The Florida Senate

287.001  Legislative intent.

287.012  Definitions.

287.017  Purchasing categories, threshold amounts; procedures for automatic adjustment by department.

287.022  Purchase of insurance.

287.025  Prohibition against certain insurance coverage on specified state property or insurable subjects.

287.032  Purpose of department.

287.042  Powers, duties, and functions.

287.045  Procurement of products and materials with recycled content.

287.055  Acquisition of professional architectural, engineering, landscape architectural, or surveying and mapping services; definitions; procedures; contingent fees prohibited; penalties.

287.056  Agency purchases from agreements and contracts executed by the department.

287.057  Procurement of commodities or contractual services.

287.0572  Present-value methodology.

287.058  Contract document.

287.0582  Contracts which require annual appropriation; contingency statement.

287.0585  Late payments by contractors to subcontractors and suppliers; penalty.

287.059  Private attorney services.

287.0595  Pollution response action contracts; department rules.

287.063  Deferred-payment commodity contracts; preaudit review.

287.064  Consolidated financing of deferred-payment purchases.

287.0641  Agreement not debt or pledge of faith or credit of state.

287.073  Procurement of information technology resources.

287.0731  Team for contract negotiations.

287.082  Commodities manufactured, grown, or produced in state given preference.

287.083  Purchase of commodities.

287.0834  Motor vehicles; energy-saving equipment and additives.

287.084  Preference to Florida businesses.

287.087  Preference to businesses with drug-free workplace programs.

287.092  Preference to certain foreign manufacturers.

287.093  Minority business enterprises; procurement of personal property and services from funds set aside for such purpose.

287.0931  Minority business enterprises; participation in bond underwriting.

287.0935  Surety bond insurers.

287.094  Minority business enterprise programs; penalty for false representation.

287.0943  Certification of minority business enterprises.

287.09431  Statewide and interlocal agreement on certification of business concerns for the status of minority business enterprise.

287.09451  Minority Business Advocacy and Assistance Office; powers, duties, and functions.

287.0947  Florida Council on Small and Minority Business Development; creation; membership; duties.

287.095  Department of Corrections; prison industry programs.

287.115  Comptroller; annual report.

287.121  Assistance of Department of Legal Affairs.

287.131  Assistance of Department of Insurance.

287.132  Legislative intent with respect to integrity of public contracting and purchasing process.

287.133  Public entity crime; denial or revocation of the right to transact business with public entities.

287.1345  Surcharge on users of state term contracts; deposit of proceeds collected.

287.001  Legislative intent.--The Legislature recognizes that fair and open competition is a basic tenet of public procurement; that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically; and that documentation of the acts taken and effective monitoring mechanisms are important means of curbing any improprieties and establishing public confidence in the process by which commodities and contractual services are procured. It is essential to the effective and ethical procurement of commodities and contractual services that there be a system of uniform procedures to be utilized by state agencies in managing and procuring commodities and contractual services; that detailed justification of agency decisions in the procurement of commodities and contractual services be maintained; and that adherence by the agency and the contractor to specific ethical considerations be required.

History.--s. 3, ch. 82-196; s. 10, ch. 90-268.

287.012  Definitions.--The following definitions shall apply in this part:

(1)  "Agency" means any of the various state officers, departments, boards, commissions, divisions, bureaus, and councils and any other unit of organization, however designated, of the executive branch of state government. "Agency" does not include the Board of Regents or the State University System.

(2)  "Agency head" means, with respect to an agency headed by a collegial body, the executive director or chief administrative officer of the agency.

(3)  "Artist" means an individual or group of individuals who profess and practice a demonstrated creative talent and skill in the area of music, dance, drama, folk art, creative writing, painting, sculpture, photography, graphic arts, craft arts, industrial design, costume design, fashion design, motion pictures, television, radio, or tape and sound recording or in any other related field.

(4)  "Commodity" means any of the various supplies, materials, goods, merchandise, food, equipment, and other personal property, including a mobile home, trailer, or other portable structure with floor space of less than 3,000 square feet, purchased, leased, or otherwise contracted for by the state and its agencies. "Commodity" also includes interest on deferred-payment commodity contracts approved pursuant to s. 287.063 entered into by an agency for the purchase of other commodities. However, commodities purchased for resale are excluded from this definition. Further, a prescribed drug, medical supply, or device required by a licensed health care provider as a part of providing health services involving examination, diagnosis, treatment, prevention, medical consultation, or administration for clients at the time the service is provided is not considered to be a "commodity." Printing of publications shall be considered a commodity when let upon contract pursuant to s. 283.33, whether purchased for resale or not.

(5)  "Competitive sealed bids" or "competitive sealed proposals" refers to the receipt of two or more sealed bids or proposals submitted by responsive and qualified bidders or offerors.

(6)  "Contractor" means a person who contracts to sell commodities or contractual services to an agency.

(7)  "Contractual service" means the rendering by a contractor of its time and effort rather than the furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent contractors, and such services may include, but are not limited to, evaluations; consultations; maintenance; accounting; security; management systems; management consulting; educational training programs; research and development studies or reports on the findings of consultants engaged thereunder; and professional, technical, and social services. "Contractual service" does not include any contract for the furnishing of labor or materials for the construction, renovation, repair, modification, or demolition of any facility, building, portion of building, utility, park, parking lot, or structure or other improvement to real property entered into pursuant to chapter 255 and rules adopted thereunder.

(8)  "Department" means the Department of Management Services.

(9)  "Exceptional purchase" means any purchase of commodities or contractual services excepted by law or rule from the requirements for competitive solicitation or acquisition, including, but not limited to, purchases from a single source, purchases upon receipt of less than two responsive bids or proposals, purchases without publication of notice in the Florida Administrative Weekly, and exceptions granted by the department for a purchase of commodities from other than a state term contract vendor.

(10)  "Extension" means an increase in the time allowed for the contract period due to circumstances which, without fault of either party, make performance impracticable or impossible, or which prevent a new contract from being executed, with or without a proportional increase in the total dollar amount, with any increase to be based on the method and rate previously established in the contract.

(11)  "Invitation to bid" means a written solicitation for competitive sealed bids with the title, date, and hour of the public bid opening designated and specifically defining the commodity, group of commodities, or services for which bids are sought. It includes instructions prescribing all conditions for bidding and shall be distributed to all prospective bidders simultaneously. The invitation to bid is used when the agency is capable of specifically defining the scope of work for which a contractual service is required or when the agency is capable of establishing precise specifications defining the actual commodity or group of commodities required.

(12)  "Minority business enterprise" has the same meaning as that provided in s. 288.703.

(13)  "Qualified bidder," "responsible bidder," "qualified offeror," or "responsible offeror" means a person who has the capability in all respects to perform fully the contract requirements and has the integrity and reliability which will assure good faith performance.

(14)  "Renewal" means contracting with the same contractor for an additional contract period after the initial contract period, only if pursuant to contract terms specifically providing for such renewal.

(15)  "Request for proposals" means a written solicitation for competitive sealed proposals with the title, date, and hour of the public opening designated. The request for proposals is used when the agency is incapable of specifically defining the scope of work for which the commodity, group of commodities, or contractual service is required and when the agency is requesting that a qualified offeror propose a commodity, group of commodities, or contractual service to meet the specifications of the solicitation document. A request for proposals includes, but is not limited to, general information, applicable laws and rules, functional or general specifications, statement of work, proposal instructions, and evaluation criteria. Requests for proposals shall state the relative importance of price and any other evaluation criteria.

(16)  "Responsive bid" or "responsive proposal" means a bid or proposal submitted by a responsive, and responsible or qualified, bidder or offeror which conforms in all material respects to the invitation to bid or request for proposals.

(17)  "Responsive bidder" or "responsive offeror" means a person who has submitted a bid or proposal which conforms in all material respects to the invitation to bid or request for proposals.

(18)  "Term contract" means an indefinite quantity contract wherein a party agrees to furnish commodities or contractual services during a prescribed period of time, the expiration of which concludes the contract.

(19)  "Office" means the Minority Business Advocacy and Assistance Office of the Department of Labor and Employment Security.

History.--s. 22, ch. 69-106; s. 1, ch. 80-374; ss. 4, 8, ch. 82-196; s. 1, ch. 83-99; s. 1, ch. 83-192; s. 1, ch. 84-158; s. 29, ch. 85-349; s. 1, ch. 86-52; ss. 6, 20, ch. 88-384; s. 1, ch. 89-289; s. 2, ch. 90-147; s. 4, ch. 90-224; s. 11, ch. 90-268; s. 36, ch. 90-335; s. 15, ch. 92-98; s. 107, ch. 92-142; s. 246, ch. 92-279; s. 55, ch. 92-326; s. 8, ch. 94-322; s. 1, ch. 95-168; s. 8, ch. 96-236; s. 24, ch. 96-320; s. 16, ch. 98-65; s. 74, ch. 98-279.

287.017  Purchasing categories, threshold amounts; procedures for automatic adjustment by department.--

(1)  The following purchasing categories are hereby created:

(a)  CATEGORY ONE: $15,000.

(b)  CATEGORY TWO: $25,000.

(c)  CATEGORY THREE: $50,000.

(d)  CATEGORY FOUR: $150,000.

(e)  CATEGORY FIVE: $250,000.

(2)  The department shall adopt rules to annually adjust the amounts provided in subsection (1) based upon the rate of change of a nationally recognized price index. Such rules shall include, but not be limited to, the following:

(a)  Designation of the nationally recognized price index or component thereof used to calculate the proper adjustment authorized in this section.

(b)  The procedure for rounding results.

(c)  The effective date of each annual adjustment based upon the previous calendar year data.

History.--ss. 5, 13, ch. 86-204; ss. 12, 34, ch. 90-268; s. 3, ch. 96-236; s. 17, ch. 98-65; s. 75, ch. 98-279; s. 43, ch. 99-399.

287.022  Purchase of insurance.--

(1)  Insurance, while not a commodity, nevertheless shall be purchased for all agencies by the department, except that agencies may purchase title insurance for land acquisition and may make emergency purchases of insurance pursuant to s. 287.057(3)(a). The procedures for purchasing insurance, whether the purchase is made by the department or by the agencies, shall be the same as those set forth herein for the purchase of commodities.

(2)  When an insurer or agent pays a commission or any portion thereof to any person, on insurance purchased under this part, such payment shall be reported to the department in writing and under oath within 30 days thereafter. Any failure to report as required herein shall subject the insurer or agent to the penalties provided in s. 624.15.

History.--s. 22, ch. 69-106; s. 1, ch. 89-232; s. 13, ch. 90-268; s. 76, ch. 98-279.

287.025  Prohibition against certain insurance coverage on specified state property or insurable subjects.--

(1)  No primary contract of insurance shall be purchased on insurable subjects or property titled in the name of the state or its departments, divisions, bureaus, commissions, or agencies with respect to any of the following properties, coverages, or insurable subjects:

(a)  Physical damage insurance on motor vehicles which are licensed for use on the public highways of this state. For the purpose of this chapter, the term "physical damage insurance" means coverage against collision, upset or overturn, fire, theft, combined additional coverage, or comprehensive;

(b)  Physical damage insurance on watercraft and related equipment;

(c)  Loss of rental income on any buildings unless the buildings are financed in whole or in part by revenue bonds or certificates the terms of which require such coverage or unless otherwise authorized by law;

(d)  Miscellaneous equipment which is subject to a transportation feature and subject to ordinarily being covered by an inland marine insurance floater. The term "miscellaneous equipment" does not include boilers and machinery or nuclear equipment;

(e)  Museum collections, artifacts, relics, or fine arts;

(f)  Hull coverage on aircraft;

(g)  Glass insurance;

(h)  Coverage for loss against vandalism or malicious mischief unless these perils are included within an all-risks-of-physical-loss form; and

(i)  Insurance against loss or damage to livestock and services of a veterinary for such animals.

(2)  Excess insurance may be purchased to cover loss for physical damage on the above-described properties or risk if the aggregate exposure at any one location or actual cash value of any one item exceeds the sum of $10,000. However, no excess insurance shall be purchased on any items listed in paragraphs (1)(c), (e), (g), (h), and (i), regardless of value or risk.

(3)  Any items, property, or insurable subjects titled in the name of the state or its departments, divisions, bureaus, commissions, or agencies which are not included or insured by the State Property Insurance Trust Fund under chapter 284 or specifically designated not to be insured by this section shall be eligible subjects for insurance coverage through commercial insurance carriers as otherwise provided by law.

(4)  No primary insurance contracts shall be purchased on any property or insurable subjects when the same is loaned to, leased by, or intended to be leased by, the state or its departments, divisions, bureaus, commissions, or agencies unless such coverage is required by the terms of the lease agreement and unless the insurance coverages required by the provisions of the lease are approved in writing by the Department of Management Services.

History.--ss. 1, 2, 3, 4, ch. 70-435; s. 1, ch. 73-64; s. 1, ch. 84-27; s. 247, ch. 92-279; s. 55, ch. 92-326; s. 63, ch. 96-418.

287.032  Purpose of department.--It shall be the purpose of the Department of Management Services:

(1)  To promote efficiency, economy, and the conservation of energy and to effect coordination in the purchase of commodities for the state.

(2)  To provide uniform contractual service procurement policies, rules, procedures, and forms for use by the various agencies in procuring contractual services.

(3)  To procure and distribute state-owned surplus tangible personal property and federal surplus tangible personal property allocated to the state by the Federal Government.

History.--s. 22, ch. 69-106; s. 8, ch. 69-82; s. 1, ch. 76-29; s. 1, ch. 77-316; s. 2, ch. 80-374; s. 7, ch. 82-196; s. 248, ch. 92-279; s. 55, ch. 92-326; s. 77, ch. 98-279.

287.042  Powers, duties, and functions.--The department shall have the following powers, duties, and functions:

(1)(a)  To canvass all sources of supply, establish and maintain a vendor list, and contract for the purchase, lease, or acquisition in any manner, including purchase by installment sales or lease-purchase contracts which may provide for the payment of interest on unpaid portions of the purchase price, of all commodities and contractual services required by any agency under competitive bidding or by contractual negotiation. Any contract providing for deferred payments and the payment of interest shall be subject to specific rules adopted by the department.

(b)  The department may remove from its vendor list any source of supply which fails to fulfill any of its duties specified in a contract with the state. It may reinstate any such source of supply when it is satisfied that further instances of default will not occur.

(c)  In order to promote cost-effective procurement of commodities and contractual services, the department or an agency may enter into contracts that limit the liability of a vendor consistent with s. 672.719.

(d)  The department shall issue commodity numbers for all products of the corporation operating the correctional industry program which meet or exceed department specifications.

(e)  The department shall, beginning October 1, 1991, include the products offered by the corporation on any listing prepared by the department which lists term contracts executed by the department. The products or services shall be placed on such list in a category based upon specification criteria developed through a joint effort of the department and the corporation and approved by the department.

(f)  The corporation may submit products and services to the department for testing, analysis, and review relating to the quality and cost comparability. If, after review and testing, the department approves of the products and services, the department shall give written notice thereof to the corporation. The corporation shall pay a reasonable fee charged for testing its products by the Department of Agriculture and Consumer Services.

(g)  The department may collect fees for the use of its electronic information services. The fees may be imposed on an individual transaction basis or as a fixed subscription for a designated period of time. At a minimum, the fees shall be determined in an amount sufficient to cover the department's projected costs of such services, including overhead in accordance with the policies of the Department of Management Services for computing its administrative assessment. All fees collected pursuant to this paragraph shall be deposited in the Grants and Donations Trust Fund for disbursement as provided by law.

(2)(a)  To plan and coordinate purchases in volume and to negotiate and execute purchasing agreements and contracts for commodities and contractual services under which state agencies shall make purchases pursuant to s. 287.056, and under which a federal, county, municipality, institutions qualified pursuant to s. 240.605, private nonprofit community transportation coordinator designated pursuant to chapter 427, while conducting business related solely to the Commission for the Transportation Disadvantaged, or other local public agency may make purchases. The department may restrict purchases from some term contracts to state agencies only for those term contracts where the inclusion of other governmental entities will have an adverse effect on competition or to those federal facilities located in this state. In such planning or purchasing the Minority Business Advocacy and Assistance Office may monitor to ensure that opportunities are afforded for contracting with minority business enterprises. The department, for state term contracts, and all agencies, for multiyear contractual services or term contracts, shall explore reasonable and economical means to utilize certified minority business enterprises. Purchases by any county, municipality, private nonprofit community transportation coordinator designated pursuant to chapter 427, while conducting business related solely to the Commission for the Transportation Disadvantaged, or other local public agency under the provisions in the state purchasing contracts, and purchases, from the corporation operating the correctional work programs, of products or services that are subject to paragraph (1)(f), are exempt from the competitive sealed bid requirements otherwise applying to their purchases.

(b)  As an alternative to any provision in s. 120.57(3)(c), the department may proceed with the bid solicitation or contract award process of a term contract bid when the secretary of the department or his or her designee sets forth in writing particular facts and circumstances which demonstrate that the delay incident to staying the bid process or contract award process would be detrimental to the interests of the state. After the award of a contract resulting from a bid in which a timely protest was received and in which the state did not prevail, the contract may be canceled and reawarded to the prevailing party.

(c)  Any person who files an action protesting a decision or intended decision pertaining to contracts administered by the department or a state agency pursuant to s. 120.57(3)(b) shall post with the department or the state agency at the time of filing the formal written protest a bond payable to the department or state agency in an amount equal to 1 percent of the department's or the state agency's estimate of the total volume of the contract or $5,000, whichever is less, which bond shall be conditioned upon the payment of all costs which may be adjudged against him or her in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. For protests of decisions or intended decisions of the department pertaining to agencies' requests for approval of exceptional purchases, the bond shall be in an amount equal to 1 percent of the requesting agency's estimate of the contract amount for the exceptional purchase requested or $5,000, whichever is less. In lieu of a bond, the department or state agency may, in either case, accept a cashier's check or money order in the amount of the bond. If, after completion of the administrative hearing process and any appellate court proceedings, the agency prevails, it shall recover all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. This section shall not apply to protests filed by the Minority Business Advocacy and Assistance Office. Upon payment of such costs and charges by the person protesting the award, the bond, cashier's check, or money order shall be returned to him or her. If the person protesting the award prevails, he or she shall recover from the agency all costs and charges which shall be included in the final order of judgment, excluding attorney's fees.

(3)  To have general supervision, through the state agencies, of all storerooms and stores operated by the agencies and to have supervision of inventories of all commodities belonging to the state agencies. The duties imposed by this section do not relieve any state agency from accountability for commodities under its control.

(4)  To establish a system of coordinated, uniform procurement policies, procedures, and practices to be used by agencies in acquiring commodities and contractual services, which shall include, but not be limited to:

(a)  Development of a list of interested vendors to be maintained by classes of commodities and contractual services. This list shall not be used to prequalify vendors or to exclude any interested vendor from bidding.

(b)  Development of procedures for the releasing of requests for proposals, invitations to bid, and other competitive acquisitions which procedures shall include, but are not limited to, notice by publication in the Florida Administrative Weekly, on Government Services Direct, or by mail at least 10 days before the date set for submittal of proposals or bids. The Minority Business Advocacy and Assistance Office may consult with agencies regarding the development of bid distribution procedures to ensure that maximum distribution is afforded to certified minority business enterprises as defined in s. 288.703.

(c)  Development of procedures for the receipt and opening of bids or proposals by an agency. Such procedures shall provide the Minority Business Advocacy and Assistance Office an opportunity to monitor and ensure that the contract award is consistent with the original request for proposal or invitation to bid, in accordance with ¹s. 287.0945(6), and subject to the review of bid responses within standard timelines.

(d)  Development of procedures to be used by an agency in deciding to contract, including, but not limited to, identifying and assessing in writing project needs and requirements, availability of agency employees, budgetary constraints or availability, facility equipment availability, current and projected agency workload capabilities, and the ability of any other state agency to perform the services.

(e)  Development of procedures to be used by an agency in maintaining a contract file for each contract which shall include, but not be limited to, all pertinent information relating to the contract during the preparatory stages, a copy of the invitation to bid or request for proposals, documentation relating to the bid process, opening of bids, evaluation and tabulation of bids, and determination and notice of award of contract.

(5)(a)  To prescribe the methods of securing competitive sealed bids and proposals, or negotiating and awarding commodity and contractual services contracts, unless otherwise provided by law.

(b)  To prescribe, by September 1, 1995, procedures for procuring information technology consultant services which provide for public announcement and qualification, competitive selection, competitive negotiation, contract award, and prohibition against contingent fees. Such procedures shall be limited to information technology consultant contracts for which the total project costs, or planning or study activities, are estimated to exceed the threshold amount provided for in s. 287.017, for CATEGORY TWO.

(6)  To prescribe specific commodities and quantities to be purchased locally.

(7)(a)  To govern the purchase by any agency of any commodity or contractual service and to establish standards and specifications for any commodity.

(b)  Except for the purchase of insurance, the department may delegate to agencies the authority for the contracting for, or the purchase, lease, or acquisition of, commodities or contractual services.

(8)  To establish definitions and classes of commodities and contractual services. Agencies shall follow the definitions and classes of commodities and contractual services established by the department in acquiring or purchasing commodities or contractual services. The authority of the department under this section shall not be construed to impair or interfere with the determination by state agencies of their need for, or their use of, services including particular specifications.

(9)  To furnish copies of any commodity and contractual service purchasing rules to the Comptroller and all agencies affected thereby. The Comptroller shall not approve any account or direct any payment of any account for the purchase of any commodity or the procurement of any contractual service covered by a purchasing or contractual service rule except as authorized therein. The department shall furnish copies of rules adopted by the department to any county, municipality, or other local public agency requesting them.

(10)  To require that every agency furnish information relative to its commodity and contractual services purchases and methods of purchasing commodities and contractual services to the department when so requested.

(11)  To prepare statistical data concerning the method of procurement, terms, usage, and disposition of commodities and contractual services by state agencies. All agencies shall furnish such information for this purpose to the office and to the department, as the department or office may call for, but no less frequently than annually, on such forms or in such manner as the department may prescribe.

(12)  To establish and maintain programs for the purpose of disseminating information to government, industry, educational institutions, and the general public concerning policies, procedures, rules, and forms for the procurement of commodities and contractual services.

(13)  Except as otherwise provided herein, to adopt rules necessary to carry out the purposes of this section, including the authority to delegate to any state agency any and all of the responsibility conferred by this section, retaining to the department any and all authority for supervision thereof. Such purchasing of commodities and procurement of contractual services by state agencies shall be in strict accordance with the rules and procedures prescribed by the Department of Management Services.

(14)  If the department determines that it is in the best interest of the state, to award to multiple suppliers contracts for commodities and contractual services established by the department for use by all agencies. Such awards may be on a statewide or regional basis. If regional contracts are established by the department, multiple supplier awards may be based upon multiple awards for regions. Agencies may award contracts to the lowest qualified responsive bidder on a statewide or regional basis.

(15)  To procure and distribute state-owned surplus tangible personal property and federal surplus tangible personal property allocated to the state by the Federal Government.

(16)(a)  To enter into joint agreements with governmental agencies, as defined in s. 163.3164(10), for the purpose of pooling funds for the purchase of commodities, information technology resources, or services that can be used by multiple agencies. However, the department may consult with the State Technology Office on joint agreements that involve the purchase of information technology resources. Agencies entering into joint purchasing agreements with the department shall authorize the department to contract for such purchases on their behalf.

(b)  Each agency that has been appropriated or has existing funds for such purchases, shall, upon contract award by the department, transfer their portion of the funds into the department's Grants and Donations Trust Fund for payment by the department. These funds shall be transferred by the Executive Office of the Governor pursuant to the agency budget amendment request provisions in chapter 216.

(c)  Agencies that sign such joint agreements are financially obligated for their portion of the agreed-upon funds. If any agency becomes more than 90 days delinquent in paying such funds, the Department of Management Services shall certify to the Comptroller the amount due, and the Comptroller shall transfer the amount due to the Grants and Donations Trust Fund of the department from any of the agency's available funds. The Comptroller shall report all such transfers and the reasons for such transfers to the Executive Office of the Governor and the legislative appropriations committees.

(17)  To evaluate contracts let by the Federal Government, another state, or a political subdivision for the provision of commodities and contract services, and, when it is determined to be cost-effective and in the best interest of the state, to enter into a written agreement authorizing a state agency to make purchases under a contract approved by the department and let by the Federal Government, another state, or a political subdivision.

History.--s. 22, ch. 69-106; s. 1, ch. 70-150; s. 1, ch. 79-92; s. 3, ch. 80-374; s. 179, ch. 81-259; ss. 4, 8, ch. 82-196; s. 2, ch. 83-99; s. 2, ch. 83-192; s. 135, ch. 83-217; s. 1, ch. 84-6; s. 1, ch. 85-2; ss. 21, 32, ch. 85-104; s. 7, ch. 88-384; s. 10, ch. 89-291; s. 11, ch. 90-136; s. 14, ch. 90-268; s. 36, ch. 90-302; s. 5, ch. 91-162; s. 1, ch. 91-298; s. 16, ch. 92-98; s. 108, ch. 92-142; ss. 81, 128, ch. 92-152; s. 249, ch. 92-279; s. 55, ch. 92-326; s. 9, ch. 94-322; s. 867, ch. 95-148; s. 2, ch. 95-216; s. 4, ch. 95-396; s. 4, ch. 96-236; s. 61, ch. 96-410; s. 37, ch. 97-100; s. 35, ch. 97-286; s. 20, ch. 97-296; s. 78, ch. 98-279; s. 44, ch. 99-399.

¹Note.--Repealed by s. 27, ch. 96-320. Section 287.0945(9), created by s. 1, ch. 96-412, was redesignated by the reviser as s. 373.607.

287.045  Procurement of products and materials with recycled content.--

(1)(a)  The Department of Management Services, in cooperation with the Department of Environmental Protection, shall review and revise existing procurement procedures and specifications for the purchase of products and materials to eliminate any procedures and specifications that explicitly discriminate against products and materials with recycled content except where such procedures and specifications are necessary to protect the public health, safety, and welfare.

(b)  Each state agency shall review and revise its procurement procedures and specifications for the purchase of products and materials to eliminate any procedures and specifications that explicitly discriminate against products and materials with recycled content, except if such procedures and specifications are necessary to protect the public health, safety, and welfare.

(2)(a)  The department and each state agency shall review and revise its procurement procedures and specifications for the purchase of products and materials to ensure to the maximum extent feasible that each agency uses state contracts to purchase products or materials that may be recycled or reused when these products or materials are discarded.

(b)  The Auditor General shall assist in monitoring the product procurement requirements.

(3)  As part of the review and revision required in subsection (2), the department and each agency shall review its procurement provisions and specifications for the purchase of products and materials to determine which products or materials with recycled content could be procured by the department or other agencies and the amount of recycled content that can technologically be contained in such products or materials. The department and other agencies must use the amounts of recycled content and postconsumer recovered material determined by the department in issuing invitations to bid for contracts for the purchase of such products or materials.

(4)  Upon completion of the review required in subsection (3), the department or an agency shall require that a person who submits a bid for a contract for the purchase of products or materials identified in subsection (3) and who wishes to be considered for the price preference described in subsection (5) certify in writing the percentage of recycled content in the product or material that is subject to the bid. A person may certify that the product or material contains no recycled content.

(5)  Upon evaluation of bids for every public contract that involves the purchase of products or materials identified in subsection (3), the department or an agency shall identify the lowest responsive bidder and other responsive bidders who have certified that the products or materials contain at least the minimum percentage of recycled content and postconsumer recovered material that is set forth in the invitation for the bids. The department or agency may consider life-cycle costing when evaluating a bid on a product that consists of recycled materials. The department shall adopt rules that specify the criteria to be used when considering life-cycle costing in evaluating bids. The rules must take into consideration the specified warranty periods for products and the comparative expected service life relative to the cost of the products. In awarding a contract for the purchase of products or materials, the department or an agency may allow up to a 10-percent price preference to a responsive bidder who has certified that the products or materials contain at least the minimum percentage of recycled content and postconsumer recovered material and up to an additional 5-percent price preference to a responsible bidder who has certified that the products or material are made of materials recovered in this state. The amount of the price preference must be commensurate with the certified amounts of recycled material and postconsumer recovered material and materials recycled from products in this state, contained in the product or materials on a sliding scale as established by department rule, which rule shall not become effective prior to November 1, 1994. Reusable materials and products shall be used where economically and technically feasible. If no bidders offer products or materials with measurable life-cycle costing factors or the minimum prescribed recycled and postconsumer content, the contract must be awarded to the lowest qualified responsive bidder.

(6)  For the purposes of this section, "recycled content" means materials that have been recycled that are contained in the products or materials to be procured, including, but not limited to, paper, aluminum, steel, glass, plastics, and composted material. The term does not include the virgin component of internally generated scrap that is commonly used in industrial or manufacturing processes or such waste or scrap purchased from another manufacturer who manufactures the same or a closely related product. Recycled content printing and fine writing grades of paper shall contain at least 10 percent postconsumer recovered materials.

(7)  Any person may request the department to evaluate a product or material with recycled content if the product or material is eligible for inclusion under state contracts. The department shall review each reasonable proposal to determine its merit and, if it finds that the product or material may be used beneficially, it may incorporate that product or material into its procurement procedures.

(8)  The department and each state agency shall review and revise its procedures and specifications on a continuing basis to encourage the use of products and materials with recycled content and postconsumer recovered material and shall, in developing new procedures and specifications, encourage the use of products and materials with recycled content and postconsumer recovered material.

(9)  After November 1, 1994, the department may discontinue contracting for products or materials the recycled content of which does not meet the requirements of subsection (3) if it determines that products or materials meeting those requirements are available at a cost not to exceed an additional 10 percent of comparable virgin products.

(10)  A state agency, or a person contracting with such agency with respect to work performed under contract, must procure products or materials with recycled content if the department determines that those products or materials are available pursuant to subsection (5). Notwithstanding any other provision to the contrary, for the purpose of this section, the term "agency" means any of the various state officers, departments, boards, commissions, divisions, bureaus, and councils and any other unit of organization, however designated, of the executive branch including the Department of the Lottery, the legislative branch, the judicial branch, and the State University System. A decision not to procure such items must be based on the department's determination that such procurement is not reasonably available within an acceptable period of time or fails to meet the performance standards set forth in the applicable specifications or fails to meet the performance standards of the agency.

(11)  Each state agency shall report annually to the department its total expenditures on, and use of, products with recycled content and the percentage of its budget that represents purchases of similar products made from virgin materials. The department shall design a uniform reporting mechanism and prepare annual summaries of statewide purchases delineating those with recycled content to be submitted to the Governor, the President of the Senate, and the Speaker of the House of Representatives.

History.--s. 48, ch. 88-130; s. 15, ch. 90-268; s. 4, ch. 93-207; s. 113, ch. 94-356; s. 79, ch. 98-279.

287.055  Acquisition of professional architectural, engineering, landscape architectural, or surveying and mapping services; definitions; procedures; contingent fees prohibited; penalties.--

(1)  SHORT TITLE.--This section shall be known as the "Consultants' Competitive Negotiation Act."

(2)  DEFINITIONS.--For purposes of this section:

(a)  "Professional services" means those services within the scope of the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping, as defined by the laws of the state, or those performed by any architect, professional engineer, landscape architect, or registered surveyor and mapper in connection with his or her professional employment or practice.

(b)  "Agency" means the state, a state agency, a municipality, a political subdivision, a school district, or a school board. The term "agency" does not extend to a nongovernmental developer that contributes public facilities to a political subdivision under s. 380.06 or ss. 163.3220-163.3243.

(c)  "Firm" means any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice architecture, engineering, or surveying and mapping in the state.

(d)  "Compensation" means the total amount paid by the agency for professional services.

(e)  "Agency official" means any elected or appointed officeholder, employee, consultant, person in the category of other personal service or any other person receiving compensation from the state, a state agency, municipality, or political subdivision, a school district or a school board.

(f)  "Project" means that fixed capital outlay study or planning activity described in the public notice of the state or a state agency under paragraph (3)(a). A project may include:

1.  A grouping of minor construction, rehabilitation, or renovation activities.

2.  A grouping of substantially similar construction, rehabilitation, or renovation activities.

(g)  A "continuing contract" is a contract for professional services entered into in accordance with all the procedures of this act between an agency and a firm whereby the firm provides professional services to the agency for projects in which construction costs do not exceed $500,000, for study activity when the fee for such professional service does not exceed $25,000, or for work of a specified nature as outlined in the contract required by the agency, with no time limitation except that the contract must provide a termination clause.

(h)  A "design-build firm" means a partnership, corporation, or other legal entity that:

1.  Is certified under s. 489.119 to engage in contracting through a certified or registered general contractor or a certified or registered building contractor as the qualifying agent; or

2.  Is certified under s. 471.023 to practice or to offer to practice engineering; certified under s. 481.219 to practice or to offer to practice architecture; or certified under s. 481.319 to practice or to offer to practice landscape architecture.

(i)  A "design-build contract" means a single contract with a design-build firm for the design and construction of a public construction project.

(j)  A "design criteria package" means concise, performance-oriented drawings or specifications of the public construction project. The purpose of the design criteria package is to furnish sufficient information to permit design-build firms to prepare a bid or a response to an agency's request for proposal, or to permit an agency to enter into a negotiated design-build contract. The design criteria package must specify performance-based criteria for the public construction project, including the legal description of the site, survey information concerning the site, interior space requirements, material quality standards, schematic layouts and conceptual design criteria of the project, cost or budget estimates, design and construction schedules, site development requirements, provisions for utilities, stormwater retention and disposal, and parking requirements applicable to the project.

(k)  A "design criteria professional" means a firm who holds a current certificate of registration under chapter 481 to practice architecture or landscape architecture or a firm who holds a current certificate as a registered engineer under chapter 471 to practice engineering and who is employed by or under contract to the agency for the providing of professional architect services, landscape architect services, or engineering services in connection with the preparation of the design criteria package.

(3)  PUBLIC ANNOUNCEMENT AND QUALIFICATION PROCEDURES.--

(a)  Each agency shall publicly announce, in a uniform and consistent manner, each occasion when professional services must be purchased for a project the basic construction cost of which is estimated by the agency to exceed the threshold amount provided in s. 287.017 for CATEGORY FIVE or for a planning or study activity when the fee for professional services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, except in cases of valid public emergencies certified by the agency head. The public notice must include a general description of the project and must indicate how interested consultants may apply for consideration.

(b)  Each agency shall encourage firms engaged in the lawful practice of their professions that desire to provide professional services to the agency to submit annually statements of qualifications and performance data.

(c)  Any firm or individual desiring to provide professional services to the agency must first be certified by the agency as qualified pursuant to law and the regulations of the agency. The agency must find that the firm or individual to be employed is fully qualified to render the required service. Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record, and experience of the firm or individual.

(d)  Each agency shall evaluate professional services, including capabilities, adequacy of personnel, past record, experience, whether the firm is a certified minority business enterprise as defined by the Florida Small and Minority Business Assistance Act of 1985, and other factors determined by the agency to be applicable to its particular requirements. When securing professional services, an agency must endeavor to meet the minority business enterprise procurement goals under ¹s. 287.0945.

(e)  The public must not be excluded from the proceedings under this section.

(4)  COMPETITIVE SELECTION.--

(a)  For each proposed project, the agency shall evaluate current statements of qualifications and performance data on file with the agency, together with those that may be submitted by other firms regarding the proposed project, and shall conduct discussions with, and may require public presentations by, no fewer than three firms regarding their qualifications, approach to the project, and ability to furnish the required services.

²(b)  The agency shall select in order of preference no fewer than three firms deemed to be the most highly qualified to perform the required services. In determining whether a firm is qualified, the agency shall consider such factors as the ability of professional personnel; whether a firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads of the firms; and the volume of work previously awarded to each firm by the agency, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most highly qualified firms. The agency may request, accept, and consider proposals for the compensation to be paid under the contract only during competitive negotiations under subsection (5).

(c)  This subsection does not apply to a professional service contract for a project the basic construction cost of which is estimated by the agency to be not in excess of the threshold amount provided in s. 287.017 for CATEGORY FIVE or for a planning or study activity when the fee for professional services is not in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO.

(d)  Nothing in this act shall be construed to prohibit a continuing contract between a firm and an agency.

(5)  COMPETITIVE NEGOTIATION.--

(a)  The agency shall negotiate a contract with the most qualified firm for professional services at compensation which the agency determines is fair, competitive, and reasonable. In making such determination, the agency shall conduct a detailed analysis of the cost of the professional services required in addition to considering their scope and complexity. For any lump-sum or cost-plus-a-fixed-fee professional service contract over the threshold amount provided in s. 287.017 for CATEGORY FOUR, the agency shall require the firm receiving the award to execute a truth-in-negotiation certificate stating that wage rates and other factual unit costs supporting the compensation are accurate, complete, and current at the time of contracting. Any professional service contract under which such a certificate is required must contain a provision that the original contract price and any additions thereto will be adjusted to exclude any significant sums by which the agency determines the contract price was increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs. All such contract adjustments must be made within 1 year following the end of the contract.

(b)  Should the agency be unable to negotiate a satisfactory contract with the firm considered to be the most qualified at a price the agency determines to be fair, competitive, and reasonable, negotiations with that firm must be formally terminated. The agency shall then undertake negotiations with the second most qualified firm. Failing accord with the second most qualified firm, the agency must terminate negotiations. The agency shall then undertake negotiations with the third most qualified firm.

(c)  Should the agency be unable to negotiate a satisfactory contract with any of the selected firms, the agency shall select additional firms in the order of their competence and qualification and continue negotiations in accordance with this subsection until an agreement is reached.

(6)  PROHIBITION AGAINST CONTINGENT FEES.--

(a)  Each contract entered into by the agency for professional services must contain a prohibition against contingent fees as follows: "The architect (or registered surveyor and mapper or professional engineer, as applicable) warrants that he or she has not employed or retained any company or person, other than a bona fide employee working solely for the architect (or registered surveyor and mapper, or professional engineer, as applicable) to solicit or secure this agreement and that he or she has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the architect (or registered surveyor and mapper or professional engineer, as applicable) any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this agreement." For the breach or violation of this provision, the agency shall have the right to terminate the agreement without liability and, at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration.

(b)  Any individual, corporation, partnership, firm, or company, other than a bona fide employee working solely for an architect, professional engineer, or registered land surveyor and mapper, who offers, agrees, or contracts to solicit or secure agency contracts for professional services for any other individual, company, corporation, partnership, or firm and to be paid, or is paid, any fee, commission, percentage, gift, or other consideration contingent upon, or resulting from, the award or the making of a contract for professional services shall, upon conviction in a competent court of this state, be found guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083.

(c)  Any architect, professional engineer, or registered surveyor and mapper, or any group, association, company, corporation, firm, or partnership thereof, who offers to pay, or pays, any fee, commission, percentage, gift, or other consideration contingent upon, or resulting from, the award or making of any agency contract for professional services shall, upon conviction in a state court of competent authority, be found guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083.

(d)  Any agency official who offers to solicit or secure, or solicits or secures, a contract for professional services and to be paid, or is paid, any fee, commission, percentage, gift, or other consideration contingent upon the award or making of such a contract for professional services between the agency and any individual person, company, firm, partnership, or corporation shall, upon conviction by a court of competent authority, be found guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083.

(7)  AUTHORITY OF DEPARTMENT OF MANAGEMENT SERVICES.--Notwithstanding any other provision of this section, the Department of Management Services shall be the agency of state government which is solely and exclusively authorized and empowered to administer and perform the functions described in subsections (3), (4), and (5) respecting all projects for which the funds necessary to complete same are appropriated to the Department of Management Services, irrespective of whether such projects are intended for the use and benefit of the Department of Management Services or any other agency of government. However, nothing herein shall be construed to be in derogation of any authority conferred on the Department of Management Services by other express provisions of law. Additionally, any agency of government may, with the approval of the Department of Management Services, delegate to the Department of Management Services authority to administer and perform the functions described in subsections (3), (4), and (5). Under the terms of the delegation, the agency may reserve its right to accept or reject a proposed contract.

(8)  STATE ASSISTANCE TO LOCAL AGENCIES.--On any professional service contract for which the fee is over $25,000, the Department of Transportation or the Department of Management Services shall provide, upon request by a municipality, political subdivision, school board, or school district, and upon reimbursement of the costs involved, assistance in selecting consultants and in negotiating consultant contracts.

(9)  APPLICABILITY TO EXISTING CONTRACTS.--Nothing in this section shall affect the validity or effect of any contracts in existence on July 1, 1973.

(10)  APPLICABILITY TO DESIGN-BUILD CONTRACTS.--

(a)  Except as provided in this subsection, this section is not applicable to the procurement of design-build contracts by any agency, and the agency must award design-build contracts in accordance with the procurement laws, rules, and ordinances applicable to the agency.

(b)  The design criteria package must be prepared and sealed by a design criteria professional employed by or retained by the agency. If the agency elects to enter into a professional services contract for the preparation of the design criteria package, then the design criteria professional must be selected and contracted with under the requirements of subsections (4) and (5). A design criteria professional who has been selected to prepare the design criteria package is not eligible to render services under a design-build contract executed pursuant to the design criteria package.

(c)  Except as otherwise provided in s. 240.209(3) or s. 337.11(7), the Department of Management Services shall adopt rules for the award of design-build contracts to be followed by state agencies. Each other agency must adopt rules or ordinances for the award of design-build contracts. Municipalities, political subdivisions, school districts, and school boards shall award design-build contracts by the use of a competitive proposal selection process as described in this subsection, or by the use of a qualifications-based selection process pursuant to subsections (3), (4), and (5) for entering into a contract whereby the selected firm will subsequently establish a guaranteed maximum price and guaranteed completion date. If the procuring agency elects the option of qualifications-based selection, during the selection of the design-build firm the procuring agency shall employ or retain a licensed design professional appropriate to the project to serve as the agency's representative. Procedures for the use of a competitive proposal selection process must include as a minimum the following:

1.  The preparation of a design criteria package for the design and construction of the public construction project.

2.  The qualification and selection of no fewer than three design-build firms as the most qualified, based on the qualifications, availability, and past work of the firms, including the partners or members thereof.

3.  The criteria, procedures, and standards for the evaluation of design-build contract proposals or bids, based on price, technical, and design aspects of the public construction project, weighted for the project.

4.  The solicitation of competitive proposals, pursuant to a design criteria package, from those qualified design-build firms and the evaluation of the responses or bids submitted by those firms based on the evaluation criteria and procedures established prior to the solicitation of competitive proposals.

5.  For consultation with the employed or retained design criteria professional concerning the evaluation of the responses or bids submitted by the design-build firms, the supervision or approval by the agency of the detailed working drawings of the project; and for evaluation of the compliance of the project construction with the design criteria package by the design criteria professional.

6.  In the case of public emergencies, for the agency head to declare an emergency and authorize negotiations with the best qualified design-build firm available at that time.

(11)  REUSE OF EXISTING PLANS.--Notwithstanding any other provision of this section, there shall be no public notice requirement or utilization of the selection process as provided in this section for projects in which the agency is able to reuse existing plans from a prior project of the agency, or, in the case of a board as defined in chapter 235, a prior project of that or any other board. Except for plans of a board as defined in chapter 235, public notice for any plans that are intended to be reused at some future time must contain a statement that provides that the plans are subject to reuse in accordance with the provisions of this subsection.

(12)  CONSTRUCTION OF LAW.--Nothing in the amendment of this section by chapter 75-281, Laws of Florida, is intended to supersede the provisions of ss. 235.211 and 235.31.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, ch. 73-19; ss. 1, 2, 3, ch. 75-281; s. 1, ch. 77-174; s. 1, ch. 77-199; s. 10, ch. 84-321; ss. 23, 32, ch. 85-104; s. 57, ch. 85-349; s. 6, ch. 86-204; s. 1, ch. 88-108; s. 1, ch. 89-158; s. 16, ch. 90-268; s. 15, ch. 91-137; s. 7, ch. 91-162; s. 250, ch. 92-279; s. 55, ch. 92-326; s. 1, ch. 93-95; s. 114, ch. 94-119; s. 10, ch. 94-322; s. 868, ch. 95-148; s. 2, ch. 95-410; s. 45, ch. 96-399; s. 38, ch. 97-100; s. 1, ch. 97-296; s. 80, ch. 98-279.

¹Note.--Repealed by s. 27, ch. 96-320. Section 287.0945(9), created by s. 1, ch. 96-412, was redesignated by the reviser as s. 373.607.

²Note.--The amendment to s. 287.055 by s. 23, ch. 85-104, was repealed October 1, 1995, by s. 32, ch. 85-104. The text of the amendment to paragraph (3)(d) by s. 23, ch. 85-104, was incorporated in an amendment by s. 45, ch. 96-399, after the October 1, 1995, repeal of s. 23, ch. 85-104, by s. 32, ch. 85-104, took effect. Paragraph (4)(b) was also amended by s. 23, ch. 85-104, but has not been amended since the 1995 repeal. With the language from the s. 23, ch. 85-104, amendment removed, it would read:

(b)  The agency shall select in order of preference no fewer that three firms deemed to be the most highly qualified to perform the required services after considering such factors as the ability of professional personnel; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads of the firms; and the volume of work previously awarded to each firm by the agency, with the object of effecting and equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most highly qualified firms. The agency may request, accept, and consider proposals for the compensation to be paid under the contract only during competitive negotiations under subsection (5).

287.056  Agency purchases from agreements and contracts executed by the department.--

(1)  Agencies shall purchase commodities and contractual services from the purchasing agreements and contracts negotiated and executed by the department, as authorized in s. 287.042(2).

(2)  Agencies may have the option to purchase commodities or contractual services from any written agreements or contracts negotiated and executed by the department which contain a user surcharge pursuant to s. 287.1345 or such other agreements as determined by the department.

History.--s. 17, ch. 92-98; s. 109, ch. 92-142; s. 213, ch. 95-148; s. 30, ch. 95-196; s. 3, ch. 95-216; s. 5, ch. 96-236; s. 81, ch. 98-279.

287.057  Procurement of commodities or contractual services.--

(1)  Unless otherwise authorized by law, all contracts for the purchase of commodities or contractual services in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO shall be awarded by competitive sealed bidding. An invitation to bid shall be issued which shall include a detailed description of the commodities or contractual services sought; the date for submittal of bids; and all contractual terms and conditions applicable to the procurement of commodities or contractual services, including the criteria which shall include, but need not be limited to, price, to be used in determining acceptability of the bid. If the agency contemplates renewal of the contract, it shall be so stated in the invitation to bid. The bid shall include the price for each year for which the contract may be renewed. Evaluation of bids shall include consideration of the total cost for each year as quoted by the bidder. No criteria may be used in determining acceptability of the bid that was not set forth in the invitation to bid. The contract shall be awarded with reasonable promptness by written notice to the qualified and responsive bidder who submits the lowest responsive bid. This bid must be determined in writing to meet the requirements and criteria set forth in the invitation to bid.

(2)  When an agency determines in writing that the use of competitive sealed bidding is not practicable, commodities or contractual services shall be procured by competitive sealed proposals. A request for proposals which includes a statement of the commodities or contractual services sought and all contractual terms and conditions applicable to the procurement of commodities or contractual services, including the criteria, which shall include, but need not be limited to, price, to be used in determining acceptability of the proposal shall be issued. If the agency contemplates renewal of the commodities or contractual services contract, it shall be so stated in the request for proposals. The proposal shall include the price for each year for which the contract may be renewed. Evaluation of proposals shall include consideration of the total cost for each year as quoted by the offeror. To assure full understanding of and responsiveness to the solicitation requirements, discussions may be conducted with qualified offerors. The offerors shall be accorded fair and equal treatment prior to the submittal date specified in the request for proposals with respect to any opportunity for discussion and revision of proposals. The award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. The contract file shall contain the basis on which the award is made.

(3)  When the purchase price of commodities or contractual services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, no purchase of commodities or contractual services may be made without receiving competitive sealed bids or competitive sealed proposals unless:

(a)  The agency head determines in writing that an immediate danger to the public health, safety, or welfare or other substantial loss to the state requires emergency action. After the agency head makes such a written determination, the agency may proceed with the procurement of commodities or contractual services necessitated by the immediate danger, without competition. However, such emergency procurement shall be made with such competition as is practicable under the circumstances. The agency shall furnish copies of the written determination certified under oath and any other documents relating to the emergency action to the department. A copy of the statement shall be furnished to the Comptroller with the voucher authorizing payment. The individual purchase of personal clothing, shelter, or supplies which are needed on an emergency basis to avoid institutionalization or placement in a more restrictive setting is an emergency for the purposes of this paragraph, and the filing with the department of such statement is not required in such circumstances. In the case of the emergency purchase of insurance, the period of coverage of such insurance shall not exceed a period of 30 days, and all such emergency purchases shall be reported to the department.

(b)  Purchasing agreements and contracts executed by the department or by agencies under authority delegated by the department in writing are excepted from bid requirements.

(c)  Commodities or contractual services available only from a single source may be excepted from the bid requirements if it is determined that such commodities or services are available only from a single source and such determination is documented. However, if such contract is for an amount greater than the threshold amount provided in s. 287.017 for CATEGORY FOUR, the agency head shall file a certification of conditions and circumstances with the department and shall obtain the prior approval of the department. The failure of the department to approve or disapprove the request of an agency for prior approval within 21 days after receiving such request or within 14 days after receiving from the agency additional materials requested by the department shall constitute prior approval of the department. To the greatest extent practicable, but no later than 45 days after authorizing the exception in writing, the department shall combine single-source procurement authorizations for identical information technology resources for which the purchase price exceeds the threshold amount provided in s. 287.017 for CATEGORY FOUR, and shall negotiate and execute volume purchasing agreements for such procurements on behalf of the agencies.

(d)  When it is in the best interest of the state, the Secretary of Management Services or his or her designee may authorize the Support Program to purchase insurance by negotiation, but such purchase shall be made only under conditions most favorable to the public interest.

(e)  Prescriptive assistive devices for the purpose of medical, developmental, or vocational rehabilitation of clients are excepted from competitive sealed bid and competitive sealed proposal requirements and shall be procured pursuant to an established fee schedule or by any other method which ensures the best price for the state, taking into consideration the needs of the client. Prescriptive assistive devices include, but are not limited to, prosthetics, orthotics, and wheelchairs. For purchases made pursuant to this paragraph, state agencies shall annually file with the department a description of the purchases and methods of procurement.

(f)  The following contractual services and commodities are not subject to the competitive sealed bid requirements of this section:

1.  Artistic services.

2.  Academic program reviews.

3.  Lectures by individuals.

4.  Auditing services.

5.  Legal services, including attorney, paralegal, expert witness, appraisal, or mediator services.

6.  Health services involving examination, diagnosis, treatment, prevention, medical consultation, or administration.

7.  Services provided to persons with mental or physical disabilities by not-for-profit corporations which have obtained exemptions under the provisions of s. 501(c)(3) of the United States Internal Revenue Code or when such services are governed by the provisions of Office of Management and Budget Circular A-122. However, in acquiring such services, the agency shall consider the ability of the contractor, past performance, willingness to meet time requirements, and price.

8.  Medicaid services delivered to an eligible Medicaid recipient by a health care provider who has not previously applied for and received a Medicaid provider number from the Agency for Health Care Administration. However, this exception shall be valid for a period not to exceed 90 days after the date of delivery to the Medicaid recipient and shall not be renewed by the agency.

9.  Family placement services.

10.  Prevention services related to mental health, including drug abuse prevention programs, child abuse prevention programs, and shelters for runaways, operated by not-for-profit corporations. However, in acquiring such services, the agency shall consider the ability of the contractor, past performance, willingness to meet time requirements, and price.

11.  Training and education services provided to injured employees pursuant to s. 440.49(1).

12.  Contracts entered into pursuant to s. 337.11.

13.  Services or commodities provided by governmental agencies.

(g)  Continuing education events or programs that are offered to the general public and for which fees have been collected that pay all expenses associated with the event or program are exempt from competitive sealed bidding.

(4)  If less than two responsive bids or proposals for commodity or contractual services purchases are received, the department or the agency may negotiate on the best terms and conditions. The agency shall document the reasons that such action is in the best interest of the state in lieu of resoliciting competitive sealed bids or proposals. The agency shall report all such actions to the department on a quarterly basis, in a manner and form prescribed by the department.

(5)  Upon issuance of any invitation to bid or request for proposals, an agency shall forward to the department one copy of each invitation to bid or request for proposals for all commodity and contractual services purchases in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO. An agency shall also, upon request, furnish a copy of all competitive sealed bid or competitive sealed proposal tabulations. The Minority Business Advocacy and Assistance Office may also request from the agencies any information submitted to the department pursuant to this subsection.

(6)(a)  In order to strive to meet the minority business enterprise procurement goals set forth in ¹s. 287.0945, an agency may reserve any contract for competitive sealed bidding only among certified minority business enterprises. Agencies shall review all their contracts each fiscal year and shall determine which contracts may be reserved for bidding only among certified minority business enterprises. This reservation may only be used when it is determined, by reasonable and objective means, before the invitation to bid that there are capable, qualified certified minority business enterprises available to bid on a contract to provide for effective competition. The Minority Business Advocacy and Assistance Office shall consult with any agency in reaching such determination when deemed appropriate.

(b)  Before a contract may be reserved for bidding only by certified minority business enterprises, the agency head must find that such a reservation is in the best interests of the state. All determinations shall be subject to ¹s. 287.0945(7). Once a decision has been made to reserve a contract, but before sealed bids are requested, the agency shall estimate what it expects the amount of the contract to be, based on the nature of the services or commodities involved and their value under prevailing market conditions. If all the sealed bids received are over this estimate, the agency may reject the bids and request new ones from certified minority business enterprises, or the agency may reject the bids and reopen the bidding to all eligible qualified bidders.

(c)  All agencies shall consider the use of price preferences of up to 10 percent, weighted preference formulas, or other preferences for contractors as determined appropriate pursuant to guidelines established in accordance with ¹s. 287.0945(6) to increase the participation of minority business enterprises.

(d)  All agencies shall avoid any undue concentration of contracts or purchases in categories of commodities or contractual services in order to meet the minority business enterprise purchasing goals in ¹s. 287.0945.

(7)  An agency may reserve any contract for competitive sealed bidding only among qualified bidders who agree to utilize certified minority business enterprises as subcontractors or subvendors. The percentage of funds, in terms of gross contract amount and revenues, which must be expended with the certified minority business enterprise subcontractors and subvendors shall be determined by the agency before such contracts may be reserved. In order to bid on a contract so reserved, the qualified bidder shall identify those certified minority business enterprises which will be utilized as subcontractors or subvendors by sworn statement. At the time of performance or project completion, the contractor shall report by sworn statement the payments and completion of work for all certified minority business enterprises used in the contract.

(8)  An agency shall not divide the procurement of commodities or contractual services so as to avoid the requirements of subsections (1), (2), and (3).

(9)  A contract for commodities or contractual services may be awarded without competition if state or federal law prescribes with whom the agency must contract or if the rate of payment is established during the appropriations process.

(10)  If two equal responses to an invitation to bid or request for proposals are received and one response is from a certified minority business enterprise, the agency shall enter into a contract with the certified minority business enterprise.

(11)  Extension of a contract for contractual services shall be in writing for a period not to exceed 6 months and shall be subject to the same terms and conditions set forth in the initial contract. There shall be only one extension of a contract unless the failure to meet the criteria set forth in the contract for completion of the contract is due to events beyond the control of the contractor.

(12)  Except for those contracts initially procured pursuant to paragraph (3)(a) or paragraph (3)(c), contracts for commodities or contractual services may be renewed on a yearly basis for no more than 2 years or for a period no longer than the term of the original contract, whichever period is longer. Renewal of a contract for commodities or contractual services shall be in writing and shall be subject to the same terms and conditions set forth in the initial contract. If the commodity or contractual service is purchased as a result of the solicitation of bids or proposals, the cost of any contemplated renewals shall be included in the invitation to bid or request for proposals. Renewals shall be contingent upon satisfactory performance evaluations by the agency.

(13)  For each contractual services contract, the agency shall designate an employee to function as contract manager who shall be responsible for enforcing performance of the contract terms and conditions and serve as a liaison with the contractor. The agency shall establish procedures to ensure that contractual services have been rendered in accordance with the contract terms prior to processing the invoice for payment.

(14)  Each agency shall designate at least one employee who shall serve as a contract administrator responsible for maintaining a contract file and financial information on all contractual services contracts and who shall serve as a liaison with the contract managers and the department.

(15)  For requests for proposals, a selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought shall be appointed by the agency head to aid in the selection of contractors for contracts of more than the threshold amount provided in s. 287.017 for CATEGORY FOUR.

(16)  No person who receives a contract which has not been procured pursuant to subsection (1), subsection (2), or subsection (3) to perform a feasibility study of the potential implementation of a subsequent contract, participating in the drafting of an invitation to bid or request for proposals, or developing a program for future implementation shall be eligible to contract with the agency for any other contracts dealing with that specific subject matter; nor shall any firm in which such person has any interest be eligible to receive such contract.

(17)  Each agency shall establish a review and approval process for all contractual services contracts costing more than the threshold amount provided for in s. 287.017 for CATEGORY THREE which shall include, but not be limited to, program, financial, and legal review and approval. Such reviews and approvals shall be obtained before the contract is executed.

(18)  The department may establish state contractual service term contracts. Such contracts may be utilized by any agency, county, municipality, or local public agency.

(19)  In any procurement that is accomplished without competition, the individuals taking part in the development or selection of criteria for evaluation, the evaluation process, and the award process shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected.

(20)  Nothing in this section shall affect the validity or effect of any contract in existence on October 1, 1990.

(21)  An agency may contract for services with any independent, nonprofit college or university which is located within the state and is accredited by the Southern Association of Colleges and Schools, on the same basis as it may contract with any institution in the State University System.

History.--s. 1, ch. 78-4; s. 2, ch. 80-206; s. 4, ch. 80-374; s. 1, ch. 82-121; s. 9, ch. 82-196; s. 3, ch. 83-99; s. 3, ch. 83-192; s. 7, ch. 86-204; s. 9, ch. 88-384; s. 1, ch. 89-377; s. 17, ch. 90-268; s. 8, ch. 91-162; s. 251, ch. 92-279; s. 55, ch. 92-326; s. 7, ch. 93-161; s. 11, ch. 94-322; s. 869, ch. 95-148; s. 6, ch. 96-236; s. 30, ch. 97-153; s. 82, ch. 98-279; s. 11, ch. 99-4; s. 50, ch. 99-8; s. 45, ch. 99-399.

¹Note.--Repealed by s. 27, ch. 96-320. Section 287.0945(9), created by s. 1, ch. 96-412, was redesignated by the reviser as s. 373.607.

287.0572  Present-value methodology.--

(1)  The cost of bids or proposals for state contracts which require the payment of money for more than 1 year and include provisions for unequal payment streams or unequal time payment periods shall be evaluated using present-value methodology. Each agency, as defined in s. 287.012(1), shall perform the evaluation using the present-value discount rate supplied by the Department of Management Services. The present-value discount rate shall be the rate for United States Treasury notes and bonds published in the Interest Rates: Money and Capital Markets section of the most recent copy of the Federal Reserve Bulletin published at the time of issuance of the request for proposals or the invitations to bid.

(2)  The Department of Management Services may adopt rules to implement the provisions of subsection (1).

History.--ss. 1, 2, ch. 85-122; s. 252, ch. 92-279; s. 55, ch. 92-326.

287.058  Contract document.--

(1)  Every procurement of contractual services in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO, except for the providing of health and mental health services or drugs in the examination, diagnosis, or treatment of sick or injured state employees or the providing of other benefits as required by the provisions of chapter 440, shall be evidenced by a written agreement embodying all provisions and conditions of the procurement of such services, which provisions and conditions shall, where applicable, include, but shall not be limited to:

(a)  A provision that bills for fees or other compensation for services or expenses be submitted in detail sufficient for a proper preaudit and postaudit thereof.

(b)  A provision that bills for any travel expenses be submitted in accordance with s. 112.061. A state agency may establish rates lower than the maximum provided in s. 112.061.

(c)  A provision allowing unilateral cancellation by the agency for refusal by the contractor to allow public access to all documents, papers, letters, or other material subject to the provisions of chapter 119 and made or received by the contractor in conjunction with the contract.

(d)  A provision dividing the contract into units of deliverables, which shall include, but not be limited to, reports, findings, and drafts, that must be received and accepted in writing by the contract manager prior to payment.

(e)  A provision specifying the criteria and the final date by which such criteria must be met for completion of the contract.

(f)  A provision specifying that the contract may be renewed on a yearly basis for a period of up to 2 years after the initial contract or for a period no longer than the term of the original contract, whichever period is longer, specifying the terms under which the cost may change as determined in the invitation to bid or request for proposals, and specifying that renewals shall be contingent upon satisfactory performance evaluations by the agency and subject to the availability of funds.

In lieu of a written agreement, the department may authorize the use of a purchase order for classes of contractual services, provided the provisions of paragraphs (a)-(f) are included in the purchase order, invitation to bid, or request for proposals. The purchase order shall include an adequate description of the services, the contract period, and the method of payment. In lieu of printing the provisions of paragraphs (a)-(f) in the contract document or purchase order, agencies may incorporate the requirements of paragraphs (a)-(f) by reference.

(2)  The written agreement shall be signed by the agency head and the contractor prior to the rendering of any contractual service the value of which is in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO, except in the case of a valid emergency as certified by the agency head. The certification of an emergency shall be prepared within 30 days after the contractor begins rendering the service and shall state the particular facts and circumstances which precluded the execution of the written agreement prior to the rendering of the service. If the agency fails to have the contract signed by the agency head and the contractor prior to rendering the contractual service, and if an emergency does not exist, the agency head shall, no later than 30 days after the contractor begins rendering the service, certify the specific conditions and circumstances to the department as well as describe actions taken to prevent recurrence of such noncompliance. The agency head may delegate the certification only to other senior management agency personnel. A copy of the certification shall be furnished to the Comptroller with the voucher authorizing payment. The department shall report repeated instances of noncompliance by an agency to the Auditor General. Nothing in this subsection shall be deemed to authorize additional compensation prohibited by s. 215.425. The procurement of contractual services shall not be divided so as to avoid the provisions of this section.

(3)  Notwithstanding the provisions of subsections (1) and (2), in those cases in which state agencies are unable to procure a written agreement for the providing of health and mental health services or drugs in the examination, diagnosis, or treatment of sick or injured persons in the care or custody of a state agency, those services and drugs may be obtained by purchase order. The purchase order shall contain sufficient detail for a proper audit and shall be signed by purchasing or contracting personnel acting on behalf of the agency.

(4)  Every procurement of contractual services of the value of the threshold amount provided in s. 287.017 for CATEGORY TWO or less, except for the providing of health and mental health services or drugs in the examination, diagnosis, or treatment of sick or injured state employees or the providing of other benefits as required by the provisions of chapter 440, shall be evidenced by a written agreement or purchase order. The written agreement shall contain sufficient detail for a proper audit, shall be signed by purchasing or contracting personnel acting on behalf of the agency, and may contain the provisions and conditions provided in subsection (1).

(5)  Unless otherwise provided in the General Appropriations Act or the substantive bill implementing the General Appropriations Act, the Comptroller may waive the requirements of this section for services which are included in s. 287.057(3)(f).

History.--s. 10, ch. 82-196; s. 4, ch. 83-192; s. 1, ch. 85-30; s. 47, ch. 86-183; s. 8, ch. 86-204; s. 10, ch. 88-384; s. 20, ch. 88-557; s. 18, ch. 90-268; s. 8, ch. 93-161; s. 2, ch. 95-420; s. 7, ch. 96-236; s. 83, ch. 98-279.

287.0582  Contracts which require annual appropriation; contingency statement.--No executive branch public officer or employee shall enter into any contract on behalf of the state, which contract binds the state or its executive agencies for the purchase of services or tangible personal property for a period in excess of 1 fiscal year, unless the following statement is included in the contract: "The State of Florida's performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature."

History.--s. 3, ch. 85-122.

287.0585  Late payments by contractors to subcontractors and suppliers; penalty.--

(1)  When a contractor receives from a state agency any payment for contractual services, commodities, supplies, or construction contracts, except those construction contracts subject to the provisions of chapter 339, the contractor shall pay such moneys received to each subcontractor and supplier in proportion to the percentage of work completed by each subcontractor and supplier at the time of receipt of the payment. If the contractor receives less than full payment, then the contractor shall be required to disburse only the funds received on a pro rata basis with the contractor, subcontractors, and suppliers, each receiving a prorated portion based on the amount due on the payment. If the contractor without reasonable cause fails to make payments required by this section to subcontractors and suppliers within 7 working days after the receipt by the contractor of full or partial payment, the contractor shall pay to the subcontractors and suppliers a penalty in the amount of one-half of 1 percent of the amount due, per day, from the expiration of the period allowed herein for payment. Such penalty shall be in addition to actual payments owed and shall not exceed 15 percent of the outstanding balance due. In addition to other fines or penalties, a person found not in compliance with any provision of this subsection may be ordered by the court to make restitution for attorney's fees and all related costs to the aggrieved party or the Department of Legal Affairs when it provides legal assistance pursuant to this section. The Department of Legal Affairs may provide legal assistance to subcontractors or vendors in proceedings brought against contractors under the provisions of this section.

(2)  This section shall not apply when the contract between the contractor and subcontractors or subvendors provides otherwise.

History.--s. 5, ch. 85-104; s. 2, ch. 89-200; s. 9, ch. 91-162.

¹287.059  Private attorney services.--

(1)  For purposes of this section, the term "agency" or "state agency" includes state officers, departments, boards, commissions, divisions, bureaus, councils, and units of organization, however designated, of the executive branch of state government, community and junior colleges, and multicounty special districts exclusive of those created by interlocal agreement or which have elected governing boards.

(2)  No agency shall contract for private attorney services without the prior written approval of the Attorney General, except that such written approval is not required for private attorney services:

(a)  Procured by the Executive Office of the Governor or any department under the exclusive jurisdiction of a single Cabinet officer.

(b)  Provided by legal services organizations to indigent clients.

(c)  Necessary to represent the state in litigation involving the Florida Casualty Insurance Risk Management Trust Fund pursuant to part II of chapter 284.

(d)  Procured by the Board of Regents and the universities of the State University System.

(e)  Procured by community and junior colleges and multicounty special districts.

(f)  Procured by the Board of Trustees for the Florida School for the Deaf and the Blind.

(3)  An agency requesting approval for the use of private attorney services shall first offer to contract with the Department of Legal Affairs for such attorney services at a cost pursuant to mutual agreement. The Attorney General shall decide on a case-by-case basis to accept or decline to provide such attorney services as staffing, expertise, or other legal or economic considerations warrant. If the Attorney General declines to provide the requested attorney services, the Attorney General's written approval shall include a statement that the private attorney services requested cannot be provided by the office of the Attorney General or that such private attorney services are cost-effective in the opinion of the Attorney General. The Attorney General shall not consider political affiliation in making such decision. The office of the Attorney General shall respond to the request of an agency for prior written approval within 10 working days after receiving such request. The Attorney General may request additional information necessary for evaluation of a request. The Attorney General shall respond to the request within 10 working days after receipt of the requested information. Those agencies exempt from written approval from the Attorney General, as described in paragraphs (2)(a)-(f), may contract with the Department of Legal Affairs for attorney services. The Attorney General shall determine on a case-by-case basis whether to provide such attorney services as staffing, expertise, or other legal considerations warrant. The Attorney General may adopt, by rule, a form on which agencies requesting written approval for private attorney services shall provide information concerning:

(a)  The nature of the attorney services to be provided and the issues involved.

(b)  The need for use of private attorneys, rather than agency staff attorneys, utilizing the criteria provided in subsection (8).

(c)  The criteria by which the agency selected the private attorney or law firm it proposes to employ, utilizing the criteria provided in subsection (9).

(d)  Competitive fees for similar attorney services.

(e)  The agency's analysis estimating the number of hours for attorney services, the costs, the total contract amount, and, when appropriate, a risk or cost-benefit analysis.

(f)  Which partners, associates, paralegals, research associates, or other personnel will be used, and how their time will be billed to the agency.

(g)  Any other information which the Attorney General deems appropriate for the proper evaluation of the need for such private attorney services.

(4)  When written approval has been received from the Attorney General, written final approval must be obtained from the agency head, or designee of the agency head, prior to the contracting for private attorney services.

(5)  The agency head or a designee shall give written approval prior to contracting for private attorney services for all agencies exempt from written approval of the Attorney General as described in paragraphs (2)(a)-(f).

(6)  The Attorney General shall, by rule, adopt a standard fee schedule for private attorney services using hourly rates or an alternative billing methodology. The Attorney General shall take into consideration the following factors:

(a)  Type of controversy involved and complexity of the legal services needed.

(b)  Geographic area where the attorney services are to be provided.

(c)  Novelty of the legal questions involved.

(d)  Amount of experience desired for the particular kind of attorney services to be provided.

(e)  Other factors deemed appropriate by the Attorney General.

(f)  The most cost-effective or appropriate billing methodology.

(7)  All agencies, when contracting for private attorney services, must use the standard fee schedule for private attorney services as established pursuant to this section unless the head of the agency, or his or her designee, waives use of the schedule and sets forth the reasons for deviating from the schedule in writing to the Attorney General. Such waiver must demonstrate necessity based upon criteria for deviation from the schedule which the Attorney General shall establish by rule.

(8)  The Attorney General shall develop guidelines that may be used by agencies to determine when it is necessary and appropriate to seek private attorney services in lieu of staff attorney services.

(9)  Agencies are encouraged to use the following criteria when selecting outside firms for attorney services:

(a)  The magnitude or complexity of the case.

(b)  The firm's ratings and certifications.

(c)  The firm's minority status.

(d)  The firm's physical proximity to the case and the agency.

(e)  The firm's prior experience with the agency.

(f)  The firm's prior experience with similar cases or issues.

(g)  The firm's billing methodology and proposed rate.

(h)  The firm's current or past adversarial position, or conflict of interest, with the agency.

(i)  The firm's willingness to use resources of the agency to minimize costs.

(10)  The Attorney General shall develop a standard addendum to every contract for attorney services that must be used by all agencies, unless waived by the Attorney General, describing in detail what is expected of both the contracted private attorney and the contracting agency.

(11)  Contracts for attorney services shall be originally executed for 1 year only, except that multiyear contracts may be entered into provided they are subject to annual appropriations and annual written approval from the Attorney General as described in subsection (3). Any amendments to extend the contract period or increase the billing rate or overall contract amount shall be considered new contracts for purposes of the written approval process described in subsection (3).

(12)  The office of the Attorney General shall periodically prepare and distribute to agencies a roster by geographic location of private attorneys under contract with agencies, their fees, and primary area of legal specialization.

(13)  The office of the Attorney General is authorized to competitively bid and contract with one or more court reporting services, on a circuitwide basis, on behalf of all state agencies in accordance with s. 287.057(2). The office of the Attorney General shall develop requests for proposal for court reporter services in consultation with the Florida Court Reporters Association. All agencies shall utilize the contracts for court reporting services entered into by the Office of the Attorney General where in force, unless otherwise ordered by a court or unless an agency has a contract for court reporting services executed prior to May 5, 1993.

(14)  The Attorney General's office may, by rule, adopt standard fee schedules for court reporting services for each judicial circuit in consultation with the Florida Court Reporters Association. Agencies, when contracting for court reporting services, must use the standard fee schedule for court reporting services established pursuant to this section, provided no state contract is applicable or unless the head of the agency or his or her designee waives use of the schedule and sets forth the reasons for deviating from the schedule in writing to the Attorney General. Such waiver must demonstrate necessity based upon criteria for deviation from the schedule which the Attorney General shall establish by rule. Any proposed fee schedule under this section shall be submitted to the Governor, the Speaker of the House of Representatives, the President of the Senate, and the Chief Justice of the Florida Supreme Court at least 60 days prior to publication of the notice to adopt the rule.

History.--s. 5, ch. 82-196; s. 2, ch. 84-158; s. 1, ch. 90-147; s. 19, ch. 90-268; s. 16, ch. 92-170; s. 9, ch. 93-161; s. 13, ch. 94-124; s. 870, ch. 95-148; ss. 10, 11, ch. 95-222; s. 54, ch. 99-13; s. 5, ch. 99-280.

¹Note.--Section 1, ch. 92-37, provides that "[n]otwithstanding the provisions of chapter 39, Florida Statutes, to the contrary, the attorneys whose compensation was provided in the November 1989 Supplemental Appropriations Act and is continued in subsequent general appropriations acts shall provide legal representation in cases arising under sections 39.40-39.474, Florida Statutes." Provisions within chapter 39 were transferred to other locations by ch. 97-238 and ch. 98-403. Some of the material within the cited range can be found at parts VI, VII, and IX of ch. 39, as redesignated by ch. 98-403, and ch. 984, as redesignated by ch. 97-238.

287.0595  Pollution response action contracts; department rules.--

(1)  The Department of Environmental Protection shall establish, through the promulgation of administrative rules as provided in chapter 120:

(a)  Procedures for determining the qualifications of responsible potential bidders prior to advertisement for and receipt of bids for pollution response action contracts, including procedures for the rejection of unqualified bidders. Response actions are those activities described in s. 376.301(37).

(b)  Procedures for awarding such contracts to the lowest qualified bidder as well as procedures to be followed in cases in which the department declares a valid emergency to exist which would necessitate the waiver of the rules governing the awarding of such contracts to the lowest qualified bidder.

(c)  Procedures governing payment of contracts.

(d)  Procedures to govern negotiations for contracts, modifications to contract documents, and terms and conditions of contracts.

(2)  In adopting rules under this section, the department shall follow the criteria applicable to the Department of Management Services contracting to the maximum extent possible, consistent with the goals and purposes of ss. 376.307 and 376.3071.

(3)  Any bid submitted under this section shall be confidential and exempt from the provisions of s. 119.07(1) until a selection is made and a contract signed or until bids are no longer under active consideration.

(4)  This section does not apply to contracts which must be negotiated under s. 287.055.

History.--s. 1, ch. 87-337; s. 9, ch. 87-374; s. 8, ch. 89-188; s. 2, ch. 89-377; s. 3, ch. 90-54; s. 103, ch. 90-360; s. 253, ch. 92-279; s. 55, ch. 92-326; s. 1, ch. 94-355; s. 114, ch. 94-356; s. 86, ch. 95-143; s. 18, ch. 96-263; s. 14, ch. 96-277; s. 14, ch. 96-321; s. 133, ch. 96-406; s. 15, ch. 98-189; s. 55, ch. 99-13.

287.063  Deferred-payment commodity contracts; preaudit review.--

(1)(a)  When any commodity contract requires deferred payments and the payment of interest, such contract shall be submitted to the Comptroller for the purpose of preaudit review and approval prior to acceptance by the state.

(b)  Contracts executed pursuant to this subsection may bear interest at a rate not to exceed an average net interest cost rate which shall be computed by adding 150 basis points to the 20 "bond buyer" average yield index published immediately preceding the first day of the calendar month in which the contract is submitted to the Comptroller for preaudit review and approval.

(2)(a)  No funds appropriated shall be used to acquire equipment through a lease or deferred-payment purchase arrangement unless approved by the Comptroller as economically prudent and cost-effective.

(b)  The Comptroller shall establish, by rule, criteria for approving purchases made under deferred-payment contracts which require the payment of interest. Criteria shall include, but not be limited to, the following provisions:

1.  No contract shall be approved in which interest exceeds the statutory ceiling contained in this section. However, the interest component of any master equipment financing agreement entered into for the purpose of consolidated financing of a deferred-payment, installment sale, or lease-purchase shall be deemed to comply with the interest rate limitation of this section so long as the interest component of every interagency agreement under such master equipment financing agreement complies with the interest rate limitation of this section.

2.  No deferred-payment purchase for less than $30,000 shall be approved, unless it can be satisfactorily demonstrated and documented to the Comptroller that failure to make such deferred-payment purchase would adversely affect an agency in the performance of its duties. However, the Comptroller may approve any deferred-payment purchase if the Comptroller determines that such purchase is economically beneficial to the state.

3.  No agency shall obligate an annualized amount of payments for deferred-payment purchases in excess of current operating capital outlay appropriations, unless specifically authorized by law or unless it can be satisfactorily demonstrated and documented to the Comptroller that failure to make such deferred-payment purchase would adversely affect an agency in the performance of its duties.

4.  No contract shall be approved which extends payment beyond 5 years, unless it can be satisfactorily demonstrated and documented to the Comptroller that failure to make such deferred-payment purchase would adversely affect an agency in the performance of its duties.

(c)  The Comptroller shall require written justification based on need, usage, size of the purchase, and financial benefit to the state for deferred-payment purchases made pursuant to this subsection.

(3)  This section does not apply to the Legislature.

History.--s. 14, ch. 83-132; s. 30, ch. 85-349; s. 2, ch. 93-278.

287.064  Consolidated financing of deferred-payment purchases.--

(1)  The Division of Bond Finance of the State Board of Administration and the Comptroller shall plan and coordinate deferred-payment purchases made by or on behalf of the state or its agencies or by or on behalf of state community colleges participating under this section pursuant to s. 240.319(4)(p). The Division of Bond Finance shall negotiate and the Comptroller shall execute agreements and contracts to establish master equipment financing agreements for consolidated financing of deferred-payment, installment sale, or lease purchases with a financial institution or a consortium of financial institutions. As used in this act, the term "deferred-payment" includes installment sale and lease-purchase.

(a)  The period during which equipment may be acquired under any one master equipment financing agreement shall be limited to not more than 3 years.

(b)  Repayment of the whole or a part of the funds drawn pursuant to the master equipment financing agreement may continue beyond the period established pursuant to paragraph (a).

(c)  The interest rate component of any master equipment financing agreement shall be deemed to comply with the interest rate limitation imposed in s. 287.063 so long as the interest rate component of every interagency or community college agreement entered into under such master equipment financing agreement complies with the interest rate limitation imposed in s. 287.063. Such interest rate limitation does not apply when the payment obligation under the master equipment financing agreement is rated by a nationally recognized rating service in any one of the three highest classifications, which rating services and classifications are determined pursuant to rules adopted by the Comptroller.

(2)  Unless specifically exempted by the Comptroller, all deferred-payment purchases, including those made by a community college that is participating under this section, shall be acquired by funding through master equipment financing agreements. The Comptroller is authorized to exempt any purchases from consolidated financing when, in his or her judgment, alternative financing would be cost-effective or otherwise beneficial to the state.

(3)  The Comptroller may require agencies to enter into interagency agreements and may require participating community colleges to enter into systemwide agreements for the purpose of carrying out the provisions of this act.

(a)  The term of any interagency or systemwide agreement shall expire on June 30 of each fiscal year but shall automatically be renewed annually subject to appropriations and deferred-payment schedules. The period of any interagency or systemwide agreement shall not exceed the useful life of the equipment for which the agreement was made as determined by the Comptroller.

(b)  The interagency or systemwide agreements may include, but are not limited to, equipment costs, terms, and a pro rata share of program and issuance expenses.

(4)  Each community college may choose to have its purchasing agreements involving administrative and instructional materials consolidated under this section.

(5)  The Comptroller is authorized to automatically debit each agency's funds and each community college's portion of the Community College Program Fund consistently with the deferred-payment schedules.

(6)  There is created the Consolidated Payment Trust Fund in the Comptroller's office for the purpose of implementing the provisions of this act. All funds debited from each agency and each community college may be deposited in the trust fund and shall be used to meet the financial obligations incurred pursuant to this act. Any income from the investment of funds may be used to fund administrative costs associated with this program.

(7)  The Comptroller may borrow sufficient amounts from trust funds to pay issuance expenses for the purposes of administering this section. Such amounts shall be subject to approval of the Executive Office of the Governor and subject to the notice, review, and objection procedures of s. 216.177. The amounts approved pursuant to this subsection are hereby appropriated for transfer to the Consolidated Payment Trust Fund and appropriated from the Consolidated Payment Trust Fund to pay issuance expenses. Amounts loaned shall be repaid as soon as practicable not to exceed the length of time obligations are issued to establish the master equipment financing agreement.

(8)  The State Board of Administration and the Comptroller, individually, shall adopt rules to implement their respective responsibilities under this section.

(9)  For the 1998-1999 fiscal year only, the Department of Law Enforcement is authorized, upon approval of the Comptroller, to finance through the Comptroller's consolidated master equipment financing program the purchase of equipment, software, application development services, support services, project management services, and system integration services for the Florida Crime Information Center. This subsection is repealed on July 1, 1999.

History.--s. 26, ch. 85-349; s. 10, ch. 86-204; s. 2, ch. 88-359; s. 10, ch. 90-203; s. 20, ch. 90-268; s. 254, ch. 92-279; s. 55, ch. 92-326; s. 214, ch. 95-148; ss. 18, 38, ch. 98-46; s. 56, ch. 99-13.

287.0641  Agreement not debt or pledge of faith or credit of state.--No agreement entered into pursuant to s. 287.064 shall establish a debt of the state or shall be a pledge of the faith and credit of the state; nor shall any agreement be a liability or obligation of the state except from appropriated funds. All agreements, however, may be automatically renewable at the end of each fiscal year, subject to sufficient annual appropriations.

History.--s. 28, ch. 85-349; s. 11, ch. 86-204.

287.073  Procurement of information technology resources.--

(1)  For the purposes of this section, the term "information technology resources" has the same meaning ascribed in s. 282.303(13).

(2)  When an agency can establish precise specifications defining the actual information technology resources that are required and only the price of such resources is the determining factor, the agency shall solicit sealed competitive bids through an invitation to bid, stating in writing the title, date, and hour of the public bid opening and specifically defining the information technology resources for which bids are sought. An invitation to bid shall include instructions prescribing all conditions for bidding and shall be distributed to all prospective bidders simultaneously.

(3)  When an agency determines that there are alternative means by which to meet the agency's requirements for information technology resources, that establishing precise specifications is not practicable, and that other evaluation criteria, in addition to price, will best meet the agency's requirements, the agency may solicit sealed proposals through a request for proposals, stating in writing the title, date, and hour of the public opening. A request for proposals may include, but is not limited to, general information, applicable laws and rules, functional or general specifications, a statement of work, proposal instructions, and evaluation criteria. Evaluation criteria may include, but are not limited to, cost factors, technological assessment, service assessment, reliability assessment, software compatibility, and benchmark performance. To assure full understanding of and responsiveness to the requirements set forth in the request for proposals, the agency may conduct discussions with qualified offerors. The department shall assist in such discussions upon the request of an agency. Qualified offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals prior to the submittal date specified in the request for proposals. A contract shall be awarded to the responsive offeror whose proposal is determined to be the most advantageous to the state, taking into consideration price and other evaluation criteria set forth in the request for proposals.

(4)  If an agency determines that the information technology resources required to meet the agency's needs are available only from a single source of supply, the agency head shall file a single-source certification request with the department, specifying the conditions and circumstances and requesting that the acquisition of information technology resources be exempt from the bid requirements provided under s. 287.057.

History.--ss. 5, 8, ch. 83-99; s. 2, ch. 85-25; s. 18, ch. 88-384; ss. 10, 11, ch. 90-160; s. 21, ch. 90-268; s. 5, ch. 91-429; s. 255, ch. 92-279; s. 55, ch. 92-326; s. 1, ch. 93-278; s. 20, ch. 94-226; s. 24, ch. 94-340; s. 871, ch. 95-148; s. 31, ch. 97-153; ss. 18, 36, ch. 97-286; s. 84, ch. 98-279; s. 12, ch. 99-4.

287.0731  Team for contract negotiations.--Contingent upon funding in the General Appropriations Act, the Department of Management Services shall establish a permanent team for contract negotiations including a chief negotiator, to specialize in the procurement of information technology resources.

History.--s. 28, ch. 94-340.

287.082  Commodities manufactured, grown, or produced in state given preference.--Whenever two or more competitive sealed bids are received, one or more of which relates to commodities manufactured, grown, or produced within this state, and whenever all things stated in such received bids are equal with respect to price, quality, and service, the commodities manufactured, grown, or produced within this state shall be given preference.

History.--s. 22, ch. 69-106; s. 22, ch. 90-268; s. 2, ch. 95-168.

287.083  Purchase of commodities.--

(1)  It shall be the policy of the state for the Department of Management Services to consider the life-cycle cost of commodities purchased by the state, when applicable and feasible as determined by the department.

(2)  Definitions.--For the purpose of this section:

(a)  "Major energy-consuming product" means any article so designated by the department.

(b)  "Energy-efficiency standard" means a performance standard which prescribes the relationship of the energy use of a product to its useful output of services.

(3)(a)  The department is authorized to establish by rule energy-efficiency standards for major energy-consuming products.

(b)  When federal energy-efficiency standards exist, the department shall, when feasible, adopt standards at least as stringent as the federal standards.

(4)  When energy-efficiency standards are established, life-cycle costs shall be used by the department in contracting for major energy-consuming products.

(5)  In determining the life-cycle cost, the department may consider the acquisition cost of the product; the energy consumption and the projected cost of energy over the useful life of the product; and the anticipated trade-in, resale, or salvage value of the product.

History.--s. 2, ch. 77-316; s. 25, ch. 81-169; s. 85, ch. 98-279.

287.0834  Motor vehicles; energy-saving equipment and additives.--Each motor vehicle purchased by the state and each motor vehicle leased by the state for a period in excess of 1 year shall use devices, equipment, and additives that have been certified as energy-saving and approved for use by the United States Environmental Protection Agency and that have been determined to be cost-effective by the Department of Management Services.

History.--s. 1, ch. 82-68; s. 256, ch. 92-279; s. 55, ch. 92-326.

287.084  Preference to Florida businesses.--

(1)  When an agency, county, municipality, school district, or other political subdivision of the state is required to make purchases of personal property through competitive bidding and the lowest responsible bid is by a bidder whose principal place of business is in a state or political subdivision thereof which grants a preference for the purchase of such personal property to a person whose principal place of business is in such state, then the agency, county, municipality, school district, or other political subdivision of this state may award a preference to the lowest responsible bidder having a principal place of business within this state, which preference is equal to the preference granted by the state or political subdivision thereof in which the lowest responsible bidder has his or her principal place of business. However, this section shall not apply to transportation projects for which federal aid funds are available.

(2)  If an invitation for bids provides for the granting of such preference as is provided herein, any bidder whose principal place of business is outside the State of Florida must accompany any written bid documents with a written opinion of an attorney at law licensed to practice law in that foreign state, as to the preferences, if any or none, granted by the law of that state to its own business entities whose principal places of business are in that foreign state in the letting of any or all public contracts.

¹(3)  For the 1999-2000 fiscal year only, notwithstanding any statutory authority or adopted local government policy under which the Glades School District operates, the district is hereby authorized to give consideration to Florida vendors in the issuance of a request for proposal for a pilot program for telemedicine within the district. This subsection expires July 1, 2000.

History.--s. 1, ch. 77-460; s. 117, ch. 79-400; s. 215, ch. 95-148; s. 3, ch. 95-420; ss. 16, 53, ch. 99-228.

¹Note.--Section 16, ch. 99-228, added subsection (3) "[i]n order to implement Specific Appropriation 490 of the 1999-2000 General Appropriations Act."

287.087  Preference to businesses with drug-free workplace programs.--Whenever two or more bids which are equal with respect to price, quality, and service are received by the state or by any political subdivision for the procurement of commodities or contractual services, a bid received from a business that certifies that it has implemented a drug-free workplace program shall be given preference in the award process. In order to have a drug-free workplace program, a business shall:

(1)  Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees for violations of such prohibition.

(2)  Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations.

(3)  Give each employee engaged in providing the commodities or contractual services that are under bid a copy of the statement specified in subsection (1).

(4)  In the statement specified in subsection (1), notify the employees that, as a condition of working on the commodities or contractual services that are under bid, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of chapter 893 or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than 5 days after such conviction.

(5)  Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community by, any employee who is so convicted.

(6)  Make a good faith effort to continue to maintain a drug-free workplace through implementation of this section.

History.--s. 23, ch. 90-268.

287.092  Preference to certain foreign manufacturers.--Any foreign manufacturing company with a factory in the state and employing over 200 employees working in the state shall have preference over any other foreign company when price, quality, and service are the same, regardless of where the product is manufactured.

History.--s. 22, ch. 69-106.

¹287.093  Minority business enterprises; procurement of personal property and services from funds set aside for such purpose.--Any county, municipality, community college, or district school board may set aside up to 10 percent or more of the total amount of funds allocated for the procurement of personal property and services for the purpose of entering into contracts with minority business enterprises. Such contracts shall be competitively bid only among minority business enterprises. The set-aside shall be used to redress present effects of past discriminatory practices and shall be subject to periodic reassessment to account for changing needs and circumstances.

History.--s. 109, ch. 84-336; s. 26, ch. 94-322.

¹Note.--Section 26, ch. 94-322, provides that "[t]he provisions of ss. 255.101, 255.102, 287.093, 287.0943, 287.09431, and 287.0945, Florida Statutes, and any other provisions related to the minority business enterprise programs shall be repealed on July 1, 2001, contingent upon the completion of the statistical disparity analysis required pursuant to s. 287.0945(6)(p) to be completed in the year 2000, and said provisions shall be reviewed by the Legislature prior to said repeal date to determine their effectiveness in achieving stated goals and to revise or modify program components for the full achievement of said goals." Section 287.0945(6)(p) was redesignated as s. 287.0945(6)(r) to conform to the amendment by s. 17, ch. 94-322, and the redesignation of the paragraphs by the reviser incident to the compilation of s. 17, ch. 94-322. Section 287.0945 was repealed by s. 27, ch. 96-320. Section 287.0945(9), created by s. 1, ch. 96-412, was redesignated by the reviser as s. 373.607.

287.0931  Minority business enterprises; participation in bond underwriting.--

(1)  Any state or local government agency, or political subdivision thereof, issuing bonds or other tax-exempt obligations through one or more underwriters is encouraged to offer not less than 20 percent participation to minority firms.

(2)  To meet such participation requirement, the minority firm must have full-time employees located in this state, must have a permanent place of business located in this state, and must be a firm which is at least 51-percent-owned by minority persons as defined in s. 288.703(3). However, for the purpose of bond underwriting only, the requirement that the minority person be a permanent resident of this state shall not apply.

History.--s. 12, ch. 94-322.

287.0935  Surety bond insurers.--When the contract amount of a project does not exceed $500,000 and when public funds are utilized for the project, a person, the state, or a political subdivision shall not refuse, as surety for the project, bid bonds, performance bonds, labor and materials payment bonds, or any other surety bonds which are issued by a surety company which fulfills each of the following provisions:

(1)  The surety company is licensed to do business in the State of Florida;

(2)  The surety company holds a certificate of authority authorizing it to write surety bonds in this state;

(3)  The surety company has twice the minimum surplus and capital required by the Florida Insurance Code at the time the invitation to bid is issued;

(4)  The surety company is otherwise in compliance with the provisions of the Florida Insurance Code; and

(5)  The surety company holds a currently valid certificate of authority issued by the United States Department of the Treasury under 31 U.S.C. ss. 9304-9308.

History.--s. 29, ch. 85-104; s. 10, ch. 91-162.

287.094  Minority business enterprise programs; penalty for false representation.--

(1)  It is unlawful for any individual to falsely represent any entity as a minority business enterprise for purposes of qualifying for certification with any governmental certifying organization as a minority business enterprise in order to participate under a program of a state agency which is designed to assist certified minority business enterprises in the receipt of contracts with the agency for the provision of goods or services. Any person who violates this section is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)  Any contractor, firm, or individual which falsely represents to an agency or to a contractor, pursuant to a state contract, that it is a certified minority business enterprise or which represents that it will use the services or commodities of a certified minority business enterprise and subsequently does not do so shall be in breach of contract. Upon determination that a breach has occurred, all payments under the contract may be immediately suspended. The contractor or firm may show that it attempted through reasonable and objective means and in good faith to comply with the terms of the contract relating to minority business enterprises but was unable to comply. If the agency determines that the contractor or firm did not act in good faith, all amounts paid to the contractor or firm under the state contract intended for expenditure with the certified minority business enterprises shall be forfeited and recoverable by the Department of Legal Affairs. In addition, the contract may be rescinded and the agency may return all goods received and recover all amounts paid under the contract.

(3)  No contractor, firm, or individual shall be qualified for 36 months to bid on contracts or negotiate for the rendering of professional services pursuant to s. 287.055 awarded by an agency after the office determines that the contractor, firm, or individual has falsely represented that it is a certified minority business enterprise, or the office has determined that the contractor, firm, or individual has not acted in good faith to fulfill the terms of a contract calling for it to use the services or commodities of a certified minority business enterprise. If the Department of Legal Affairs determines or a court of law adjudges that a person was involved in a violation of this section, knew about such violation, or collaborated with a contractor or firm in such violation, the person shall not be a qualified vendor for the state for at least 36 months to bid on contracts or negotiate for the rendering of professional services pursuant to s. 287.055 awarded by an agency after such determination is made.

(4)  A minority business enterprise that has been found guilty under subsection (1) shall not attempt to circumvent this section by creating a new corporate structure.

History.--s. 2, ch. 82-196; s. 25, ch. 85-104; s. 2, ch. 88-327; s. 13, ch. 94-322.

¹287.0943  Certification of minority business enterprises.--

(1)(a)  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.

(b)  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:

1.  The Florida League of Cities, Inc.

2.  The Florida Association of Counties.

3.  The Florida School Boards Association, Inc.

4.  The Association of Special Districts.

5.  The Florida Association of Minority Business Enterprise Officials.

6.  The Florida Association of Government Purchasing Officials.

In addition, the Minority Business Advocacy and Assistance Office shall appoint seven members consisting of three representatives of minority business enterprises, two officials of the office, and two at-large members to ensure regional, gender, racial, and ethnic balance among the groups specified in s. 288.703(3). 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.

(c)  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.

(d)  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.

(e)  In assessing the status of ownership and control, certification criteria shall, at a minimum:

1.  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 licensure of a minority owner in any trade or profession that the minority business enterprise will offer to the state when certified; however, the minority licenseholder need not be the controlling owner of the enterprise, but must hold an ownership interest. Minority business enterprises presently certified by the state will not be subject to the licensure requirement until 5 years after the effective date of this act.

2.  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.

3.  Require that prospective certified minority business enterprises be currently performing 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 other than state or local government. 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.

(f)  The certification procedures should include, at a minimum, an onsite visit to inspect business operations and verify statements included in the application, unless verification can be accomplished by other methods of adequate verification or assessment of ownership and control.

(g)  The certification criteria approved by the task force and adopted by the Department of Labor and Employment Security 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.

(h)  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 s. 119.07(3); 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.

(i)  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.

(j)  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 Labor and Employment Security. 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.

(k)  The task force shall meet for the first time no later than 45 days after the effective date of this act.

(2)(a)  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.

(b)  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.

(c)  Any firms certified by organizations or governmental entities determined not to meet the standards of the agreement shall not be eligible to participate as certified minority business enterprises in the minority business assistance programs of the state or of the executors of the agreement. Such a firm may subsequently apply to an executor of the agreement for certification.

(d)  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.

(e)  Any participating program receiving three or more challenges to its certification decisions pursuant to subsection (3) 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 Labor and Employment Security regarding the results of the review.

(f)  The office shall maintain a directory of all executors of the statewide and interlocal agreement. The directory should be communicated to the general public.

(3)  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.

(4)(a)  The secretary of the Department of Labor and Employment Security 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 agreement and, by affidavit, shall recertify such minority business enterprises not less than once each year.

(b)  The office shall contract with parties to the statewide and interlocal agreement to perform onsite visits associated with state certifications. The Minority Business Advocacy and Assistance Office may perform random, onsite reviews of certified minority business enterprises to determine whether the applicants are meeting all certification requirements of a certified minority business enterprise and of a qualified vendor.

(5)(a)  The office shall maintain up-to-date records of all certified minority business enterprises, as defined in s. 288.703, that are certified by a party to the statewide and interlocal agreement 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 ²s. 289.0945.

(b)  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.

(6)  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.

(7)  The office shall adopt rules necessary to implement this section.

(8)  State agencies shall comply with this act except to the extent that the requirements of this act are in conflict with federal law.

(9)  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.

(10)  The Auditor General may review these certifications pursuant to s. 11.45.

(11)  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 (1), 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.

(12)  A certified minority business enterprise for which certification or recertification has been revoked may not apply or reapply for certification or recertification for 36 months after the date of the notice of revocation.

(13)(a)  Except for certification decisions issued by the office, an executor to the statewide and interlocal agreement shall, in accordance with its rules and procedures:

1.  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.

2.  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.

3.  Give a written explanation of any subsequent decision of the executor overruling the objections.

(b)  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.

(14)  The office shall adopt rules in compliance with this part.

History.--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.

¹Note.--Section 26, ch. 94-322, provides that "[t]he provisions of ss. 255.101, 255.102, 287.093, 287.0943, 287.09431, and 287.0945, Florida Statutes, and any other provisions related to the minority business enterprise programs shall be repealed on July 1, 2001, contingent upon the completion of the statistical disparity analysis required pursuant to s. 287.0945(6)(p) to be completed in the year 2000, and said provisions shall be reviewed by the Legislature prior to said repeal date to determine their effectiveness in achieving stated goals and to revise or modify program components for the full achievement of said goals." Section 287.0945(6)(p) was redesignated as s. 287.0945(6)(r) to conform to the amendment by s. 17, ch. 94-322, and the redesignation of the paragraphs by the reviser incident to the compilation of s. 17, ch. 94-322. Section 287.0945 was repealed by s. 27, ch. 96-320. Section 287.0945(9), created by s. 1, ch. 96-412, was redesignated by the reviser as s. 373.607.

²Note.--Section 289.0945 does not exist.

¹287.09431  Statewide and interlocal agreement on certification of business concerns for the status of minority business enterprise.--The statewide and interlocal agreement on certification of business concerns for the status of minority business enterprise is hereby enacted and entered into with all jurisdictions or organizations legally joining therein. If, within 2 years from the date that the certification core criteria are approved by the Department of Labor and Employment Security, the agreement included herein is not executed by a majority of county and municipal governing bodies that administer a minority business assistance program on the effective date of this act, then the Legislature shall review this agreement. It is the intent of the Legislature that if the agreement is not executed by a majority of the requisite governing bodies, then a statewide uniform certification process should be adopted, and that said agreement should be repealed and replaced by a mandatory state government certification process.

PURPOSE, FINDINGS, AND POLICY.--

(1)  The parties to this agreement, desiring by common action to establish a uniform certification process in order to reduce the multiplicity of applications by business concerns to state and local governmental programs for minority business assistance, declare that it is the policy of each of them, on the basis of cooperation with one another, to remedy social and economic disadvantage suffered by certain groups, resulting in their being historically underutilized in ownership and control of commercial enterprises. Thus, the parties seek to address this history by increasing the participation of the identified groups in opportunities afforded by government procurement.

(2)  The parties find that the State of Florida presently certifies firms for participation in the minority business assistance programs of the state. The parties find further that some counties, municipalities, school boards, special districts, and other divisions of local government require a separate, yet similar, and in most cases redundant certification in order for businesses to participate in the programs sponsored by each government entity.

(3)  The parties find further that this redundant certification has proven to be unduly burdensome to the minority-owned firms intended to benefit from the underlying purchasing incentives.

(4)  The parties agree that:

(a)  They will facilitate integrity, stability, and cooperation in the statewide and interlocal certification process, and in other elements of programs established to assist minority-owned businesses.

(b)  They shall cooperate with agencies, organizations, and associations interested in certification and other elements of minority business assistance.

(c)  It is the purpose of this agreement to provide for a uniform process whereby the status of a business concern may be determined in a singular review of the business information for these purposes, in order to eliminate any undue expense, delay, or confusion to the minority-owned businesses in seeking to participate in the minority business assistance programs of state and local jurisdictions.

DEFINITIONS.--As used in this agreement and contracts made pursuant to it, unless the context clearly requires otherwise:

(1)  "Awarding organization" means any political subdivision or organization authorized by law, ordinance, or agreement to enter into contracts and for which the governing body has entered into this agreement.

(2)  "Department" means the Department of Labor and Employment Security.

(3)  "Minority" means a person who is a lawful, permanent resident of the state, having origins in one of the minority groups as described and adopted by the Department of Labor and Employment Security, hereby incorporated by reference.

(4)  "Minority business enterprise" means any small business concern as defined in subsection (6) that meets all of the criteria described and adopted by the Department of Labor and Employment Security, hereby incorporated by reference.

(5)  "Participating state or local organization" means any political subdivision of the state or organization designated by such that elects to participate in the certification process pursuant to this agreement, which has been approved according to s. 287.0943(2) and has legally entered into this agreement.

(6)  "Small business concern" means an independently owned and operated business concern which is of a size and type as described and adopted by vote related to this agreement of the commission, hereby incorporated by reference.

STATEWIDE AND INTERLOCAL CERTIFICATIONS.--

(1)  All awarding organizations shall accept a certification granted by any participating organization which has been approved according to s. 287.0943(2) and has entered into this agreement, as valid status of minority business enterprise.

(2)  A participating organization shall certify a business concern that meets the definition of minority business enterprise in this agreement, in accordance with the duly adopted eligibility criteria.

(3)  All participating organizations shall issue notice of certification decisions granting or denying certification to all other participating organizations within 14 days of the decision. Such notice may be made through electronic media.

(4)  No certification will be granted without an onsite visit to verify ownership and control of the prospective minority business enterprise, unless verification can be accomplished by other methods of adequate verification or assessment of ownership and control.

(5)  The certification of a minority business enterprise pursuant to the terms of this agreement shall not be suspended, revoked, or otherwise impaired except on any grounds which would be sufficient for revocation or suspension of a certification in the jurisdiction of the participating organization.

(6)  The certification determination of a party may be challenged by any other participating organization by the issuance of a timely written notice by the challenging organization to the certifying organization's determination within 10 days of receiving notice of the certification decision, stating the grounds therefor.

(7)  The sole accepted grounds for challenge shall be the failure of the certifying organization to adhere to the adopted criteria or the certifying organization's rules or procedures, or the perpetuation of a misrepresentation or fraud by the firm.

(8)  The certifying organization shall reexamine its certification determination and submit written notice to the applicant and the challenging organization of its findings within 30 days after the receipt of the notice of challenge.

(9)  If the certification determination is affirmed, the challenging agency may subsequently submit timely written notice to the firm of its intent to revoke certification of the firm.

APPROVED AND ACCEPTED PROGRAMS.--Nothing in this agreement shall be construed to repeal or otherwise modify any ordinance, law, or regulation of a party relating to the existing minority business assistance provisions and procedures by which minority business enterprises participate therein.

TERM.--The term of the agreement shall be 5 years, after which it may be reexecuted by the parties.

AGREEMENT EVALUATION.--The designated state and local officials may meet from time to time as a group to evaluate progress under the agreement, to formulate recommendations for changes, or to propose a new agreement.

OTHER ARRANGEMENTS.--Nothing in this agreement shall be construed to prevent or inhibit other arrangements or practices of any party in order to comply with federal law.

EFFECT AND WITHDRAWAL.--

(1)  This agreement shall become effective when properly executed by a legal representative of the participating organization, when enacted into the law of the state and after an ordinance or other legislation is enacted into law by the governing body of each participating organization. Thereafter it shall become effective as to any participating organization upon the enactment of this agreement by the governing body of that organization.

(2)  Any party may withdraw from this agreement by enacting legislation repealing the same, but no such withdrawal shall take effect until one year after the governing body of the withdrawing party has given notice in writing of the withdrawal to the other parties.

(3)  No withdrawal shall relieve the withdrawing party of any obligations imposed upon it by law.

FINANCIAL RESPONSIBILITY.--

(1)  A participating organization shall not be financially responsible or liable for the obligations of any other participating organization related to this agreement.

(2)  The provisions of this agreement shall constitute neither a waiver of any governmental immunity under Florida law nor a waiver of any defenses of the parties under Florida law. The provisions of this agreement are solely for the benefit of its executors and not intended to create or grant any rights, contractual or otherwise, to any person or entity.

VENUE AND GOVERNING LAW.--The obligations of the parties to this agreement are performable only within the county where the participating organization is located, and statewide for the Minority Business Advocacy and Assistance Office, and venue for any legal action in connection with this agreement shall lie, for any participating organization except the Minority Business Advocacy and Assistance Office, exclusively in the county where the participating organization is located. This agreement shall be governed by and construed in accordance with the laws and court decisions of the state.

CONSTRUCTION AND SEVERABILITY.--This agreement shall be liberally construed so as to effectuate the purposes thereof. The provisions of this agreement shall be severable and if any phrase, clause, sentence, or provision of this agreement is declared to be contrary to the State Constitution or the United States Constitution, or the application thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this agreement shall be held contrary to the State Constitution, the agreement shall remain in full force and effect as to all severable matters.

History.--ss. 15, 26, ch. 94-322; s. 26, ch. 96-320; s. 57, ch. 99-13.

¹Note.--Section 26, ch. 94-322, provides that "[t]he provisions of ss. 255.101, 255.102, 287.093, 287.0943, 287.09431, and 287.0945, Florida Statutes, and any other provisions related to the minority business enterprise programs shall be repealed on July 1, 2001, contingent upon the completion of the statistical disparity analysis required pursuant to s. 287.0945(6)(p) to be completed in the year 2000, and said provisions shall be reviewed by the Legislature prior to said repeal date to determine their effectiveness in achieving stated goals and to revise or modify program components for the full achievement of said goals." Section 287.0945(6)(p) was redesignated as s. 287.0945(6)(r) to conform to the amendment by s. 17, ch. 94-322, and the redesignation of the paragraphs by the reviser incident to the compilation of s. 17, ch. 94-322. Section 287.0945 was repealed by s. 27, ch. 96-320. Section 287.0945(9), created by s. 1, ch. 96-412, was redesignated by the reviser as s. 373.607.

287.09451  Minority Business Advocacy and Assistance Office; powers, duties, and functions.--

(1)  The Legislature finds that there is evidence of a systematic pattern of past and continuing racial discrimination against minority business enterprises and a disparity in the availability and use of minority business enterprises in the state procurement system. It is determined to be a compelling state interest to rectify such discrimination and disparity. Based upon statistical data profiling this discrimination, the Legislature has enacted race-conscious and gender-conscious remedial programs to ensure minority participation in the economic life of the state, in state contracts for the purchase of commodities and services, and in construction contracts. The purpose and intent of this section is to increase participation by minority business enterprises accomplished by encouraging the use of minority business enterprises and the entry of new and diversified minority business enterprises into the marketplace.

(2)  The Minority Business Advocacy and Assistance Office is established within the Department of Labor and Employment Security to assist minority business enterprises in becoming suppliers of commodities, services, and construction to state government.

(3)  The secretary shall appoint an executive director for the Minority Business Advocacy and Assistance Office, who shall serve at the pleasure of the secretary.

(4)  The Minority Business Advocacy and Assistance Office shall have the following powers, duties, and functions:

(a)  To adopt rules to determine what constitutes a "good faith effort" for purposes of state agency compliance with the minority business enterprise procurement goals set forth in s. 287.042. Factors which shall be considered by the Minority Business Enterprise Assistance Office in determining good faith effort shall include, but not be limited to:

1.  Whether the agency scheduled presolicitation or prebid meetings for the purpose of informing minority business enterprises of contracting and subcontracting opportunities.

2.  Whether the contractor advertised in general circulation, trade association, or minority-focus media concerning the subcontracting opportunities.

3.  Whether the agency effectively used services and resources of available minority community organizations; minority contractors' groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons.

4.  Whether the agency provided written notice to a reasonable number of minority business enterprises that their interest in contracting with the agency was being solicited in sufficient time to allow the minority business enterprises to participate effectively.

(b)  To adopt rules to determine what constitutes a "good faith effort" for purposes of contractor compliance with contractual requirements relating to the use of services or commodities of a minority business enterprise under s. 287.094(2). Factors which shall be considered by the Minority Business Advocacy and Assistance Office in determining whether a contractor has made good faith efforts shall include, but not be limited to:

1.  Whether the contractor attended any presolicitation or prebid meetings that were scheduled by the agency to inform minority business enterprises of contracting and subcontracting opportunities.

2.  Whether the contractor advertised in general circulation, trade association, or minority-focus media concerning the subcontracting opportunities.

3.  Whether the contractor provided written notice to a reasonable number of specific minority business enterprises that their interest in the contract was being solicited in sufficient time to allow the minority business enterprises to participate effectively.

4.  Whether the contractor followed up initial solicitations of interest by contacting minority business enterprises or minority persons to determine with certainty whether the minority business enterprises or minority persons were interested.

5.  Whether the contractor selected portions of the work to be performed by minority business enterprises in order to increase the likelihood of meeting the minority business enterprise procurement goals, including, where appropriate, breaking down contracts into economically feasible units to facilitate minority business enterprise participation.

6.  Whether the contractor provided interested minority business enterprises or minority persons with adequate information about the plans, specifications, and requirements of the contract or the availability of jobs.

7.  Whether the contractor negotiated in good faith with interested minority business enterprises or minority persons, not rejecting minority business enterprises or minority persons as unqualified without sound reasons based on a thorough investigation of their capabilities.

8.  Whether the contractor effectively used the services of available minority community organizations; minority contractors' groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons.

(c)  To adopt rules and do all things necessary or convenient to guide all state agencies toward making expenditures for commodities, contractual services, construction, and architectural and engineering services with certified minority business enterprises in accordance with the minority business enterprise procurement goals set forth in s. 287.042.

(d)  To monitor the degree to which agencies procure services, commodities, and construction from minority business enterprises in conjunction with the Department of Banking and Finance as specified in s. 17.11.

(e)  To receive and disseminate information relative to procurement opportunities, availability of minority business enterprises, and technical assistance.

(f)  To advise agencies on methods and techniques for achieving procurement objectives.

(g)  To provide a central minority business enterprise certification process which includes independent verification of status as a minority business enterprise.

(h)  To develop procedures to investigate complaints against minority business enterprises or contractors alleged to violate any provision related to this section or s. 287.0943, that may include visits to worksites or business premises, and to refer all information on businesses suspected of misrepresenting minority status to the Department of Labor and Employment Security for investigation. When an investigation is completed and there is reason to believe that a violation has occurred, the Department of Labor and Employment Security shall refer the matter to the office of the Attorney General, Department of Legal Affairs, for prosecution.

(i)  To maintain a directory of all minority business enterprises which have been certified and provide this information to any agency or business requesting it.

(j)  To encourage all firms which do more than $1 million in business with the state within a 12-month period to develop, implement, and submit to this office a minority business development plan.

(k)  To communicate on a monthly basis with the Small and Minority Business Advisory Council to keep the council informed on issues relating to minority enterprise procurement.

(l)  To serve as an advocate for minority business enterprises, and coordinate with the small and minority business ombudsman, as defined in s. 288.703, which duties shall include:

1.  Ensuring that agencies supported by state funding effectively target the delivery of services and resources, as related to minority business enterprises.

2.  Establishing standards within each industry with which the state government contracts on how agencies and contractors may provide the maximum practicable opportunity for minority business enterprises.

3.  Assisting agencies and contractors by providing outreach to minority businesses, by specifying and monitoring technical and managerial competence for minority business enterprises, and by consulting in planning of agency procurement to determine how best to provide opportunities for minority business enterprises.

4.  Integrating technical and managerial assistance for minority business enterprises with government contracting opportunities.

(m)  To certify minority business enterprises, as defined in s. 288.703, and as specified in ss. 287.0943 and 287.09431, and shall recertify such minority businesses not less than once a year. Minority business enterprises must be recertified annually by affidavit.

(n)1.  To develop procedures to be used by an agency in identifying commodities, contractual services, architectural and engineering services, and construction contracts, except those architectural, engineering, construction, or other related services or contracts subject to the provisions of chapter 339, that could be provided by minority business enterprises. Each agency is encouraged to spend 21 percent of the moneys actually expended for construction contracts, 25 percent of the moneys actually expended for architectural and engineering contracts, 24 percent of the moneys actually expended for commodities, and 50.5 percent of the moneys actually expended for contractual services during the previous fiscal year, except for the state university construction program which shall be based upon public education capital outlay projections for the subsequent fiscal year, and reported to the Legislature pursuant to s. 216.023, for the purpose of entering into contracts with certified minority business enterprises as defined in s. 288.703(2), or approved joint ventures. However, in the event of budget reductions pursuant to s. 216.221, the base amounts may be adjusted to reflect such reductions. The overall spending goal for each industry category shall be subdivided as follows:

a.  For construction contracts: 4 percent for black Americans, 6 percent for Hispanic-Americans, and 11 percent for American women.

b.  For architectural and engineering contracts: 9 percent for Hispanic-Americans, 1 percent for Asian-Americans, and 15 percent for American women.

c.  For commodities: 2 percent for black Americans, 4 percent for Hispanic-Americans, 0.5 percent for Asian-Americans, 0.5 percent for Native Americans, and 17 percent for American women.

d.  For contractual services: 6 percent for black Americans, 7 percent for Hispanic-Americans, 1 percent for Asian-Americans, 0.5 percent for Native Americans, and 36 percent for American women.

2.  For the purposes of commodities contracts for the purchase of equipment to be used in the construction and maintenance of state transportation facilities involving the Department of Transportation, "minority business enterprise" has the same meaning as provided in s. 288.703. "Minority person" has the same meaning as in s. 288.703(3). In order to ensure that the goals established under this paragraph for contracting with certified minority business enterprises are met, the department, with the assistance of the Minority Business Advocacy and Assistance Office, shall make recommendations to the Legislature on revisions to the goals, based on an updated statistical analysis, at least once every 5 years. Such recommendations shall be based on statistical data indicating the availability of and disparity in the use of minority businesses contracting with the state. The results of the first updated disparity study must be presented to the Legislature no later than December 1, 1996.

3.  In determining the base amounts for assessing compliance with this paragraph, the Minority Business Advocacy and Assistance Office may develop, by rule, guidelines for all agencies to use in establishing such base amounts. These rules must include, but are not limited to, guidelines for calculation of base amounts, a deadline for the agencies to submit base amounts, a deadline for approval of the base amounts by the Minority Business Advocacy and Assistance Office, and procedures for adjusting the base amounts as a result of budget reductions made pursuant to s. 216.221.

4.  To determine guidelines for the use of price preferences, weighted preference formulas, or other preferences, as appropriate to the particular industry or trade, to increase the participation of minority businesses in state contracting. These guidelines shall include consideration of:

a.  Size and complexity of the project.

b.  The concentration of transactions with minority business enterprises for the commodity or contractual services in question in prior agency contracting.

c.  The specificity and definition of work allocated to participating minority business enterprises.

d.  The capacity of participating minority business enterprises to complete the tasks identified in the project.

e.  The available pool of minority business enterprises as prime contractors, either alone or as partners in an approved joint venture that serves as the prime contractor.

5.  To determine guidelines for use of joint ventures to meet minority business enterprises spending goals. For purposes of this section, "joint venture" means any association of two or more business concerns to carry out a single business enterprise for profit, for which purpose they combine their property, capital, efforts, skills, and knowledge. The guidelines shall allow transactions with joint ventures to be eligible for credit against the minority business enterprise goals of an agency when the contracting joint venture demonstrates that at least one partner to the joint venture is a certified minority business enterprise as defined in s. 288.703, and that such partner is responsible for a clearly defined portion of the work to be performed, and shares in the ownership, control, management, responsibilities, risks, and profits of the joint venture. Such demonstration shall be by verifiable documents and sworn statements and may be reviewed by the Minority Business Advocacy and Assistance Office at or before the time a contract bid is submitted. An agency may count toward its minority business enterprise goals a portion of the total dollar amount of a contract equal to the percentage of the ownership and control held by the qualifying certified minority business partners in the contracting joint venture, so long as the joint venture meets the guidelines adopted by the office.

(o)1.  To establish a system to record and measure the use of certified minority business enterprises in state contracting. This system shall maintain information and statistics on certified minority business enterprise participation, awards, dollar volume of expenditures and agency goals, and other appropriate types of information to analyze progress in the access of certified minority business enterprises to state contracts and to monitor agency compliance with this section. Such reporting must include, but is not limited to, the identification of all subcontracts in state contracting by dollar amount and by number of subcontracts and the identification of the utilization of certified minority business enterprises as prime contractors and subcontractors by dollar amounts of contracts and subcontracts, number of contracts and subcontracts, minority status, industry, and any conditions or circumstances that significantly affected the performance of subcontractors. Agencies shall report their compliance with the requirements of this reporting system at least annually and at the request of the office. All agencies shall cooperate with the office in establishing this reporting system. Except in construction contracting, all agencies shall review contracts costing in excess of CATEGORY FOUR as defined in s. 287.017 to determine if such contracts could be divided into smaller contracts to be separately bid and awarded, and shall, when economical, offer such smaller contracts to encourage minority participation.

2.  To report agency compliance with the provisions of subparagraph 1. for the preceding fiscal year to the Governor and Cabinet, the President of the Senate, the Speaker of the House of Representatives, and the secretary of the Department of Labor and Employment Security on or before February 1 of each year. The report must contain, at a minimum, the following:

a.  Total expenditures of each agency by industry.

b.  The dollar amount and percentage of contracts awarded to certified minority business enterprises by each state agency.

c.  The dollar amount and percentage of contracts awarded indirectly to certified minority business enterprises as subcontractors by each state agency.

d.  The total dollar amount and percentage of contracts awarded to certified minority business enterprises, whether directly or indirectly, as subcontractors.

e.  A statement and assessment of good faith efforts taken by each state agency.

f.  A status report of agency compliance with subsection (6), as determined by the Minority Business Enterprise Office.

(5)(a)  Each agency shall, at the time the specifications or designs are developed or contract sizing is determined for any proposed procurement costing in excess of CATEGORY FOUR, as defined in s. 287.017, forward a notice to the Minority Business Advocacy and Assistance Office of the proposed procurement and any determination on the designs of specifications of the proposed procurement that impose requirements on prospective vendors, no later than 30 days prior to the issuance of a solicitation, except that this provision shall not apply to emergency acquisitions. The 30-day notice period shall not toll the time for any other procedural requirements.

(b)  If the Minority Business Advocacy and Assistance Office determines that the proposed procurement will not likely allow opportunities for minority business enterprises, the office may, within 20 days after it receives the information specified in paragraph (a), propose the implementation of minority business enterprise utilization provisions or submit alternative procurement methods that would significantly increase minority business enterprise contracting opportunities.

(c)  Whenever the agency and the Minority Business Advocacy and Assistance Office disagree, the matter shall be submitted for determination to the head of the agency or the senior-level official designated pursuant to this section as liaison for minority business enterprise issues.

(d)  Should the proposed procurement proceed to competitive bidding, the office is hereby granted standing to protest, pursuant to this section, in a timely manner, any contract award in competitive bidding for contractual services and construction contracts that fail to include minority business enterprise participation, if any responding bidder has demonstrated the ability to achieve any level of participation, or, any contract award for commodities where, a reasonable and economical opportunity to reserve a contract, statewide or district level, for minority participation was not executed or, an agency failed to adopt an applicable preference for minority participation. The bond requirement shall be waived for the office purposes of this subsection.

(e)  An agency may presume that a bidder offering no minority participation has not made a good faith effort when other bidders offer minority participation of firms listed as relevant to the agency's purchasing needs in the pertinent locality or statewide to complete the project.

(f)  Paragraph (a) will not apply when the Minority Business Advocacy and Assistance Office determines that an agency has established a work plan to allow advance consultation and planning with minority business enterprises and where such plan clearly demonstrates:

1.  A high level of advance planning by the agency with minority business enterprises.

2.  A high level of accessibility, knowledge, and experience by minority business enterprises in the agency's contract decisionmaking process.

3.  A high quality of agency monitoring and enforcement of internal implementation of minority business utilization provisions.

4.  A high quality of agency monitoring and enforcement of contractor utilization of minority business enterprises, especially tracking subcontractor data, and ensuring the integrity of subcontractor reporting.

5.  A high quality of agency outreach, agency networking of major vendors with minority vendors, and innovation in techniques to improve utilization of minority business enterprises.

6.  Substantial commitment, sensitivity, and proactive attitude by the agency head and among the agency minority business staff.

(6)  Each state agency shall coordinate its minority business enterprise procurement activities with the Minority Business Advocacy and Assistance Office. At a minimum, each agency shall:

(a)  Adopt a minority business enterprise utilization plan for review and approval by the Minority Business Advocacy and Assistance Office which should require meaningful and useful methods to attain the legislative intent in assisting minority business enterprises.

(b)  Designate a senior-level employee in the agency as a minority enterprise assistance officer, responsible for overseeing the agency's minority business utilization activities, and who is not also charged with purchasing responsibility. A senior-level agency employee and agency purchasing officials shall be accountable to the agency head for the agency's minority business utilization performance. The Minority Business Advocacy and Assistance Office shall advise each agency on compliance performance.

(c)  If an agency deviates significantly from its utilization plan in 2 consecutive or 3 out of 5 total fiscal years, the Minority Business Advocacy and Assistance Office may review any and all solicitations and contract awards of the agency as deemed necessary until such time as the agency meets its utilization plan.

History.--s. 28, ch. 96-320; s. 86, ch. 98-279.

¹287.0947  Florida Council on Small and Minority Business Development; creation; membership; duties.--

(1)  On or after October 1, 1996, the secretary of the Department of Labor and Employment Security may create the Florida Advisory Council on Small and Minority Business Development with the purpose of advising and assisting the secretary in carrying out the secretary's duties with respect to minority businesses and economic and business development. It is the intent of the Legislature that the membership of such council include practitioners, laypersons, financiers, and others with business development experience who can provide invaluable insight and expertise for this state in the diversification of its markets and networking of business opportunities. The council shall initially consist of 19 persons, each of whom is or has been actively engaged in small and minority business development, either in private industry, in governmental service, or as a scholar of recognized achievement in the study of such matters. Initially, the council shall consist of members representing all regions of the state and shall include at least one member from each group identified within the definition of "minority person" in s. 288.703(3), considering also gender and nationality subgroups, and shall consist of the following:

(a)  Four members consisting of representatives of local and federal small and minority business assistance programs or community development programs.

(b)  Eight members composed of representatives of the minority private business sector, including certified minority business enterprises and minority supplier development councils, among whom at least two shall be women and at least four shall be minority persons.

(c)  Two representatives of local government, one of whom shall be a representative of a large local government, and one of whom shall be a representative of a small local government.

(d)  Two representatives from the banking and insurance industry.

(e)  Two members from the private business sector, representing the construction and commodities industries.

(f)  The chairperson of the Florida Black Business Investment Board or the chairperson's designee.

A candidate for appointment may be considered if eligible to be certified as an owner of a minority business enterprise, or if otherwise qualified under the criteria above. Vacancies may be filled by appointment of the secretary, in the manner of the original appointment.

(2)  Each appointed member shall serve for a term of 2 years from the date of appointment, except that a vacancy shall be filled by appointment for the remainder of the unexpired term. The council shall annually elect a chair and a vice chair. The council shall adopt internal procedures or bylaws necessary for efficient operations. Members of the council shall serve without compensation or honorarium but shall be entitled to per diem and travel expenses pursuant to s. 112.061 for the performance of duties for the council. The executive administrator of the commission may remove a council member for cause.

(3)  Within 30 days after its initial meeting, the council shall elect from among its members a chair and a vice chair.

(4)  The council shall meet at the call of its chair, at the request of a majority of its membership, at the request of the commission or its executive administrator, or at such times as may be prescribed by rule, but not less than once a year, to offer its views on issues related to small and minority business development of concern to this state. A majority of the members of the council shall constitute a quorum.

(5)  The powers and duties of the council include, but are not limited to: researching and reviewing the role of small and minority businesses in the state's economy; reviewing issues and emerging topics relating to small and minority business economic development; studying the ability of financial markets and institutions to meet small business credit needs and determining the impact of government demands on credit for small businesses; assessing the implementation of s. 187.201(22), requiring a state economic development comprehensive plan, as it relates to small and minority businesses; assessing the reasonableness and effectiveness of efforts by any state agency or by all state agencies collectively to assist minority business enterprises; and advising the Governor, the secretary, and the Legislature on matters relating to small and minority business development which are of importance to the international strategic planning and activities of this state.

(6)  On or before January 1 of each year, the council shall present an annual report to the secretary that sets forth in appropriate detail the business transacted by the council during the year and any recommendations to the secretary, including those to improve business opportunities for small and minority business enterprises.

History.--ss. 27, 32, ch. 85-104; s. 32, ch. 90-268; s. 18, ch. 94-322; s. 872, ch. 95-148; s. 29, ch. 96-320; s. 39, ch. 97-100.

¹Note.--Expired October 1, 1995, pursuant to s. 32, ch. 85-104. This section was amended by s. 29, ch. 96-320, and by s. 39, ch. 97-100.

287.095  Department of Corrections; prison industry programs.--

(1)  The purchase of raw materials for use by the Department of Corrections in its prison industry programs to manufacture or process products for resale is exempt from the provisions of this part.

(2)  The provisions of this part do not apply to any purchases of commodities or contractual services made by any state agency from the department or from the nonprofit corporation organized under chapter 946.

History.--s. 1, ch. 82-76; s. 3, ch. 82-409; s. 3, ch. 83-209.

287.115  Comptroller; annual report.--The Comptroller shall submit to the office of the Auditor General an annual report on those contractual service contracts disallowed by the Comptroller, which report shall include, but is not limited to, the name of the user agency, the name of the firm or individual from which the contractual service was to be acquired, a description of the contractual service, the financial terms of the contract, and the reason for rejection.

History.--s. 6, ch. 80-374; s. 14, ch. 84-254; s. 26, ch. 90-268; s. 32, ch. 95-196.

287.121  Assistance of Department of Legal Affairs.--The Department of Legal Affairs shall assist in the preparation of forms of contracts and of contractual language for use in all contracts governed by this part.

History.--ss. 11, 22, 35, ch. 69-106.

287.131  Assistance of Department of Insurance.--The Department of Insurance shall provide the Department of Management Services with technical assistance in all matters pertaining to the purchase of insurance for all agencies, and shall make surveys of the insurance needs of the state and all departments thereof, including the benefits, if any, of self-insurance.

History.--ss. 13, 22, 35, ch. 69-106; s. 87, ch. 98-279.

287.132  Legislative intent with respect to integrity of public contracting and purchasing process.--Recognizing that the preservation of the integrity of the public contracting and purchasing process of the state is vital and is a matter of interest to all the people of the state, the Legislature determines and declares that:

(1)  The procedures of public entities for determining with whom they transact business exist to secure for the public the benefits of free, fair, and open competition among those persons whose conduct reflects good citizenship.

(2)  The opportunity to bid on public entity contracts or to supply goods and services to public entities or to otherwise transact business with public entities is a privilege, not a right.

(3)  In order to preserve the integrity of the public contracting and purchasing process, the privilege of transacting business with public entities should be denied to persons involved in certain crimes.

(4)  Persons involved in certain crimes should be denied the privilege of transacting business with public entities and the opportunity of obtaining economic benefit through the transaction of business of any kind with public entities.

To these ends, it is the intent of the Legislature to provide sufficient authority to the state, its departments and agencies, and political subdivisions to ensure the integrity of public contracting and purchasing.

History.--s. 1, ch. 89-114.

287.133  Public entity crime; denial or revocation of the right to transact business with public entities.--

(1)  As used in this section:

(a)  "Affiliate" means:

1.  A predecessor or successor of a person convicted of a public entity crime; or

2.  An entity under the control of any natural person who is active in the management of the entity and who has been convicted of a public entity crime. The term "affiliate" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arm's length agreement, shall be a prima facie case that one person controls another person. A person who knowingly enters into a joint venture with a person who has been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an affiliate.

(b)  "Convicted" or "conviction" means a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere.

(c)  "Convicted vendor list" means the list required to be kept by the department pursuant to paragraph (3)(d).

(d)  "Department" means the Department of Management Services.

(e)  "Person" means any natural person or any entity organized under the laws of any state or of the United States with the legal power to enter into a binding contract and which bids or applies to bid on contracts let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term "person" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in management of an entity.

(f)  "Public entity" means the State of Florida, any of its departments or agencies, or any political subdivision.

(g)  "Public entity crime" means a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any public entity or with an agency or political subdivision of any other state or with the United States, including, but not limited to, any bid or contract for goods or services, any lease for real property, or any contract for the construction or repair of a public building or public work, involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation.

(2)(a)  A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list.

(b)  No public entity shall accept any bid from, award any contract to, or transact any business in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO with any person or affiliate on the convicted vendor list for a period of 36 months from the date that person or affiliate was placed on the convicted vendor list unless that person or affiliate has been removed from the list pursuant to paragraph (3)(f). No public entity which was transacting business with a person at the time of the commission of a public entity crime which resulted in that person being placed on the convicted vendor list shall accept any bid from, award any contract to, or transact any business with any other person who is under the same, or substantially the same, control as the person whose name appears on the convicted vendor list so long as that person's name appears on the convicted vendor list.

(3)(a)  All invitations to bid as defined by s. 287.012(11), requests for proposals as defined by s. 287.012(15), and any contract document described by s. 287.058 shall contain a statement informing persons of the provisions of paragraph (2)(a).

(b)  Any person must notify the department within 30 days after a conviction of a public entity crime applicable to that person or to an affiliate of that person. Any public entity which receives information that a person has been convicted of a public entity crime shall transmit that information to the department in writing within 10 days.

(c)  If the department has reason to believe that a person or an affiliate has been convicted of a public entity crime, the department may issue a written demand upon that person or affiliate, concerning any such conviction or affiliation, to appear and be examined under oath, to answer interrogatories under oath, or to produce documents or other tangible evidence for inspection and copying. The department shall conduct any such inquiry in accord with applicable provisions of the Florida Rules of Civil Procedure.

(d)  The department shall maintain a list of the names and addresses of those who have been disqualified from the public contracting and purchasing process under this section. The department shall publish an initial list on January 1, 1990, and shall publish an updated version of the list quarterly thereafter. The initial list and revised quarterly lists shall be published in the Florida Administrative Weekly. Notwithstanding this paragraph, a person or affiliate disqualified from the public contracting and purchasing process pursuant to this section shall be disqualified as of the date the final order is entered.

(e)1.  Upon receiving reasonable information from any source that a person has been convicted, the department shall investigate the information and determine whether good cause exists to place that person or an affiliate of that person on the convicted vendor list. If good cause exists, the department shall notify the person or affiliate in writing of its intent to place the name of that person or affiliate on the convicted vendor list, and of the person's or affiliate's right to a hearing, the procedure that must be followed, and the applicable time requirements. If the person or affiliate does not request a hearing, the department shall enter a final order placing the name of the person or affiliate on the convicted vendor list. No person or affiliate may be placed on the convicted vendor list without receiving an individual notice of intent from the department.

2.  Within 21 days of receipt of the notice of intent, the person or affiliate may file a petition for a formal hearing pursuant to ss. 120.569 and 120.57(1) to determine whether it is in the public interest for that person or affiliate to be placed on the convicted vendor list. A person or affiliate may not file a petition for an informal hearing under s. 120.57(2). The procedures of chapter 120 shall apply to any formal hearing under this section except where they are in conflict with the following provisions:

a.  The petition shall be filed with the department. The department shall be a party to the proceeding for all purposes.

b.  Within 5 days after the filing of the petition, the department shall notify the Division of Administrative Hearings of the request for a formal hearing. The director of the Division of Administrative Hearings shall, within 5 days after receipt of notice from the department, assign an administrative law judge to preside over the proceeding. The administrative law judge, upon request by a party, may consolidate related proceedings.

c.  The administrative law judge shall conduct the formal hearing within 30 days after being assigned, unless otherwise stipulated by the parties.

d.  Within 30 days after the formal hearing or receipt of the hearing transcript, whichever is later, the administrative law judge shall enter a final order, which shall consist of findings of fact, conclusions of law, interpretation of agency rules, and any other information required by law or rule to be contained in the final order. Such final order shall place or not place the person or affiliate on the convicted vendor list.

e.  The final order of the administrative law judge shall be final agency action for purposes of s. 120.68.

f.  At any time after the filing of the petition, informal disposition may be made pursuant to s. 120.57(4). In that event, the administrative law judge shall enter a final order adopting the stipulation, agreed settlement, or consent order.

3.  In determining whether it is in the public interest to place a person or affiliate on the convicted vendor list, the administrative law judge shall consider the following factors:

a.  Whether the person or affiliate committed a public entity crime.

b.  The nature and details of the public entity crime.

c.  The degree of culpability of the person or affiliate proposed to be placed on the convicted vendor list.

d.  Prompt or voluntary payment of any damages or penalty as a result of the conviction.

e.  Cooperation with state or federal investigation or prosecution of any public entity crime, provided that a good faith exercise of any constitutional, statutory, or other right during any portion of the investigation or prosecution of any public entity crime shall not be considered a lack of cooperation.

f.  Disassociation from any other persons or affiliates convicted of the public entity crime.

g.  Prior or future self-policing by the person or affiliate to prevent public entity crimes.

h.  Reinstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding.

i.  Compliance by the person or affiliate with the notification provisions of paragraph (b).

j.  The needs of public entities for additional competition in the procurement of goods and services in their respective markets.

k.  Mitigation based upon any demonstration of good citizenship by the person or affiliate.

4.  In any proceeding under this section, the department shall be required to prove that it is in the public interest for the person to whom it has given notice under this section to be placed on the convicted vendor list. Proof of a conviction of the person or that one is an affiliate of such person shall constitute a prima facie case that it is in the public interest for the person or affiliate to whom the department has given notice to be put on the convicted vendor list. Prompt payment of damages or posting of a bond, cooperation with investigation, and termination of the employment or other relationship with the employee or other natural person responsible for the public entity crime shall create a rebuttable presumption that it is not in the public interest to place a person or affiliate on the convicted vendor list. Status as an affiliate must be proven by clear and convincing evidence. If the administrative law judge determines that the person was not convicted or is not an affiliate of such person, that person or affiliate shall not be placed on the convicted vendor list.

5.  Any person or affiliate who has been notified by the department of its intent to place his or her name on the convicted vendor list may offer evidence on any relevant issue. An affidavit alone shall not constitute competent substantial evidence that the person has not been convicted or is not an affiliate of a person so convicted. Upon establishment of a prima facie case that it is in the public interest for the person or affiliate to whom the department has given notice to be put on the convicted vendor list, that person or affiliate may prove by a preponderance of the evidence that it would not be in the public interest to put him or her on the convicted vendor list, based upon evidence addressing the factors in subparagraph 3.

(f)1.  A person on the convicted vendor list may petition for removal from the list no sooner than 6 months from the date a final order is entered disqualifying that person from the public purchasing and contracting process pursuant to this section, but may petition for removal at any time if the petition is based upon a reversal of the conviction on appellate review or pardon. The petition shall be filed with the department, and the proceeding shall be conducted pursuant to the procedures and requirements of this subsection.

2.  A person may be removed from the convicted vendor list subject to such terms and conditions as may be prescribed by the administrative law judge upon a determination that removal is in the public interest. In determining whether removal would be in the public interest, the administrative law judge shall give consideration to any relevant factors, including, but not limited to, the factors identified in subparagraph (e)3. Upon proof that a person's conviction has been reversed on appellate review or that he or she has been pardoned, the administrative law judge shall determine that removal of the person or an affiliate of that person from the convicted vendor list is in the public interest.

3.  If a petition for removal is denied, the person or affiliate may not petition for another hearing on removal for a period of 9 months after the date of denial, unless the petition is based upon a reversal of the conviction on appellate review or a pardon. The department may petition for removal prior to the expiration of such period if, in its discretion, it determines that removal would be in the public interest.

(4)  The conviction of a person for a public entity crime, or placement on the convicted vendor list, shall not affect any rights or obligations under any contract, franchise, or other binding agreement which predates such conviction or placement on the convicted vendor list. However, the administrative law judge in a proceeding instituted under this section may declare voidable any specific contract, franchise, or other binding agreement entered into after July 1, 1989, by a person placed on the convicted vendor list and a public entity, but only if the administrative law judge finds as fact that the person to be placed on the list has not satisfied the criteria set forth in sub-subparagraphs (3)(e)3.d., f., and g.

(5)  The provisions of this section do not apply to any activities regulated by the Florida Public Service Commission or to the purchase of goods or services made by any public entity from the Department of Corrections, from the nonprofit corporation organized under chapter 946, or from any accredited nonprofit workshop certified under ss. 413.032-413.037.

History.--s. 2, ch. 89-114; s. 1, ch. 90-33; s. 32, ch. 90-268; s. 259, ch. 92-279; s. 55, ch. 92-326; s. 217, ch. 95-148; s. 33, ch. 95-196; s. 4, ch. 95-420; s. 62, ch. 96-410; s. 58, ch. 99-13.

287.1345  Surcharge on users of state term contracts; deposit of proceeds collected.--The Department of Management Services may impose a surcharge upon users of state term contracts in order to fund the costs, including overhead, of its procurement function. The department may provide for the state term contract vendor to collect the surcharge or directly collect the fee from the public agency involved. For the purpose of compensating vendors for expenses incurred in collecting such fees, the department may authorize a vendor to retain a portion of the fees. The vendor may withhold the portion retained from the amount of fees to be remitted to the department. The department may negotiate the retainage as a percentage of such fees charged to users, as a flat amount, or as any other method the department deems feasible. Vendors shall maintain accurate sales summaries for purchases made from state term contracts and shall provide the summaries to the department on a quarterly basis. Any contract remedies relating to the collection of such fees from users through vendors are enforceable, including, but not limited to, liquidated damages, late fees, and the costs of collection, including attorney's fees. The fees collected pursuant to this section shall be deposited into the Grants and Donations Trust Fund of the department and are subject to appropriation as provided by law. The Executive Office of the Governor may exempt transactions from the payment of the surcharge if payment of such surcharge would cause the state, a political subdivision, or unit of local government to lose federal funds or in other cases where such exemption is in the public interest. The fees collected pursuant to this section and interest income on such fees shall not be deemed to be income of a revenue nature for purposes of chapter 215.

History.--s. 2, ch. 96-236.

287.14  Purchase of motor vehicles by state officers and employees.

287.15  Purchase or lease of motor vehicles, watercraft, or aircraft; prior approval of the Department of Management Services.

287.151  Limitation on classes of motor vehicles procured.

287.155  Motor vehicles; purchase by Division of Universities, Department of Children and Family Services, Department of Health, Department of Juvenile Justice, and Department of Corrections.

287.16  Powers and duties of department.

287.161  Executive aircraft pool; assignment of aircraft; charge for transportation.

287.17  Limitation on use of motor vehicles and aircraft.

287.175  Penalties.

287.18  Repair and service of motor vehicles and aircraft.

287.19  Transfer of funds.

287.20  Applicability of this part.

287.14  Purchase of motor vehicles by state officers and employees.--

(1)  It is the intent of the Legislature that this section has applied and shall continue to apply to state officers and employees of the executive and judicial branches of state government.

(2)  The term "motor vehicle" as used in this section includes any automobile or light truck. This definition also includes any airplane or other vehicle designed primarily for transporting persons.

(3)  It is unlawful for any state officer or employee to authorize the purchase or continuous lease of any motor vehicle to be paid for out of funds of the state or any department thereof unless funds therefor have been appropriated by the Legislature. This subsection does not apply to motor vehicles needed to meet unforeseen or emergency situations, if approved by the Executive Office of the Governor after consultation with the legislative appropriations committees.

(4)  Motor vehicles for which replacement funds have been appropriated may not be retained in service unless they are required to meet emergency or major unforeseen needs. All replaced vehicles which are retained to meet emergency or unforeseen needs shall be reported to the Legislature in subsequent agency budget request documents, detailing the specific justification for the retention of each vehicle.

(5)  Motor vehicles shall not be acquired on a deferred payment contract which requires the payment of interest or its equivalent, except when specifically approved by the Executive Office of the Governor after consultation with the legislative appropriations committees as in the best interest of the state.

History.--s. 1, ch. 13810, 1929; CGL 1936 Supp. 1363(1); s. 1, ch. 20716, 1941; s. 7, ch. 22858, 1945; ss. 23, 35, ch. 69-106; s. 1, ch. 83-302.

Note.--Former s. 116.12.

287.15  Purchase or lease of motor vehicles, watercraft, or aircraft; prior approval of the Department of Management Services.--No state agency shall purchase, lease, or acquire any motor vehicle, watercraft, or aircraft of any type unless prior approval is first obtained from the Department of Management Services. However, nothing herein shall prohibit the lease for casual use of motor vehicles, or remove the requirement that all purchases be in compliance with the rules and regulations of the Department of Management Services.

History.--s. 22, ch. 69-106; s. 260, ch. 92-279; s. 55, ch. 92-326; s. 88, ch. 98-279.

287.151  Limitation on classes of motor vehicles procured.--

(1)  All motor vehicles purchased or leased by the state with funds provided in the General Appropriations Act shall be of the subcompact class except vehicles used for law enforcement purposes by law enforcement officers of the state, used as tow vehicles, routinely used to transport more than three adults or bulk materials, or vehicles operated frequently on unpaved roads. All vehicles purchased shall be of the smallest class that can safely and adequately meet the transportation requirements.

(2)  No funds in the General Appropriations Act shall be used to purchase any vehicle at prices in excess of the standard prices negotiated by the Department of Management Services.

History.--s. 1, ch. 84-169; s. 21, ch. 88-557; s. 261, ch. 92-279; s. 55, ch. 92-326; s. 59, ch. 99-13; s. 46, ch. 99-399.

287.155  Motor vehicles; purchase by Division of Universities, Department of Children and Family Services, Department of Health, Department of Juvenile Justice, and Department of Corrections.--

(1)  The Division of Universities of the Department of Education, the Department of Children and Family Services, the Department of Health, the Department of Juvenile Justice, and the Department of Corrections are hereby authorized, subject to the approval of the Department of Management Services, to purchase automobiles, trucks, tractors, and other automotive equipment for the use of institutions under the management of the Division of Universities, the Department of Children and Family Services, the Department of Health, and the Department of Corrections, and for the use of residential facilities managed or contracted by the Department of Juvenile Justice.

(2)  The Department of Corrections shall, prior to purchasing motor vehicles, seek to procure the motor vehicles from those vehicles renovated pursuant to correctional work programs of the Department of Corrections, and for the use of residential facilities managed or contracted by the Department of Juvenile Justice.

(3)  The Department of Health is authorized, subject to the approval of the Department of Management Services, to purchase automobiles, trucks, and other automotive equipment for use by county health departments.

History.--s. 12A, ch. 20980, 1941; s. 7, ch. 22071, 1943; s. 6, ch. 22827, 1945; s. 6, ch. 23915, 1947; s. 5, ch. 25370, 1949; s. 6, ch. 26859, s. 2, ch. 26971, 1951; s. 2, ch. 63-204; ss. 2, 3, ch. 67-371; ss. 15, 19, 22, 35, ch. 69-106; s. 1, ch. 77-120; s. 1, ch. 77-300; s. 6, ch. 79-3; s. 262, ch. 92-279; s. 55, ch. 92-326; s. 4, ch. 95-430; s. 15, ch. 96-398; s. 12, ch. 96-420; s. 51, ch. 99-8; s. 6, ch. 99-397.

Note.--Former s. 116.161.

287.16  Powers and duties of department.--The Department of Management Services shall have the following powers, duties, and responsibilities:

(1)  To obtain the most effective and efficient use of motor vehicles, watercraft, and aircraft for state purposes.

(2)  To establish and operate central facilities for the acquisition, disposal, operation, maintenance, repair, storage, supervision, control, and regulation of all state-owned or state-leased aircraft and motor vehicles and to operate any state facilities for those purposes. Acquisition may be by purchase, lease, loan, or in any other legal manner.

(3)  In its discretion, to require every state agency to transfer its ownership, custody, and control of every aircraft and motor vehicle, and associated maintenance facilities and equipment, except those used principally for law enforcement, state fire marshal, or fire control purposes, to the Department of Management Services, including all right, title, interest, and equity therein.

(4)  Upon requisition and showing of need, to assign suitable aircraft or motor vehicles, on a temporary (for a period up to and including 1 month) or permanent (for a period from 1 month up to and including 1 full year) basis, to any state agency.

(5)  To allocate and charge fees to the state agencies to which aircraft or motor vehicles are furnished, based upon any reasonable criteria.

(6)  To adopt and enforce rules and regulations for the efficient and safe use, operation, maintenance, repair, and replacement of all state-owned or state-leased aircraft and motor vehicles and to require the placement of appropriate stickers, decals, or other markings upon the aircraft and motor vehicles of the state. The department may delegate to the respective heads of the agencies to which aircraft and motor vehicles are assigned the duty of enforcing the rules and regulations adopted by the department.

(7)  To contract for specialized maintenance services.

(8)  To require any state agency to keep records and make reports regarding aircraft and motor vehicles to the department as may be required. The Department of Highway Safety and Motor Vehicles shall use a reporting system approved by the department.

(9)  To establish and operate central facilities to determine the mode of transportation to be used by state employees traveling on official state business and to schedule and coordinate use of state-owned or state-leased aircraft and passenger-carrying vehicles to assure maximum utilization of state aircraft, motor vehicles, and employee time by assuring that employees travel by the most practical and economical mode of travel. The department shall consider the number of employees making the trip to the same location, the most efficient and economical means of travel considering the time of the employee, transportation cost and subsistence required, the urgency of the trip, and the nature and purpose of the trip.

(10)  To provide the Legislature annual reports at the end of each calendar year concerning the utilization of all aircraft in the executive pool and special purpose aircraft.

(11)  To calculate biennially the break-even mileage at which it becomes cost-effective for the state to provide assigned motor vehicles to employees. The Support Program shall provide the information to agency heads and agency inspectors general to assist them in meeting the reporting requirements of s. 20.055.

History.--s. 22, ch. 69-106; s. 1, ch. 70-328; ss. 1, 2, ch. 72-207; s. 3, ch. 77-112; s. 1, ch. 77-396; s. 3, ch. 83-304; s. 1, ch. 84-263; s. 263, ch. 92-279; s. 55, ch. 92-326; s. 89, ch. 98-279; s. 60, ch. 99-13; s. 47, ch. 99-399.

287.161  Executive aircraft pool; assignment of aircraft; charge for transportation.--

(1)  There is created within the Department of Management Services an executive aircraft pool consisting of state-owned aircraft for the purpose of furnishing executive air travel. Such aircraft shall not be a model in excess of a two-engine jet. Aircraft included in the executive aircraft pool may not be specifically assigned to any department or agency on any basis.

(2)  The Department of Management Services shall charge all persons receiving transportation from the executive aircraft pool a rate not less than the mileage allowance fixed by the Legislature for the use of privately owned vehicles. However, state employees traveling on a space-available basis may not be charged more than the vehicle mileage allowance.

(3)  Fees collected for persons traveling by aircraft in the executive aircraft pool shall be deposited into the Bureau of Aircraft Trust Fund and shall be expended for fuel, maintenance, or other costs incurred in accordance with rules adopted pursuant to s. 287.16.

¹(4)  Notwithstanding the requirements of subsections (2) and (3) and for the 1999-2000 fiscal year only, the Department of Management Services shall charge all persons receiving transportation from the executive aircraft pool a rate not less than the mileage allowance fixed by the Legislature for the use of privately owned vehicles. Fees collected for persons traveling by aircraft in the executive aircraft pool shall be deposited into the Bureau of Aircraft Trust Fund and shall be expended for costs incurred to operate the aircraft management activities of the department. It is the intent of the Legislature that the executive aircraft pool be operated on a full cost recovery basis, less available funds. This subsection expires July 1, 2000.

History.--ss. 1, 2, ch. 72-207; s. 4, ch. 83-304; s. 1, ch. 89-9; ss. 29, 38, ch. 98-46; s. 90, ch. 98-279; ss. 32, 53, ch. 99-228.

¹Note.--Section 32, ch. 99-228, amended subsection (4) "[i]n order to implement Specific Appropriations 1928 through 1931 of the 1999-2000 General Appropriations Act."

287.17  Limitation on use of motor vehicles and aircraft.--

(1)  The aircraft and motor vehicles owned, leased, or operated by any state agency, as defined in s. 287.012, shall be available for official state business only as authorized by agency heads, as defined in s. 287.012.

(2)  The following criteria shall be considered in determining appropriate uses of motor vehicles and aircraft:

(a)  Whether the use of a motor vehicle or aircraft is necessary to carry out state official or employee job assignments.

(b)  Whether the use of a motor vehicle or aircraft is for transporting an employee, state official, or other person authorized by the agency head for purposes of conducting official state business or for purposes of performing services for the state.

(c)  Whether the Department of Law Enforcement has been directed by the agency head to provide security or transportation pursuant to s. 281.20.

(d)  Whether an emergency exists requiring the use of a motor vehicle or aircraft for the protection of life or property.

(3)  The term "official state business" may not be construed to permit the use of a motor vehicle or aircraft for commuting purposes, unless special assignment of a motor vehicle is authorized as a perquisite by the Department of Management Services, required by an employee after normal duty hours to perform duties of the position to which assigned, or authorized for an employee whose home is the official base of operation.

(4)  An agency head, as defined in s. 287.012, shall comply with the following criteria for the special assignment of motor vehicles:

(a)  An agency head may assign a motor vehicle to a state officer or employee only if the officer or employee is projected to drive the motor vehicle a minimum of 10,000 miles annually on official state business, unless an agency head annually provides written justification for the need of the assignment of a motor vehicle. Commuting mileage incidental to use of the motor vehicle on official state business shall be excluded from calculating the projected mileage. Priority in assigning motor vehicles shall be given to those employees who drive over 15,000 miles annually on state business.

(b)  An agency head may assign motor vehicles to state officers and employees who perform duties related to law enforcement. However, the agency head shall not assign a pursuit motor vehicle to an officer or employee whose job duties do not routinely require performance of a patrol or law enforcement function requiring a pursuit vehicle.

(5)  Each state agency's head shall, by December 31, 2000, conduct a review of motor vehicle utilization with oversight from the agency's inspector general. This review shall consist of two parts. The first part of the review shall determine the number of miles that each assigned motor vehicle has been driven on official state business in the past fiscal year. Commuting mileage shall be excluded from calculating vehicle use. The purpose of this review is to determine whether employees with assigned motor vehicles are driving the vehicles a sufficient number of miles to warrant continued vehicle assignment. The second part of the review shall identify employees who have driven personal vehicles extensively on state business in the past fiscal year. The purpose of this review is to determine whether it would be cost-effective to provide state motor vehicles to such employees. In making this determination, the inspector general shall use the break-even mileage criteria developed by the Department of Management Services. A copy of the review shall be presented to the Office of Program Policy Analysis and Government Accountability.

(6)  A person who is not otherwise authorized in this section may accompany the Governor, the Lieutenant Governor, a member of the Cabinet, the President of the Senate, the Speaker of the House of Representatives, or the Chief Justice of the Supreme Court when such official is traveling on state aircraft for official state business and the aircraft is traveling with seats available. Transportation of a person accompanying any official specified in this subsection shall be approved by the official, who shall also guarantee payment of the transportation charges. When the person accompanying such official is not traveling on official state business as provided in this section, the transportation charge shall be a prorated share of all fixed and variable expenses related to the ownership, operation, and use of such state aircraft. The spouse of any official specified in this subsection may, without payment of transportation charges, accompany the official when such official is traveling for official state business and the aircraft has seats available.

(7)  It is the intention of the Legislature that persons traveling on state aircraft for purposes consistent with, but not necessarily constituting, official state business may travel only when accompanying persons who are traveling on official state business and that such persons shall pay the state for all costs associated with such travel. A person traveling on state aircraft for purposes other than official state business shall pay for any trip not exclusively for state business by paying a prorated share of all fixed and variable expenses related to the ownership, operation, and use of such aircraft.

History.--s. 22, ch. 69-106; s. 5, ch. 83-304; s. 31, ch. 90-268; s. 112, ch. 92-279; s. 55, ch. 92-326; s. 48, ch. 99-399.

287.175  Penalties.--A violation of this part or a rule adopted hereunder, pursuant to applicable constitutional and statutory procedures, constitutes misuse of public position as defined in s. 112.313(6), and is punishable as provided in s. 112.317. The Comptroller shall report incidents of suspected misuse to the Commission on Ethics, and the commission shall investigate possible violations of this part or rules adopted hereunder when reported by the Comptroller, notwithstanding the provisions of s. 112.324. Any violation of this part or a rule adopted hereunder shall be presumed to have been committed with wrongful intent, but such presumption is rebuttable. Nothing in this section is intended to deny rights provided to career service employees by s. 110.227.

History.--s. 6, ch. 83-304; s. 13, ch. 94-277.

287.18  Repair and service of motor vehicles and aircraft.--The Secretary of Management Services or his or her designee may require a department or any state agency having facilities for the repair of aircraft or motor vehicles and for the storage and distribution of gasoline and other petroleum products to repair aircraft and motor vehicles and to furnish gasoline and other petroleum products to any other department or agency and shall compensate for the cost of such services and products.

History.--s. 22, ch. 69-106; s. 49, ch. 99-399.

287.19  Transfer of funds.--All moneys designated for or appropriated to any agency for the use, operation, maintenance, repair, or replacement of any state-owned or leased motor vehicles or aircraft shall be transferred to the Department of Management Services as required by the department.

History.--s. 22, ch. 69-106; s. 91, ch. 98-279.

287.20  Applicability of this part.--The provisions of this part apply to motor vehicles, watercraft, and aircraft owned, leased, or acquired in any manner by any state agency, or the judicial branch, as defined in s. 216.011.

History.--s. 22, ch. 69-106; s. 7, ch. 83-304; s. 81, ch. 92-142.