Florida Senate - 2023 CS for CS for SB 1188 By the Committees on Fiscal Policy; and Governmental Oversight and Accountability; and Senator Boyd 594-03814-23 20231188c2 1 A bill to be entitled 2 An act relating to contract liability; amending s. 3 287.058, F.S.; requiring that certain procurement 4 agreements include a specified provision; reenacting 5 ss. 287.0571(5) and 1002.84(13), F.S., relating to 6 contract requirements for proposed outsourcing and 7 procurement contract requirements for early learning 8 coalitions, respectively, to incorporate the amendment 9 made to s. 287.058, F.S., in references thereto; 10 providing an effective date. 11 12 Be It Enacted by the Legislature of the State of Florida: 13 14 Section 1. Subsection (8) is added to section 287.058, 15 Florida Statutes, to read: 16 287.058 Contract document.— 17 (8) In addition to any other provision required to be 18 included, the written agreement for a procurement of contractual 19 services in excess of the threshold amount provided in s. 20 287.017 for CATEGORY TWO must include the following limitation 21 of liability provision for breach of contract: 22 23 For all claims against the Contractor under any 24 contract or purchase order, and regardless of the 25 basis on which the claim is made, the Contractor’s 26 liability for direct damages under a contract or 27 purchase order shall be limited to the greater of 28 $100,000, the dollar amount of the contract or 29 purchase order, or two times the charges rendered by 30 the Contractor under the purchase order. The 31 limitation of liability contemplated herein does not 32 apply to any claim arising under an indemnity section 33 of the agreement or any section of the agreement 34 relating to insurance for the provision of 35 Professional Services as defined in section 287.055, 36 Florida Statutes, unless otherwise agreed to by the 37 parties to the contract. Unless otherwise specifically 38 enumerated in the contract or in the purchase order, 39 no party shall be liable to another for special, 40 indirect, punitive, or consequential damages, 41 including lost data or records (unless the contract or 42 purchase order requires the Contractor to back up data 43 or records), even if the party has been advised that 44 such damages are possible. No party shall be liable 45 for lost profits, lost revenue, or lost institutional 46 operating savings. The State and Customer may, in 47 addition to other remedies available to them at law or 48 equity and upon notice to the Contractor, retain such 49 monies from amounts due the Contractor as may be 50 necessary to satisfy any claim for damages, penalties, 51 costs, and the like asserted by or against them. The 52 State may set off any liability or other obligation of 53 the Contractor or its affiliates to the State against 54 any payments due the Contractor under any contract 55 with the State. 56 Section 2. For the purpose of incorporating the amendment 57 made by this act to section 287.058, Florida Statutes, in a 58 reference thereto, subsection (5) of section 287.0571, Florida 59 Statutes, is reenacted to read: 60 287.0571 Business case to outsource; applicability.— 61 (5) In addition to the contract requirements provided in s. 62 287.058, each contract for a proposed outsourcing, pursuant to 63 this section, must include, but need not be limited to, the 64 following contractual provisions: 65 (a) A scope-of-work provision that clearly specifies each 66 service or deliverable to be provided, including a description 67 of each deliverable or activity that is quantifiable, 68 measurable, and verifiable. This provision must include a clause 69 that states if a particular service or deliverable is 70 inadvertently omitted or not clearly specified but determined to 71 be operationally necessary and verified to have been performed 72 by the agency within the 12 months before the execution of the 73 contract, such service or deliverable will be provided by the 74 contractor through the identified contract-amendment process. 75 (b) A service-level-agreement provision describing all 76 services to be provided under the terms of the agreement, the 77 state agency’s service requirements and performance objectives, 78 specific responsibilities of the state agency and the 79 contractor, and the process for amending any portion of the 80 service-level agreement. Each service-level agreement must 81 contain an exclusivity clause that allows the state agency to 82 retain the right to perform the service or activity, directly or 83 with another contractor, if service levels are not being 84 achieved. 85 (c) A provision that identifies all associated costs, 86 specific payment terms, and payment schedules, including 87 provisions governing incentives and financial disincentives and 88 criteria governing payment. 89 (d) A provision that identifies a clear and specific 90 transition plan that will be implemented in order to complete 91 all required activities needed to transfer the service or 92 activity from the state agency to the contractor and operate the 93 service or activity successfully. 94 (e) A performance-standards provision that identifies all 95 required performance standards, which must include, at a 96 minimum: 97 1. Detailed and measurable acceptance criteria for each 98 deliverable and service to be provided to the state agency under 99 the terms of the contract which document the required 100 performance level. 101 2. A method for monitoring and reporting progress in 102 achieving specified performance standards and levels. 103 3. The sanctions or disincentives that shall be imposed for 104 nonperformance by the contractor or state agency. 105 (f) A provision that requires the contractor and its 106 subcontractors to maintain adequate accounting records that 107 comply with all applicable federal and state laws and generally 108 accepted accounting principles. 109 (g) A provision that authorizes the state agency to have 110 access to and to audit all records related to the contract and 111 subcontracts, or any responsibilities or functions under the 112 contract and subcontracts, for purposes of legislative 113 oversight, and a requirement for audits by a service 114 organization in accordance with professional auditing standards, 115 if appropriate. 116 (h) A provision that requires the contractor to interview 117 and consider for employment with the contractor each displaced 118 state employee who is interested in such employment. 119 (i) A contingency-plan provision that describes the 120 mechanism for continuing the operation of the service or 121 activity, including transferring the service or activity back to 122 the state agency or successor contractor if the contractor fails 123 to perform and comply with the performance standards and levels 124 of the contract and the contract is terminated. 125 (j) A provision that requires the contractor and its 126 subcontractors to comply with public records laws, specifically 127 to: 128 1. Keep and maintain the public records that ordinarily and 129 necessarily would be required by the state agency in order to 130 perform the service or activity. 131 2. Provide the public with access to such public records on 132 the same terms and conditions that the state agency would 133 provide the records and at a cost that does not exceed that 134 provided in chapter 119 or as otherwise provided by law. 135 3. Ensure that records that are exempt or records that are 136 confidential and exempt are not disclosed except as authorized 137 by law. 138 4. Meet all requirements for retaining records and transfer 139 to the state agency, at no cost, all public records in 140 possession of the contractor upon termination of the contract 141 and destroy any duplicate public records that are exempt or 142 confidential and exempt. All records stored electronically must 143 be provided to the state agency in a format that is compatible 144 with the information technology systems of the state agency. 145 (k)1. A provision that provides that any copyrightable or 146 patentable intellectual property produced as a result of work or 147 services performed under the contract, or in any way connected 148 with the contract, shall be the property of the state, with only 149 such exceptions as are clearly expressed and reasonably valued 150 in the contract. 151 2. A provision that provides that, if the primary purpose 152 of the contract is the creation of intellectual property, the 153 state shall retain an unencumbered right to use such property. 154 (l) If applicable, a provision that allows the agency to 155 purchase from the contractor, at its depreciated value, assets 156 used by the contractor in the performance of the contract. If 157 assets have not depreciated, the agency shall retain the right 158 to negotiate to purchase at an agreed-upon cost. 159 Section 3. For the purpose of incorporating the amendment 160 made by this act to section 287.058, Florida Statutes, in a 161 reference thereto, subsection (13) of section 1002.84, Florida 162 Statutes, is reenacted to read: 163 1002.84 Early learning coalitions; school readiness powers 164 and duties.—Each early learning coalition shall: 165 (13) Comply with federal procurement requirements and the 166 procurement requirements of ss. 215.971, 287.057, and 287.058, 167 except that an early learning coalition is not required to 168 competitively procure direct services for school readiness 169 program and Voluntary Prekindergarten Education Program 170 providers. 171 Section 4. This act shall take effect July 1, 2023.