Senate Bill sb1972
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    Florida Senate - 2007                                  SB 1972
    By the Committee on Governmental Operations
    585-550-07
  1                      A bill to be entitled
  2         An act relating to the leasing of private
  3         property by state agencies; amending s.
  4         255.248, F.S.; defining the term "competitive
  5         solicitation"; amending s. 255.249, F.S.;
  6         removing the expiration of provisions requiring
  7         that the Department of Management Services
  8         annually report to the Governor and the
  9         Legislature certain information concerning
10         leases that are due to expire and amendments
11         and supplements to and waivers of the terms and
12         conditions of lease agreements; requiring that
13         the Department of Management Services adopt
14         rules for soliciting and accepting competitive
15         solicitations for certain leased space, for
16         exempting the lease of care and living space or
17         emergency space from competitive-solicitation
18         requirements, and for securing at least three
19         quotes for a lease that is not required to be
20         competitively solicited; removing the
21         expiration of provisions requiring that
22         specified clauses, which may not be amended,
23         supplemented, or waived, be included in the
24         terms and conditions of a lease; amending s.
25         255.25, F.S.; removing the expiration of
26         provisions requiring that the department
27         approve the terms of a lease by a state agency;
28         requiring an analysis if the department
29         approves an amendment or supplement to or
30         waiver of a term or condition of a lease
31         agreement; prohibiting a state agency from
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    Florida Senate - 2007                                  SB 1972
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 1         entering into certain leases of space in a
 2         privately owned building except upon
 3         advertisement for and receipt of competitive
 4         solicitations; providing exceptions; providing
 5         requirements for the use of invitations to bid,
 6         requests for proposals, and invitations to
 7         negotiate; providing criteria for awarding
 8         contracts; providing criteria for protesting an
 9         agency decision or intended decision pertaining
10         to a competitive solicitation for leased space;
11         removing the expiration of provisions providing
12         legislative intent with respect to the use of
13         state-owned buildings; requiring that the
14         department create a plan for fully using such
15         buildings before leasing private buildings;
16         requiring an annual report to the Legislature
17         and the Governor; providing an effective date.
18  
19  Be It Enacted by the Legislature of the State of Florida:
20  
21         Section 1.  Section 255.248, Florida Statutes, is
22  amended to read:
23         255.248  Definitions; ss. 255.249 and 255.25.--As The
24  following definitions shall apply when used in ss. 255.249 and
25  255.25, the term:
26         (1)  The term "State-owned office building" means any
27  building title to which is vested in the state and which is
28  used by one or more executive agencies predominantly for
29  administrative direction and support functions.  This term
30  excludes:
31  
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 1         (a)  District or area offices established for field
 2  operations where law enforcement, military, inspections, road
 3  operations, or tourist welcoming functions are performed.
 4         (b)  All educational facilities and institutions under
 5  the supervision of the Department of Education.
 6         (c)  All custodial facilities and institutions used
 7  primarily for the care, custody, or treatment of wards of the
 8  state.
 9         (d)  Buildings or spaces used for legislative
10  activities.
11         (e)  Buildings purchased or constructed from
12  agricultural or citrus trust funds.
13         (2)  The term "Privately owned building" means shall
14  mean any building not owned by a governmental agency.
15         (3)  "Competitive solicitation" means an invitation to
16  bid, a request for proposals, or an invitation to negotiate.
17         Section 2.  Subsections (3) and (4) of section 255.249,
18  Florida Statutes, are amended to read:
19         255.249  Department of Management Services;
20  responsibility; department rules.--
21         (3)(a)  The department shall, to the extent feasible,
22  coordinate the vacation of privately owned leased space with
23  the expiration of the lease on that space and, when a lease is
24  terminated before expiration of its base term, will make a
25  reasonable effort to place another state agency in the space
26  vacated. Any state agency may lease the space in any building
27  that was subject to a lease terminated by a state agency for a
28  period of time equal to the remainder of the base term without
29  the requirement of competitive bidding.
30         (b)  The department shall annually publish a report
31  that lists, by agency, all leases that are due to expire
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 1  within 24 months. The annual report must include the following
 2  information for each lease: location; size of leased space;
 3  current cost per leased square foot; lease expiration date;
 4  and a determination of whether sufficient state-owned office
 5  space will be available at the expiration of the lease to
 6  house affected employees. The report must also include a list
 7  of amendments and supplements to and waivers of terms and
 8  conditions in lease agreements that have been approved
 9  pursuant to s. 255.25(2)(a) during the previous 12 months and
10  an associated comprehensive analysis, including financial
11  implications, showing that any amendment, supplement, or
12  waiver is in the state's long-term best interest. The
13  department shall furnish this report to the Executive Office
14  of the Governor and the Legislature by September 15 of each
15  year. This paragraph expires July 1, 2007.
16         (4)  The department shall adopt promulgate rules
17  pursuant to chapter 120 providing:
18         (a)  Methods for accomplishing the duties outlined in
19  subsection (1).
20         (b)  Procedures for soliciting and accepting
21  competitive solicitations proposals for leased space of 5,000
22  square feet or more in privately owned buildings, for
23  evaluating the proposals received, for exemption from
24  competitive-solicitation competitive bidding requirements of
25  any lease the purpose of which is the provision of care and
26  living space for persons or emergency space needs as provided
27  in s. 255.25(10), and for the securing of at least three
28  documented quotes for a lease that is not required to be
29  competitively solicitated bid.
30  
31  
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 1         (c)  A standard method for determining square footage
 2  or any other measurement used as the basis for lease payments
 3  or other charges.
 4         (d)  Methods of allocating space in both state-owned
 5  office buildings and privately owned buildings leased by the
 6  state based on use, personnel, and office equipment.
 7         (e)1.  Acceptable terms and conditions for inclusion in
 8  lease agreements.
 9         2.  Such terms and conditions shall include, at a
10  minimum, the following clauses, which may not be amended,
11  supplemented, or waived:
12         a.  As provided in s. 255.2502, "The State of Florida's
13  performance and obligation to pay under this contract is
14  contingent upon an annual appropriation by the Legislature."
15         b.  "The Lessee shall have the right to terminate,
16  without penalty, this lease in the event a State-owned
17  building becomes available to the Lessee for occupancy in the
18  County of ........, Florida, during the term of said lease for
19  the purposes for which this space is being leased upon giving
20  6 months' advance written notice to the Lessor by Certified
21  Mail, Return Receipt Requested."
22  
23  This subparagraph expires July 1, 2007.
24         (f)  Maximum rental rates, by geographic areas or by
25  county, for leasing privately owned space.
26         (g)  A standard method for the assessment of rent to
27  state agencies and other authorized occupants of state-owned
28  office space, notwithstanding the source of funds.
29         (h)  For full disclosure of the names and the extent of
30  interest of the owners holding a 4-percent or more interest in
31  any privately owned property leased to the state or in the
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 1  entity holding title to the property, for exemption from such
 2  disclosure of any beneficial interest that which is
 3  represented by stock in any corporation registered with the
 4  Securities and Exchange Commission or registered pursuant to
 5  chapter 517, which stock is for sale to the general public,
 6  and for exemption from such disclosure of any leasehold
 7  interest in property located outside the territorial
 8  boundaries of the United States.
 9         (i)  For full disclosure of the names of all public
10  officials, agents, or employees holding any interest in any
11  privately owned property leased to the state or in the entity
12  holding title to the property, and the nature and extent of
13  their interest, for exemption from such disclosure of any
14  beneficial interest that which is represented by stock in any
15  corporation registered with the Securities and Exchange
16  Commission or registered pursuant to chapter 517, which stock
17  is for sale to the general public, and for exemption from such
18  disclosure of any leasehold interest in property located
19  outside the territorial boundaries of the United States.
20         (j)  A method for reporting leases for nominal or no
21  consideration.
22         (k)  For a lease of less than 5,000 square feet, a
23  method for certification by the agency head or the agency
24  head's designated representative that all criteria for leasing
25  have been fully complied with and for the filing of a copy of
26  such lease and all supporting documents with the department
27  for its review and approval as to technical sufficiency.
28         Section 3.  Paragraph (d) of subsection (2), subsection
29  (3), and paragraph (c) of subsection (4) of section 255.25,
30  Florida Statutes, are amended to read:
31  
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 1         255.25  Approval required prior to construction or
 2  lease of buildings.--
 3         (2)
 4         (d)  Notwithstanding paragraph (a) and except as
 5  provided in ss. 255.249 and 255.2501, a state agency may not
 6  lease a building or any part thereof unless prior approval of
 7  the lease terms and conditions and of the need therefor is
 8  first obtained from the Department of Management Services. The
 9  department may not approve any term or condition in a lease
10  agreement which has been amended, supplemented, or waived
11  unless a comprehensive analysis, including financial
12  implications, demonstrates that such amendment, supplement, or
13  waiver is in the state's long-term best interest. Any approved
14  lease may include an option to purchase or an option to renew
15  the lease, or both, upon such terms and conditions as are
16  established by the department subject to final approval by the
17  head of the Department of Management Services and the
18  provisions of s. 255.2502. This paragraph expires July 1,
19  2007.
20         (3)(a)  Except as provided in subsection (10), a no
21  state agency may not shall enter into a lease as lessee for
22  the use of 5,000 square feet or more of space in a privately
23  owned building except upon advertisement for and receipt of
24  competitive solicitations bids and award to the lowest and
25  best bidder.
26         1.a.  An invitation to bid shall be made available
27  simultaneously to all vendors and must include a detailed
28  description of the space sought; the time and date for the
29  receipt of bids and of the public opening; and all contractual
30  terms and conditions applicable to the procurement, including
31  the criteria to be used in determining acceptability of the
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 1  bid. If the agency contemplates renewal of the contract, that
 2  fact must be stated in the invitation to bid. The bid must
 3  include the price for each year for which the contract may be
 4  renewed. Evaluation of bids shall include consideration of the
 5  total cost for each year as submitted by the vendor. Criteria
 6  that were not set forth in the invitation to bid may not be
 7  used in determining acceptability of the bid.
 8         b.  The contract shall be awarded with reasonable
 9  promptness by written notice to the responsible and responsive
10  vendor that submits the lowest responsive bid. This bid must
11  be determined in writing to meet the requirements and criteria
12  set forth in the invitation to bid.
13         2.a.  If an agency determines in writing that the use
14  of an invitation to bid is not practicable, leased space shall
15  be procured by competitive sealed proposals. A request for
16  proposals shall be made available simultaneously to all
17  vendors and must include a statement of the space sought; the
18  time and date for the receipt of proposals and of the public
19  opening; and all contractual terms and conditions applicable
20  to the procurement, including the criteria, which must
21  include, but need not be limited to, price, to be used in
22  determining acceptability of the proposal. The relative
23  importance of price and other evaluation criteria shall be
24  indicated. If the agency contemplates renewal of the contract,
25  that fact must be stated in the request for proposals. The
26  proposal must include the price for each year for which the
27  contract may be renewed. Evaluation of proposals shall include
28  consideration of the total cost for each year as submitted by
29  the vendor.
30         b.  The contract shall be awarded to the responsible
31  and responsive vendor whose proposal is determined in writing
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 1  to be the most advantageous to the state, taking into
 2  consideration the price and the other criteria set forth in
 3  the request for proposals. The contract file must contain
 4  documentation supporting the basis on which the award is made.
 5         3.a.  If the agency determines in writing that the use
 6  of an invitation to bid or a request for proposals will not
 7  result in the best value to the state, the agency may procure
 8  leased space by competitive sealed replies. The agency's
 9  written determination must specify reasons that explain why
10  negotiation may be necessary in order for the state to achieve
11  the best value and must be approved in writing by the agency
12  head or his or her designee prior to the advertisement of an
13  invitation to negotiate. Cost savings related to the agency
14  procurement process are not sufficient justification for using
15  an invitation to negotiate. An invitation to negotiate shall
16  be made available to all vendors simultaneously and must
17  include a statement of the space sought; the time and date for
18  the receipt of replies and of the public opening; and all
19  terms and conditions applicable to the procurement, including
20  the criteria to be used in determining the acceptability of
21  the reply. If the agency contemplates renewal of the contract,
22  that fact must be stated in the invitation to negotiate. The
23  reply must include the price for each year for which the
24  contract may be renewed.
25         b.  The agency shall evaluate and rank responsive
26  replies against all evaluation criteria set forth in the
27  invitation to negotiate and shall select, based on the
28  ranking, one or more vendors with which to commence
29  negotiations. After negotiations are conducted, the agency
30  shall award the contract to the responsible and responsive
31  vendor that the agency determines will provide the best value
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 1  to the state. The contract file must contain a short, plain
 2  statement that explains the basis for vendor selection and
 3  sets forth the vendor's deliverables and price pursuant to the
 4  contract, and an explanation of how these deliverables and
 5  price provide the best value to the state.
 6         (b)  The Department of Management Services shall have
 7  the authority to approve a lease for 5,000 square feet or more
 8  of space that covers more than 1 fiscal year, subject to the
 9  provisions of ss. 216.311, 255.2501, 255.2502, and 255.2503,
10  if such lease is, in the judgment of the department, in the
11  best interests of the state. This paragraph does not apply to
12  buildings or facilities of any size leased for the purpose of
13  providing care and living space for persons.
14         (c)(b)  The Department of Management Services may
15  approve extensions of an existing lease of 5,000 square feet
16  or more of space if such extensions are determined to be in
17  the best interests of the state, but in no case shall the
18  total of such extensions exceed 11 months.  If at the end of
19  the 11th month an agency still needs that space, it shall be
20  procured by competitive bid in accordance with s.
21  255.249(4)(b). However, an agency that determines that it is
22  in its best interest to remain in the space it currently
23  occupies may negotiate a replacement lease with the lessor if
24  an independent comparative market analysis demonstrates that
25  the rates offered are within market rates for the space and
26  the cost of the new lease does not exceed the cost of a
27  comparable lease plus documented moving costs. A present-value
28  analysis and the consumer price index shall be used in the
29  calculation of lease costs. The term of the replacement lease
30  may not exceed the base term of the expiring lease.
31  
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 1         (d)(c)  Any person who files an action protesting a
 2  decision or intended decision pertaining to a competitive
 3  solicitation bid for space to be leased by the agency pursuant
 4  to s. 120.57(3)(b) shall post with the state agency at the
 5  time of filing the formal written protest a bond payable to
 6  the agency in an amount equal to 1 percent of the estimated
 7  total rental of the basic lease period or $5,000, whichever is
 8  greater, which bond shall be conditioned upon the payment of
 9  all costs that which may be adjudged against him or her in the
10  administrative hearing in which the action is brought and in
11  any subsequent appellate court proceeding. If the agency
12  prevails after completion of the administrative hearing
13  process and any appellate court proceedings, it shall recover
14  all costs and charges, which shall be included in the final
15  order or judgment, excluding attorney's fees.  Upon payment of
16  such costs and charges by the person protesting the award, the
17  bond shall be returned to him or her.  If the person
18  protesting the award prevails, the bond shall be returned to
19  that person and he or she shall recover from the agency all
20  costs and charges, which shall be included in the final order
21  of judgment, excluding attorney's fees.
22         (e)(d)  The agency and the lessor, when entering into a
23  lease for 5,000 or more square feet of a privately owned
24  building, shall, before the effective date of the lease, agree
25  upon and separately state the cost of tenant improvements
26  which may qualify for reimbursement if the lease is terminated
27  before the expiration of its base term. The department shall
28  serve as mediator if the agency and the lessor are unable to
29  agree. The amount agreed upon and stated shall, if
30  appropriated, be amortized over the original base term of the
31  lease on a straight-line basis.
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 1         (f)(e)  The unamortized portion of tenant improvements,
 2  if appropriated, shall will be paid in equal monthly
 3  installments over the remaining term of the lease. If any
 4  portion of the original leased premises is occupied after
 5  termination but during the original term by a tenant that does
 6  not require material changes to the premises, the repayment of
 7  the cost of tenant improvements applicable to the occupied but
 8  unchanged portion shall be abated during occupancy. The
 9  portion of the repayment to be abated shall be based on the
10  ratio of leased space to unleased space.
11         (4)
12         (c)  Because the state has a substantial financial
13  investment in state-owned buildings, it is legislative policy
14  and intent that when state-owned buildings meet the needs of
15  state agencies, agencies must fully use such buildings before
16  leasing privately owned buildings. By September 15, 2006, the
17  Department of Management Services shall create a 5-year plan
18  for implementing this policy. The department shall update this
19  plan annually, detailing proposed departmental actions to meet
20  the plan's goals. The department shall furnish this plan to
21  the President of the Senate, the Speaker of the House of
22  Representatives, and the Executive Office of the Governor by
23  September 15 of each year. This paragraph expires July 1,
24  2007.
25         Section 4.  This act shall take effect July 1, 2007.
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 1            *****************************************
 2                          SENATE SUMMARY
 3    Defines the term "competitive solicitation" for purposes
      of the leasing of private property by state agencies.
 4    Removes the expiration of provisions requiring that the
      Department of Management Services annually report to the
 5    Governor and Legislature certain information concerning
      leases. Requires that the department adopt rules. Removes
 6    the expiration of provisions requiring that specified
      clauses be included in the terms and conditions of a
 7    lease. Removes the expiration of provisions requiring
      that the department approve the terms of a lease by a
 8    state agency. Prohibits a state agency from entering into
      a lease of 5,000 square feet or more of space in a
 9    privately owned building except upon advertisement for
      and receipt of competitive solicitations. Provides
10    certain exceptions. Provides requirements for the use of
      invitations to bid, requests for proposals, and
11    invitations to negotiate. Provides criteria for awarding
      contracts. Provides criteria for protesting an agency
12    decision or intended decision pertaining to a competitive
      solicitation for leased space. Removes the expiration of
13    provisions providing legislative intent with respect to
      the use of state-owned buildings. Requires the department
14    to submit an annual report to the Governor and
      Legislature. (See bill for details.)
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