Florida Senate - 2012                                    SB 1872
       
       
       
       By Senator Gibson
       
       
       
       
       1-01299-12                                            20121872__
    1                        A bill to be entitled                      
    2         An act relating to small business participation in
    3         state contracting; creating s. 287.0577, F.S.;
    4         defining the terms “contract bundling” and “small
    5         business”; directing that agencies avoid contract
    6         bundling under certain circumstances; requiring
    7         agencies to conduct market research and include
    8         written summaries and analyses of such research in
    9         solicitations for bundled contracts; requiring
   10         agencies to award a specified percentage of contracts
   11         to small businesses; requiring contract vendors to use
   12         small businesses in the state as subcontractors or
   13         subvendors; requiring the timely payment of
   14         subcontractors; prohibiting agencies from requiring
   15         certain bonds or other sureties for certain contracts;
   16         requiring the Florida Small Business Advocate to
   17         establish a system for reporting small business
   18         participation in state contracting; requiring agencies
   19         to cooperate with such reporting; requiring specified
   20         annual reports; providing an effective date.
   21  
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Section 287.0577, Florida Statutes, is created
   25  to read:
   26         287.0577 Small business participation in state contracting;
   27  contract bundling; set-asides for small businesses; bonding and
   28  reporting requirements.—
   29         (1) DEFINITIONS.—As used in this section, the term:
   30         (a) “Contract bundling” means the consolidation of
   31  contracts for the procurement of commodities or contractual
   32  services, at least part of which may be provided or performed by
   33  one or more small businesses, into a single contract that is not
   34  appropriate for award to a small business as the prime
   35  contractor.
   36         (b) “Small business” means a business entity organized for
   37  profit that is independently owned and operated, that is not
   38  dominant within the business entity’s industry, and that:
   39         1. Currently is, and for at least the previous 3 years has
   40  been, domiciled in the state.
   41         2. Has a workforce of 25 or fewer permanent full-time
   42  positions, whether employees, independent contractors, or other
   43  contractual personnel.
   44         3. Has had, for at least the previous 3 years, average
   45  annual gross sales that do not exceed the following:
   46         a. For a contractor licensed under chapter 489, $3 million
   47  per year.
   48         b. For a sole proprietorship performing contractual
   49  services within the scope of the proprietor’s professional
   50  license or certification, $500,000 per year.
   51         c. For any other business entity, $1 million per year.
   52         4. Currently has, and for at least the previous 3 years has
   53  had, together with its affiliates, a net worth that does not
   54  exceed $5 million. For a sole proprietorship, the net worth
   55  limit of $5 million includes both personal and business
   56  investments but does not include the proprietor’s primary
   57  residence.
   58  
   59  The term includes any such business entity organized as any form
   60  of corporation, partnership, limited liability company, sole
   61  proprietorship, joint venture, association, trust, cooperative,
   62  or other legal entity.
   63         (2) CONTRACT BUNDLING; SOLICITATION.—
   64         (a) An agency, to the maximum extent practicable, shall
   65  structure agency contracts to facilitate competition by and
   66  among small businesses in the state, taking all reasonable steps
   67  to eliminate obstacles to their participation and avoiding the
   68  unnecessary and unjustified contract bundling that may preclude
   69  small businesses’ participation as prime contractors.
   70         (b) Before issuing a solicitation for a bundled contract,
   71  an agency must conduct market research to determine whether
   72  contract bundling is necessary and justified. If the agency
   73  determines that contract bundling is necessary and justified,
   74  the agency must include in the solicitation a written summary of
   75  the agency’s market research and a written analysis of the
   76  research that explains why contract bundling is necessary and
   77  justified.
   78         (3) SET-ASIDES FOR SMALL BUSINESSES.—
   79         (a) An agency shall annually award to small businesses,
   80  either directly or indirectly as subcontractors, at least 25
   81  percent of the total dollar amount of contracts awarded.
   82         (b) Each contract awarded under s. 287.057 must require the
   83  vendor to use small businesses in the state as subcontractors or
   84  subvendors. The percentage of funds, in terms of gross contract
   85  amount and revenues, that must be expended for subcontracting
   86  with small businesses in the state shall be determined by the
   87  agency before the solicitation for the contract is issued;
   88  however, the contract may not allow a vendor to expend less than
   89  10 percent of the gross contract amount for subcontracting with
   90  small businesses in the state.
   91         (c) Each contract must include specific requirements for
   92  the timely payment of subcontractors by the prime contractor and
   93  specific terms and conditions applicable if a prime contractor
   94  does not pay a subcontractor within the time limits specified in
   95  the contract.
   96         (4) BONDING REQUIREMENTS.—Notwithstanding any provision of
   97  law, an agency may not require a vendor to post a bid bond,
   98  performance bond, or other surety for a contract that does not
   99  exceed $500,000. This subsection does not apply to any
  100  requirement for posting a bond pending the protest of a
  101  solicitation; the protest of a rejected bid, proposal, or reply;
  102  or the protest of a contract award.
  103         (5) REPORTING REQUIREMENTS.—The Florida Small Business
  104  Advocate selected under s. 288.7002 shall:
  105         (a) Establish a system to measure and report the use of
  106  small businesses in state contracting. This system shall
  107  maintain information and statistics on small business
  108  participation, awards, dollar volume of expenditures, and other
  109  appropriate types of information to analyze progress in small
  110  businesses’ access to state contracts and to monitor agency
  111  compliance with this section. Such reporting must include, but
  112  is not limited to, the identification of all subcontracts in
  113  state contracting by dollar amount and by number of subcontracts
  114  and identification of the use of small businesses as prime
  115  contractors and subcontractors by dollar amounts of contracts
  116  and subcontracts, number of contracts and subcontracts,
  117  industry, and any conditions or circumstances that significantly
  118  affected the performance of subcontractors. An agency shall
  119  report its compliance with the reporting system at least
  120  annually and at the request of the Florida Small Business
  121  Advocate. All agencies shall cooperate with the Florida Small
  122  Business Advocate in establishing this reporting system.
  123         (b) Report agency compliance with paragraph (a) for the
  124  preceding fiscal year to the Governor and Cabinet, the President
  125  of the Senate, the Speaker of the House of Representatives, and
  126  the Small Business Regulatory Advisory Council created under s.
  127  288.7001 on or before February 1 of each year. The report must
  128  contain, at a minimum, the following:
  129         1. Total expenditures of each agency by industry.
  130         2. The dollar amount and percentage of contracts awarded to
  131  small businesses by each state agency.
  132         3. The dollar amount and percentage of contracts awarded
  133  indirectly to small businesses as subcontractors by each state
  134  agency.
  135         4. The total dollar amount and percentage of contracts
  136  awarded to small businesses, whether directly or indirectly as
  137  subcontractors.
  138         Section 2. This act shall take effect July 1, 2012.