2010 Florida Statutes
Certification of minority business enterprises.
Certification of minority business enterprises.—
A business certified by any local governmental jurisdiction or organization shall be accepted by the Department of Management Services, Office of Supplier Diversity, as a certified minority business enterprise for purposes of doing business with state government when the Office of Supplier Diversity determines that the state’s minority business enterprise certification criteria are applied in the local certification process.
The office is hereby directed to convene a “Minority Business Certification Task Force.” The task force shall meet as often as necessary, but no less frequently than annually.
The task force shall be regionally balanced and comprised of officials representing the department, counties, municipalities, school boards, special districts, and other political subdivisions of the state who administer programs to assist minority businesses in procurement or development in government-sponsored programs. The following organizations may appoint two members each of the task force who fit the description above:
The Florida League of Cities, Inc.
The Florida Association of Counties.
The Florida School Boards Association, Inc.
The Association of Special Districts.
The Florida Association of Minority Business Enterprise Officials.
The Florida Association of Government Purchasing Officials.
In addition, the Office of Supplier Diversity shall appoint seven members consisting of three representatives of minority business enterprises, one of whom should be a woman business owner, two officials of the office, and two at-large members to ensure balance. The chairperson of the Legislative Committee on Intergovernmental Relations or a designee shall be a member of the task force, ex officio. A quorum shall consist of one-third of the current members, and the task force may take action by majority vote. Any vacancy may only be filled by the organization or agency originally authorized to appoint the position.
The purpose of the task force will be to propose uniform criteria and procedures by which participating entities and organizations can qualify businesses to participate in procurement or contracting programs as certified minority business enterprises in accordance with the certification criteria established by law.
A final list of the criteria and procedures proposed by the task force shall be considered by the secretary. The task force may seek technical assistance from qualified providers of technical, business, and managerial expertise to ensure the reliability of the certification criteria developed.
In assessing the status of ownership and control, certification criteria shall, at a minimum:
Link ownership by a minority person, as defined in s. 288.703(3), or as dictated by the legal obligations of a certifying organization, to day-to-day control and financial risk by the qualifying minority owner, and to demonstrated expertise or licensure of a minority owner in any trade or profession that the minority business enterprise will offer to the state when certified. Businesses must comply with all state licensing requirements prior to becoming certified as a minority business enterprise.
If present ownership was obtained by transfer, require the minority person on whom eligibility is based to have owned at least 51 percent of the applicant firm for a minimum of 2 years, when any previous majority ownership interest in the firm was by a nonminority who is or was a relative, former employer, or current employer of the minority person on whom eligibility is based. This requirement shall not apply to minority persons who are otherwise eligible who take a 51-percent-or-greater interest in a firm that requires professional licensure to operate and who will be the qualifying licenseholder for the firm when certified. A transfer made within a related immediate family group from a nonminority person to a minority person in order to establish ownership by a minority person shall be deemed to have been made solely for purposes of satisfying certification criteria and shall render such ownership invalid for purposes of qualifying for such certification if the combined total net asset value of all members of such family group exceeds $1 million. For purposes of this subparagraph, the term “related immediate family group” means one or more children under 16 years of age and a parent of such children or the spouse of such parent residing in the same house or living unit.
Require that prospective certified minority business enterprises be currently performing or seeking to perform a useful business function. A “useful business function” is defined as a business function which results in the provision of materials, supplies, equipment, or services to customers. Acting as a conduit to transfer funds to a nonminority business does not constitute a useful business function unless it is done so in a normal industry practice. As used in this section, the term “acting as a conduit” means, in part, not acting as a regular dealer by making sales of material, goods, or supplies from items bought, kept in stock, and regularly sold to the public in the usual course of business. Brokers, manufacturer’s representatives, sales representatives, and nonstocking distributors are considered as conduits that do not perform a useful business function, unless normal industry practice dictates.
When a business receives payments or awards exceeding $100,000 in one fiscal year, a review of its certification status or an audit will be conducted within 2 years. In addition, random reviews or audits will be conducted as deemed appropriate by the Office of Supplier Diversity.
The certification criteria approved by the task force and adopted by the Department of Management Services shall be included in a statewide and interlocal agreement as defined in s. 287.09431 and, in accordance with s. 163.01, shall be executed according to the terms included therein.
The certification procedures should allow an applicant seeking certification to designate on the application form the information the applicant considers to be proprietary, confidential business information. As used in this paragraph, “proprietary, confidential business information” includes, but is not limited to, any information that would be exempt from public inspection pursuant to the provisions of chapter 119; trade secrets; internal auditing controls and reports; contract costs; or other information the disclosure of which would injure the affected party in the marketplace or otherwise violate s. 286.041. The executor in receipt of the application shall issue written and final notice of any information for which noninspection is requested but not provided for by law.
A business that is certified under the provisions of the statewide and interlocal agreement shall be deemed a certified minority enterprise in all jurisdictions or organizations where the agreement is in effect, and that business is deemed available to do business as such within any such jurisdiction or with any such organization statewide. All state agencies must accept minority business enterprises certified in accordance with the statewide and interlocal agreement of s. 287.09431, and that business shall also be deemed a “certified minority business enterprise” as defined in s. 288.703. However, any governmental jurisdiction or organization that administers a minority business purchasing program may reserve the right to establish further certification procedures necessary to comply with federal law.
The statewide and interlocal agreement shall be guided by the terms and conditions found therein and may be amended at any meeting of the task force and subsequently adopted by the secretary of the Department of Management Services. The amended agreement must be enacted, initialed, and legally executed by at least two-thirds of the certifying entities party to the existing agreement and adopted by the state as originally executed in order to bind the certifying entity.
The task force shall meet for the first time no later than 45 days after the effective date of this act.
The office shall review and evaluate the certification programs and procedures of all prospective executors of the statewide and interlocal agreement to determine if their programs exhibit the capacity to meet the standards of the agreement.
The evaluations shall, at a minimum, consider: the certifying entity’s capacity to conduct investigations of applicants seeking certification under the designated criteria; the ability of the certifying entity to collect the requisite data and to establish adequate protocol to store and exchange said information among the executors of the agreement and to provide adequate security to prevent unauthorized access to information gathered during the certification process; and the degree to which any legal obligations or supplemental requirements unique to the certifying entity exceed the capacity of that entity to conduct certifications.
Any firms certified by organizations or governmental entities determined not to meet the state certification criteria shall not be eligible to participate as certified minority business enterprises in the minority business assistance programs of the state. For a period of 1 year from the effective date of this legislation, the executor of the statewide and interlocal agreement may elect to accept only minority business enterprises certified pursuant to criteria in place at the time the agreement was signed. After the 1-year period, either party may elect to withdraw from the agreement without further notice.
Any organizations or governmental entities determined by the office not to meet the standards of the agreement shall not be eligible to execute the statewide and interlocal agreement as a participating organization until approved by the office.
Any participating program receiving three or more challenges to its certification decisions pursuant to subsection (4) from other organizations that are executors to the statewide and interlocal agreement, shall be subject to a review by the office, as provided in paragraphs (a) and (b), of the organization’s capacity to perform under such agreement and in accordance with the core criteria established by the task force. The office shall submit a report to the secretary of the Department of Management Services regarding the results of the review.
The office shall maintain a directory of all executors of the statewide and interlocal agreement. The directory should be communicated to the general public.
A certification may be challenged by any executor to the statewide and interlocal agreement upon the grounds of failure by the certifying organization to adhere to the adopted criteria or to the certifying organization’s rules and procedures, or on the grounds of a misrepresentation or fraud by the certified minority business enterprise. The challenge shall proceed according to procedures specified in the agreement.
The secretary of the Department of Management Services shall execute the statewide and interlocal agreement established under s. 287.09431 on behalf of the state. The office shall certify minority business enterprises in accordance with the laws of this state and, by affidavit, shall recertify such minority business enterprises not less than once each year.
The office shall contract with parties to the statewide and interlocal agreement to perform onsite visits associated with state certifications.
The office shall maintain up-to-date records of all certified minority business enterprises, as defined in s. 288.703, and of applications for certification that were denied and shall make this list available to all agencies. The office shall, for statistical purposes, collect and track subgroupings of gender and nationality status for each certified minority business enterprise. Agency spending shall also be tracked for these subgroups. The records may include information about minority business enterprises that provide legal services, auditing services, and health services. Agencies shall use this list in efforts to meet the minority business enterprise procurement goals set forth in s. 287.09451.
The office shall establish and administer a computerized data bank to carry out the requirements of paragraph (a), to be available to all executors of the statewide and interlocal agreement. Data maintained in the data bank shall be sufficient to allow each executor to reasonably monitor certifications it has issued.
The office shall identify minority business enterprises eligible for certification in all areas of state services and commodities purchasing. The office may contract with a private firm or other agency, if necessary, in seeking to identify minority business enterprises for certification. Agencies may request the office to identify certifiable minority business enterprises that are in the business of providing a given service or commodity; the office shall respond to such requests and seek out such certifiable minority business enterprises.
The office shall adopt rules necessary to implement this section.
State agencies shall comply with this act except to the extent that the requirements of this act are in conflict with federal law.
Any transfer of ownership or permanent change in the management and daily operations of a certified minority business enterprise which may affect certification must be reported to the original certifying jurisdiction or entity and to the office within 14 days of the transfer or change taking place. In the event of a transfer of ownership, the transferee seeking to do business with the state as a certified minority business enterprise is responsible for such reporting. In the event of a permanent change in the management and daily operations, owners seeking to do business with the state as a certified minority business enterprise are responsible for reporting such change to the office. Any person violating the provisions of this subsection shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
To deter fraud in the program, the Auditor General may review the criteria by which a business became certified as a certified minority business enterprise.
Any executor of the statewide and interlocal agreement may revoke the certification or recertification of a firm doing business as a certified minority business enterprise if the minority business enterprise does not meet the requirements of the jurisdiction or certifying entity that certified or recertified the firm as a certified minority business enterprise, or the requirements of subsection (2), s. 288.703, and any rule of the office or the Department of Management Services or if the business acquired certification or recertification by means of falsely representing any entity as a minority business enterprise for purposes of qualifying for certification or recertification.
Unless permanently revoked, a certified minority business enterprise for which certification or recertification has been revoked may not apply or reapply for certification or recertification for a minimum of 36 months after the date of the notice of revocation.
Except for certification decisions issued by the Office of Supplier Diversity, an executor to the statewide and interlocal agreement shall, in accordance with its rules and procedures:
Give reasonable notice to affected persons or parties of its decision to deny certification based on failure to meet eligibility requirements of the statewide and interlocal agreement of s. 287.09431, together with a summary of the grounds therefor.
Give affected persons or parties an opportunity, at a convenient time and place, to present to the agency written or oral evidence in opposition to the action or of the executor’s refusal to act.
Give a written explanation of any subsequent decision of the executor overruling the objections.
An applicant that is denied minority business enterprise certification based on failure to meet eligibility requirements of the statewide and interlocal agreement pursuant to s. 287.09431 may not reapply for certification or recertification until at least 6 months after the date of the notice of the denial of certification or recertification.
The office shall adopt rules in compliance with this part.
s. 22, ch. 85-104; s. 3, ch. 88-327; s. 24, ch. 90-268; s. 11, ch. 91-162; s. 244, ch. 91-224; s. 257, ch. 92-279; s. 55, ch. 92-326; ss. 14, 26, ch. 94-322; s. 7, ch. 96-311; s. 25, ch. 96-320; s. 1, ch. 98-295; s. 2, ch. 2000-286; s. 57, ch. 2001-61; s. 38, ch. 2004-335; s. 45, ch. 2005-251.