HB 419

1	A bill to be entitled
2	An act relating to increasing competition in procurement
3	of commodities and contractual services; amending s.
4	287.001, F.S.; providing additional legislative intent;
5	amending s. 287.012, F.S.; revising definitions; amending
6	s. 287.032, F.S.; specifying maximizing competition as an
7	additional purpose of the Department of Management
8	Services in purchasing commodities and contractual
9	services; amending s. 287.057, F.S.; revising provisions
10	for procurement of commodities or contractual services;
11	subjecting certain contractual services and commodities to
12	certain competitive-solicitation requirements; limiting
13	the term of contracts, including renewals and extensions;
14	deleting obsolete provisions; amending ss. 287.058,
15	394.457, 402.7305, and 445.024, F.S.; correcting cross-
16	references; providing an effective date.
17
18	Be It Enacted by the Legislature of the State of Florida:
19
20	Section 1.  Section 287.001, Florida Statutes, is amended
21	to read:
22	287.001  Legislative intent.--The Legislature recognizes
23	that fair and open competition is a basic tenet of public
24	procurement; that such competition reduces the appearance and
25	opportunity for favoritism and inspires public confidence that
26	contracts are awarded equitably and economically; and that
27	documentation of the acts taken and effective monitoring
28	mechanisms are important means of curbing any improprieties and
29	establishing public confidence in the process by which
30	commodities and contractual services are procured. It is
31	essential to the effective and ethical procurement of
32	commodities and contractual services that there be a system of
33	uniform procedures to be utilized by state agencies in managing
34	and procuring commodities and contractual services; that
35	detailed justification of agency decisions in the procurement of
36	commodities and contractual services be maintained; and that
37	adherence by the agency and the vendor to specific ethical
38	considerations be required. It is also the intent of the
39	Legislature that all future changes to law affecting outsourcing
40	and procurement of commodities and contractual services be made
41	in this chapter.
42	Section 2.  Subsections (1) and (9) of section 287.012,
43	Florida Statutes, are amended to read:
44	287.012  Definitions.--As used in this part, the term:
45	(1)  "Agency" means any of the various state officers,
46	departments, boards, commissions, divisions, bureaus, and
47	councils and any other unit of organization, however designated,
48	of the executive branch of state government. "Agency" does not
49	include the university and college boards of trustees or the
50	state universities and colleges. Notwithstanding the exclusion
51	of university and college boards of trustees and state
52	universities and colleges from the definition of the term
53	"agency," it is the intent of the Legislature that university
54	and college boards of trustees and state universities and
55	colleges act in the spirit of chapter 287 and use the provisions
56	of chapter 287 as a guide in purchasing commodities and
57	services.
58	(9)  "Contractual service" means the rendering by a
59	contractor of its time and effort rather than the furnishing of
60	specific commodities. The term applies only to those services
61	rendered by individuals and firms who are independent
62	contractors, and such services may include, but are not limited
63	to, evaluations; consultations; maintenance; accounting;
64	security; management systems; management consulting; educational
65	training programs; research and development studies or reports
66	on the findings of consultants engaged thereunder; and
67	professional, technical, and social services. "Contractual
68	service" does not include any contract for the furnishing of
69	labor or materials for the construction, renovation, repair,
70	modification, or demolition of any facility, building, portion
71	of building, utility, park, parking lot, or structure or other
72	improvement to real property entered into pursuant to chapter
73	255 and rules adopted thereunder. A contract in which an agency,
74	in exchange for revenue, authorizes a vendor to use governmental
75	authority or property for the purpose of selling any good or
76	service to any person shall be considered to be the procurement
77	of a contractual service and awarded on a competitive basis
78	based on the purchasing category of such contract, which
79	category shall be determined by the total revenue estimated to
80	be received by the contractor under the contract.
81	Section 3.  Section 287.032, Florida Statutes, is amended
82	to read:
83	287.032  Purpose of department.--It shall be the purpose of
84	the department of Management Services:
85	(1)  To promote optimal competition, efficiency, economy,
86	and the conservation of energy and to effect coordination in the
87	purchase of commodities and contractual services for the state.
88	(2)  To provide uniform commodity and contractual service
89	procurement policies, rules, procedures, and forms for use by
90	agencies and eligible users, and to assist agencies with
91	specific procurements or conduct specific procurements on behalf
92	of agencies, in an efficient and cost-effective manner, with
93	optimal competition.
94	(3)  To procure and distribute federal surplus tangible
95	personal property allocated to the state by the Federal
96	Government.
97	Section 4.  Subsections (5), (14), and (25) of section
98	287.057, Florida Statutes, are amended to read:
99	287.057  Procurement of commodities or contractual
100	services.--
101	(5)  When the purchase price of commodities or contractual
102	services exceeds the threshold amount provided in s. 287.017 for
103	CATEGORY TWO, no purchase of commodities or contractual services
104	may be made without receiving competitive sealed bids,
105	competitive sealed proposals, or competitive sealed replies
106	unless:
107	(a)  The agency head determines in writing that an
108	immediate danger to the public health, safety, or welfare or
109	other substantial loss to the state requires emergency action.
110	After the agency head makes such a written determination, the
111	agency may proceed with the procurement of commodities or
112	contractual services necessitated by the immediate danger,
113	without receiving competitive sealed bids, competitive sealed
114	proposals, or competitive sealed replies. However, such
115	emergency procurement shall be made by obtaining pricing
116	information from at least two prospective vendors, which must be
117	retained in the contract file, unless the agency determines in
118	writing that the time required to obtain pricing information
119	will increase the immediate danger to the public health, safety,
120	or welfare or other substantial loss to the state. The agency
121	shall furnish copies of all written determinations certified
122	under oath and any other documents relating to the emergency
123	action to the department. A copy of the statement shall be
124	furnished to the Chief Financial Officer with the voucher
125	authorizing payment. The individual purchase of personal
126	clothing, shelter, or supplies which are needed on an emergency
127	basis to avoid institutionalization or placement in a more
128	restrictive setting is an emergency for the purposes of this
129	paragraph, and the filing with the department of such statement
130	is not required in such circumstances. In the case of the
131	emergency purchase of insurance, the period of coverage of such
132	insurance shall not exceed a period of 30 days, and all such
133	emergency purchases shall be reported to the department.
134	(b)  The purchase is made by an agency from a state term
135	contract procured, pursuant to this section, by the department
136	or by an agency, after receiving approval from the department,
137	from a contract procured, pursuant to subsection (1), subsection
138	(2), or subsection (3), by another agency.
139	(c)  Commodities or contractual services available only
140	from a single source may be excepted from the competitive-
141	solicitation requirements. When an agency believes that
142	commodities or contractual services are available only from a
143	single source, the agency shall electronically post, in a form
144	prescribed by the department, a description of the commodities
145	or contractual services sought for a period of at least 7
146	business days. The description must include a request that
147	prospective vendors provide information regarding their ability
148	to supply the commodities or contractual services described. If
149	it is determined in writing by the agency, after reviewing any
150	information received from prospective vendors, that the
151	commodities or contractual services are available only from a
152	single source, the agency shall:
153	1.  Provide notice, in a form prescribed by the department,
154	of its intended decision to enter a single-source purchase
155	contract in the manner specified in s. 120.57(3), if the amount
156	of the contract does not exceed the threshold amount provided in
157	s. 287.017 for CATEGORY FOUR.
158	2.  Request approval from the department for the single-
159	source purchase, if the amount of the contract exceeds the
160	threshold amount provided in s. 287.017 for CATEGORY FOUR. The
161	agency shall initiate its request for approval in a form
162	prescribed by the department, which request may be
163	electronically transmitted. The failure of the department to
164	approve or disapprove the agency's request for approval within
165	21 days after receiving such request shall constitute prior
166	approval of the department. If the department approves the
167	agency's request, the agency shall provide notice of its
168	intended decision to enter a single-source contract in the
169	manner specified in s. 120.57(3).
170	(d)  When it is in the best interest of the state, the
171	secretary of the department or his or her designee may authorize
172	the Support Program to purchase of insurance by negotiation, but
173	such purchase shall be made only under conditions most favorable
174	to the public interest.
175	(e)  Prescriptive assistive devices for the purpose of
176	medical, developmental, or vocational rehabilitation of clients
177	are excepted from competitive-solicitation requirements and
178	shall be procured pursuant to an established fee schedule or by
179	any other method which ensures the best price for the state,
180	taking into consideration the needs of the client. Prescriptive
181	assistive devices include, but are not limited to, prosthetics,
182	orthotics, and wheelchairs. For purchases made pursuant to this
183	paragraph, state agencies shall annually file with the
184	department a description of the purchases and methods of
185	procurement.
186	(e)(f)  The following contractual services and commodities
187	are not subject to the competitive-solicitation requirements of
188	this section:
189	1.  Artistic services.
190	2.  Academic program reviews.
191	3.  Lectures by individuals.
192	4.  Auditing services.
193	4.5.  Legal services, including attorney, paralegal, expert
194	witness, appraisal, or mediator services.
195	6.  Health services involving examination, diagnosis,
196	treatment, prevention, medical consultation, or administration.
197	7.  Services provided to persons with mental or physical
198	disabilities by not-for-profit corporations which have obtained
199	exemptions under the provisions of s. 501(c)(3) of the United
200	States Internal Revenue Code or when such services are governed
201	by the provisions of Office of Management and Budget Circular A-
202	122. However, in acquiring such services, the agency shall
203	consider the ability of the vendor, past performance,
204	willingness to meet time requirements, and price.
205	8.  Medicaid services delivered to an eligible Medicaid
206	recipient by a health care provider who has not previously
207	applied for and received a Medicaid provider number from the
208	Agency for Health Care Administration. However, this exception
209	shall be valid for a period not to exceed 90 days after the date
210	of delivery to the Medicaid recipient and shall not be renewed
211	by the agency.
212	9.  Family placement services.
213	10.  Prevention services related to mental health,
214	including drug abuse prevention programs, child abuse prevention
215	programs, and shelters for runaways, operated by not-for-profit
216	corporations. However, in acquiring such services, the agency
217	shall consider the ability of the vendor, past performance,
218	willingness to meet time requirements, and price.
219	11.  Training and education services provided to injured
220	employees pursuant to s. 440.491(6).
221	5.12.  Contracts entered into pursuant to s. 337.11.
222	6.13.  Services or commodities provided by governmental
223	agencies.
224	14.  Voter education activities of the Department of State
225	or the supervisors of elections funded by Specific Appropriation
226	2871H of the 2004-2005 General Appropriations Act, either
227	individually or in the aggregate or with their respective
228	professional associations. This subparagraph expires July 1,
229	2005.
230	7.(g)  Continuing education events or programs that are
231	offered to the general public and for which fees have been
232	collected that pay all expenses associated with the event or
233	program are exempt from requirements for competitive
234	solicitation.
235	(14)(a)  Contracts for commodities or contractual services
236	may be renewed for a period that may not exceed 3 years or the
237	term of the original contract, whichever period is longer.
238	Renewal of a contract for commodities or contractual services
239	shall be in writing and shall be subject to the same terms and
240	conditions set forth in the initial contract. If the commodity
241	or contractual service is purchased as a result of the
242	solicitation of bids, proposals, or replies, the price of the
243	commodity or contractual service to be renewed shall be
244	specified in the bid, proposal, or reply. A renewal contract may
245	not include any compensation for costs associated with the
246	renewal. Renewals shall be contingent upon satisfactory
247	performance evaluations by the agency and subject to the
248	availability of funds. Exceptional purchase contracts pursuant
249	to paragraphs (5)(a) and (c) may not be renewed.
250	(b)  The term of a contract shall not exceed 5 years,
251	including any extensions and renewal periods. Notwithstanding
252	paragraph (a), the Department of Children and Family Services
253	may enter into agreements, not to exceed 20 years, with a
254	private provider to finance, design, and construct a forensic
255	treatment facility, as defined in s. 916.106(8), of at least 200
256	beds and to operate all aspects of daily operations within the
257	forensic treatment facility. The selected contractor is
258	authorized to sponsor the issuance of tax-exempt certificates of
259	participation or other securities to finance the project, and
260	the state is authorized to enter into a lease-purchase agreement
261	for the forensic treatment facility. This paragraph expires July
262	1, 2006.
263	(25)  For the 2005-2006 fiscal year only, notwithstanding
264	any specific provision of this chapter or chapter 255 to the
265	contrary, the Department of Management Services is authorized to
266	issue an invitation to negotiate to contract for 384 additional
267	beds for expansion at the Gadsden Correctional Facility to house
268	medium-custody female inmates and for 235 additional beds for
269	expansion at the Bay Correctional Facility and 235 additional
270	beds at Moore Haven Correctional Facility to house medium-
271	custody and close-custody inmates. Any such invitation to
272	negotiate shall be limited to modifications of existing
273	contracts between the Department of Management Services and
274	firms currently operating private correctional facilities and
275	shall be for design, financing, acquisition, leasing,
276	construction, and operation of the additional beds. By October
277	1, 2005, and quarterly thereafter, the department shall report
278	to the President of the Senate and the Speaker of the House of
279	Representatives on the specific activities completed and
280	remaining to be completed, along with timeframes for each
281	activity, to add the additional beds. Procurement should be
282	completed in a manner that allows sufficient time for the new
283	beds to become operational by July 2007. This subsection expires
284	July 1, 2006.
285	Section 5.  Subsection (5) of section 287.058, Florida
286	Statutes, is amended to read:
287	287.058  Contract document.--
288	(5)  Unless otherwise provided in the General
289	Appropriations Act or the substantive bill implementing the
290	General Appropriations Act, the Chief Financial Officer may
291	waive the requirements of this section for services which are
292	included in s. 287.057(5)(e)(f).
293	Section 6.  Subsection (3) of section 394.457, Florida
294	Statutes, is amended to read:
295	394.457  Operation and administration.--
296	(3)  POWER TO CONTRACT.--The department may contract to
297	provide, and be provided with, services and facilities in order
298	to carry out its responsibilities under this part with the
299	following agencies: public and private hospitals; receiving and
300	treatment facilities; clinics; laboratories; departments,
301	divisions, and other units of state government; the state
302	colleges and universities; the community colleges; private
303	colleges and universities; counties, municipalities, and any
304	other governmental unit, including facilities of the United
305	States Government; and any other public or private entity which
306	provides or needs facilities or services. Baker Act funds for
307	community inpatient, crisis stabilization, short-term
308	residential treatment, and screening services must be allocated
309	to each county pursuant to the department's funding allocation
310	methodology. Notwithstanding the provisions of s.
311	287.057(5)(e)(f), contracts for community-based Baker Act
312	services for inpatient, crisis stabilization, short-term
313	residential treatment, and screening provided under this part,
314	other than those with other units of government, to be provided
315	for the department must be awarded using competitive sealed bids
316	when the county commission of the county receiving the services
317	makes a request to the department's district office by January
318	15 of the contracting year. The district shall not enter into a
319	competitively bid contract under this provision if such action
320	will result in increases of state or local expenditures for
321	Baker Act services within the district. Contracts for these
322	Baker Act services using competitive sealed bids will be
323	effective for 3 years. Services contracted for by the department
324	may be reimbursed by the state at a rate up to 100 percent. The
325	department shall adopt rules establishing minimum standards for
326	such contracted services and facilities and shall make periodic
327	audits and inspections to assure that the contracted services
328	are provided and meet the standards of the department.
329	Section 7.  Paragraph (a) of subsection (2) of section
330	402.7305, Florida Statutes, is amended to read:
331	402.7305  Department of Children and Family Services;
332	procurement of contractual services; contract management.--
333	(2)  PROCUREMENT OF COMMODITIES AND CONTRACTUAL SERVICES.--
334	(a)  Notwithstanding s. 287.057(5)(e)6.(f)13., whenever the
335	department intends to contract with a public postsecondary
336	institution to provide a service, the department must allow all
337	public postsecondary institutions in this state that are
338	accredited by the Southern Association of Colleges and Schools
339	to bid on the contract. Thereafter, notwithstanding any other
340	provision to the contrary, if a public postsecondary institution
341	intends to subcontract for any service awarded in the contract,
342	the subcontracted service must be procured by competitive
343	procedures.
344	Section 8.  Paragraph (c) of subsection (5) of section
345	445.024, Florida Statutes, is amended to read:
346	445.024  Work requirements.--
347	(5)  USE OF CONTRACTS.--Regional workforce boards shall
348	provide work activities, training, and other services, as
349	appropriate, through contracts. In contracting for work
350	activities, training, or services, the following applies:
351	(c)  Notwithstanding the exemption from the competitive
352	sealed bid requirements provided in s. 287.057(5)(e)(f) for
353	certain contractual services, each contract awarded under this
354	chapter must be awarded on the basis of a competitive sealed
355	bid, except for a contract with a governmental entity as
356	determined by the regional workforce board.
357	Section 9.  This act shall take effect July 1, 2006.

CODING: Words stricken are deletions; words underlined are additions.