The Florida Senate

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)  If an agency determines that the use of an invitation to bid or a request for a proposal will not result in the best value to the state, based on factors including, but not limited to, price, quality, design, and workmanship, the agency may procure commodities and contractual services by an invitation to negotiate. An agency may procure commodities and contractual services by a request for a quote from vendors under contract with the department.

(4)  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, competitive sealed proposals, or responses to an invitation to negotiate or a request for a quote 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.

(5)  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.

(6)  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 Office of Supplier Diversity may also request from the agencies any information submitted to the department pursuant to this subsection.

(7)(a)  In order to strive to meet the minority business enterprise procurement goals set forth in s. 287.09451, 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 Office of Supplier Diversity 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 s. 287.09451(5). 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 s. 287.09451(4) 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 s. 287.09451.

(8)  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.

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

(10)  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.

(11)  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.

(12)  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.

(13)  Except for those contracts initially procured pursuant to ²paragraph (3)(a) or ³paragraph (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.

(14)  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.

(15)  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.

(16)  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.

(17)  No person who receives a contract which has not been procured pursuant to subsection (1), subsection (2), or ¹subsection (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.

(18)  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.

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

(20)  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.

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

(22)  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.

(23)(a)  The State Technology Office shall develop a program for on-line procurement of commodities and contractual services. To enable the state to promote open competition and to leverage its buying power, executive state agencies shall participate in the on-line procurement program, and other agencies may participate in the program. Only bidders prequalified as meeting mandatory requirements and qualifications criteria shall be permitted to participate in on-line procurement. The State Technology Office may contract for equipment and services necessary to develop and implement on-line procurement.

(b)  The State Technology Office, in consultation with the department, shall adopt rules, pursuant to ss. 120.536(1) and 120.54, to implement the program for on-line procurement. The rules shall include, but not be limited to:

1.  Determining the requirements and qualification criteria for prequalifying bidders.

2.  Establishing the procedures for conducting on-line procurement.

3.  Establishing the criteria for eligible commodities and contractual services.

4.  Establishing the procedures for providing access to on-line procurement.

5.  Determining the criteria warranting any exceptions to participation in the on-line procurement program.

(c)  The Department of Management Services and the State Technology Office may collect fees for the use of the on-line procurement systems. The fees may be imposed on an individual transaction basis or as a fixed percentage of the cost savings generated. At a minimum, the fees must be set in an amount sufficient to cover the projected costs of such services, including administrative and project service costs in accordance with the policies of the Department of Management Services and the State Technology Office. For the purposes of compensating the provider, the department may authorize the provider to collect and retain a portion of the fees. The providers 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. All fees and surcharges collected under this paragraph shall be deposited in the Grants and Donation Trust Fund as provided by law.

(24)(a)  The State Technology Office shall establish, in consultation with the department, state strategic information technology alliances for the acquisition and use of information technology and related material with prequalified contractors or partners to provide the state with efficient, cost-effective, and advanced information technology.

(b)  In consultation with and under contract to the State Technology Office, the state strategic information technology alliances shall design, develop, and deploy projects providing the information technology needed to collect, store, and process the state's data and information, provide connectivity, and integrate and standardize computer networks and information systems of the state.

(c)  The partners in the state strategic information technology alliances shall be industry leaders with demonstrated experience in the public and private sectors.

(d)  The State Technology Office, in consultation with the Department of Management Services, shall adopt rules, pursuant to ss. 120.536(1) and 120.54, to implement the state strategic information technology alliances.

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; s. 33, ch. 2000-164; s. 11, ch. 2000-286; s. 56, ch. 2001-61; s. 4, ch. 2001-278.

¹Note.--Redesignated as subsection (4) by s. 4, ch. 2001-278.

²Note.--Redesignated as paragraph (4)(a) by s. 4, ch. 2001-278.

³Note.--Redesignated as paragraph (4)(c) by s. 4, ch. 2001-278.