Florida Senate - 2011                             CS for SB 1314
       
       
       
       By the Committee on Governmental Oversight and Accountability;
       and Senator Alexander
       
       
       
       585-02640-11                                          20111314c1
    1                        A bill to be entitled                      
    2         An act relating to state financial matters; amending
    3         s. 216.011, F.S.; defining the term “lease or lease
    4         purchase of equipment”; amending s. 216.023, F.S.;
    5         requiring that specified information relating to
    6         certain contracts be included in an agency’s
    7         legislative budget request; amending s. 216.311, F.S.;
    8         defining the terms “contract” and “agreement”;
    9         prohibiting an agency or branch of state government,
   10         without legislative authority, from contracting to pay
   11         liquidated damages or early termination fees resulting
   12         from the breach or early termination of a contract or
   13         agreement, from paying interest because of
   14         insufficient budget authority to pay an obligation in
   15         the current year, from obligating the state to make
   16         future payments to cover unpaid payments, or from
   17         granting a party the right to collect fees or other
   18         revenues from nonparties; providing certain
   19         exemptions; prohibiting an agency from entering into
   20         certain leases without authorization by the
   21         Legislature or the Legislative Budget Commission;
   22         creating s. 216.312, F.S.; requiring the executive and
   23         judicial branch to notify the Governor and Legislature
   24         before entering into contracts containing certain
   25         provisions relating to expenditures; providing an
   26         exception for the Department of Transportation;
   27         transferring, renumbering, and amending s. 287.0582,
   28         F.S.; requiring a state contract to identify the
   29         appropriation that funds a contract; expanding the
   30         statement that must be included in state contracts to
   31         include grounds for terminating the contract based on
   32         budget deficits; requiring the judicial branch to
   33         include the statement in its contracts; requiring the
   34         agency head, executive director, or chief judge, as
   35         appropriate, or a designated senior management
   36         employee, to sign contracts that exceed a specified
   37         amount; requiring the agency head, executive director,
   38         or chief judge to review certain contracts and certify
   39         compliance with ch. 216, F.S.; requiring contracts
   40         exceeding a specified amount to require written
   41         acceptance or rejection of contract deliverables;
   42         providing that contracts in violation of these
   43         provisions are null and void; providing penalties;
   44         amending s. 287.063, F.S.; prohibiting certain lease
   45         or deferred-payment purchases by state agencies unless
   46         expressly authorized by the Legislature in the General
   47         Appropriations Act or by the Legislative Budget
   48         Commission; amending s. 287.064, F.S.; prohibiting
   49         certain master equipment financing agreements unless
   50         expressly authorized by the Legislature in the General
   51         Appropriations Act or by the Legislative Budget
   52         Commission; amending ss. 376.3075 and 403.1837, F.S.;
   53         conforming cross-references; repealing s. 287.056(2),
   54         F.S., relating to provisions providing agencies with
   55         the option of purchasing services from state term
   56         contracts; amending s. 45, chapter 2010-151, Laws of
   57         Florida; providing that certain contracts are subject
   58         to transaction fees; providing for application;
   59         providing an effective date.
   60  
   61  Be It Enacted by the Legislature of the State of Florida:
   62  
   63         Section 1. Present paragraph (vv) of subsection (1) of
   64  section 216.011, Florida Statutes, is redesignated as paragraph
   65  (ww), and a new paragraph (vv) is added to that subsection, to
   66  read:
   67         216.011 Definitions.—
   68         (1) For the purpose of fiscal affairs of the state,
   69  appropriations acts, legislative budgets, and approved budgets,
   70  each of the following terms has the meaning indicated:
   71         (vv) “Lease or lease-purchase of equipment” means the
   72  appropriations category used to fund the lease or lease-purchase
   73  of equipment, fixtures, and other tangible personal property.
   74         Section 2. Present subsections (6) through (9) of section
   75  216.023, Florida Statutes, are renumbered as subsections (7)
   76  through (10), respectively, and a new subsection (6) is added to
   77  that section, to read:
   78         216.023 Legislative budget requests to be furnished to
   79  Legislature by agencies.—
   80         (6) As part of the legislative budget request, each state
   81  agency must include the following information for each contract
   82  in which the state agency has granted a concession:
   83         (a) The name of the vendor.
   84         (b) A brief description of the services provided by the
   85  vendor.
   86         (c) The term of the contract and the years remaining on the
   87  contract.
   88         (d) The amount of revenue generated or expected to be
   89  generated by the vendor under the contract for the prior fiscal
   90  year, the current fiscal year, and the next fiscal year.
   91         (e) The amount of revenue remitted or expected to be
   92  remitted to the state agency by the vendor for the prior fiscal
   93  year, the current fiscal year, and the next fiscal year.
   94         (f) The value of capital improvements, if any, on state
   95  property which have been funded by the vendor over the term of
   96  the contract.
   97         (g) The remaining amount of capital improvements, if any,
   98  on state property which have not been fully amortized by June 30
   99  of the prior fiscal year.
  100         (h) The amount, if any, of state appropriations made to the
  101  state agency to pay for services provided by the vendor.
  102         Section 3. Section 216.311, Florida Statutes, is amended to
  103  read:
  104         216.311 Unauthorized contracts in excess of appropriations;
  105  penalty.—
  106         (1) As used in this section and ss. 216.312 and 216.313,
  107  the terms “contract” and “agreement” include the initial
  108  contract or agreement, any amendment to the contract or
  109  agreement, and any extension or renewal of the contract or
  110  agreement.
  111         (2)(1)Unless specifically authorized by law, an No agency
  112  or branch of state government may not enter into any shall
  113  contract to spend, or enter into any agreement:
  114         (a) To spend, any moneys in excess of the amount
  115  appropriated to such agency or branch unless specifically
  116  authorized by law, and any contract or agreement in violation of
  117  this chapter shall be null and void.
  118         (b) That requires the state to pay liquidated damages or
  119  early termination fees for a breach or early termination of a
  120  contract or agreement by such agency or branch due to an act of
  121  the Legislature which provides less than full funding for the
  122  contract during the fiscal year.
  123         (c) That requires the state to pay interest, other than
  124  interest paid pursuant to s. 215.422, to another party because
  125  the agency or branch has insufficient budget authority to pay
  126  the underlying obligation of the contract or agreement in the
  127  current year.
  128         (d) That binds the state to make future-year payments to
  129  offset payments not made in a prior year due to insufficient
  130  budget authority.
  131         (e) To grant to any party the right or privilege to collect
  132  and retain fees or other revenues from persons who are not a
  133  party to the contract which would otherwise be payable to the
  134  state and deposited into the State Treasury.
  135         (3) Notwithstanding subsection (2), the following agencies
  136  may enter into the following contracts or agreements:
  137         (a) In order to implement the work program approved by the
  138  Legislature, and in accordance with the comprehensive
  139  legislative oversight of the department under chapter 339, the
  140  Department of Transportation may enter into contracts and
  141  agreements, subject to the requirements of s. 334.30 and chapter
  142  339, in lieu of the limitations specified in paragraphs (2)(b)
  143  (e).
  144         (b) In order to administer the state group insurance
  145  program as provided in s. 110.123, the Department of Management
  146  Services may enter into contracts and other agreements that
  147  permit health care providers, health maintenance organizations,
  148  preferred provider organizations, and insurers to collect
  149  premiums and copayments from participants in the group insurance
  150  program.
  151         (c) In order to administer the state Medicaid plan and the
  152  Florida Healthy Kids program, the Agency for Health Care
  153  Administration may enter into contracts and other agreements
  154  that permit health care providers to collect premiums and
  155  copayments from participants in the Medicaid plan and the
  156  Healthy Kids program.
  157         (d) In order to administer the state parks system, the
  158  Department of Environmental Protection may enter into contracts
  159  and other agreements that require the state to pay liquidated
  160  damages or early termination fees as a result of a breach of
  161  those contracts or agreements, but only if the vendor makes
  162  significant capital improvements to state property and the costs
  163  of such improvements is amortized over no more than 3 years.
  164  Such contracts are subject to the notice requirements of s.
  165  216.312.
  166         (4) Notwithstanding any law authorizing an agency to enter
  167  into a lease, an agency may not enter into a lease or lease
  168  purchase agreement for tangible personal property which requires
  169  the state to pay more than $500,000 over the term of the lease
  170  or agreement if the term of the lease or agreement exceeds 1
  171  fiscal year unless such lease or agreement is expressly
  172  authorized by the Legislature or the Legislative Budget
  173  Commission has approved a transfer of budget authority from a
  174  traditional appropriation category to the appropriation category
  175  established for the lease or lease-purchase of equipment.
  176         (5) In order to administer the real estate and other
  177  investment portfolios as provided in s. 215.47 and to carry out
  178  such other duties of the State Board of Administration set out
  179  in law, the board may enter into contracts and such other
  180  agreements as necessary to carry out the duties of the board.
  181         (6) Any contract or agreement in violation of this section
  182  is null and void.
  183         (7)(2) Any public officer or employee person who willfully
  184  enters into a contract or other agreement in violation of this
  185  section commits contracts to spend, or enters into an agreement
  186  to spend, any money in excess of the amount appropriated to the
  187  agency or branch for whom the contract or agreement is executed
  188  is guilty of a misdemeanor of the first degree, punishable as
  189  provided in s. 775.082 or s. 775.083.
  190         Section 4. Section 216.312, Florida Statutes, is created to
  191  read:
  192         216.312 Reporting contract expenditures.—
  193         (1) A state agency must provide written notification of the
  194  terms and conditions of the contract to the Governor, the
  195  President of the Senate, and the Speaker of the House of
  196  Representatives at least 30 days before executing a contract, or
  197  a series of contracts between the same parties, for the purchase
  198  of services or tangible personal property that:
  199         (a) Requires payments by the state in excess of $10 million
  200  in any fiscal year;
  201         (b) Requires minimal or no payments by the state during the
  202  fiscal year;
  203         (c) Authorizes the other party to make expenditures in
  204  anticipation of collecting revenues from a third party,
  205  including other state agencies, rather than receiving payments
  206  from the state agency executing the contract; or
  207         (d) Requires initial expenditures by the other party and
  208  for which the other party will not receive payment from the
  209  state within 180 days after the expenditure.
  210         (2) The execution of any contract or agreement described in
  211  subsection (1) is an action or proposed action subject to s.
  212  216.177(2)(b).
  213         (3) In lieu of the requirements of this section, and in
  214  accordance with the comprehensive legislative oversight of the
  215  department under chapter 339, the Department of Transportation
  216  shall implement the work program approved by the Legislature by
  217  entering into contracts and agreements, subject to the
  218  requirements of s. 334.30 and chapter 339. If the department
  219  intends to procure a contract pursuant to s. 334.30, it must
  220  provide written notification to the Governor, the President of
  221  the Senate, the Speaker of the House of Representatives, and the
  222  chairs of the legislative appropriations committees at least 30
  223  days before advertising for proposals.
  224         Section 5. Section 287.0582, Florida Statutes, is
  225  transferred, renumbered as section 216.313, Florida Statutes,
  226  and amended to read:
  227         216.313 287.0582Contract appropriation Contracts which
  228  require annual appropriation; contingency statement;
  229  requirements; penalty.—
  230         (1) An executive or judicial branch public officer or
  231  employee may not enter into any contract or agreement on behalf
  232  of the state or judicial branch which binds the state or its
  233  executive agencies or the judicial branch for the purchase of
  234  services or tangible personal property unless the contract
  235  identifies the specific appropriation of state funds from which
  236  the state will make payment under the contract in the first year
  237  of the contract, or unless the Legislature expressly authorizes
  238  the agency or the judicial branch to enter into such contract
  239  absent a specific appropriation of funds.
  240         (2) An No executive or judicial branch public officer or
  241  employee may not shall enter into any contract or agreement on
  242  behalf of the state, which contract binds the state or its
  243  executive agencies for the purchase of services or tangible
  244  personal property for a period in excess of 1 fiscal year,
  245  unless the following statements are statement is included in the
  246  contract:
  247         (a) “The State of Florida’s performance and obligation to
  248  pay under this contract is contingent upon an annual
  249  appropriation by the Legislature.”
  250         (b) “This contract may be terminated by the state upon 10
  251  days’ written notice if funding for this contract is
  252  specifically eliminated pursuant to a deficit reduction plan
  253  implemented by:
  254         1. The Governor or the Chief Justice or by an act of the
  255  Legislature after certification pursuant to section 216.221,
  256  Florida Statutes, that a deficit will occur in the General
  257  Revenue Fund; or
  258         2. The Governor or Chief Justice pursuant to section
  259  216.221(10), Florida Statutes, or by an act of the Legislature,
  260  after a determination by the Chief Financial Officer that a
  261  deficit will occur with respect to appropriations from a
  262  specific trust fund in the current fiscal year.”
  263  
  264  This paragraph does not apply to a contract or agreement entered
  265  into pursuant to s. 334.30.
  266         (3) A contract or other agreement that exceeds:
  267         (a) The CATEGORY TWO threshold amount provided in s.
  268  287.017 must be signed by the agency head, executive director,
  269  or chief judge, as appropriate, or a designated senior
  270  management employee.
  271         (b) A term of 12 months may not be executed by any
  272  executive or judicial branch agency unless the agency head,
  273  executive director, or chief judge, as appropriate, or a
  274  designated senior management employee, determines that the
  275  contract is in compliance with the requirements of this chapter
  276  and certifies such compliance in writing within the contract or
  277  agreement.
  278         (c) The CATEGORY FIVE threshold amount provided in s.
  279  287.017 must require the written acceptance or rejection of
  280  contract deliverables.
  281         (4) Any contract or other agreement in violation of this
  282  section is null and void.
  283         (5) Any public officer or employee who willfully enters
  284  into a contract or other agreement in violation of this section
  285  commits a misdemeanor of the first degree, punishable as
  286  provided in s. 775.082 or s. 775.083.
  287         Section 6. Subsection (4) of section 287.063, Florida
  288  Statutes, is amended to read:
  289         287.063 Deferred-payment commodity contracts; preaudit
  290  review.—
  291         (4) Beginning July 1, 2011, an agency may not enter into a
  292  lease or deferred-payment purchase arrangement for the
  293  acquisition of equipment which has a total cost greater than
  294  $500,000 unless the Legislature has expressly authorized such
  295  lease or deferred-payment purchase arrangement in the General
  296  Appropriations Act or the Legislative Budget Commission has
  297  approved a transfer of budget authority from a traditional
  298  appropriation category to the special appropriation category for
  299  deferred-payment commodity contracts. For purposes of this
  300  section, deferred-payment commodity contracts for replacing the
  301  state accounting and cash management systems may include
  302  equipment, accounting software, and implementation and project
  303  management services.
  304         Section 7. Subsection (9) of section 287.064, Florida
  305  Statutes, is amended to read:
  306         287.064 Consolidated financing of deferred-payment
  307  purchases.—
  308         (9) Beginning July 1, 2011, an agency may not enter into a
  309  master equipment financing agreement that has a total cost
  310  greater than $500,000 unless the Legislature has expressly
  311  authorized such agreement in the General Appropriations Act or
  312  the Legislative Budget Commission has approved a transfer of
  313  budget authority from a traditional appropriation category to
  314  the special appropriation category for deferred-payment
  315  commodity contracts. For purposes of this section, deferred
  316  payment commodity contracts for replacing the state accounting
  317  and cash management systems may include equipment, accounting
  318  software, and implementation and project management services.
  319         Section 8. Subsections (4) and (9) of section 376.3075,
  320  Florida Statutes, are amended to read:
  321         376.3075 Inland Protection Financing Corporation.—
  322         (4) The corporation may enter into one or more service
  323  contracts with the department to provide services to the
  324  department in connection with financing the functions and
  325  activities provided in ss. 376.30-376.317. The department may
  326  enter into one or more such service contracts with the
  327  corporation and provide payment for payments under such
  328  contracts pursuant to s. 376.3071(4)(o), subject to annual
  329  appropriation by the Legislature. The proceeds from such service
  330  contracts may be used for the corporation’s administrative costs
  331  and expenses after payments as set forth in subsection (5). Each
  332  service contract may have a term of up to 20 years. Amounts
  333  annually appropriated and applied to make payments under such
  334  service contracts may not include any funds derived from
  335  penalties or other payments received from any property owner or
  336  private party, including payments received under s.
  337  376.3071(6)(b). In compliance with s. 216.313 287.0641 and other
  338  applicable provisions of law, the obligations of the department
  339  under such service contracts do not constitute a general
  340  obligation of the state or a pledge of the faith and credit or
  341  taxing power of the state nor may such obligations be construed
  342  in any manner as an obligation of the State Board of
  343  Administration or entities for which it invests funds, other
  344  than the department as provided in this section, but are payable
  345  solely from amounts available in the Inland Protection Trust
  346  Fund, subject to annual appropriation. In compliance with this
  347  subsection and s. 287.0582, The service contract must expressly
  348  include the statements required under s. 216.313. following
  349  statement: “The State of Florida’s performance and obligation to
  350  pay under this contract is contingent upon an annual
  351  appropriation by the Legislature.”
  352         (9) The corporation is not a special district for the
  353  purposes of chapter 189 or a unit of local government for the
  354  purposes of part III of chapter 218. The provisions of chapters
  355  120 and 215, except the limitation on interest rates provided by
  356  s. 215.84 which applies to obligations of the corporation issued
  357  pursuant to this section, and part I of chapter 287, except s.
  358  ss. 287.0582 and 287.0641, does do not apply to this section,
  359  the corporation, the service contracts entered into pursuant to
  360  this section, or debt obligations issued by the corporation as
  361  contemplated in this section.
  362         Section 9. Subsections (5) and (10) of section 403.1837,
  363  Florida Statutes, are amended to read:
  364         403.1837 Florida Water Pollution Control Financing
  365  Corporation.—
  366         (5) The corporation may enter into one or more service
  367  contracts with the department under which the corporation shall
  368  provide services to the department in connection with financing
  369  the functions, projects, and activities provided in ss. 403.1835
  370  and 403.8532. The department may enter into one or more service
  371  contracts with the corporation and provide payment for payments
  372  under those contracts pursuant to s. 403.1835(9) or s. 403.8533,
  373  subject to annual appropriation by the Legislature.
  374         (a) The service contracts may provide for the transfer of
  375  all or a portion of the funds in the Wastewater Treatment and
  376  Stormwater Management Revolving Loan Trust Fund and the Drinking
  377  Water Revolving Loan Trust Fund to the corporation for use by
  378  the corporation for costs incurred by the corporation in its
  379  operations, including, but not limited to, payment of debt
  380  service, reserves, or other costs in relation to bonds issued by
  381  the corporation, for use by the corporation at the request of
  382  the department to directly provide the types of local financial
  383  assistance provided in ss. 403.1835(3) and 403.8532(3), or for
  384  payment of the administrative costs of the corporation.
  385         (b) The department may not transfer funds under any service
  386  contract with the corporation without a specific appropriation
  387  for such purpose in the General Appropriations Act, except for
  388  administrative expenses incurred by the State Board of
  389  Administration or other expenses necessary under documents
  390  authorizing or securing previously issued bonds of the
  391  corporation. The service contracts may also provide for the
  392  assignment or transfer to the corporation of any loans made by
  393  the department.
  394         (c) The service contracts may establish the operating
  395  relationship between the department and the corporation and must
  396  require the department to request the corporation to issue bonds
  397  before any issuance of bonds by the corporation, to take any
  398  actions necessary to enforce the agreements entered into between
  399  the corporation and other parties, and to take all other actions
  400  necessary to assist the corporation in its operations.
  401         (d) In compliance with s. 287.0641 and other applicable
  402  provisions of law, the obligations of the department under the
  403  service contracts do not constitute a general obligation of the
  404  state or a pledge of the faith and credit or taxing power of the
  405  state, nor may the obligations be construed as an obligation of
  406  the State Board of Administration or entities for which it
  407  invests funds, or of the department except as provided in this
  408  section as payable solely from amounts available under any
  409  service contract between the corporation and the department,
  410  subject to appropriation.
  411         (e) The In compliance with this subsection and s. 287.0582,
  412  service contracts must expressly include the statements required
  413  under s. 216.313. following statement: “The State of Florida’s
  414  performance and obligation to pay under this contract is
  415  contingent upon an annual appropriation by the Legislature.”
  416         (10) The corporation is not a special district for purposes
  417  of chapter 189 or a unit of local government for purposes of
  418  part III of chapter 218. The provisions of chapters 120 and 215,
  419  except the limitation on interest rates provided by s. 215.84,
  420  which applies to obligations of the corporation issued under
  421  this section, and part I of chapter 287, except s. ss. 287.0582
  422  and 287.0641, do not apply to this section, the corporation, the
  423  service contracts entered into under this section, or debt
  424  obligations issued by the corporation as provided in this
  425  section.
  426         Section 10. Subsection (2) of section 287.056, Florida
  427  Statutes, is repealed.
  428         Section 11. Section 45 of chapter 2010-151, Laws of
  429  Florida, is amended to read:
  430         Section 45. Contracts for academic program reviews,
  431  auditing services, health services, or Medicaid services are
  432  subject to the transaction or user fees imposed under ss.
  433  287.042(1)(h) and 287.057(22), Florida Statutes, only to the
  434  extent that such contracts were not subject to such transaction
  435  or user fees before July 1, 2010.
  436         Section 12. This act shall take effect July 1, 2011, and
  437  applies to initial contracts and agreements, amendments to a
  438  contract or agreement, and extensions or renewals of a contract
  439  or agreement which are executed on or after that date.