Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. SPB 7228
       
       
       
       
       
       
                                Barcode 245102                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: FAV            .                                
                  03/30/2011           .                                
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       The Committee on Governmental Oversight and Accountability
       (Ring) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (b) of subsection (1) of section
    6  119.071, Florida Statutes, is amended to read:
    7         119.071 General exemptions from inspection or copying of
    8  public records.—
    9         (1) AGENCY ADMINISTRATION.—
   10         (b)1. For purposes of this paragraph, the term “competitive
   11  solicitation” means the process of requesting and receiving
   12  sealed bids, proposals, or replies submitted by responsive
   13  vendors in accordance with the terms of a competitive process,
   14  regardless of the method of procurement.
   15         2.a. Sealed bids, or proposals, or replies received by an
   16  agency pursuant to a competitive solicitation invitations to bid
   17  or requests for proposals are exempt from s. 119.07(1) and s.
   18  24(a), Art. I of the State Constitution until such time as the
   19  agency provides notice of an a decision or intended decision to
   20  make a contract award pursuant to s. 120.57(3)(a) or until 30
   21  within 10 days after opening the bids, proposals, or replies bid
   22  or proposal opening, whichever is earlier.
   23         3.b. If an agency rejects all bids, or proposals, or
   24  replies submitted in response to a competitive solicitation an
   25  invitation to bid or request for proposals and the agency
   26  concurrently provides notice of its intent to reissue the
   27  competitive solicitation invitation to bid or request for
   28  proposals, the rejected bids, or proposals, or replies remain
   29  exempt from s. 119.07(1) and s. 24(a), Art. I of the State
   30  Constitution until such time as the agency provides notice of an
   31  a decision or intended decision to make a contract award
   32  pursuant to s. 120.57(3)(a) concerning the reissued competitive
   33  solicitation invitation to bid or request for proposals or until
   34  the agency withdraws the reissued competitive solicitation
   35  invitation to bid or request for proposals. A bid, proposal, or
   36  reply is not exempt for longer than 12 months after the initial
   37  agency notice rejecting all bids, proposals, or replies. This
   38  sub-subparagraph is subject to the Open Government Sunset Review
   39  Act in accordance with s. 119.15 and shall stand repealed on
   40  October 2, 2011, unless reviewed and saved from repeal through
   41  reenactment by the Legislature.
   42         2.a. A competitive sealed reply in response to an
   43  invitation to negotiate, as defined in s. 287.012, is exempt
   44  from s. 119.07(1) and s. 24(a), Art. I of the State Constitution
   45  until such time as the agency provides notice of a decision or
   46  intended decision pursuant to s. 120.57(3)(a) or until 20 days
   47  after the final competitive sealed replies are all opened,
   48  whichever occurs earlier.
   49         b. If an agency rejects all competitive sealed replies in
   50  response to an invitation to negotiate and concurrently provides
   51  notice of its intent to reissue the invitation to negotiate and
   52  reissues the invitation to negotiate within 90 days after the
   53  notice of intent to reissue the invitation to negotiate, the
   54  rejected replies remain exempt from s. 119.07(1) and s. 24(a),
   55  Art. I of the State Constitution until such time as the agency
   56  provides notice of a decision or intended decision pursuant to
   57  s. 120.57(3)(a) concerning the reissued invitation to negotiate
   58  or until the agency withdraws the reissued invitation to
   59  negotiate. A competitive sealed reply is not exempt for longer
   60  than 12 months after the initial agency notice rejecting all
   61  replies.
   62         4.c. This paragraph subparagraph is subject to the Open
   63  Government Sunset Review Act in accordance with s. 119.15 and
   64  shall stand repealed on October 2, 2016 2011, unless reviewed
   65  and saved from repeal through reenactment by the Legislature.
   66         Section 2. Subsection (2) of section 286.0113, Florida
   67  Statutes, is amended to read:
   68         286.0113 General exemptions from public meetings.—
   69         (2)(a) For purposes of this subsection, the term:
   70         1. “Competitive solicitation” means the process of
   71  requesting and receiving sealed bids, proposals, or replies
   72  submitted by responsive vendors in accordance with the terms of
   73  a competitive process, regardless of the method of procurement.
   74         2. “Team” means a group of members established by an agency
   75  for the purpose of conducting negotiations as part of a
   76  competitive solicitation.
   77         (b)1. Any portion of a meeting at which a negotiation with
   78  a vendor is conducted pursuant to a competitive solicitation, at
   79  which a vendor makes an oral presentation as part of a
   80  competitive solicitation, or at which a vendor answers questions
   81  as part of a competitive solicitation s. 287.057(1) is exempt
   82  from s. 286.011 and s. 24(b), Art. I of the State Constitution.
   83         2. Any portion of a team meeting at which negotiation
   84  strategies are discussed is exempt from s. 286.011 and s. 24(b),
   85  Art. I of the State Constitution.
   86         (c)1.(b)1. A complete recording shall be made of any
   87  portion of an exempt meeting made exempt in paragraph (a). No
   88  portion of the exempt meeting may be held off the record.
   89         2.2. The recording of and any records presented at the
   90  exempt meeting are required under subparagraph 1. is exempt from
   91  s. 119.07(1) and s. 24(a), Art. I of the State Constitution
   92  until such time as the agency provides notice of an a decision
   93  or intended decision to make a contract award pursuant to s.
   94  120.57(3)(a) or until 30 20 days after opening the bids,
   95  proposals, or replies the final competitive sealed replies are
   96  all opened, whichever occurs earlier.
   97         3.3. If the agency rejects all bids, proposals, or sealed
   98  replies and concurrently provides notice of its intent to
   99  reissue a competitive solicitation, the recording and any
  100  records presented at the exempt meeting remain remains exempt
  101  from s. 119.07(1) and s. 24(a), Art. I of the State Constitution
  102  until such time as the agency provides notice of an a decision
  103  or intended decision to make a contract award pursuant to s.
  104  120.57(3)(a) concerning the reissued competitive solicitation
  105  invitation to negotiate or until the agency withdraws the
  106  reissued competitive solicitation invitation to negotiate. A
  107  recording and any records presented at an exempt meeting are is
  108  not exempt for longer than 12 months after the initial agency
  109  notice rejecting all bids, proposals, or replies.
  110         (d)(c) This subsection is subject to the Open Government
  111  Sunset Review Act in accordance with s. 119.15 and shall stand
  112  repealed on October 2, 2016 2011, unless reviewed and saved from
  113  repeal through reenactment by the Legislature.
  114         Section 3. (1) The Legislature finds that it is a public
  115  necessity that bids, proposals, or replies submitted in response
  116  to a competitive solicitation be made temporarily exempt from
  117  public-records requirements. Such records shall be made
  118  available when the agency provides notice of an intended
  119  decision to make a contract award on the competitive
  120  solicitation, or when the agency rejects all bids, proposals, or
  121  replies and ultimately withdraws a reissued competitive
  122  solicitation. Temporarily protecting such information ensures
  123  that the process of responding to a competitive solicitation
  124  remains fair and economical for vendors, while still preserving
  125  oversight after a competitive solicitation decision is made or
  126  withdrawn.
  127         (2) The Legislature also finds that it is a public
  128  necessity that a meeting at which a negotiation with a vendor is
  129  conducted pursuant to a competitive solicitation, at which a
  130  vendor makes an oral presentation as part of a competitive
  131  solicitation, or at which a vendor answers questions as part of
  132  a competitive solicitation, be made exempt from public-meetings
  133  requirements. In addition, it is a public necessity that any
  134  records presented at such meetings be made temporarily exempt
  135  from public-records requirements. The recording of the meeting
  136  and any such records shall be made available when the agency
  137  provides notice of an intended decision to make a contract award
  138  on the competitive solicitation, or when the agency rejects all
  139  bids, proposals, or replies and ultimately withdraws a reissued
  140  competitive solicitation. Protecting such meetings and
  141  temporarily protecting the recording and any records presented
  142  by a vendor at such meetings ensures that the process of
  143  responding to a competitive solicitation remains fair and
  144  economical for vendors, while still preserving oversight after a
  145  competitive solicitation decision is made or withdrawn. It is
  146  unfair and inequitable to compel vendors to disclose to
  147  competitors the nature and details of their proposals during
  148  such meetings or through the minutes or records presented at
  149  such meetings. Such disclosure impedes full and frank discussion
  150  of the strengths, weaknesses, and value of a bid, proposal, or
  151  response, thereby limiting the ability of the agency to obtain
  152  the best value for the public. The public and private harm
  153  stemming from these practices outweighs the temporary delay in
  154  access to records related to the competitive solicitation.
  155         (3) The Legislature further finds that it is a public
  156  necessity that any portion of a team meeting at which
  157  negotiation strategies are discussed be made exempt from public
  158  meetings requirements. In addition, it is a public necessity
  159  that the recording of such meeting be made temporarily exempt
  160  from public-records requirements. The recording of the meeting
  161  shall be made available when the agency provides notice of an
  162  intended decision to make a contract award on the competitive
  163  solicitation, or when the agency rejects all bids, proposals, or
  164  replies and ultimately withdraws a reissued competitive
  165  solicitation. Team members often meet to strategize about
  166  competitive solicitations and the approach to take as part of
  167  the evaluation process. Without the public-meetings exemption
  168  and the limited public-records exemption, the effective and
  169  efficient administration of the competitive solicitation process
  170  would be hindered.
  171         Section 4. This act shall take effect upon becoming a law.
  172  
  173  ================= T I T L E  A M E N D M E N T ================
  174         And the title is amended as follows:
  175         Delete everything before the enacting clause
  176  and insert:
  177                        A bill to be entitled                      
  178         An act relating to a review under the Open Government
  179         Sunset Review Act; amending s. 119.071, F.S., which
  180         provides an exemption from public-records requirements
  181         for bids, proposals, or replies submitted to an agency
  182         in response to a competitive solicitation; expanding
  183         the public-records exemption by extending the duration
  184         of the exemption; providing a definition; reorganizing
  185         provisions; providing for future repeal and
  186         legislative review of the exemption under the Open
  187         Government Sunset Review Act; amending s. 286.0113,
  188         F.S., which provides an exemption from public-meetings
  189         requirements for meetings at which a negotiation with
  190         a vendor is conducted and which provides an exemption
  191         from public-records requirements for recordings of
  192         exempt meetings; providing definitions; expanding the
  193         exemption to include meetings at which a negotiation
  194         with a vendor is conducted pursuant to a competitive
  195         solicitation, at which a vendor makes an oral
  196         presentation as part of a competitive solicitation, at
  197         which a vendor answers questions as part of a
  198         competitive solicitation, and at which team members
  199         discuss negotiation strategies; expanding the public
  200         records exemption to include any records presented at
  201         an exempt meeting; reorganizing provisions; providing
  202         for future repeal and legislative review under the
  203         Open Government Sunset Review Act; providing a
  204         statement of public necessity; providing an effective
  205         date.