion of the review required in

19  subsection (3), the department and other agencies or an agency

20  shall require that a person who submits a bid, proposal, or

21  reply for a contract for the purchase of products or materials

22  identified in subsection (3) and who wishes to be considered

23  for the price preference described in subsection (5) certify

24  in writing the percentage of recycled content in the product

25  or material that is subject to the bid, proposal, or reply.  A

26  person may certify that the product or material contains no

27  recycled content.

28         (5)  Upon evaluation of bids, proposals, or replies for

29  every public contract that involves the purchase of products

30  or materials identified in subsection (3), the department or

31  other an agency shall identify the lowest responsible and

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  1  responsive vendor bidder and other responsible and responsive

  2  vendors bidders who have certified that the products or

  3  materials contain at least the minimum percentage of recycled

  4  content and postconsumer recovered material that is set forth

  5  in the solicitation invitation for the bids.  The department

  6  or agency may consider life-cycle costing when evaluating a

  7  bid, proposal, or reply on a product that consists of recycled

  8  materials.  The department shall adopt rules that specify the

  9  criteria to be used when considering life-cycle costing in

10  evaluating bids, proposals, or replies.  The rules must take

11  into consideration the specified warranty periods for products

12  and the comparative expected service life relative to the cost

13  of the products.  In awarding a contract for the purchase of

14  products or materials, the department or other an agency may

15  allow up to a 10-percent price preference to a responsible and

16  responsive vendor bidder who has certified that the products

17  or materials contain at least the minimum percentage of

18  recycled content and postconsumer recovered material and up to

19  an additional 5-percent price preference to a responsible and

20  responsive vendor bidder who has certified that the products

21  or material are made of materials recovered in this state.

22  The amount of the price preference must be commensurate with

23  the certified amounts of recycled material and postconsumer

24  recovered material and materials recycled from products in

25  this state, contained in the product or materials on a sliding

26  scale as established by department rule, which rule shall not

27  become effective prior to November 1, 1994.  Reusable

28  materials and products shall be used where economically and

29  technically feasible.  If no vendors bidders offer products or

30  materials with measurable life-cycle costing factors or the

31  minimum prescribed recycled and postconsumer content, the

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  1  contract must be awarded to the lowest qualified responsible

  2  and responsive vendor bidder.

  3         (6)  For the purposes of this section, the term

  4  "recycled content" means materials that have been recycled

  5  that are contained in the products or materials to be

  6  procured, including, but not limited to, paper, aluminum,

  7  steel, glass, plastics, and composted material.  The term does

  8  not include the virgin component of internally generated scrap

  9  that is commonly used in industrial or manufacturing processes

10  or such waste or scrap purchased from another manufacturer who

11  manufactures the same or a closely related product. Recycled

12  content printing and fine writing grades of paper shall

13  contain at least 10 percent postconsumer recovered materials.

14         (7)  Any person may request the department to evaluate

15  a product or material with recycled content if the product or

16  material is eligible for inclusion under state contracts.  The

17  department shall review each reasonable proposal to determine

18  its merit and, if it finds that the product or material may be

19  used beneficially, it may incorporate that product or material

20  into its procurement procedures.

21         (8)  The department and each state agency shall review

22  and revise its procedures and specifications on a continuing

23  basis to encourage the use of products and materials with

24  recycled content and postconsumer recovered material and

25  shall, in developing new procedures and specifications,

26  encourage the use of products and materials with recycled

27  content and postconsumer recovered material.

28         (9)  After November 1, 1994, the department may

29  discontinue contracting for products or materials the recycled

30  content of which does not meet the requirements of subsection

31  (3) if it determines that products or materials meeting those

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  1  requirements are available at a cost not to exceed an

  2  additional 10 percent of comparable virgin products.

  3         (10)  An A state agency, or a vendor person contracting

  4  with such agency with respect to work performed under

  5  contract, must procure products or materials with recycled

  6  content if the department determines that those products or

  7  materials are available pursuant to subsection (5).

  8  Notwithstanding any other provision to the contrary, for the

  9  purpose of this section, the term "agency" means any of the

10  various state officers, departments, boards, commissions,

11  divisions, bureaus, and councils and any other unit of

12  organization, however designated, of the executive branch

13  including the Department of the Lottery, the legislative

14  branch, the judicial branch, the University and College Boards

15  of Trustees, and the state universities and colleges and the

16  State University System.  A decision not to procure such items

17  must be based on the department's determination that such

18  procurement is not reasonably available within an acceptable

19  period of time or fails to meet the performance standards set

20  forth in the applicable specifications or fails to meet the

21  performance standards of the agency.

22         (11)  Each state agency shall report annually to the

23  department its total expenditures on, and use of, products

24  with recycled content and the percentage of its budget that

25  represents purchases of similar products made from virgin

26  materials.  The department shall design a uniform reporting

27  mechanism and prepare annual summaries of statewide purchases

28  delineating those with recycled content to be submitted to the

29  Governor, the President of the Senate, and the Speaker of the

30  House of Representatives.

31

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  1         Section 14.  Section 287.056, Florida Statutes, is

  2  amended to read:

  3         287.056  Agency Purchases from purchasing agreements

  4  and state term contracts executed by the department.--

  5         (1)  Agencies shall, and eligible users may, purchase

  6  commodities and contractual services from the purchasing

  7  agreements established and state term contracts procured,

  8  pursuant to s. 287.057, negotiated and executed by the

  9  department, as authorized in s. 287.042(2).

10         (2)  Agencies may have the option to purchase

11  commodities or contractual services from state term any

12  written agreements or contracts procured, pursuant to s.

13  287.057, negotiated and executed by the department which

14  contain a user surcharge pursuant to s. 287.1345 or such other

15  agreements as determined by the department.

16         (3)  Agencies and eligible users may use a request for

17  quote to obtain written pricing or services information from a

18  state term contract vendor for commodities or contractual

19  services available on state term contract from that vendor.

20  The purpose of a request for quote is to determine whether a

21  price, term, or condition more favorable to the agency or

22  eligible user than that provided in the state term contract is

23  available. Use of a request for quote does not constitute a

24  decision or intended decision that is subject to protest under

25  s. 120.57(3).

26         Section 15.  Section 287.057, Florida Statutes, is

27  amended to read:

28         287.057  Procurement of commodities or contractual

29  services.--

30         (1)(a)  Unless otherwise authorized by law, all

31  contracts for the purchase of commodities or contractual

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  1  services in excess of the threshold amount provided in s.

  2  287.017 for CATEGORY TWO shall be awarded by competitive

  3  sealed bidding. An invitation to bid shall be made available

  4  simultaneously to all vendors and must issued which shall

  5  include a detailed description of the commodities or

  6  contractual services sought; the time and date for the receipt

  7  submittal of bids and of the public opening; and all

  8  contractual terms and conditions applicable to the procurement

  9  of commodities or contractual services, including the criteria

10  which shall include, but need not be limited to, price, to be

11  used in determining acceptability of the bid.  If the agency

12  contemplates renewal of the contract, that fact must it shall

13  be so stated in the invitation to bid.  The bid shall include

14  the price for each year for which the contract may be renewed.

15  Evaluation of bids shall include consideration of the total

16  cost for each year as submitted quoted by the vendor bidder.

17  No Criteria that were not set forth in the invitation to bid

18  may not be used in determining acceptability of the bid that

19  was not set forth in the invitation to bid.

20         (b)  The contract shall be awarded with reasonable

21  promptness by written notice to the responsible qualified and

22  responsive vendor that bidder who submits the lowest

23  responsive bid.  This bid must be determined in writing to

24  meet the requirements and criteria set forth in the invitation

25  to bid.

26         (2)(a)  If When an agency determines in writing that

27  the use of an invitation to bid competitive sealed bidding is

28  not practicable, commodities or contractual services shall be

29  procured by competitive sealed proposals.  A request for

30  proposals shall be made available simultaneously to all

31  vendors, and must include which includes a statement of the

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  1  commodities or contractual services sought; the time and date

  2  for the receipt of proposals and of the public opening; and

  3  all contractual terms and conditions applicable to the

  4  procurement of commodities or contractual services, including

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

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

  7  shall be issued. The relative importance of price and other

  8  evaluation criteria shall be indicated. If the agency

  9  contemplates renewal of the commodities or contractual

10  services contract, that fact must it shall be so stated in the

11  request for proposals.  The proposal shall include the price

12  for each year for which the contract may be renewed.

13  Evaluation of proposals shall include consideration of the

14  total cost for each year as submitted quoted by the vendor

15  offeror. To assure full understanding of and responsiveness to

16  the solicitation requirements, discussions may be conducted

17  with qualified offerors.  The offerors shall be accorded fair

18  and equal treatment prior to the submittal date specified in

19  the request for proposals with respect to any opportunity for

20  discussion and revision of proposals.

21         (b)  The contract award shall be awarded made to the

22  responsible and responsive vendor offeror whose proposal is

23  determined in writing to be the most advantageous to the

24  state, taking into consideration the price and the other

25  criteria set forth in the request for proposals.  The contract

26  file shall contain documentation supporting the basis on which

27  the award is made.

28         (3)(a)  If the agency determines in writing that the

29  use of an invitation to bid or a request for proposals will

30  not result in the best value to the state, the agency may

31  procure commodities and contractual services by competitive

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  1  sealed replies. The agency's written determination must

  2  specify reasons that explain why negotiation may be necessary

  3  in order for the state to achieve the best value and must be

  4  approved in writing by the agency head or his or her designee

  5  prior to the advertisement of an invitation to negotiate. An

  6  invitation to negotiate shall be made available to all vendors

  7  simultaneously and must include a statement of the commodities

  8  or contractual services sought; the time and date for the

  9  receipt of replies and of the public opening; and all terms

10  and conditions applicable to the procurement, including the

11  criteria to be used in determining the acceptability of the

12  reply. If the agency contemplates renewal of the contract,

13  that fact must be stated in the invitation to negotiate. The

14  reply shall include the price for each year for which the

15  contract may be renewed.

16         (b)  The agency shall evaluate and rank responsive

17  replies against all evaluation criteria set forth in the

18  invitation to negotiate and shall select, based on the

19  ranking, one or more vendors with which to commence

20  negotiations. After negotiations are conducted, the agency

21  shall award the contract to the responsible and responsive

22  vendor that the agency determines will provide the best value

23  to the state. The contract file must contain a written

24  statement that explains the basis for vendor selection and

25  that sets forth the vendor's deliverables and price, pursuant

26  to the contract, with an explanation of how these deliverables

27  and price provide the best value to the state.

28         (4)  Prior to the time for receipt of bids, proposals,

29  or replies, an agency may conduct a conference or written

30  question and answer period for purposes of assuring the

31  vendor's full understanding of the solicitation requirements.

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  1  The vendors shall be accorded fair and equal treatment with

  2  respect to any opportunity for discussion and revision of

  3  bids, proposals, or replies.

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

  5  invitation to bid or a request for a proposal will not result

  6  in the best value to the state, based on factors including,

  7  but not limited to, price, quality, design, and workmanship,

  8  the agency may procure commodities and contractual services by

  9  an invitation to negotiate. An agency may procure commodities

10  and contractual services by a request for a quote from vendors

11  under contract with the department.

12         (5)(4)  When the purchase price of commodities or

13  contractual services exceeds the threshold amount provided in

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

15  contractual services may be made without receiving competitive

16  sealed bids, competitive sealed proposals, or competitive

17  sealed replies responses to an invitation to negotiate or a

18  request for a quote unless:

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

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

21  other substantial loss to the state requires emergency action.

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

23  agency may proceed with the procurement of commodities or

24  contractual services necessitated by the immediate danger,

25  without receiving competitive sealed bids, competitive sealed

26  proposals, or competitive sealed replies competition. However,

27  such emergency procurement shall be made by obtaining pricing

28  information from at least two prospective vendors, which must

29  be retained in the contract file, unless the agency determines

30  in writing that the time required to obtain pricing

31  information will increase the immediate danger to the public

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  1  health, safety, or welfare or other substantial loss to the

  2  state with such competition as is practicable under the

  3  circumstances. The agency shall furnish copies of all the

  4  written determinations determination certified under oath and

  5  any other documents relating to the emergency action to the

  6  department.  A copy of the statement shall be furnished to the

  7  Comptroller with the voucher authorizing payment.  The

  8  individual purchase of personal clothing, shelter, or supplies

  9  which are needed on an emergency basis to avoid

10  institutionalization or placement in a more restrictive

11  setting is an emergency for the purposes of this paragraph,

12  and the filing with the department of such statement is not

13  required in such circumstances.  In the case of the emergency

14  purchase of insurance, the period of coverage of such

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

16  emergency purchases shall be reported to the department.

17         (b)  The purchase is made by an agency from a state

18  term contract procured, pursuant to this section, Purchasing

19  agreements and contracts executed by the department or by an

20  agency, after receiving approval from the department, from a

21  contract procured, pursuant to subsection (1), subsection (2),

22  or subsection (3), by another agency agencies under authority

23  delegated by the department in writing are excepted from bid

24  requirements.

25         (c)  Commodities or contractual services available only

26  from a single source may be excepted from the

27  competitive-solicitation bid requirements. When an agency

28  believes that commodities or contractual services are

29  available only from a single source, the agency shall

30  electronically post a description of the commodities or

31  contractual services sought for a period of at least 7

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  1  business days. The description must include a request that

  2  prospective vendors provide information regarding their

  3  ability to supply the commodities or contractual services

  4  described. If it is determined in writing by the agency, after

  5  reviewing any information received from prospective vendors,

  6  that the commodities or contractual services are available

  7  only from a single source, the agency shall:

  8         1.  Provide notice of its intended decision to enter a

  9  single-source purchase contract in the manner specified in s.

10  120.57(3), if the amount of the contract does not exceed the

11  threshold amount provided in s. 287.017 for CATEGORY FOUR.

12         2.  Request approval from the department for the

13  single-source purchase, if the amount of the contract exceeds

14  the threshold amount provided in s. 287.017 for CATEGORY FOUR.

15  The agency shall initiate its request for approval in a form

16  prescribed by the department, which request may be

17  electronically transmitted. if it is determined that such

18  commodities or services are available only from a single

19  source and such determination is documented. However, if such

20  contract is for an amount greater than the threshold amount

21  provided in s. 287.017 for CATEGORY FOUR, the agency head

22  shall file a certification of conditions and circumstances

23  with the department and shall obtain the prior approval of the

24  department. The failure of the department to approve or

25  disapprove the agency's request of an agency for prior

26  approval within 21 days after receiving such request or within

27  14 days after receiving from the agency additional materials

28  requested by the department shall constitute prior approval of

29  the department. If the department approves the agency's

30  request, the agency shall provide notice of its intended

31  decision to enter a single-source contract in the manner

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  1  specified in s. 120.57(3) To the greatest extent practicable,

  2  but no later than 45 days after authorizing the exception in

  3  writing, the department shall combine single-source

  4  procurement authorizations for identical information

  5  technology resources for which the purchase price exceeds the

  6  threshold amount provided in s. 287.017 for CATEGORY FOUR, and

  7  shall negotiate and execute volume purchasing agreements for

  8  such procurements on behalf of the agencies.

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

10  secretary of the department Management Services or his or her

11  designee may authorize the Support Program to purchase

12  insurance by negotiation, but such purchase shall be made only

13  under conditions most favorable to the public interest.

14         (e)  Prescriptive assistive devices for the purpose of

15  medical, developmental, or vocational rehabilitation of

16  clients are excepted from competitive solicitation sealed bid

17  and competitive sealed proposal requirements and shall be

18  procured pursuant to an established fee schedule or by any

19  other method which ensures the best price for the state,

20  taking into consideration the needs of the client.

21  Prescriptive assistive devices include, but are not limited

22  to, prosthetics, orthotics, and wheelchairs.  For purchases

23  made pursuant to this paragraph, state agencies shall annually

24  file with the department a description of the purchases and

25  methods of procurement.

26         (f)  The following contractual services and commodities

27  are not subject to the competitive solicitation sealed bid

28  requirements of this section:

29         1.  Artistic services.

30         2.  Academic program reviews.

31         3.  Lectures by individuals.

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  1         4.  Auditing services.

  2         5.  Legal services, including attorney, paralegal,

  3  expert witness, appraisal, or mediator services.

  4         6.  Health services involving examination, diagnosis,

  5  treatment, prevention, medical consultation, or

  6  administration.

  7         7.  Services provided to persons with mental or

  8  physical disabilities by not-for-profit corporations which

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

10  of the United States Internal Revenue Code or when such

11  services are governed by the provisions of Office of

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

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

14  vendor contractor, past performance, willingness to meet time

15  requirements, and price.

16         8.  Medicaid services delivered to an eligible Medicaid

17  recipient by a health care provider who has not previously

18  applied for and received a Medicaid provider number from the

19  Agency for Health Care Administration. However, this exception

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

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

22  renewed by the agency.

23         9.  Family placement services.

24         10.  Prevention services related to mental health,

25  including drug abuse prevention programs, child abuse

26  prevention programs, and shelters for runaways, operated by

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

28  services, the agency shall consider the ability of the vendor

29  contractor, past performance, willingness to meet time

30  requirements, and price.

31

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  1         11.  Training and education services provided to

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

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

  4         13.  Services or commodities provided by governmental

  5  agencies.

  6         (g)  Continuing education events or programs that are

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

  8  collected that pay all expenses associated with the event or

  9  program are exempt from requirements for competitive

10  solicitation sealed bidding.

11         (6)(5)  If less than two responsive bids, or proposals,

12  or replies for commodity or contractual services purchases are

13  received, the department or other the agency may negotiate on

14  the best terms and conditions. The department or other agency

15  shall document the reasons that such action is in the best

16  interest of the state in lieu of resoliciting competitive

17  sealed bids, or proposals, or replies.  Each The agency shall

18  report all such actions to the department on a quarterly

19  basis, in a manner and form prescribed by the department.

20         (7)(6)  Upon issuance of any solicitation invitation to

21  bid or request for proposals, an agency shall, upon request by

22  the department, forward to the department one copy of each

23  solicitation invitation to bid or request for proposals for

24  all commodity and contractual services purchases in excess of

25  the threshold amount provided in s. 287.017 for CATEGORY TWO.

26  An agency shall also, upon request, furnish a copy of all

27  competitive solicitation sealed bid or competitive sealed

28  proposal tabulations. The Office of Supplier Diversity may

29  also request from the agencies any information submitted to

30  the department pursuant to this subsection.

31

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  1         (8)(7)(a)  In order to strive to meet the minority

  2  business enterprise procurement goals set forth in s.

  3  287.09451, an agency may reserve any contract for competitive

  4  solicitation sealed bidding only among certified minority

  5  business enterprises. Agencies shall review all their

  6  contracts each fiscal year and shall determine which contracts

  7  may be reserved for solicitation bidding only among certified

  8  minority business enterprises. This reservation may only be

  9  used when it is determined, by reasonable and objective means,

10  before the solicitation invitation to bid that there are

11  capable, qualified certified minority business enterprises

12  available to submit a bid, proposal, or reply on a contract to

13  provide for effective competition. The Office of Supplier

14  Diversity shall consult with any agency in reaching such

15  determination when deemed appropriate.

16         (b)  Before a contract may be reserved for solicitation

17  bidding only among by certified minority business enterprises,

18  the agency head must find that such a reservation is in the

19  best interests of the state. All determinations shall be

20  subject to s. 287.09451(5). Once a decision has been made to

21  reserve a contract, but before sealed bids, proposals, or

22  replies are requested, the agency shall estimate what it

23  expects the amount of the contract to be, based on the nature

24  of the services or commodities involved and their value under

25  prevailing market conditions. If all the sealed bids,

26  proposals, or replies received are over this estimate, the

27  agency may reject the bids, proposals, or replies and request

28  new ones from certified minority business enterprises, or the

29  agency may reject the bids, proposals, or replies and reopen

30  the bidding to all eligible vendors qualified bidders.

31

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  1         (c)  All agencies shall consider the use of price

  2  preferences of up to 10 percent, weighted preference formulas,

  3  or other preferences for vendors contractors as determined

  4  appropriate pursuant to guidelines established in accordance

  5  with s. 287.09451(4) to increase the participation of minority

  6  business enterprises.

  7         (d)  All agencies shall avoid any undue concentration

  8  of contracts or purchases in categories of commodities or

  9  contractual services in order to meet the minority business

10  enterprise purchasing goals in s. 287.09451.

11         (9)(8)  An agency may reserve any contract for

12  competitive solicitation sealed bidding only among vendors

13  qualified bidders who agree to use utilize certified minority

14  business enterprises as subcontractors or subvendors. The

15  percentage of funds, in terms of gross contract amount and

16  revenues, which must be expended with the certified minority

17  business enterprise subcontractors and subvendors shall be

18  determined by the agency before such contracts may be

19  reserved. In order to bid on a contract so reserved, the

20  vendor qualified bidder shall identify those certified

21  minority business enterprises which will be utilized as

22  subcontractors or subvendors by sworn statement. At the time

23  of performance or project completion, the contractor shall

24  report by sworn statement the payments and completion of work

25  for all certified minority business enterprises used in the

26  contract.

27         (10)(9)  An agency shall not divide the procurement of

28  commodities or contractual services so as to avoid the

29  requirements of subsections (1) through (5), (2), and (3).

30         (11)(10)  A contract for commodities or contractual

31  services may be awarded without competition if state or

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  1  federal law prescribes with whom the agency must contract or

  2  if the rate of payment is established during the

  3  appropriations process.

  4         (12)(11)  If two equal responses to a solicitation or a

  5  request for quote an invitation to bid or request for

  6  proposals are received and one response is from a certified

  7  minority business enterprise, the agency shall enter into a

  8  contract with the certified minority business enterprise.

  9         (13)(12)  Extension of a contract for contractual

10  services shall be in writing for a period not to exceed 6

11  months and shall be subject to the same terms and conditions

12  set forth in the initial contract.  There shall be only one

13  extension of a contract unless the failure to meet the

14  criteria set forth in the contract for completion of the

15  contract is due to events beyond the control of the

16  contractor.

17         (14)(13)  Except for those contracts initially procured

18  pursuant to paragraph (3)(a) or paragraph (3)(c), Contracts

19  for commodities or contractual services may be renewed for a

20  period that may not exceed 3 years or on a yearly basis for no

21  more than 2 years or for a period no longer than the term of

22  the original contract, whichever period is longer.  Renewal of

23  a contract for commodities or contractual services shall be in

24  writing and shall be subject to the same terms and conditions

25  set forth in the initial contract.  If the commodity or

26  contractual service is purchased as a result of the

27  solicitation of bids, or proposals, or replies, the price of

28  the commodity or contractual service to be renewed cost of any

29  contemplated renewals shall be specified included in the bid,

30  proposal, or reply invitation to bid or request for proposals.

31  A renewal contract may not include any compensation for costs

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  1  associated with the renewal. Renewals shall be contingent upon

  2  satisfactory performance evaluations by the agency and subject

  3  to the availability of funds. Exceptional purchase contracts

  4  pursuant to s. 287.057(5)(a) and (c) may not be renewed.

  5         (15)(14)  For each contractual services contract, the

  6  agency shall designate an employee to function as contract

  7  manager who shall be responsible for enforcing performance of

  8  the contract terms and conditions and serve as a liaison with

  9  the contractor. The agency shall establish procedures to

10  ensure that contractual services have been rendered in

11  accordance with the contract terms prior to processing the

12  invoice for payment.

13         (16)(15)  Each agency shall designate at least one

14  employee who shall serve as a contract administrator

15  responsible for maintaining a contract file and financial

16  information on all contractual services contracts and who

17  shall serve as a liaison with the contract managers and the

18  department.

19         (17)  For a contract in excess of the threshold amount

20  provided in s. 287.017 for CATEGORY FOUR, the agency head

21  shall appoint:

22         (a)  At least three persons to evaluate proposals and

23  replies who collectively have experience and knowledge in the

24  program areas and service requirements for which commodities

25  or contractual services are sought.

26         (b)  At least three persons to conduct negotiations

27  during a competitive sealed reply procurement who collectively

28  have experience and knowledge in negotiating contracts,

29  contract procurement, and the program areas and service

30  requirements for which commodities or contractual services are

31  sought.

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  1         (16)  For requests for proposals, a selection team of

  2  at least three employees who have experience and knowledge in

  3  the program areas and service requirements for which

  4  contractual services are sought shall be appointed by the

  5  agency head to aid in the selection of contractors for

  6  contracts of more than the threshold amount provided in s.

  7  287.017 for CATEGORY FOUR.

  8         (18)(17)  A No person who receives a contract that

  9  which has not been procured pursuant to subsection (1) through

10  (5), subsection (2), or subsection (3) to perform a

11  feasibility study of the potential implementation of a

12  subsequent contract, who participates participating in the

13  drafting of a solicitation an invitation to bid or request for

14  proposals, or who develops developing a program for future

15  implementation,is not shall be eligible to contract with the

16  agency for any other contracts dealing with that specific

17  subject matter, and; nor shall any firm in which such person

18  has any interest is not be eligible to receive such contract.

19  However, this prohibition does not prevent a vendor who

20  responds to a request for information from being eligible to

21  contract with an agency.

22         (19)(18)  Each agency shall establish a review and

23  approval process for all contractual services contracts

24  costing more than the threshold amount provided for in s.

25  287.017 for CATEGORY THREE which shall include, but not be

26  limited to, program, financial, and legal review and approval.

27  Such reviews and approvals shall be obtained before the

28  contract is executed.

29         (19)  The department may establish state contractual

30  service term contracts. Such contracts may be utilized by any

31  agency, county, municipality, or local public agency.

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  1         (20)  In any procurement that costs more than the

  2  threshold amount provided for in s. 287.017 for CATEGORY TWO

  3  and is accomplished without competition, the individuals

  4  taking part in the development or selection of criteria for

  5  evaluation, the evaluation process, and the award process

  6  shall attest in writing that they are independent of, and have

  7  no conflict of interest in, the entities evaluated and

  8  selected.

  9         (21)  Nothing in this section shall affect the validity

10  or effect of any contract in existence on October 1, 1990.

11         (22)  An agency may contract for services with any

12  independent, nonprofit college or university which is located

13  within the state and is accredited by the Southern Association

14  of Colleges and Schools, on the same basis as it may contract

15  with any state university and college institution in the State

16  University System.

17         (23)(a)  The department, in consultation with the State

18  Technology Office and the Comptroller, shall develop a program

19  for on-line procurement of commodities and contractual

20  services. To enable the state to promote open competition and

21  to leverage its buying power, executive state agencies shall

22  participate in the on-line procurement program, and eligible

23  users other agencies may participate in the program. Only

24  vendors bidders prequalified as meeting mandatory requirements

25  and qualifications criteria shall be permitted to participate

26  in on-line procurement. The department, in consultation with

27  the State Technology Office, may contract for equipment and

28  services necessary to develop and implement on-line

29  procurement.

30         (b)  The State Technology Office, in consultation with

31  the department, in consultation with the State Technology

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  1  Office, shall adopt rules, pursuant to ss. 120.536(1) and

  2  120.54, to administer implement the program for on-line

  3  procurement. The rules shall include, but not be limited to:

  4         1.  Determining the requirements and qualification

  5  criteria for prequalifying vendors bidders.

  6         2.  Establishing the procedures for conducting on-line

  7  procurement.

  8         3.  Establishing the criteria for eligible commodities

  9  and contractual services.

10         4.  Establishing the procedures for providing access to

11  on-line procurement.

12         5.  Determining the criteria warranting any exceptions

13  to participation in the on-line procurement program.

14         (c)  The department of Management Services and the

15  State Technology Office may collect fees for the use of the

16  on-line procurement systems. The fees may be imposed on an

17  individual transaction basis or as a fixed percentage of the

18  cost savings generated. At a minimum, the fees must be set in

19  an amount sufficient to cover the projected costs of such

20  services, including administrative and project service costs

21  in accordance with the policies of the department of

22  Management Services and the State Technology Office. For the

23  purposes of compensating the provider, the department may

24  authorize the provider to collect and retain a portion of the

25  fees. The providers may withhold the portion retained from the

26  amount of fees to be remitted to the department. The

27  department may negotiate the retainage as a percentage of such

28  fees charged to users, as a flat amount, or as any other

29  method the department deems feasible. All fees and surcharges

30  collected under this paragraph shall be deposited in the

31  Grants and Donation Trust Fund as provided by law.

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  1         (24)(a)  The State Technology Office shall establish,

  2  in consultation with the department, state strategic

  3  information technology alliances for the acquisition and use

  4  of information technology and related material with

  5  prequalified contractors or partners to provide the state with

  6  efficient, cost-effective, and advanced information

  7  technology.

  8         (b)  In consultation with and under contract to the

  9  State Technology Office, the state strategic information

10  technology alliances shall design, develop, and deploy

11  projects providing the information technology needed to

12  collect, store, and process the state's data and information,

13  provide connectivity, and integrate and standardize computer

14  networks and information systems of the state.

15         (c)  The partners in the state strategic information

16  technology alliances shall be industry leaders with

17  demonstrated experience in the public and private sectors.

18         (d)  The State Technology Office, in consultation with

19  the department of Management Services, shall adopt rules,

20  pursuant to ss. 120.536(1) and 120.54, to administer implement

21  the state strategic information technology alliances.

22         Section 16.  Section 287.0572, Florida Statutes, is

23  amended to read:

24         287.0572  Present-value methodology.--

25         (1)  The cost of bids, or proposals, or replies for

26  state contracts that which require the payment of money for

27  more than 1 year and include provisions for unequal payment

28  streams or unequal time payment periods shall be evaluated

29  using present-value methodology.  Each agency, as defined in

30  s. 287.012(1), shall perform the evaluation using the

31  present-value discount rate supplied by the department of

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  1  Management Services. The present-value discount rate shall be

  2  the rate for United States Treasury notes and bonds published

  3  in the Interest Rates: Money and Capital Markets section of

  4  the most recent copy of the Federal Reserve Bulletin published

  5  at the time of issuance of the request for proposals, the

  6  invitation to negotiate, or the invitation invitations to bid.

  7         (2)  The department of Management Services may adopt

  8  rules to administer implement the provisions of subsection

  9  (1).

10         Section 17.  Subsections (1), (4), and (5) of section

11  287.058, Florida Statutes, are amended to read:

12         287.058  Contract document.--

13         (1)  Every procurement of contractual services in

14  excess of the threshold amount provided in s. 287.017 for

15  CATEGORY TWO, except for the providing of health and mental

16  health services or drugs in the examination, diagnosis, or

17  treatment of sick or injured state employees or the providing

18  of other benefits as required by the provisions of chapter

19  440, shall be evidenced by a written agreement embodying all

20  provisions and conditions of the procurement of such services,

21  which provisions and conditions shall, where applicable,

22  include, but shall not be limited to:

23         (a)  A provision that bills for fees or other

24  compensation for services or expenses be submitted in detail

25  sufficient for a proper preaudit and postaudit thereof.

26         (b)  A provision that bills for any travel expenses be

27  submitted in accordance with s. 112.061.  A state agency may

28  establish rates lower than the maximum provided in s. 112.061.

29         (c)  A provision allowing unilateral cancellation by

30  the agency for refusal by the contractor to allow public

31  access to all documents, papers, letters, or other material

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  1  made or received by the contractor in conjunction with the

  2  contract, unless the records are exempt from s. 24(a) of Art.

  3  I of the State Constitution and s. 119.07(1).

  4         (d)  A provision dividing the contract into units of

  5  deliverables, which shall include, but not be limited to,

  6  reports, findings, and drafts, that must be received and

  7  accepted in writing by the contract manager prior to payment.

  8         (e)  A provision specifying the criteria and the final

  9  date by which such criteria must be met for completion of the

10  contract.

11         (f)  A provision specifying that the contract may be

12  renewed for a period that may not exceed 3 years or on a

13  yearly basis for a period of up to 2 years after the initial

14  contract or for a period no longer than the term of the

15  original contract, whichever period is longer, specifying the

16  renewal price for the contractual service as set forth in the

17  bid, proposal, or reply, specifying that costs for the renewal

18  may not be charged, terms under which the cost may change as

19  determined in the invitation to bid or request for proposals,

20  and specifying that renewals shall be contingent upon

21  satisfactory performance evaluations by the agency and subject

22  to the availability of funds. Exceptional purchase contracts

23  pursuant to s. 287.057(5)(a) and (c) may not be renewed.

24

25  In lieu of a written agreement, the department may authorize

26  the use of a purchase order for classes of contractual

27  services, if provided the provisions of paragraphs (a)-(f) are

28  included in the purchase order or solicitation, invitation to

29  bid, or request for proposals.  The purchase order must shall

30  include, but need not be limited to, an adequate description

31  of the services, the contract period, and the method of

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  1  payment. In lieu of printing the provisions of paragraphs

  2  (a)-(f) in the contract document or purchase order, agencies

  3  may incorporate the requirements of paragraphs (a)-(f) by

  4  reference.

  5         (4)  Every procurement of contractual services of the

  6  value of the threshold amount provided in s. 287.017 for

  7  CATEGORY TWO or less, except for the providing of health and

  8  mental health services or drugs in the examination, diagnosis,

  9  or treatment of sick or injured state employees or the

10  providing of other benefits as required by the provisions of

11  chapter 440, shall be evidenced by a written agreement or

12  purchase order.  The written agreement or purchase order must

13  shall contain sufficient detail for a proper audit, must shall

14  be signed by purchasing or contracting personnel acting on

15  behalf of the agency, and may contain the provisions and

16  conditions provided in subsection (1).

17         (5)  Unless otherwise provided in the General

18  Appropriations Act or the substantive bill implementing the

19  General Appropriations Act, the Comptroller may waive the

20  requirements of this section for services which are included

21  in s. 287.057(5)(f) s. 287.057(4)(f).

22         Section 18.  Subsection (2) of section 287.059, Florida

23  Statutes, is amended to read:

24         287.059  Private attorney services.--

25         (2)  No agency shall contract for private attorney

26  services without the prior written approval of the Attorney

27  General, except that such written approval is not required for

28  private attorney services:

29         (a)  Procured by the Executive Office of the Governor

30  or any department under the exclusive jurisdiction of a single

31  Cabinet officer.

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  1         (b)  Provided by legal services organizations to

  2  indigent clients.

  3         (c)  Necessary to represent the state in litigation

  4  involving the State Risk Management Trust Fund pursuant to

  5  part II of chapter 284.

  6         (d)  Procured by the university and college boards of

  7  trustees or the state universities and colleges Board of

  8  Regents and the universities of the State University System.

  9         (e)  Procured by community and junior colleges and

10  multicounty special districts.

11         (f)  Procured by the Board of Trustees for the Florida

12  School for the Deaf and the Blind.

13         Section 19.  Subsections (1) and (2) of section

14  287.0595, Florida Statutes, are amended to read:

15         287.0595  Pollution response action contracts;

16  department rules.--

17         (1)  The Department of Environmental Protection shall

18  establish, by adopting through the promulgation of

19  administrative rules as provided in chapter 120:

20         (a)  Procedures for determining the qualifications of

21  responsible potential vendors bidders prior to advertisement

22  for and receipt of bids, proposals, or replies for pollution

23  response action contracts, including procedures for the

24  rejection of unqualified vendors bidders. Response actions are

25  those activities described in s. 376.301(37).

26         (b)  Procedures for awarding such contracts to the

27  lowest responsible and responsive vendor qualified bidder as

28  well as procedures to be followed in cases in which the

29  department declares a valid emergency to exist which would

30  necessitate the waiver of the rules governing the awarding of

31

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  1  such contracts to the lowest responsible and responsive vendor

  2  qualified bidder.

  3         (c)  Procedures governing payment of contracts.

  4         (d)  Procedures to govern negotiations for contracts,

  5  modifications to contract documents, and terms and conditions

  6  of contracts.

  7         (2)  In adopting rules under this section, the

  8  Department of Environmental Protection shall follow the

  9  criteria applicable to the department's Department of

10  Management Services contracting to the maximum extent

11  possible, consistent with the goals and purposes of ss.

12  376.307 and 376.3071.

13         Section 20.  Section 287.073, Florida Statutes, is

14  repealed.

15         Section 21.  Section 287.0731, Florida Statutes, is

16  amended to read:

17         287.0731  Team for contract negotiations.--Contingent

18  upon funding in the General Appropriations Act, the department

19  of Management Services, in consultation with the State

20  Technology Office, shall establish a permanent team that

21  includes for contract negotiations including a chief

22  negotiator, to specialize in conducting negotiations for the

23  procurement of information technology with an invitation to

24  negotiate.

25         Section 22.  Section 287.0822, Florida Statutes, is

26  amended to read:

27         287.0822  Beef and pork; prohibition on purchase; bid

28  specifications; penalty.--

29         (1)  Fresh or frozen beef or pork that has not been

30  inspected by the United States Department of Agriculture or by

31  another state's inspection program which has been approved by

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  1  the United States Department of Agriculture shall not be

  2  purchased, or caused to be purchased, by any agency of the

  3  state or of any municipality, political subdivision, school

  4  district, or special district for consumption in this state or

  5  for distribution for consumption in this state. Solicitations

  6  Bid invitations issued by any agency of the state or of any

  7  municipality, political subdivision, school district, or

  8  special district for the purchase of fresh or frozen beef or

  9  pork must specify that only beef or pork inspected and passed

10  by either the United States Department of Agriculture or by

11  another state's inspection program which has been approved by

12  the United States Department of Agriculture will be accepted.

13  The supplier or vendor shall certify on the invoice that the

14  fresh or frozen beef or pork or imported beef or pork supplied

15  is either domestic or complies with this subsection.

16         (2)  All solicitations bid invitations for purchase of

17  fresh or frozen meats of any kind by any agency of the state

18  or of any municipality, political subdivision, school

19  district, or special district using state or local funds shall

20  include the words: " 'All American' and 'Genuine Florida'

21  meats or meat products shall be granted preference as allowed

22  by Section 287.082, Florida Statutes."

23         (3)  Any person who knowingly violates or causes to be

24  violated the provisions of this section shall be personally

25  liable to the affected public agency for any funds spent in

26  violation of the provisions of this section.

27         Section 23.  Section 287.084, Florida Statutes, is

28  amended to read:

29         287.084  Preference to Florida businesses.--

30         (1)  When an agency, county, municipality, school

31  district, or other political subdivision of the state is

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  1  required to make purchases of personal property through

  2  competitive solicitation bidding and the lowest responsible

  3  and responsive bid, proposal, or reply is by a vendor bidder

  4  whose principal place of business is in a state or political

  5  subdivision thereof which grants a preference for the purchase

  6  of such personal property to a person whose principal place of

  7  business is in such state, then the agency, county,

  8  municipality, school district, or other political subdivision

  9  of this state may award a preference to the lowest responsible

10  and responsive vendor bidder having a principal place of

11  business within this state, which preference is equal to the

12  preference granted by the state or political subdivision

13  thereof in which the lowest responsible and responsive vendor

14  bidder has its his or her principal place of business.

15  However, this section does shall not apply to transportation

16  projects for which federal aid funds are available.

17         (2)  If a solicitation an invitation for bids provides

18  for the granting of such preference as is provided in this

19  section herein, any vendor bidder whose principal place of

20  business is outside the State of Florida must accompany any

21  written bid, proposal, or reply documents with a written

22  opinion of an attorney at law licensed to practice law in that

23  foreign state, as to the preferences, if any or none, granted

24  by the law of that state to its own business entities whose

25  principal places of business are in that foreign state in the

26  letting of any or all public contracts.

27         Section 24.  Section 287.087, Florida Statutes, is

28  amended to read:

29         287.087  Preference to businesses with drug-free

30  workplace programs.--Whenever two or more bids, proposals, or

31  replies that which are equal with respect to price, quality,

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  1  and service are received by the state or by any political

  2  subdivision for the procurement of commodities or contractual

  3  services, a bid, proposal, or reply received from a business

  4  that certifies that it has implemented a drug-free workplace

  5  program shall be given preference in the award process. In

  6  order to have a drug-free workplace program, a business shall:

  7         (1)  Publish a statement notifying employees that the

  8  unlawful manufacture, distribution, dispensing, possession, or

  9  use of a controlled substance is prohibited in the workplace

10  and specifying the actions that will be taken against

11  employees for violations of such prohibition.

12         (2)  Inform employees about the dangers of drug abuse

13  in the workplace, the business's policy of maintaining a

14  drug-free workplace, any available drug counseling,

15  rehabilitation, and employee assistance programs, and the

16  penalties that may be imposed upon employees for drug abuse

17  violations.

18         (3)  Give each employee engaged in providing the

19  commodities or contractual services that are under bid a copy

20  of the statement specified in subsection (1).

21         (4)  In the statement specified in subsection (1),

22  notify the employees that, as a condition of working on the

23  commodities or contractual services that are under bid, the

24  employee will abide by the terms of the statement and will

25  notify the employer of any conviction of, or plea of guilty or

26  nolo contendere to, any violation of chapter 893 or of any

27  controlled substance law of the United States or any state,

28  for a violation occurring in the workplace no later than 5

29  days after such conviction.

30         (5)  Impose a sanction on, or require the satisfactory

31  participation in a drug abuse assistance or rehabilitation

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  1  program if such is available in the employee's community by,

  2  any employee who is so convicted.

  3         (6)  Make a good faith effort to continue to maintain a

  4  drug-free workplace through implementation of this section.

  5         Section 25.  Section 287.093, Florida Statutes, is

  6  amended to read:

  7         287.093  Minority business enterprises; procurement of

  8  personal property and services from funds set aside for such

  9  purpose.--Any county, municipality, community college, or

10  district school board may set aside up to 10 percent or more

11  of the total amount of funds allocated for the procurement of

12  personal property and services for the purpose of entering

13  into contracts with minority business enterprises.  Such

14  contracts shall be competitively solicited bid only among

15  minority business enterprises.  The set-aside shall be used to

16  redress present effects of past discriminatory practices and

17  shall be subject to periodic reassessment to account for

18  changing needs and circumstances.

19         Section 26.  Paragraphs (n) and (o) of subsection (4)

20  and paragraphs (d) and (e) of subsection (5) of section

21  287.09451, Florida Statutes, are amended to read:

22         287.09451  Office of Supplier Diversity; powers,

23  duties, and functions.--

24         (4)  The Office of Supplier Diversity shall have the

25  following powers, duties, and functions:

26         (n)1.  To develop procedures to be used by an agency in

27  identifying commodities, contractual services, architectural

28  and engineering services, and construction contracts, except

29  those architectural, engineering, construction, or other

30  related services or contracts subject to the provisions of

31  chapter 339, that could be provided by minority business

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  1  enterprises. Each agency is encouraged to spend 21 percent of

  2  the moneys actually expended for construction contracts, 25

  3  percent of the moneys actually expended for architectural and

  4  engineering contracts, 24 percent of the moneys actually

  5  expended for commodities, and 50.5 percent of the moneys

  6  actually expended for contractual services during the previous

  7  fiscal year, except for the state university construction

  8  program which shall be based upon public education capital

  9  outlay projections for the subsequent fiscal year, and

10  reported to the Legislature pursuant to s. 216.023, for the

11  purpose of entering into contracts with certified minority

12  business enterprises as defined in s. 288.703(2), or approved

13  joint ventures. However, in the event of budget reductions

14  pursuant to s. 216.221, the base amounts may be adjusted to

15  reflect such reductions. The overall spending goal for each

16  industry category shall be subdivided as follows:

17         a.  For construction contracts: 4 percent for black

18  Americans, 6 percent for Hispanic-Americans, and 11 percent

19  for American women.

20         b.  For architectural and engineering contracts: 9

21  percent for Hispanic-Americans, 1 percent for Asian-Americans,

22  and 15 percent for American women.

23         c.  For commodities: 2 percent for black Americans, 4

24  percent for Hispanic-Americans, 0.5 percent for

25  Asian-Americans, 0.5 percent for Native Americans, and 17

26  percent for American women.

27         d.  For contractual services: 6 percent for black

28  Americans, 7 percent for Hispanic-Americans, 1 percent for

29  Asian-Americans, 0.5 percent for Native Americans, and 36

30  percent for American women.

31

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  1         2.  For the purposes of commodities contracts for the

  2  purchase of equipment to be used in the construction and

  3  maintenance of state transportation facilities involving the

  4  Department of Transportation, "minority business enterprise"

  5  has the same meaning as provided in s. 288.703. "Minority

  6  person" has the same meaning as in s. 288.703(3). In order to

  7  ensure that the goals established under this paragraph for

  8  contracting with certified minority business enterprises are

  9  met, the department, with the assistance of the Office of

10  Supplier Diversity, shall make recommendations to the

11  Legislature on revisions to the goals, based on an updated

12  statistical analysis, at least once every 5 years. Such

13  recommendations shall be based on statistical data indicating

14  the availability of and disparity in the use of minority

15  businesses contracting with the state. The results of the

16  first updated disparity study must be presented to the

17  Legislature no later than December 1, 1996.

18         3.  In determining the base amounts for assessing

19  compliance with this paragraph, the Office of Supplier

20  Diversity may develop, by rule, guidelines for all agencies to

21  use in establishing such base amounts. These rules must

22  include, but are not limited to, guidelines for calculation of

23  base amounts, a deadline for the agencies to submit base

24  amounts, a deadline for approval of the base amounts by the

25  Office of Supplier Diversity, and procedures for adjusting the

26  base amounts as a result of budget reductions made pursuant to

27  s. 216.221.

28         4.  To determine guidelines for the use of price

29  preferences, weighted preference formulas, or other

30  preferences, as appropriate to the particular industry or

31  trade, to increase the participation of minority businesses in

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  1  state contracting. These guidelines shall include

  2  consideration of:

  3         a.  Size and complexity of the project.

  4         b.  The concentration of transactions with minority

  5  business enterprises for the commodity or contractual services

  6  in question in prior agency contracting.

  7         c.  The specificity and definition of work allocated to

  8  participating minority business enterprises.

  9         d.  The capacity of participating minority business

10  enterprises to complete the tasks identified in the project.

11         e.  The available pool of minority business enterprises

12  as prime contractors, either alone or as partners in an

13  approved joint venture that serves as the prime contractor.

14         5.  To determine guidelines for use of joint ventures

15  to meet minority business enterprises spending goals. For

16  purposes of this section, "joint venture" means any

17  association of two or more business concerns to carry out a

18  single business enterprise for profit, for which purpose they

19  combine their property, capital, efforts, skills, and

20  knowledge. The guidelines shall allow transactions with joint

21  ventures to be eligible for credit against the minority

22  business enterprise goals of an agency when the contracting

23  joint venture demonstrates that at least one partner to the

24  joint venture is a certified minority business enterprise as

25  defined in s. 288.703, and that such partner is responsible

26  for a clearly defined portion of the work to be performed, and

27  shares in the ownership, control, management,

28  responsibilities, risks, and profits of the joint venture.

29  Such demonstration shall be by verifiable documents and sworn

30  statements and may be reviewed by the Office of Supplier

31  Diversity at or before the time a contract bid, proposal, or

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  1  reply is submitted. An agency may count toward its minority

  2  business enterprise goals a portion of the total dollar amount

  3  of a contract equal to the percentage of the ownership and

  4  control held by the qualifying certified minority business

  5  partners in the contracting joint venture, so long as the

  6  joint venture meets the guidelines adopted by the office.

  7         (o)1.  To establish a system to record and measure the

  8  use of certified minority business enterprises in state

  9  contracting. This system shall maintain information and

10  statistics on certified minority business enterprise

11  participation, awards, dollar volume of expenditures and

12  agency goals, and other appropriate types of information to

13  analyze progress in the access of certified minority business

14  enterprises to state contracts and to monitor agency

15  compliance with this section. Such reporting must include, but

16  is not limited to, the identification of all subcontracts in

17  state contracting by dollar amount and by number of

18  subcontracts and the identification of the utilization of

19  certified minority business enterprises as prime contractors

20  and subcontractors by dollar amounts of contracts and

21  subcontracts, number of contracts and subcontracts, minority

22  status, industry, and any conditions or circumstances that

23  significantly affected the performance of subcontractors.

24  Agencies shall report their compliance with the requirements

25  of this reporting system at least annually and at the request

26  of the office. All agencies shall cooperate with the office in

27  establishing this reporting system. Except in construction

28  contracting, all agencies shall review contracts costing in

29  excess of CATEGORY FOUR as defined in s. 287.017 to determine

30  if such contracts could be divided into smaller contracts to

31  be separately solicited bid and awarded, and shall, when

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  1  economical, offer such smaller contracts to encourage minority

  2  participation.

  3         2.  To report agency compliance with the provisions of

  4  subparagraph 1. for the preceding fiscal year to the Governor

  5  and Cabinet, the President of the Senate, the Speaker of the

  6  House of Representatives, and the secretary of the Department

  7  of Labor and Employment Security on or before February 1 of

  8  each year. The report must contain, at a minimum, the

  9  following:

10         a.  Total expenditures of each agency by industry.

11         b.  The dollar amount and percentage of contracts

12  awarded to certified minority business enterprises by each

13  state agency.

14         c.  The dollar amount and percentage of contracts

15  awarded indirectly to certified minority business enterprises

16  as subcontractors by each state agency.

17         d.  The total dollar amount and percentage of contracts

18  awarded to certified minority business enterprises, whether

19  directly or indirectly, as subcontractors.

20         e.  A statement and assessment of good faith efforts

21  taken by each state agency.

22         f.  A status report of agency compliance with

23  subsection (6), as determined by the Minority Business

24  Enterprise Office.

25         (5)

26         (d)  If Should the proposed procurement proceeds

27  proceed to competitive solicitation bidding, the office is

28  hereby granted standing to protest, pursuant to this section,

29  in a timely manner, any contract award during in competitive

30  solicitation bidding for contractual services and construction

31  contracts that fail to include minority business enterprise

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  1  participation, if any responsible and responsive vendor

  2  responding bidder has demonstrated the ability to achieve any

  3  level of participation, or, any contract award for commodities

  4  where, a reasonable and economical opportunity to reserve a

  5  contract, statewide or district level, for minority

  6  participation was not executed or, an agency failed to adopt

  7  an applicable preference for minority participation. The bond

  8  requirement shall be waived for the office purposes of this

  9  subsection.

10         (e)  An agency may presume that a vendor bidder

11  offering no minority participation has not made a good faith

12  effort when other vendors bidders offer minority participation

13  of firms listed as relevant to the agency's purchasing needs

14  in the pertinent locality or statewide to complete the

15  project.

16         Section 27.  Section 287.121, Florida Statutes, is

17  repealed.

18         Section 28.  Paragraph (g) of subsection (1),

19  subsection (2), and paragraphs (a) and (d) of subsection (3)

20  of section 287.133, Florida Statutes, are amended to read:

21         287.133  Public entity crime; denial or revocation of

22  the right to transact business with public entities.--

23         (1)  As used in this section:

24         (g)  "Public entity crime" means a violation of any

25  state or federal law by a person with respect to and directly

26  related to the transaction of business with any public entity

27  or with an agency or political subdivision of any other state

28  or with the United States, including, but not limited to, any

29  bid, proposal, reply, or contract for goods or services, any

30  lease for real property, or any contract for the construction

31  or repair of a public building or public work, involving

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  1  antitrust, fraud, theft, bribery, collusion, racketeering,

  2  conspiracy, or material misrepresentation.

  3         (2)(a)  A person or affiliate who has been placed on

  4  the convicted vendor list following a conviction for a public

  5  entity crime may not submit a bid, proposal, or reply on a

  6  contract to provide any goods or services to a public entity;,

  7  may not submit a bid, proposal, or reply on a contract with a

  8  public entity for the construction or repair of a public

  9  building or public work;, may not submit bids, proposals, or

10  replies on leases of real property to a public entity;, may

11  not be awarded or perform work as a contractor, supplier,

12  subcontractor, or consultant under a contract with any public

13  entity;, and may not transact business with any public entity

14  in excess of the threshold amount provided in s. 287.017 for

15  CATEGORY TWO for a period of 36 months following from the date

16  of being placed on the convicted vendor list.

17         (b)  A No public entity may not shall accept any bid,

18  proposal, or reply from, award any contract to, or transact

19  any business in excess of the threshold amount provided in s.

20  287.017 for CATEGORY TWO with any person or affiliate on the

21  convicted vendor list for a period of 36 months following from

22  the date that person or affiliate was placed on the convicted

23  vendor list unless that person or affiliate has been removed

24  from the list pursuant to paragraph (3)(f).  A No public

25  entity that which was transacting business with a person at

26  the time of the commission of a public entity crime resulting

27  which resulted in that person being placed on the convicted

28  vendor list may not shall accept any bid, proposal, or reply

29  from, award any contract to, or transact any business with any

30  other person who is under the same, or substantially the same,

31  control as the person whose name appears on the convicted

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  1  vendor list so long as that person's name appears on the

  2  convicted vendor list.

  3         (3)(a)  All invitations to bid as defined by s.

  4  287.012(11), requests for proposals as defined by s.

  5  287.012(15), and invitations to negotiate, as defined in s.

  6  287.012, and any contract document described by s. 287.058

  7  shall contain a statement informing persons of the provisions

  8  of paragraph (2)(a).

  9         (d)  The department shall maintain a list of the names

10  and addresses of those who have been disqualified from the

11  public contracting and purchasing process under this section.

12  The department shall publish an initial list on January 1,

13  1990, and shall publish an updated version of the list

14  quarterly thereafter. The initial list and revised quarterly

15  lists shall be electronically posted published in the Florida

16  Administrative Weekly. Notwithstanding this paragraph, a

17  person or affiliate disqualified from the public contracting

18  and purchasing process pursuant to this section shall be

19  disqualified as of the date the final order is entered.

20         Section 29.  Subsection (2) and paragraphs (a) and (c)

21  of subsection (3) of section 287.134, Florida Statutes, are

22  amended to read:

23         287.134  Discrimination; denial or revocation of the

24  right to transact business with public entities.--

25         (2)(a)  An entity or affiliate who has been placed on

26  the discriminatory vendor list may not submit a bid, proposal,

27  or reply on a contract to provide any goods or services to a

28  public entity;, may not submit a bid, proposal, or reply on a

29  contract with a public entity for the construction or repair

30  of a public building or public work;, may not submit bids,

31  proposals, or replies on leases of real property to a public

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  1  entity;, may not be awarded or perform work as a contractor,

  2  supplier, subcontractor, or consultant under a contract with

  3  any public entity;, and may not transact business with any

  4  public entity.

  5         (b)  A No public entity may not shall accept any bid,

  6  proposals, or replies from, award any contract to, or transact

  7  any business with any entity or affiliate on the

  8  discriminatory vendor list for a period of 36 months following

  9  from the date that entity or affiliate was placed on the

10  discriminatory vendor list unless that entity or affiliate has

11  been removed from the list pursuant to paragraph (3)(f). A No

12  public entity that which was transacting business with an

13  entity at the time of the discrimination resulting which

14  resulted in that entity being placed on the discriminatory

15  vendor list may not shall accept any bid, proposal, or reply

16  from, award any contract to, or transact any business with any

17  other entity who is under the same, or substantially the same,

18  control as the entity whose name appears on the discriminatory

19  vendor list so long as that entity's name appears on the

20  discriminatory vendor list.

21         (3)(a)  All invitations to bid, as defined by s.

22  287.012(11), requests for proposals, as defined by s.

23  287.012(15), and invitations to negotiate, as defined by s.

24  287.012, and any written contract document of the state must

25  shall contain a statement informing entities of the provisions

26  of paragraph (2)(a).

27         (c)  The department shall maintain a list of the names

28  and addresses of any entity which has been disqualified from

29  the public contracting and purchasing process under this

30  section.  The department shall publish an initial list on

31  January 1, 2001, and shall publish an updated version of the

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  1  list quarterly thereafter. The initial list and revised

  2  quarterly lists shall be electronically posted published in

  3  the Florida Administrative Weekly. Notwithstanding this

  4  paragraph, an entity or affiliate disqualified from the public

  5  contracting and purchasing process pursuant to this section

  6  shall be disqualified as of the date the final order is

  7  entered.

  8         Section 30.  Section 287.1345, Florida Statutes, is

  9  amended to read:

10         287.1345  Surcharge on users of state term contracts;

11  deposit of proceeds collected.--The department of Management

12  Services may impose a surcharge upon users of state term

13  contracts in order to fund the costs, including overhead, of

14  its procurement function.  The department may provide for the

15  state term contract vendor to collect the surcharge or

16  directly collect the fee from the public agency or eligible

17  user involved.  For the purpose of compensating vendors for

18  expenses incurred in collecting such fees, the department may

19  authorize a vendor to retain a portion of the fees.  The

20  vendor may withhold the portion retained from the amount of

21  fees to be remitted to the department.  The department may

22  negotiate the retainage as a percentage of such fees charged

23  to users, as a flat amount, or as any other method the

24  department deems feasible. Vendors shall maintain accurate

25  sales summaries for purchases made from state term contracts

26  and shall provide the summaries to the department on a

27  quarterly basis.  Any contract remedies relating to the

28  collection of such fees from users through vendors are

29  enforceable, including, but not limited to, liquidated

30  damages, late fees, and the costs of collection, including

31  attorney's fees.  The fees collected pursuant to this section

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  1  shall be deposited into the Grants and Donations Trust Fund of

  2  the department and are subject to appropriation as provided by

  3  law.  The Executive Office of the Governor may exempt

  4  transactions from the payment of the surcharge if payment of

  5  such surcharge would cause the state, a political subdivision,

  6  or unit of local government to lose federal funds or in other

  7  cases where such exemption is in the public interest.  The

  8  fees collected pursuant to this section and interest income on

  9  such fees shall not be deemed to be income of a revenue nature

10  for purposes of chapter 215.

11         Section 31.  Section 373.610, Florida Statutes, is

12  amended to read:

13         373.610  Defaulting vendors and contractors.--The

14  district may suspend a contractor on a temporary or permanent

15  basis from doing work with the district if such contractor has

16  materially breached its contract with the district. The

17  district shall adopt rules to administer the provisions of

18  this section to specify the circumstances and conditions that

19  constitute a materially breached contract and conditions that

20  constitute the period for temporary or permanent suspension

21  and for reinstatement.

22         Section 32.  Section 373.611, Florida Statutes, is

23  amended to read:

24         373.611  Modification or limitation of remedy.--In

25  order to promote the cost-effective procurement of commodities

26  and contractual services by the water management districts, a

27  district may enter into contracts to limit or alter the

28  measure of damages recoverable from a vendor or contractor by

29  a district when procuring commodities or contractual services,

30  consistent with the provisions contained in s. 672.719.

31

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  1         Section 33.  Subsection (3) of section 394.457, Florida

  2  Statutes, is amended to read:

  3         394.457  Operation and administration.--

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

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

  6  order to carry out its responsibilities under this part with

  7  the following agencies: public and private hospitals;

  8  receiving and treatment facilities; clinics; laboratories;

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

10  the state colleges and universities; the community colleges;

11  private colleges and universities; counties, municipalities,

12  and any other governmental unit, including facilities of the

13  United States Government; and any other public or private

14  entity which provides or needs facilities or services. Baker

15  Act funds for community inpatient, crisis stabilization,

16  short-term residential treatment, and screening services must

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

18  funding allocation methodology. Notwithstanding the provisions

19  of s. 287.057(5)(f) s. 287.057(4)(f), contracts for

20  community-based Baker Act services for inpatient, crisis

21  stabilization, short-term residential treatment, and screening

22  provided under this part, other than those with other units of

23  government, to be provided for the department must be awarded

24  using competitive sealed bids when the county commission of

25  the county receiving the services makes a request to the

26  department's district office by January 15 of the contracting

27  year. The district shall not enter into a competitively bid

28  contract under this provision if such action will result in

29  increases of state or local expenditures for Baker Act

30  services within the district.  Contracts for these Baker Act

31  services using competitive sealed bids will be effective for 3

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  1  years. Services contracted for by the department may be

  2  reimbursed by the state at a rate up to 100 percent.  The

  3  department shall adopt rules establishing minimum standards

  4  for such contracted services and facilities and shall make

  5  periodic audits and inspections to assure that the contracted

  6  services are provided and meet the standards of the

  7  department.

  8         Section 34.  Paragraph (a) of subsection (1) of section

  9  394.47865, Florida Statutes, is amended to read:

10         394.47865  South Florida State Hospital;

11  privatization.--

12         (1)  The Department of Children and Family Services

13  shall, through a request for proposals, privatize South

14  Florida State Hospital. The department shall plan to begin

15  implementation of this privatization initiative by July 1,

16  1998.

17         (a)  Notwithstanding s. 287.057(14) s. 287.057(13), the

18  department may enter into agreements, not to exceed 20 years,

19  with a private provider, a coalition of providers, or another

20  agency to finance, design, and construct a treatment facility

21  having up to 350 beds and to operate all aspects of daily

22  operations within the facility. The department may subcontract

23  any or all components of this procurement to a statutorily

24  established state governmental entity that has successfully

25  contracted with private companies for designing, financing,

26  acquiring, leasing, constructing, and operating major

27  privatized state facilities.

28         Section 35.  Subsections (1) and (5) of section 402.73,

29  Florida Statutes, are amended to read:

30         402.73  Contracting and performance standards.--

31

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  1         (1)  The Department of Children and Family Services

  2  shall establish performance standards for all contracted

  3  client services. Notwithstanding s. 287.057(5)(f) s.

  4  287.057(4)(f), the department must competitively procure any

  5  contract for client services when any of the following occurs:

  6         (a)  The provider fails to meet appropriate performance

  7  standards established by the department after the provider has

  8  been given a reasonable opportunity to achieve the established

  9  standards.

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

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

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

13         (c)  The department has concluded, after reviewing

14  market prices and available treatment options, that there is

15  evidence that the department can improve the performance

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

17  department shall review market prices and available treatment

18  options biennially. The department shall compile the results

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

20  performance report to the Legislature pursuant to chapter

21  94-249, Laws of Florida. The department shall provide notice

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

23  prices and available treatment options.

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

25  segment of its consumer population, the department may

26  competitively procure and contract for systems of treatment or

27  service that involve multiple providers, rather than procuring

28  and contracting for treatment or services separately from each

29  participating provider. The department must ensure that all

30  providers that participate in the treatment or service system

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

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  1  and cost-control requirements. If other governmental entities

  2  or units of special purpose government contribute matching

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

  4  service, the department shall formally request information

  5  from those funding entities in the procurement process and may

  6  take the information received into account in the selection

  7  process. If a local government contributes match to support

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

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

10  the department shall afford the governmental match contributor

11  an opportunity to name an employee as one of the persons to

12  the selection team required by s. 287.057(17) to evaluate or

13  negotiate certain contracts, unless the department sets forth

14  in writing the reason why such inclusion would be contrary to

15  the best interest of the state s. 287.057(15). Any employee so

16  named by the governmental match contributor shall qualify as

17  one of the persons employees required by s. 287.057(17) s.

18  287.057(15). The selection team shall include the named

19  employee unless the department sets forth in writing the

20  reason such inclusion would be contrary to the best interests

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

22  purpose government may name an employee as one of the persons

23  required by s. 287.057(17) to the selection team if it, or any

24  of its political subdivisions, executive agencies, or special

25  districts, intends to compete for the contract to be awarded.

26  The governmental funding entity or match contributor shall

27  comply with any deadlines and procurement procedures

28  established by the department. The department may also involve

29  nongovernmental funding entities in the procurement process

30  when appropriate.

31

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  1         Section 36.  Subsection (2) of section 408.045, Florida

  2  Statutes, is amended to read:

  3         408.045  Certificate of need; competitive sealed

  4  proposals.--

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

  6  issuance of the certificate of need in accordance with the

  7  provisions of s. 287.057(17) s. 287.057(15), rules adopted by

  8  the agency relating to intermediate care facilities for the

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

10  further defined by rule.

11         Section 37.  Section 413.036, Florida Statutes, is

12  amended to read:

13         413.036  Procurement of services by agencies; authority

14  of commission.--

15         (1)  If any agency intends to procure any product or

16  service on the procurement list, that agency shall, in

17  accordance with rules and regulations of the commission,

18  procure such product or service at the price established by

19  the commission from a qualified nonprofit agency for the blind

20  or for the other severely handicapped if the product or

21  service is available within a reasonable delivery time.  This

22  act shall not apply in any case in which products or services

23  are available for procurement from any agency of the state and

24  procurement therefrom is required under the provision of any

25  law currently in effect.  However, this act shall have

26  precedence over any law requiring state agency procurement of

27  products or services from any other nonprofit corporation

28  unless such precedence is waived by the commission in

29  accordance with its rules.

30         (2)  The provisions of part I of chapter 287 do not

31  apply to any purchase of commodities or contractual services

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  1  made by any legislative, executive, or judicial agency of the

  2  state from a qualified nonprofit agency for the blind or for

  3  the other severely handicapped.

  4         (3)  If, pursuant to a contract between any

  5  legislative, executive, or judicial agency of the state and

  6  any private contract vendor, a product or service is required

  7  by the Department of Management Services or on behalf of any

  8  state agency that is included on the procurement list

  9  established by the commission pursuant to s. 413.035(2), the

10  contract must contain the following language:

11         "IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY

12  ARTICLES THAT ARE THE SUBJECT OF, OR REQUIRED TO CARRY OUT,

13  THIS CONTRACT SHALL BE PURCHASED FROM A NONPROFIT AGENCY FOR

14  THE BLIND OR FOR THE SEVERELY HANDICAPPED THAT IS QUALIFIED

15  PURSUANT TO CHAPTER 413, FLORIDA STATUTES, IN THE SAME MANNER

16  AND UNDER THE SAME PROCEDURES SET FORTH IN SECTION 413.036(1)

17  AND (2), FLORIDA STATUTES; AND FOR PURPOSES OF THIS CONTRACT

18  THE PERSON, FIRM, OR OTHER BUSINESS ENTITY CARRYING OUT THE

19  PROVISIONS OF THIS CONTRACT SHALL BE DEEMED TO BE SUBSTITUTED

20  FOR THE STATE AGENCY INSOFAR AS DEALINGS WITH SUCH QUALIFIED

21  NONPROFIT AGENCY ARE CONCERNED."

22         Section 38.  Paragraph (c) of subsection (5) of section

23  445.024, Florida Statutes, is amended to read:

24         445.024  Work requirements.--

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

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

27  appropriate, through contracts. In contracting for work

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

29         (c)  Notwithstanding the exemption from the competitive

30  sealed bid requirements provided in s. 287.057(5)(f) s.

31  287.057(4)(f) for certain contractual services, each contract

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  1  awarded under this chapter must be awarded on the basis of a

  2  competitive sealed bid, except for a contract with a

  3  governmental entity as determined by the regional workforce

  4  board.

  5         Section 39.  Paragraph (d) of subsection (2) of section

  6  455.2177, Florida Statutes, is amended to read:

  7         455.2177  Monitoring of compliance with continuing

  8  education requirements.--

  9         (2)  If the compliance monitoring system required under

10  this section is privatized, the following provisions apply:

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

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

13  department may suspend the contract and enter into an

14  emergency contract under s. 287.057(5) s. 287.057(4).

15         Section 40.  This act shall take effect July 1, 2002.

16

17          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
18                             SB 1132

19

20  Revises current law to require procurement matters to be
    electronically posted by agencies on a centralized website.
21  Broadens "eligible user" definition to permit DMS to authorize
    such users by rule. Provides RESPECT with the same purchasing
22  preferences as PRIDE. Requires a one percent protest bond and
    provides for the award of prevailing party attorney's fees and
23  costs. Removes bill's requirements for solicitation
    amendments, and for resolicitation of an invitation to
24  negotiate procurement under certain circumstances. Requires
    agencies to electronically post potential sole source
25  purchases. Revises law relating to renewal of contracts.
    Repeals section of law specifically providing procurement
26  requirements for information technology. Provides that
    information technology shall be purchased as a commodity.
27  Deletes requirement that Department of Management Services
    annually adjust purchase category amounts. Provides a limited
28  exception to the requirement that agencies post solicitations
    for at least 10 days. Provides that a request for quote may be
29  used to obtain more favorable prices, terms, or conditions for
    commodities or contractual services available on state term
30  contract.

31

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