House Bill 2127e1

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                                          HB 2127, First Engrossed



  1                      A bill to be entitled

  2         An act relating to state procurement; amending

  3         s. 287.094, F.S.; revising provisions relating

  4         to minority business enterprise programs;

  5         providing for revoking the certification of

  6         certain minority businesses under certain

  7         circumstances; providing exceptions;

  8         prohibiting agencies from denying contractors,

  9         firms, or individuals an opportunity to compete

10         in public procurement of commodities and

11         services under certain circumstances; providing

12         for filing of certain complaints; providing

13         procedures and requirements; providing a

14         penalty for certain discrimination; amending s.

15         287.0943, F.S.; requiring the Office of

16         Supplier Diversity to accept certain businesses

17         as certified minority businesses for certain

18         purposes under certain circumstances; revising

19         the appointment criteria for the Minority

20         Business Certification Task Force; revising

21         criteria for certification of minority business

22         enterprises; requiring businesses to comply

23         with state licensing requirements for certain

24         certification; providing for review or audit of

25         certain businesses under certain circumstances;

26         providing for random reviews or audits of

27         certain business by the Office of Supplier

28         Diversity; authorizing the Auditor General to

29         review or audit certain minority businesses for

30         certain purposes; transferring the Minority

31         Business Advocacy and Assistance Office from


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                                          HB 2127, First Engrossed



  1         the Department of Labor and Employment Security

  2         to the Department of Management Services and

  3         renaming the office as the Office of Supplier

  4         Diversity; amending s. 287.09451, F.S., to

  5         conform to such transfer and renaming; amending

  6         s. 288.703, F.S.; revising certain definitions;

  7         creating s. 287.134, F.S.; providing

  8         definitions; prohibiting certain entities or

  9         affiliates from bidding on certain contracts;

10         prohibiting public entities from accepting

11         certain bids from, awarding certain contracts

12         to, or transacting business with certain

13         entities; requiring invitations to bid,

14         requests for proposals, and certain written

15         contracts to contain notice of provisions;

16         providing requirements, procedures, and

17         limitations for determinations of

18         discrimination by certain entities; providing

19         for notice and administrative hearings;

20         providing for nonapplication to certain

21         activities; amending ss. 17.11, 255.102,

22         287.012, 287.042, 287.057, and 287.9431, F.S.,

23         to conform; providing an effective date.

24

25  Be It Enacted by the Legislature of the State of Florida:

26

27         Section 1.  Section 287.094, Florida Statutes, is

28  amended to read:

29         287.094  Minority business enterprise programs; penalty

30  for discrimination and false representation.--

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                                          HB 2127, First Engrossed



  1         (1)  It is unlawful for any individual to falsely claim

  2  to be represent any entity as a minority business enterprise

  3  for purposes of qualifying for certification with any

  4  governmental certifying organization as a minority business

  5  enterprise in order to participate under a program of a state

  6  agency which is designed to assist certified minority business

  7  enterprises in the receipt of contracts with the agency for

  8  the provision of goods or services. The certification of any

  9  contractor, firm, or individual obtained by such false

10  representation shall be permanently revoked and the entity

11  shall be barred from doing business with state government for

12  a period of 36 months. Any person who violates this section is

13  guilty of a felony of the second degree, punishable as

14  provided in s. 775.082, s. 775.083, or s. 775.084.

15         (2)  Any contractor, firm, or individual which falsely

16  represents to an agency or to a contractor, pursuant to a

17  state contract, that it is a certified minority business

18  enterprise or which represents that it will use the services

19  or commodities of a certified minority business enterprise and

20  subsequently does not do so shall be in breach of contract.

21  Upon determination that a breach has occurred, all payments

22  under the contract may be immediately suspended. The

23  contractor or firm may show that it attempted through

24  reasonable and objective means and in good faith to comply

25  with the terms of the contract relating to minority business

26  enterprises but was unable to comply. If the agency determines

27  that the contractor or firm did not act in good faith, all

28  amounts paid to the contractor or firm under the state

29  contract intended for expenditure with the certified minority

30  business enterprises shall be forfeited and recoverable by the

31  Department of Legal Affairs. In addition, the contract may be


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                                          HB 2127, First Engrossed



  1  rescinded and the agency may return all goods received and

  2  recover all amounts paid under the contract.

  3         (3)  Any No contractor, firm, or individual shall be

  4  barred from doing business with state government for a period

  5  of 36 months, and shall be permanently disqualified from doing

  6  business with state government as a certified minority

  7  business enterprise, if qualified for 36 months to bid on

  8  contracts or negotiate for the rendering of professional

  9  services pursuant to s. 287.055 awarded by an agency after the

10  office determines that the contractor, firm, or individual has

11  falsely represented that it is a certified minority business

12  enterprise, or the office has determined that the contractor,

13  firm, or individual has not acted in good faith to fulfill the

14  terms of a contract calling for it to use the services or

15  commodities of a certified minority business enterprise. If

16  the Department of Legal Affairs, agency final order, or a

17  court of law determines or a court of law adjudges that a

18  person was involved in a violation of this section, knew about

19  such violation, or collaborated with a contractor or firm in

20  such violation, the person, or any contractor or firm the

21  person is employed by or affiliated with, shall be barred from

22  doing business with state government for a period of at least

23  36 months shall not be a qualified vendor for the state for at

24  least 36 months to bid on contracts or negotiate for the

25  rendering of professional services pursuant to s. 287.055

26  awarded by an agency after such determination is made.

27         (4)  No agency shall deny any contractor, firm, or

28  individual a fair opportunity to compete in the public

29  procurement of commodities and services based on race,

30  national origin, gender, religion, or physical disability,

31  which for purposes of this subsection constitutes prohibited


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                                          HB 2127, First Engrossed



  1  discrimination.  Complaints alleging prohibited discrimination

  2  by an agency in its public procurement may be filed with the

  3  Office of Supplier Diversity within 60 days after the facts

  4  giving rise to the complaint are known, or reasonably should

  5  have been discovered.  Any complaint shall be filed in

  6  writing, and must set forth the specific facts giving rise to

  7  the claim of prohibited discrimination.  The Office of

  8  Supplier Diversity shall, within 10 days, refer the complaint

  9  to the Inspector General for the agency that is the subject of

10  the complaint, who shall coordinate a prompt investigation and

11  issue written findings of fact.  These findings shall be

12  reviewed by the Chief Inspector General or his or her

13  designee, who is authorized to conduct any further

14  investigation deemed necessary or appropriate.  Upon a final

15  determination that an agency has abused its discretion by

16  engaging in prohibited discrimination, the Chief Inspector

17  General shall refer any state employee determined to have

18  participated in the prohibited discrimination for disciplinary

19  action in accordance with Chapter 60K(9), Florida

20  Administrative Code, and subsequently enacted rules, up to and

21  including termination.

22         (5)(4)  The owner of a minority business enterprise

23  that has been found guilty under subsection (1) or subsection

24  (3) shall not attempt to circumvent this section by creating a

25  new business entity for the purposes of attempting to transact

26  business in this state corporate structure.

27         Section 2.  Section 287.0943, Florida Statutes, is

28  amended to read:

29         287.0943  Certification of minority business

30  enterprises.--

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                                          HB 2127, First Engrossed



  1         (1)  A business certified by any local governmental

  2  jurisdiction or organization shall be accepted by the

  3  Department of Management Services, Office of Supplier

  4  Diversity, as a certified minority business enterprise for

  5  purposes of doing business with state government when the

  6  Office of Supplier Diversity determines that the state's

  7  minority business enterprise certification criteria are

  8  applied in the local certification process.

  9         (2)(1)(a)  The office is hereby directed to convene a

10  "Minority Business Certification Task Force." The task force

11  shall meet as often as necessary, but no less frequently than

12  annually.

13         (b)  The task force shall be regionally balanced and

14  comprised of officials representing the department, counties,

15  municipalities, school boards, special districts, and other

16  political subdivisions of the state who administer programs to

17  assist minority businesses in procurement or development in

18  government-sponsored programs. The following organizations may

19  appoint two members each of the task force who fit the

20  description above:

21         1.  The Florida League of Cities, Inc.

22         2.  The Florida Association of Counties.

23         3.  The Florida School Boards Association, Inc.

24         4.  The Association of Special Districts.

25         5.  The Florida Association of Minority Business

26  Enterprise Officials.

27         6.  The Florida Association of Government Purchasing

28  Officials.

29

30  In addition, the Minority Business Advocacy and Assistance

31  Office of Supplier Diversity shall appoint seven members


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                                          HB 2127, First Engrossed



  1  consisting of three representatives of minority business

  2  enterprises, one of whom should be a woman business owner, two

  3  officials of the office, and two at-large members to ensure

  4  balance regional, gender, racial, and ethnic balance among the

  5  groups specified in s. 288.703(3). The chairperson of the

  6  Legislative Committee on Intergovernmental Relations or a

  7  designee shall be a member of the task force, ex officio. A

  8  quorum shall consist of one-third of the current members, and

  9  the task force may take action by majority vote. Any vacancy

10  may only be filled by the organization or agency originally

11  authorized to appoint the position.

12         (c)  The purpose of the task force will be to propose

13  uniform criteria and procedures by which participating

14  entities and organizations can qualify businesses to

15  participate in procurement or contracting programs as

16  certified minority business enterprises in accordance with the

17  certification criteria established by law.

18         (d)  A final list of the criteria and procedures

19  proposed by the task force shall be considered by the

20  secretary. The task force may seek technical assistance from

21  qualified providers of technical, business, and managerial

22  expertise to ensure the reliability of the certification

23  criteria developed.

24         (e)  In assessing the status of ownership and control,

25  certification criteria shall, at a minimum:

26         1.  Link ownership by a minority person, as defined in

27  s. 288.703(3), or as dictated by the legal obligations of a

28  certifying organization, to day-to-day control and financial

29  risk by the qualifying minority owner, and to demonstrated

30  expertise or licensure licensure of a minority owner in any

31  trade or profession that the minority business enterprise will


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                                          HB 2127, First Engrossed



  1  offer to the state when certified; however, the minority

  2  licenseholder need not be the controlling owner of the

  3  enterprise, but must hold an ownership interest. Minority

  4  business enterprises presently certified by the state will not

  5  be subject to the licensure requirement until 5 years after

  6  the effective date of this act. Businesses must comply with

  7  all state licensing requirements prior to becoming certified

  8  as a minority business enterprise.

  9         2.  If present ownership was obtained by transfer,

10  require the minority person on whom eligibility is based to

11  have owned at least 51 percent of the applicant firm for a

12  minimum of 2 years, when any previous majority ownership

13  interest in the firm was by a nonminority who is or was a

14  relative, former employer, or current employer of the minority

15  person on whom eligibility is based. This requirement shall

16  not apply to minority persons who are otherwise eligible who

17  take a 51-percent-or-greater interest in a firm that requires

18  professional licensure to operate and who will be the

19  qualifying licenseholder for the firm when certified.  A

20  transfer made within a related immediate family group from a

21  nonminority person to a minority person in order to establish

22  ownership by a minority person shall be deemed to have been

23  made solely for purposes of satisfying certification criteria

24  and shall render such ownership invalid for purposes of

25  qualifying for such certification if the combined total net

26  asset value of all members of such family group exceeds $1

27  million. For purposes of this subparagraph, the term "related

28  immediate family group" means one or more children under 16

29  years of age and a parent of such children or the spouse of

30  such parent residing in the same house or living unit.

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                                          HB 2127, First Engrossed



  1         3.  Require that prospective certified minority

  2  business enterprises be currently performing or seeking to

  3  perform a useful business function. A "useful business

  4  function" is defined as a business function which results in

  5  the provision of materials, supplies, equipment, or services

  6  to customers other than state or local government. Acting as a

  7  conduit to transfer funds to a nonminority business does not

  8  constitute a useful business function unless it is done so in

  9  a normal industry practice. As used in this section, the term

10  "acting as a conduit" means, in part, not acting as a regular

11  dealer by making sales of material, goods, or supplies from

12  items bought, kept in stock, and regularly sold to the public

13  in the usual course of business. Brokers, manufacturer's

14  representatives, sales representatives, and nonstocking

15  distributors are considered as conduits that do not perform a

16  useful business function, unless normal industry practice

17  dictates.

18         (f)  When a business receives payments or awards

19  exceeding $100,000 in one fiscal year, a review of its

20  certification status or an audit will be conducted within 2

21  years.  In addition, random reviews or audits will be

22  conducted as deemed appropriate by the Office of Supplier

23  Diversity. The certification procedures should include, at a

24  minimum, an onsite visit to inspect business operations and

25  verify statements included in the application, unless

26  verification can be accomplished by other methods of adequate

27  verification or assessment of ownership and control.

28         (g)  The certification criteria approved by the task

29  force and adopted by the Department of Management Services

30  Labor and Employment Security shall be included in a statewide

31  and interlocal agreement as defined in s. 287.09431 and, in


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                                          HB 2127, First Engrossed



  1  accordance with s. 163.01, shall be executed according to the

  2  terms included therein.

  3         (h)  The certification procedures should allow an

  4  applicant seeking certification to designate on the

  5  application form the information the applicant considers to be

  6  proprietary, confidential business information. As used in

  7  this paragraph, "proprietary, confidential business

  8  information" includes, but is not limited to, any information

  9  that would be exempt from public inspection pursuant to the

10  provisions of s. 119.07(3); trade secrets; internal auditing

11  controls and reports; contract costs; or other information the

12  disclosure of which would injure the affected party in the

13  marketplace or otherwise violate s. 286.041. The executor in

14  receipt of the application shall issue written and final

15  notice of any information for which noninspection is requested

16  but not provided for by law.

17         (i)  A business that is certified under the provisions

18  of the statewide and interlocal agreement shall be deemed a

19  certified minority enterprise in all jurisdictions or

20  organizations where the agreement is in effect, and that

21  business is deemed available to do business as such within any

22  such jurisdiction or with any such organization statewide. All

23  state agencies must accept minority business enterprises

24  certified in accordance with the statewide and interlocal

25  agreement of s. 287.09431, and that business shall also be

26  deemed a "certified minority business enterprise" as defined

27  in s. 288.703. However, any governmental jurisdiction or

28  organization that administers a minority business purchasing

29  program may reserve the right to establish further

30  certification procedures necessary to comply with federal law.

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                                          HB 2127, First Engrossed



  1         (j)  The statewide and interlocal agreement shall be

  2  guided by the terms and conditions found therein and may be

  3  amended at any meeting of the task force and subsequently

  4  adopted by the secretary of the Department of Management

  5  Services Labor and Employment Security. The amended agreement

  6  must be enacted, initialed, and legally executed by at least

  7  two-thirds of the certifying entities party to the existing

  8  agreement and adopted by the state as originally executed in

  9  order to bind the certifying entity.

10         (k)  The task force shall meet for the first time no

11  later than 45 days after the effective date of this act.

12         (3)(2)(a)  The office shall review and evaluate the

13  certification programs and procedures of all prospective

14  executors of the statewide and interlocal agreement to

15  determine if their programs exhibit the capacity to meet the

16  standards of the agreement.

17         (b)  The evaluations shall, at a minimum, consider: the

18  certifying entity's capacity to conduct investigations of

19  applicants seeking certification under the designated

20  criteria; the ability of the certifying entity to collect the

21  requisite data and to establish adequate protocol to store and

22  exchange said information among the executors of the agreement

23  and to provide adequate security to prevent unauthorized

24  access to information gathered during the certification

25  process; and the degree to which any legal obligations or

26  supplemental requirements unique to the certifying entity

27  exceed the capacity of that entity to conduct certifications.

28         (c)  Any firms certified by organizations or

29  governmental entities determined not to meet the state

30  certification criteria standards of the agreement shall not be

31  eligible to participate as certified minority business


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                                          HB 2127, First Engrossed



  1  enterprises in the minority business assistance programs of

  2  the state or of the executors of the agreement. For a period

  3  of 1 year from the effective date of this legislation, the

  4  executor of the statewide and interlocal agreement may elect

  5  to accept only minority business enterprises certified

  6  pursuant to criteria in place at the time the agreement was

  7  signed.  After the 1-year period, either party may elect to

  8  withdraw from the agreement without further notice. Such a

  9  firm may subsequently apply to an executor of the agreement

10  for certification.

11         (d)  Any organizations or governmental entities

12  determined by the office not to meet the standards of the

13  agreement shall not be eligible to execute the statewide and

14  interlocal agreement as a participating organization until

15  approved by the office.

16         (e)  Any participating program receiving three or more

17  challenges to its certification decisions pursuant to

18  subsection (3) from other organizations that are executors to

19  the statewide and interlocal agreement, shall be subject to a

20  review by the office, as provided in paragraphs (a) and (b),

21  of the organization's capacity to perform under such agreement

22  and in accordance with the core criteria established by the

23  task force. The office shall submit a report to the secretary

24  of the Department of Management Services Labor and Employment

25  Security regarding the results of the review.

26         (f)  The office shall maintain a directory of all

27  executors of the statewide and interlocal agreement. The

28  directory should be communicated to the general public.

29         (4)(3)  A certification may be challenged by any

30  executor to the statewide and interlocal agreement upon the

31  grounds of failure by the certifying organization to adhere to


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                                          HB 2127, First Engrossed



  1  the adopted criteria or to the certifying organization's rules

  2  and procedures, or on the grounds of a misrepresentation or

  3  fraud by the certified minority business enterprise. The

  4  challenge shall proceed according to procedures specified in

  5  the agreement.

  6         (5)(4)(a)  The secretary of the Department of

  7  Management Services Labor and Employment Security shall

  8  execute the statewide and interlocal agreement established

  9  under s. 287.09431 on behalf of the state. The office shall

10  certify minority business enterprises in accordance with the

11  laws of this state agreement and, by affidavit, shall

12  recertify such minority business enterprises not less than

13  once each year.

14         (b)  The office shall contract with parties to the

15  statewide and interlocal agreement to perform onsite visits

16  associated with state certifications. The Minority Business

17  Advocacy and Assistance Office may perform random, onsite

18  reviews of certified minority business enterprises to

19  determine whether the applicants are meeting all certification

20  requirements of a certified minority business enterprise and

21  of a qualified vendor.

22         (6)(5)(a)  The office shall maintain up-to-date records

23  of all certified minority business enterprises, as defined in

24  s. 288.703, that are certified by a party to the statewide and

25  interlocal agreement and of applications for certification

26  that were denied and shall make this list available to all

27  agencies. The office shall, for statistical purposes, collect

28  and track subgroupings of gender and nationality status for

29  each certified minority business enterprise. Agency spending

30  shall also be tracked for these subgroups. The records may

31  include information about minority business enterprises that


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                                          HB 2127, First Engrossed



  1  provide legal services, auditing services, and health

  2  services. Agencies shall use this list in efforts to meet the

  3  minority business enterprise procurement goals set forth in s.

  4  289.09451 289.0945.

  5         (b)  The office shall establish and administer a

  6  computerized data bank to carry out the requirements of

  7  paragraph (a), to be available to all executors of the

  8  statewide and interlocal agreement. Data maintained in the

  9  data bank shall be sufficient to allow each executor to

10  reasonably monitor certifications it has issued.

11         (7)(6)  The office shall identify minority business

12  enterprises eligible for certification in all areas of state

13  services and commodities purchasing. The office may contract

14  with a private firm or other agency, if necessary, in seeking

15  to identify minority business enterprises for certification.

16  Agencies may request the office to identify certifiable

17  minority business enterprises that are in the business of

18  providing a given service or commodity; the office shall

19  respond to such requests and seek out such certifiable

20  minority business enterprises.

21         (8)(7)  The office shall adopt rules necessary to

22  implement this section.

23         (9)(8)  State agencies shall comply with this act

24  except to the extent that the requirements of this act are in

25  conflict with federal law.

26         (10)(9)  Any transfer of ownership or permanent change

27  in the management and daily operations of a certified minority

28  business enterprise which may affect certification must be

29  reported to the original certifying jurisdiction or entity and

30  to the office within 14 days of the transfer or change taking

31  place. In the event of a transfer of ownership, the transferee


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                                          HB 2127, First Engrossed



  1  seeking to do business with the state as a certified minority

  2  business enterprise is responsible for such reporting. In the

  3  event of a permanent change in the management and daily

  4  operations, owners seeking to do business with the state as a

  5  certified minority business enterprise are responsible for

  6  reporting such change to the office. Any person violating the

  7  provisions of this subsection shall be guilty of a misdemeanor

  8  of the first degree, punishable as provided in s. 775.082 or

  9  s. 775.083.

10         (11)(10)  To deter fraud in the program, the Auditor

11  General may review the criteria by which a business became

12  certified as a certified minority business enterprise these

13  certifications pursuant to s. 11.45.

14         (12)(11)  Any executor of the statewide and interlocal

15  agreement may revoke the certification or recertification of a

16  firm doing business as a certified minority business

17  enterprise if the minority business enterprise does not meet

18  the requirements of the jurisdiction or certifying entity that

19  certified or recertified the firm as a certified minority

20  business enterprise, or the requirements of subsection (1), s.

21  288.703, and any rule of the office or the Department of

22  Management Services or if the business acquired certification

23  or recertification by means of falsely representing any entity

24  as a minority business enterprise for purposes of qualifying

25  for certification or recertification.

26         (13)(12)  Unless permanently revoked, a certified

27  minority business enterprise for which certification or

28  recertification has been revoked may not apply or reapply for

29  certification or recertification for a minimum of 36 months

30  after the date of the notice of revocation.

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                                          HB 2127, First Engrossed



  1         (14)(13)(a)  Except for certification decisions issued

  2  by the Office of Supplier Diversity, an executor to the

  3  statewide and interlocal agreement shall, in accordance with

  4  its rules and procedures:

  5         1.  Give reasonable notice to affected persons or

  6  parties of its decision to deny certification based on failure

  7  to meet eligibility requirements of the statewide and

  8  interlocal agreement of s. 287.09431, together with a summary

  9  of the grounds therefor.

10         2.  Give affected persons or parties an opportunity, at

11  a convenient time and place, to present to the agency written

12  or oral evidence in opposition to the action or of the

13  executor's refusal to act.

14         3.  Give a written explanation of any subsequent

15  decision of the executor overruling the objections.

16         (b)  An applicant that is denied minority business

17  enterprise certification based on failure to meet eligibility

18  requirements of the statewide and interlocal agreement

19  pursuant to s. 287.09431 may not reapply for certification or

20  recertification until at least 6 months after the date of the

21  notice of the denial of certification or recertification.

22         (15)(14)  The office shall adopt rules in compliance

23  with this part.

24         Section 3.  Effective July 1, 2000, the Minority

25  Business Advocacy and Assistance Office is transferred by a

26  type two transfer as defined in s. 20.06(2), Florida Statutes,

27  from the Department of Labor and Employment Security to the

28  Department of Management Services and renamed as the Office of

29  Supplier Diversity. The Executive Office of the Governor shall

30  take the necessary actions to ensure the transfer of the

31  budget, as appropriated, of the Minority Business Advocacy and


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                                          HB 2127, First Engrossed



  1  Assistance Office from the Department of Labor and Employment

  2  Security to the Department of Management Services.

  3         Section 4.  Section 287.09451, Florida Statutes, is

  4  amended to read:

  5         287.09451  Minority Business Advocacy and Assistance

  6  Office of Supplier Diversity; powers, duties, and functions.--

  7         (1)  The Legislature finds that there is evidence of a

  8  systematic pattern of past and continuing racial

  9  discrimination against minority business enterprises and a

10  disparity in the availability and use of minority business

11  enterprises in the state procurement system. It is determined

12  to be a compelling state interest to rectify such

13  discrimination and disparity. Based upon statistical data

14  profiling this discrimination, the Legislature has enacted

15  race-conscious and gender-conscious remedial programs to

16  ensure minority participation in the economic life of the

17  state, in state contracts for the purchase of commodities and

18  services, and in construction contracts. The purpose and

19  intent of this section is to increase participation by

20  minority business enterprises accomplished by encouraging the

21  use of minority business enterprises and the entry of new and

22  diversified minority business enterprises into the

23  marketplace.

24         (2)  The Minority Business Advocacy and Assistance

25  Office of Supplier Diversity is established within the

26  Department of Management Services Labor and Employment

27  Security to assist minority business enterprises in becoming

28  suppliers of commodities, services, and construction to state

29  government.

30         (3)  The secretary shall appoint an executive director

31  for the Minority Business Advocacy and Assistance Office of


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                                          HB 2127, First Engrossed



  1  Supplier Diversity, who shall serve at the pleasure of the

  2  secretary.

  3         (4)  The Minority Business Advocacy and Assistance

  4  Office of Supplier Diversity shall have the following powers,

  5  duties, and functions:

  6         (a)  To adopt rules to determine what constitutes a

  7  "good faith effort" for purposes of state agency compliance

  8  with the minority business enterprise procurement goals set

  9  forth in s. 287.042. Factors which shall be considered by the

10  Minority Business Enterprise Assistance Office in determining

11  good faith effort shall include, but not be limited to:

12         1.  Whether the agency scheduled presolicitation or

13  prebid meetings for the purpose of informing minority business

14  enterprises of contracting and subcontracting opportunities.

15         2.  Whether the contractor advertised in general

16  circulation, trade association, or minority-focus media

17  concerning the subcontracting opportunities.

18         3.  Whether the agency effectively used services and

19  resources of available minority community organizations;

20  minority contractors' groups; local, state, and federal

21  minority business assistance offices; and other organizations

22  that provide assistance in the recruitment and placement of

23  minority business enterprises or minority persons.

24         4.  Whether the agency provided written notice to a

25  reasonable number of minority business enterprises that their

26  interest in contracting with the agency was being solicited in

27  sufficient time to allow the minority business enterprises to

28  participate effectively.

29         (b)  To adopt rules to determine what constitutes a

30  "good faith effort" for purposes of contractor compliance with

31  contractual requirements relating to the use of services or


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                                          HB 2127, First Engrossed



  1  commodities of a minority business enterprise under s.

  2  287.094(2). Factors which shall be considered by the Minority

  3  Business Advocacy and Assistance Office of Supplier Diversity

  4  in determining whether a contractor has made good faith

  5  efforts shall include, but not be limited to:

  6         1.  Whether the contractor attended any presolicitation

  7  or prebid meetings that were scheduled by the agency to inform

  8  minority business enterprises of contracting and

  9  subcontracting opportunities.

10         2.  Whether the contractor advertised in general

11  circulation, trade association, or minority-focus media

12  concerning the subcontracting opportunities.

13         3.  Whether the contractor provided written notice to a

14  reasonable number of specific minority business enterprises

15  that their interest in the contract was being solicited in

16  sufficient time to allow the minority business enterprises to

17  participate effectively.

18         4.  Whether the contractor followed up initial

19  solicitations of interest by contacting minority business

20  enterprises or minority persons to determine with certainty

21  whether the minority business enterprises or minority persons

22  were interested.

23         5.  Whether the contractor selected portions of the

24  work to be performed by minority business enterprises in order

25  to increase the likelihood of meeting the minority business

26  enterprise procurement goals, including, where appropriate,

27  breaking down contracts into economically feasible units to

28  facilitate minority business enterprise participation.

29         6.  Whether the contractor provided interested minority

30  business enterprises or minority persons with adequate

31


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                                          HB 2127, First Engrossed



  1  information about the plans, specifications, and requirements

  2  of the contract or the availability of jobs.

  3         7.  Whether the contractor negotiated in good faith

  4  with interested minority business enterprises or minority

  5  persons, not rejecting minority business enterprises or

  6  minority persons as unqualified without sound reasons based on

  7  a thorough investigation of their capabilities.

  8         8.  Whether the contractor effectively used the

  9  services of available minority community organizations;

10  minority contractors' groups; local, state, and federal

11  minority business assistance offices; and other organizations

12  that provide assistance in the recruitment and placement of

13  minority business enterprises or minority persons.

14         (c)  To adopt rules and do all things necessary or

15  convenient to guide all state agencies toward making

16  expenditures for commodities, contractual services,

17  construction, and architectural and engineering services with

18  certified minority business enterprises in accordance with the

19  minority business enterprise procurement goals set forth in s.

20  287.042.

21         (d)  To monitor the degree to which agencies procure

22  services, commodities, and construction from minority business

23  enterprises in conjunction with the Department of Banking and

24  Finance as specified in s. 17.11.

25         (e)  To receive and disseminate information relative to

26  procurement opportunities, availability of minority business

27  enterprises, and technical assistance.

28         (f)  To advise agencies on methods and techniques for

29  achieving procurement objectives.

30

31


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                                          HB 2127, First Engrossed



  1         (g)  To provide a central minority business enterprise

  2  certification process which includes independent verification

  3  of status as a minority business enterprise.

  4         (h)  To develop procedures to investigate complaints

  5  against minority business enterprises or contractors alleged

  6  to violate any provision related to this section or s.

  7  287.0943, that may include visits to worksites or business

  8  premises, and to refer all information on businesses suspected

  9  of misrepresenting minority status to the Department of

10  Management Services Labor and Employment Security for

11  investigation. When an investigation is completed and there is

12  reason to believe that a violation has occurred, the

13  Department of Labor and Employment Security shall refer the

14  matter to the office of the Attorney General, Department of

15  Legal Affairs, for prosecution.

16         (i)  To maintain a directory of all minority business

17  enterprises which have been certified and provide this

18  information to any agency or business requesting it.

19         (j)  To encourage all firms which do more than $1

20  million in business with the state within a 12-month period to

21  develop, implement, and submit to this office a minority

22  business development plan.

23         (k)  To communicate on a monthly basis with the Small

24  and Minority Business Advisory Council to keep the council

25  informed on issues relating to minority enterprise

26  procurement.

27         (l)  To serve as an advocate for minority business

28  enterprises, and coordinate with the small and minority

29  business ombudsman, as defined in s. 288.703, which duties

30  shall include:

31


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                                          HB 2127, First Engrossed



  1         1.  Ensuring that agencies supported by state funding

  2  effectively target the delivery of services and resources, as

  3  related to minority business enterprises.

  4         2.  Establishing standards within each industry with

  5  which the state government contracts on how agencies and

  6  contractors may provide the maximum practicable opportunity

  7  for minority business enterprises.

  8         3.  Assisting agencies and contractors by providing

  9  outreach to minority businesses, by specifying and monitoring

10  technical and managerial competence for minority business

11  enterprises, and by consulting in planning of agency

12  procurement to determine how best to provide opportunities for

13  minority business enterprises.

14         4.  Integrating technical and managerial assistance for

15  minority business enterprises with government contracting

16  opportunities.

17         (m)  To certify minority business enterprises, as

18  defined in s. 288.703, and as specified in ss. 287.0943 and

19  287.09431, and shall recertify such minority businesses not

20  less than once a year. Minority business enterprises must be

21  recertified annually by affidavit.

22         (n)1.  To develop procedures to be used by an agency in

23  identifying commodities, contractual services, architectural

24  and engineering services, and construction contracts, except

25  those architectural, engineering, construction, or other

26  related services or contracts subject to the provisions of

27  chapter 339, that could be provided by minority business

28  enterprises. Each agency is encouraged to spend 21 percent of

29  the moneys actually expended for construction contracts, 25

30  percent of the moneys actually expended for architectural and

31  engineering contracts, 24 percent of the moneys actually


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                                          HB 2127, First Engrossed



  1  expended for commodities, and 50.5 percent of the moneys

  2  actually expended for contractual services during the previous

  3  fiscal year, except for the state university construction

  4  program which shall be based upon public education capital

  5  outlay projections for the subsequent fiscal year, and

  6  reported to the Legislature pursuant to s. 216.023, for the

  7  purpose of entering into contracts with certified minority

  8  business enterprises as defined in s. 288.703(2), or approved

  9  joint ventures. However, in the event of budget reductions

10  pursuant to s. 216.221, the base amounts may be adjusted to

11  reflect such reductions. The overall spending goal for each

12  industry category shall be subdivided as follows:

13         a.  For construction contracts: 4 percent for black

14  Americans, 6 percent for Hispanic-Americans, and 11 percent

15  for American women.

16         b.  For architectural and engineering contracts: 9

17  percent for Hispanic-Americans, 1 percent for Asian-Americans,

18  and 15 percent for American women.

19         c.  For commodities: 2 percent for black Americans, 4

20  percent for Hispanic-Americans, 0.5 percent for

21  Asian-Americans, 0.5 percent for Native Americans, and 17

22  percent for American women.

23         d.  For contractual services: 6 percent for black

24  Americans, 7 percent for Hispanic-Americans, 1 percent for

25  Asian-Americans, 0.5 percent for Native Americans, and 36

26  percent for American women.

27         2.  For the purposes of commodities contracts for the

28  purchase of equipment to be used in the construction and

29  maintenance of state transportation facilities involving the

30  Department of Transportation, "minority business enterprise"

31  has the same meaning as provided in s. 288.703. "Minority


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                                          HB 2127, First Engrossed



  1  person" has the same meaning as in s. 288.703(3). In order to

  2  ensure that the goals established under this paragraph for

  3  contracting with certified minority business enterprises are

  4  met, the department, with the assistance of the Minority

  5  Business Advocacy and Assistance Office of Supplier Diversity,

  6  shall make recommendations to the Legislature on revisions to

  7  the goals, based on an updated statistical analysis, at least

  8  once every 5 years. Such recommendations shall be based on

  9  statistical data indicating the availability of and disparity

10  in the use of minority businesses contracting with the state.

11  The results of the first updated disparity study must be

12  presented to the Legislature no later than December 1, 1996.

13         3.  In determining the base amounts for assessing

14  compliance with this paragraph, the Minority Business Advocacy

15  and Assistance Office of Supplier Diversity may develop, by

16  rule, guidelines for all agencies to use in establishing such

17  base amounts. These rules must include, but are not limited

18  to, guidelines for calculation of base amounts, a deadline for

19  the agencies to submit base amounts, a deadline for approval

20  of the base amounts by the Minority Business Advocacy and

21  Assistance Office of Supplier Diversity, and procedures for

22  adjusting the base amounts as a result of budget reductions

23  made pursuant to s. 216.221.

24         4.  To determine guidelines for the use of price

25  preferences, weighted preference formulas, or other

26  preferences, as appropriate to the particular industry or

27  trade, to increase the participation of minority businesses in

28  state contracting. These guidelines shall include

29  consideration of:

30         a.  Size and complexity of the project.

31


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                                          HB 2127, First Engrossed



  1         b.  The concentration of transactions with minority

  2  business enterprises for the commodity or contractual services

  3  in question in prior agency contracting.

  4         c.  The specificity and definition of work allocated to

  5  participating minority business enterprises.

  6         d.  The capacity of participating minority business

  7  enterprises to complete the tasks identified in the project.

  8         e.  The available pool of minority business enterprises

  9  as prime contractors, either alone or as partners in an

10  approved joint venture that serves as the prime contractor.

11         5.  To determine guidelines for use of joint ventures

12  to meet minority business enterprises spending goals. For

13  purposes of this section, "joint venture" means any

14  association of two or more business concerns to carry out a

15  single business enterprise for profit, for which purpose they

16  combine their property, capital, efforts, skills, and

17  knowledge. The guidelines shall allow transactions with joint

18  ventures to be eligible for credit against the minority

19  business enterprise goals of an agency when the contracting

20  joint venture demonstrates that at least one partner to the

21  joint venture is a certified minority business enterprise as

22  defined in s. 288.703, and that such partner is responsible

23  for a clearly defined portion of the work to be performed, and

24  shares in the ownership, control, management,

25  responsibilities, risks, and profits of the joint venture.

26  Such demonstration shall be by verifiable documents and sworn

27  statements and may be reviewed by the Minority Business

28  Advocacy and Assistance Office of Supplier Diversity at or

29  before the time a contract bid is submitted. An agency may

30  count toward its minority business enterprise goals a portion

31  of the total dollar amount of a contract equal to the


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                                          HB 2127, First Engrossed



  1  percentage of the ownership and control held by the qualifying

  2  certified minority business partners in the contracting joint

  3  venture, so long as the joint venture meets the guidelines

  4  adopted by the office.

  5         (o)1.  To establish a system to record and measure the

  6  use of certified minority business enterprises in state

  7  contracting. This system shall maintain information and

  8  statistics on certified minority business enterprise

  9  participation, awards, dollar volume of expenditures and

10  agency goals, and other appropriate types of information to

11  analyze progress in the access of certified minority business

12  enterprises to state contracts and to monitor agency

13  compliance with this section. Such reporting must include, but

14  is not limited to, the identification of all subcontracts in

15  state contracting by dollar amount and by number of

16  subcontracts and the identification of the utilization of

17  certified minority business enterprises as prime contractors

18  and subcontractors by dollar amounts of contracts and

19  subcontracts, number of contracts and subcontracts, minority

20  status, industry, and any conditions or circumstances that

21  significantly affected the performance of subcontractors.

22  Agencies shall report their compliance with the requirements

23  of this reporting system at least annually and at the request

24  of the office. All agencies shall cooperate with the office in

25  establishing this reporting system. Except in construction

26  contracting, all agencies shall review contracts costing in

27  excess of CATEGORY FOUR as defined in s. 287.017 to determine

28  if such contracts could be divided into smaller contracts to

29  be separately bid and awarded, and shall, when economical,

30  offer such smaller contracts to encourage minority

31  participation.


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                                          HB 2127, First Engrossed



  1         2.  To report agency compliance with the provisions of

  2  subparagraph 1. for the preceding fiscal year to the Governor

  3  and Cabinet, the President of the Senate, the Speaker of the

  4  House of Representatives, and the secretary of the Department

  5  of Labor and Employment Security on or before February 1 of

  6  each year. The report must contain, at a minimum, the

  7  following:

  8         a.  Total expenditures of each agency by industry.

  9         b.  The dollar amount and percentage of contracts

10  awarded to certified minority business enterprises by each

11  state agency.

12         c.  The dollar amount and percentage of contracts

13  awarded indirectly to certified minority business enterprises

14  as subcontractors by each state agency.

15         d.  The total dollar amount and percentage of contracts

16  awarded to certified minority business enterprises, whether

17  directly or indirectly, as subcontractors.

18         e.  A statement and assessment of good faith efforts

19  taken by each state agency.

20         f.  A status report of agency compliance with

21  subsection (6), as determined by the Minority Business

22  Enterprise Office.

23         (5)(a)  Each agency shall, at the time the

24  specifications or designs are developed or contract sizing is

25  determined for any proposed procurement costing in excess of

26  CATEGORY FOUR, as defined in s. 287.017, forward a notice to

27  the Minority Business Advocacy and Assistance Office of

28  Supplier Diversity of the proposed procurement and any

29  determination on the designs of specifications of the proposed

30  procurement that impose requirements on prospective vendors,

31  no later than 30 days prior to the issuance of a solicitation,


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                                          HB 2127, First Engrossed



  1  except that this provision shall not apply to emergency

  2  acquisitions. The 30-day notice period shall not toll the time

  3  for any other procedural requirements.

  4         (b)  If the Minority Business Advocacy and Assistance

  5  Office of Supplier Diversity determines that the proposed

  6  procurement will not likely allow opportunities for minority

  7  business enterprises, the office may, within 20 days after it

  8  receives the information specified in paragraph (a), propose

  9  the implementation of minority business enterprise utilization

10  provisions or submit alternative procurement methods that

11  would significantly increase minority business enterprise

12  contracting opportunities.

13         (c)  Whenever the agency and the Minority Business

14  Advocacy and Assistance Office of Supplier Diversity disagree,

15  the matter shall be submitted for determination to the head of

16  the agency or the senior-level official designated pursuant to

17  this section as liaison for minority business enterprise

18  issues.

19         (d)  Should the proposed procurement proceed to

20  competitive bidding, the office is hereby granted standing to

21  protest, pursuant to this section, in a timely manner, any

22  contract award in competitive bidding for contractual services

23  and construction contracts that fail to include minority

24  business enterprise participation, if any responding bidder

25  has demonstrated the ability to achieve any level of

26  participation, or, any contract award for commodities where, a

27  reasonable and economical opportunity to reserve a contract,

28  statewide or district level, for minority participation was

29  not executed or, an agency failed to adopt an applicable

30  preference for minority participation. The bond requirement

31  shall be waived for the office purposes of this subsection.


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                                          HB 2127, First Engrossed



  1         (e)  An agency may presume that a bidder offering no

  2  minority participation has not made a good faith effort when

  3  other bidders offer minority participation of firms listed as

  4  relevant to the agency's purchasing needs in the pertinent

  5  locality or statewide to complete the project.

  6         (f)  Paragraph (a) will not apply when the Minority

  7  Business Advocacy and Assistance Office of Supplier Diversity

  8  determines that an agency has established a work plan to allow

  9  advance consultation and planning with minority business

10  enterprises and where such plan clearly demonstrates:

11         1.  A high level of advance planning by the agency with

12  minority business enterprises.

13         2.  A high level of accessibility, knowledge, and

14  experience by minority business enterprises in the agency's

15  contract decisionmaking process.

16         3.  A high quality of agency monitoring and enforcement

17  of internal implementation of minority business utilization

18  provisions.

19         4.  A high quality of agency monitoring and enforcement

20  of contractor utilization of minority business enterprises,

21  especially tracking subcontractor data, and ensuring the

22  integrity of subcontractor reporting.

23         5.  A high quality of agency outreach, agency

24  networking of major vendors with minority vendors, and

25  innovation in techniques to improve utilization of minority

26  business enterprises.

27         6.  Substantial commitment, sensitivity, and proactive

28  attitude by the agency head and among the agency minority

29  business staff.

30         (6)  Each state agency shall coordinate its minority

31  business enterprise procurement activities with the Minority


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                                          HB 2127, First Engrossed



  1  Business Advocacy and Assistance Office of Supplier Diversity.

  2  At a minimum, each agency shall:

  3         (a)  Adopt a minority business enterprise utilization

  4  plan for review and approval by the Minority Business Advocacy

  5  and Assistance Office of Supplier Diversity which should

  6  require meaningful and useful methods to attain the

  7  legislative intent in assisting minority business enterprises.

  8         (b)  Designate a senior-level employee in the agency as

  9  a minority enterprise assistance officer, responsible for

10  overseeing the agency's minority business utilization

11  activities, and who is not also charged with purchasing

12  responsibility. A senior-level agency employee and agency

13  purchasing officials shall be accountable to the agency head

14  for the agency's minority business utilization performance.

15  The Minority Business Advocacy and Assistance Office of

16  Supplier Diversity shall advise each agency on compliance

17  performance.

18         (c)  If an agency deviates significantly from its

19  utilization plan in 2 consecutive or 3 out of 5 total fiscal

20  years, the Minority Business Advocacy and Assistance Office of

21  Supplier Diversity may review any and all solicitations and

22  contract awards of the agency as deemed necessary until such

23  time as the agency meets its utilization plan.

24         Section 5.  Subsections (1), (4), (5), (6), and (8) of

25  section 288.703, Florida Statutes, are amended to read:

26         288.703  Definitions.--As used in this act, the

27  following words and terms shall have the following meanings

28  unless the content shall indicate another meaning or intent:

29         (1)  "Small business" means an independently owned and

30  operated business concern that employs 200 100 or fewer

31  permanent full-time employees and that, together with its


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                                          HB 2127, First Engrossed



  1  affiliates, has a net worth of not more than $5 $3 million or

  2  any firm based in this state which has a Small Business

  3  Administration 8(a) certification and an average net income

  4  after federal income taxes, excluding any carryover losses,

  5  for the preceding 2 years of not more than $2 million. As

  6  applicable to sole proprietorships, the $5 $3 million net

  7  worth requirement shall include both personal and business

  8  investments.

  9         (4)  "Certified minority business enterprise" means a

10  business which has been certified by the certifying

11  organization or jurisdiction in accordance with s. 287.0943(1)

12  and (2).

13         (5)  "Department" means the Department of Management

14  Services Labor and Employment Security.

15         (6)  "Ombudsman" means an office or individual whose

16  responsibilities include coordinating with the Minority

17  Business Advocacy and Assistance Office of Supplier Diversity

18  for the interests of and providing assistance to small and

19  minority business enterprises in dealing with governmental

20  agencies and in developing proposals for changes in state

21  agency rules.

22         (8)  "Secretary" means the secretary of the Department

23  of Management Services Labor and Employment Security.

24         Section 6.  Section 287.134, Florida Statutes, is

25  created to read:

26         287.134  Discrimination; denial or revocation of the

27  right to transact business with public entities.--

28         (1)  As used in this section:

29         (a)  "Affiliate" means:

30         1.  A predecessor or successor of an entity that

31  discriminated; or


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                                          HB 2127, First Engrossed



  1         2.  An entity under the control of any natural person

  2  or entity that is active in the management of the entity that

  3  discriminated.  The term "affiliate" includes those officers,

  4  directors, executives, partners, shareholders, employees,

  5  members, and agents who are active in the management of an

  6  affiliate.  The ownership by one entity of shares constituting

  7  a controlling interest in another entity, or a pooling of

  8  equipment or income among entities when not for fair market

  9  value under an arm's length agreement, shall be a prima facie

10  case that one entity controls another entity.

11         (b)  "Discrimination" or "discriminated" means a

12  determination of liability by a state circuit court or federal

13  district court for a violation of any state or federal law

14  prohibiting discrimination on the basis of race, gender,

15  national origin, disability, or religion by an entity; if an

16  appeal is made, the determination of liability does not occur

17  until the completion of any appeals to a higher tribunal.

18         (c)  "Discriminatory vendor list" means the list

19  required to be kept by the department pursuant to paragraph

20  (3)(d).

21         (d)  "Department" means the Department of Management

22  Services.

23         (e)  "Entity" means any natural person or any entity

24  organized under the laws of any state or of the United States

25  with the legal power to enter into a binding contract and

26  which bids or applies to bid on contracts let by a public

27  entity, or which otherwise transacts or applies to transact

28  business with a public entity.

29         (f)  "Public entity" means this state and any

30  department or agency of this state.

31


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                                          HB 2127, First Engrossed



  1         (g)  "Senior Management" includes chief executive

  2  officers; assistant chief executive officers, including, but

  3  not limited to, assistant presidents, vice presidents, or

  4  assistant treasurers; chief financial officers; chief

  5  personnel officers; or any employee of an entity performing

  6  similar functions.

  7         (2)(a)  An entity or affiliate who has been placed on

  8  the discriminatory vendor list may not submit a bid on a

  9  contract to provide any goods or services to a public entity,

10  may not submit a bid on a contract with a public entity for

11  the construction or repair of a public building or public

12  work, may not submit bids on leases of real property to a

13  public entity, may not be awarded or perform work as a

14  contractor, supplier, subcontractor, or consultant under a

15  contract with any public entity, and may not transact business

16  with any public entity.

17         (b)  No public entity shall accept any bid from, award

18  any contract to, or transact any business with any entity or

19  affiliate on the discriminatory vendor list for a period of 36

20  months from the date that entity or affiliate was placed on

21  the discriminatory vendor list unless that entity or affiliate

22  has been removed from the list pursuant to paragraph (3)(f).

23  No public entity which was transacting business with an entity

24  at the time of the discrimination which resulted in that

25  entity being placed on the discriminatory vendor list shall

26  accept any bid from, award any contract to, or transact any

27  business with any other entity who is under the same, or

28  substantially the same, control as the entity whose name

29  appears on the discriminatory vendor list so long as that

30  entity's name appears on the discriminatory vendor list.

31


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                                          HB 2127, First Engrossed



  1         (3)(a)  All invitations to bid, as defined by s.

  2  287.012(11), requests for proposals, as defined by s.

  3  287.012(15), and any written contract document of the state

  4  shall contain a statement informing entities of the provisions

  5  of paragraph (2)(a).

  6         (b)  An entity must notify the department within 30

  7  days after a final determination of discrimination.  Any

  8  public entity which receives information that an entity has

  9  discriminated shall transmit that information to the

10  department in writing within 10 days.  Before entering into

11  any contract with the state, all entities shall disclose to

12  the department whether they have been found liable, in a state

13  circuit court or federal court, for violation of any state or

14  federal law prohibiting discrimination based on race, gender,

15  national origin, disability, or religion.

16         (c)  The department shall maintain a list of the names

17  and addresses of any entity which has been disqualified from

18  the public contracting and purchasing process under this

19  section.  The department shall publish an initial list on

20  January 1, 2001, and shall publish an updated version of the

21  list quarterly thereafter.  The initial list and revised

22  quarterly lists shall be published in the Florida

23  Administrative Weekly.  Notwithstanding this paragraph, an

24  entity or affiliate disqualified from the public contracting

25  and purchasing process pursuant to this section shall be

26  disqualified as of the date the final order is entered.

27         (d)1.  Upon receiving reasonable information from any

28  source that an entity has discriminated, the department shall

29  investigate the information and determine whether good cause

30  exists to place that entity or an affiliate of that entity on

31  the discriminatory vendor list.  If good cause exists, the


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                                          HB 2127, First Engrossed



  1  department shall notify the entity or affiliate in writing of

  2  its intent to place the name of that entity or affiliate on

  3  the discriminatory vendor list, and of the entity's or

  4  affiliate's right to a hearing, the procedure that must be

  5  followed, and the applicable time requirements.  If the entity

  6  of affiliate does not request a hearing, the department shall

  7  enter a final order placing the name of the entity or

  8  affiliate on the discriminatory vendor list.  No entity or

  9  affiliate may be placed on the discriminatory vendor list

10  without receiving an individual notice of intent from the

11  department.

12         2.  Within 21 days after receipt of the notice of

13  intent, the entity or affiliate may file a petition for a

14  formal hearing pursuant to ss. 120.569 and 120.57(1) to

15  determine whether it is in the public interest for that entity

16  or affiliate to be placed on the discriminatory vendor list.

17  An entity or affiliate may not file a petition for an informal

18  hearing under s. 120.57(2). The procedures of chapter 120

19  shall apply to any formal hearing under this section except

20  where they are in conflict with the following provisions:

21         a.  The petition shall be filed with the department.

22  The department shall be a party to the proceeding for all

23  purposes.

24         b.  Within 5 days after the filing of the petition, the

25  department shall notify the Division of Administrative

26  Hearings of the request for a formal hearing.  The director of

27  the Division of Administrative Hearings shall, within 5 days

28  after receipt of notice from the department, assign an

29  administrative law judge to preside over the proceeding.  The

30  administrative law judge, upon request by a party, may

31  consolidate related proceedings.


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                                          HB 2127, First Engrossed



  1         c.  The administrative law judge shall conduct the

  2  formal hearing within 30 days after being assigned, unless

  3  otherwise stipulated by the parties.

  4         d.  Within 30 days after the formal hearing or receipt

  5  of the hearing transcript, whichever is later, the

  6  administrative law judge shall enter a final order, which

  7  shall consist of findings of fact, conclusions of law,

  8  interpretation of agency rules, and any other information

  9  required by law or rule to be contained in the final order.

10  Such final order shall place or not place the entity or

11  affiliate on the discriminatory vendor list.

12         e.  The final order of the administrative law judge

13  shall be final agency action for purposes of s. 120.68.

14         f.  At any time after the filing of the petition,

15  informal disposition may be made pursuant to s. 120.57(4).  In

16  that event, the administrative law judge shall enter a final

17  order adopting the stipulation, agreed settlement, or consent

18  order.

19         3.  It shall not be in the public interest to place an

20  entity or affiliate on the discriminatory vendor list if:

21         a.  Discrimination did not occur;

22         b.  The discrimination was committed by an employee of

23  the entity or affiliate other than senior management; or

24         c.  The member of senior management responsible for the

25  discrimination is no longer an employee of the entity or

26  affiliate.

27         4.  In determining whether it is in the public interest

28  to place an entity or affiliate on the discriminatory vendor

29  list, the administrative law judge shall consider the

30  following factors:

31         a.  The nature and details of the discrimination.


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                                          HB 2127, First Engrossed



  1         b.  The degree of culpability of the entity or

  2  affiliate proposed to be placed on the discriminatory vendor

  3  list.

  4         c.  The prompt or voluntary payment of any damages or

  5  penalty as a result of the discrimination.

  6         d.  Prior or future self-policing by the entity or

  7  affiliate to prevent discrimination.

  8         e.  Compliance by the entity or affiliate with the

  9  notification provisions of paragraph (b).

10         f.  The needs of public entities for additional

11  competition in the procurement of goods and services in their

12  respective markets.

13         g.  Mitigation based upon any demonstration of good

14  citizenship by the entity or affiliate.

15         5.  In any proceeding under this section, the

16  department shall be required to prove by clear and convincing

17  evidence that it is in the public interest for the entity to

18  which the department has given notice under this section to be

19  placed on the discriminatory vendor list.  Proof of

20  discrimination by the entity or a person or entity which is an

21  affiliate of such entity shall constitute a prima facie case

22  that it is in the public interest for the entity or affiliate

23  to which the department has given notice to be put on the

24  discriminatory vendor list.  Status as an affiliate must be

25  proven by clear and convincing evidence.

26         6.  Any entity or affiliate which has been notified by

27  the department of the department's intent to place the

28  entity's or affiliate's name on the discriminatory vendor list

29  may offer evidence on any relevant issue.  Upon establishment

30  of a prima facie case that it is in the public interest for

31  the entity or affiliate to which the department has given


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                                          HB 2127, First Engrossed



  1  notice to be put on the discriminatory vendor list, that

  2  entity or affiliate may prove by a preponderance of the

  3  evidence that it would not be in the public interest to put

  4  such entity on the discriminatory vendor list, based upon

  5  evidence addressing the factors in subparagraphs 3. and 4.

  6         (e)1.  An entity on the discriminatory vendor list may

  7  petition for removal from the list no sooner than 6 months

  8  from the date a final order is entered disqualifying that

  9  entity from the public purchasing and contracting process

10  pursuant to this section.  The petition shall be filed with

11  the department and the proceeding shall be conducted pursuant

12  to the procedures and requirements of this subsection.

13         2.  An entity may be removed from the discriminatory

14  vendor list subject to such terms and conditions as may be

15  prescribed by the administrative law judge upon a

16  determination that removal is in the public interest.  In

17  determining whether removal would be in the public interest,

18  the administrative law judge shall give consideration to any

19  relevant factors, including, but not limited to, the factors

20  identified in subparagraphs 3. and 4.

21         3.  If a petition for removal is denied, the entity or

22  affiliate may not petition for another hearing on removal for

23  a period of 9 months after the date of denial.  The department

24  may petition for removal prior to the the expiration of such

25  period if, in the department's discretion, the department

26  determines that removal would be in the public interest.

27         (4)  Placement on the discriminatory vendor list shall

28  not affect any rights or obligations under any contract,

29  franchise, or other binding agreement which predates such

30  conviction or placement on the discriminatory vendor list.

31


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                                          HB 2127, First Engrossed



  1         (5)  The provisions of this section do not apply to any

  2  activities regulated by the Florida Public Service Commission

  3  or to the purchase of goods or services made by any public

  4  entity from the Department of Corrections, from the nonprofit

  5  corporation organized under chapter 946, or from any

  6  accredited nonprofit workshop certified under ss.

  7  413.032-413.037.

  8         Section 7.  Subsection (2) of section 17.11, Florida

  9  Statutes, is amended to read:

10         17.11  To report disbursements made.--

11         (2)  The Comptroller shall also cause to have reported

12  from the Florida Accounting Information Resource Subsystem no

13  less than quarterly the disbursements which agencies made to

14  small businesses, as defined in the Florida Small and Minority

15  Business Assistance Act of 1985; to certified minority

16  business enterprises in the aggregate; and to certified

17  minority business enterprises broken down into categories of

18  minority persons, as well as gender and nationality subgroups.

19  This information shall be made available to the agencies, the

20  Minority Business Advocacy and Assistance Office of Supplier

21  Diversity, the Governor, the President of the Senate, and the

22  Speaker of the House of Representatives. Each agency shall be

23  responsible for the accuracy of information entered into the

24  Florida Accounting Information Resource Subsystem for use in

25  this reporting.

26         Section 8.  Subsections (1) and (2) of section 255.102,

27  Florida Statutes, are amended to read:

28         255.102  Contractor utilization of minority business

29  enterprises.--

30         (1)  Agencies shall consider the use of price

31  preferences, weighted preference formulas, or other


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                                          HB 2127, First Engrossed



  1  preferences for construction contracts, as determined

  2  appropriate by the Minority Business Advocacy and Assistance

  3  Office of Supplier Diversity in collaboration with the

  4  Department of Management Services to increase minority

  5  participation.

  6         (2)  The Minority Business Advocacy and Assistance

  7  Office of Supplier Diversity, in collaboration with the

  8  Department of Management Services and the State University

  9  System, shall adopt rules to determine what is a "good faith

10  effort" for purposes of contractor compliance with minority

11  participation goals established for competitively awarded

12  building and construction projects. Pro forma efforts shall

13  not be considered good faith. Factors which shall be

14  considered by the state agency in determining whether a

15  contractor has made good faith efforts shall include, but not

16  be limited to:

17         (a)  Whether the contractor attended any

18  presolicitation or prebid meetings that were scheduled by the

19  agency to inform minority business enterprises of contracting

20  and subcontracting opportunities.

21         (b)  Whether the contractor advertised in general

22  circulation, trade association, or minority-focus media

23  concerning the subcontracting opportunities.

24         (c)  Whether the contractor provided written notice to

25  all relevant subcontractors listed on the minority vendor list

26  for that locality and statewide as provided by the agency as

27  of the date of issuance of the invitation to bid, that their

28  interest in the contract was being solicited in sufficient

29  time to allow the minority business enterprises to participate

30  effectively.

31


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                                          HB 2127, First Engrossed



  1         (d)  Whether the contractor followed up initial

  2  solicitations of interest by contacting minority business

  3  enterprises, the Minority Business Advocacy and Assistance

  4  Office of Supplier Diversity, or minority persons who

  5  responded and provided detailed information about prebid

  6  meetings, access to plans, specifications, contractor's

  7  project manager, subcontractor bonding, if any, payment

  8  schedule, bid addenda, and other assistance provided by the

  9  contractor to enhance minority business enterprise

10  participation.

11         (e)  Whether the contractor selected portions of the

12  work to be performed by minority business enterprises in order

13  to increase the likelihood of meeting the minority business

14  enterprise procurement goals, including, where appropriate,

15  breaking down contracts into economically feasible units to

16  facilitate minority business enterprise participation under

17  reasonable and economical conditions of performance.

18         (f)  Whether the contractor provided the Minority

19  Business Advocacy and Assistance Office of Supplier Diversity

20  as well as interested minority business enterprises or

21  minority persons with adequate information about the plans,

22  specifications, and requirements of the contract or the

23  availability of jobs at a time no later than when such

24  information was provided to other subcontractors.

25         (g)  Whether the contractor negotiated in good faith

26  with interested minority business enterprises or minority

27  persons, not rejecting minority business enterprises or

28  minority persons as unqualified without sound reasons based on

29  a thorough investigation of their capabilities or imposing

30  implausible conditions of performance on the contract.

31


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                                          HB 2127, First Engrossed



  1         (h)  Whether the contractor diligently seeks to replace

  2  a minority business enterprise subcontractor that is unable to

  3  perform successfully with another minority business

  4  enterprise.

  5         (i)  Whether the contractor effectively used the

  6  services of available minority community organizations;

  7  minority contractors' groups; local, state, and federal

  8  minority business assistance offices; and other organizations

  9  that provide assistance in the recruitment and placement of

10  minority business enterprises or minority persons.

11         (3)  If an agency considers any other criteria in

12  determining whether a contractor has made a good faith effort,

13  the agency shall adopt such criteria in accordance with s.

14  120.54, and, where required by that section, by rule, after

15  May 31, 1994. In adopting such criteria, the agency shall

16  identify the specific factors in as objective a manner as

17  possible to be used to assess a contractor's performance

18  against said criteria.

19         (4)  Notwithstanding the provisions of s. 287.0945 to

20  the contrary, agencies shall monitor good faith efforts of

21  contractors in competitively awarded building and construction

22  projects, in accordance with rules established pursuant to

23  this section. It is the responsibility of the contractor to

24  exercise good faith efforts in accordance with rules

25  established pursuant to this section, and to provide

26  documentation necessary to assess efforts to include minority

27  business participation.

28         Section 9.  Subsection (19) of section 287.012, Florida

29  Statutes, is amended to read:

30         287.012  Definitions.--The following definitions shall

31  apply in this part:


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                                          HB 2127, First Engrossed



  1         (19)  "Office" means the Minority Business Advocacy and

  2  Assistance Office of Supplier Diversity of the Department of

  3  Management Services Labor and Employment Security.

  4         Section 10.  Paragraphs (a) and (c) of subsection (2)

  5  and paragraphs (b) and (c) of subsection (4) of section

  6  287.042, Florida Statutes, are amended to read:

  7         287.042  Powers, duties, and functions.--The department

  8  shall have the following powers, duties, and functions:

  9         (2)(a)  To plan and coordinate purchases in volume and

10  to negotiate and execute purchasing agreements and contracts

11  for commodities and contractual services under which state

12  agencies shall make purchases pursuant to s. 287.056, and

13  under which a federal, county, municipality, institutions

14  qualified pursuant to s. 240.605, private nonprofit community

15  transportation coordinator designated pursuant to chapter 427,

16  while conducting business related solely to the Commission for

17  the Transportation Disadvantaged, or other local public agency

18  may make purchases. The department may restrict purchases from

19  some term contracts to state agencies only for those term

20  contracts where the inclusion of other governmental entities

21  will have an adverse effect on competition or to those federal

22  facilities located in this state. In such planning or

23  purchasing the Minority Business Advocacy and Assistance

24  Office of Supplier Diversity may monitor to ensure that

25  opportunities are afforded for contracting with minority

26  business enterprises. The department, for state term

27  contracts, and all agencies, for multiyear contractual

28  services or term contracts, shall explore reasonable and

29  economical means to utilize certified minority business

30  enterprises. Purchases by any county, municipality, private

31  nonprofit community transportation coordinator designated


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                                          HB 2127, First Engrossed



  1  pursuant to chapter 427, while conducting business related

  2  solely to the Commission for the Transportation Disadvantaged,

  3  or other local public agency under the provisions in the state

  4  purchasing contracts, and purchases, from the corporation

  5  operating the correctional work programs, of products or

  6  services that are subject to paragraph (1)(f), are exempt from

  7  the competitive sealed bid requirements otherwise applying to

  8  their purchases.

  9         (c)  Any person who files an action protesting a

10  decision or intended decision pertaining to contracts

11  administered by the department or a state agency pursuant to

12  s. 120.57(3)(b) shall post with the department or the state

13  agency at the time of filing the formal written protest a bond

14  payable to the department or state agency in an amount equal

15  to 1 percent of the department's or the state agency's

16  estimate of the total volume of the contract or $5,000,

17  whichever is less, which bond shall be conditioned upon the

18  payment of all costs which may be adjudged against him or her

19  in the administrative hearing in which the action is brought

20  and in any subsequent appellate court proceeding. For protests

21  of decisions or intended decisions of the department

22  pertaining to agencies' requests for approval of exceptional

23  purchases, the bond shall be in an amount equal to 1 percent

24  of the requesting agency's estimate of the contract amount for

25  the exceptional purchase requested or $5,000, whichever is

26  less. In lieu of a bond, the department or state agency may,

27  in either case, accept a cashier's check or money order in the

28  amount of the bond. If, after completion of the administrative

29  hearing process and any appellate court proceedings, the

30  agency prevails, it shall recover all costs and charges which

31  shall be included in the final order or judgment, excluding


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                                          HB 2127, First Engrossed



  1  attorney's fees. This section shall not apply to protests

  2  filed by the Minority Business Advocacy and Assistance Office

  3  of Supplier Diversity. Upon payment of such costs and charges

  4  by the person protesting the award, the bond, cashier's check,

  5  or money order shall be returned to him or her. If the person

  6  protesting the award prevails, he or she shall recover from

  7  the agency all costs and charges which shall be included in

  8  the final order of judgment, excluding attorney's fees.

  9         (4)  To establish a system of coordinated, uniform

10  procurement policies, procedures, and practices to be used by

11  agencies in acquiring commodities and contractual services,

12  which shall include, but not be limited to:

13         (b)  Development of procedures for the releasing of

14  requests for proposals, invitations to bid, and other

15  competitive acquisitions which procedures shall include, but

16  are not limited to, notice by publication in the Florida

17  Administrative Weekly, on Government Services Direct, or by

18  mail at least 10 days before the date set for submittal of

19  proposals or bids. The Minority Business Advocacy and

20  Assistance Office of Supplier Diversity may consult with

21  agencies regarding the development of bid distribution

22  procedures to ensure that maximum distribution is afforded to

23  certified minority business enterprises as defined in s.

24  288.703.

25         (c)  Development of procedures for the receipt and

26  opening of bids or proposals by an agency. Such procedures

27  shall provide the Minority Business Advocacy and Assistance

28  Office of Supplier Diversity an opportunity to monitor and

29  ensure that the contract award is consistent with the original

30  request for proposal or invitation to bid, in accordance with

31


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                                          HB 2127, First Engrossed



  1  s. 287.0945(6), and subject to the review of bid responses

  2  within standard timelines.

  3         Section 11.  Subsection (5) and paragraph (a) of

  4  subsection (6) of section 287.057, Florida Statutes, are

  5  amended to read:

  6         287.057  Procurement of commodities or contractual

  7  services.--

  8         (5)  Upon issuance of any invitation to bid or request

  9  for proposals, an agency shall forward to the department one

10  copy of each invitation to bid or request for proposals for

11  all commodity and contractual services purchases in excess of

12  the threshold amount provided in s. 287.017 for CATEGORY TWO.

13  An agency shall also, upon request, furnish a copy of all

14  competitive sealed bid or competitive sealed proposal

15  tabulations. The Minority Business Advocacy and Assistance

16  Office of Supplier Diversity may also request from the

17  agencies any information submitted to the department pursuant

18  to this subsection.

19         (6)(a)  In order to strive to meet the minority

20  business enterprise procurement goals set forth in s.

21  287.0945, an agency may reserve any contract for competitive

22  sealed bidding only among certified minority business

23  enterprises. Agencies shall review all their contracts each

24  fiscal year and shall determine which contracts may be

25  reserved for bidding only among certified minority business

26  enterprises. This reservation may only be used when it is

27  determined, by reasonable and objective means, before the

28  invitation to bid that there are capable, qualified certified

29  minority business enterprises available to bid on a contract

30  to provide for effective competition. The Minority Business

31  Advocacy and Assistance Office of Supplier Diversity shall


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                                          HB 2127, First Engrossed



  1  consult with any agency in reaching such determination when

  2  deemed appropriate.

  3         Section 12.  Section 287.09431, Florida Statutes, is

  4  amended to read:

  5         287.09431  Statewide and interlocal agreement on

  6  certification of business concerns for the status of minority

  7  business enterprise.--The statewide and interlocal agreement

  8  on certification of business concerns for the status of

  9  minority business enterprise is hereby enacted and entered

10  into with all jurisdictions or organizations legally joining

11  therein. If, within 2 years from the date that the

12  certification core criteria are approved by the Department of

13  Labor and Employment Security, the agreement included herein

14  is not executed by a majority of county and municipal

15  governing bodies that administer a minority business

16  assistance program on the effective date of this act, then the

17  Legislature shall review this agreement. It is the intent of

18  the Legislature that if the agreement is not executed by a

19  majority of the requisite governing bodies, then a statewide

20  uniform certification process should be adopted, and that said

21  agreement should be repealed and replaced by a mandatory state

22  government certification process.

23

24                            ARTICLE I

25

26         PURPOSE, FINDINGS, AND POLICY.--

27         (1)  The parties to this agreement, desiring by common

28  action to establish a uniform certification process in order

29  to reduce the multiplicity of applications by business

30  concerns to state and local governmental programs for minority

31  business assistance, declare that it is the policy of each of


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                                          HB 2127, First Engrossed



  1  them, on the basis of cooperation with one another, to remedy

  2  social and economic disadvantage suffered by certain groups,

  3  resulting in their being historically underutilized in

  4  ownership and control of commercial enterprises. Thus, the

  5  parties seek to address this history by increasing the

  6  participation of the identified groups in opportunities

  7  afforded by government procurement.

  8         (2)  The parties find that the State of Florida

  9  presently certifies firms for participation in the minority

10  business assistance programs of the state. The parties find

11  further that some counties, municipalities, school boards,

12  special districts, and other divisions of local government

13  require a separate, yet similar, and in most cases redundant

14  certification in order for businesses to participate in the

15  programs sponsored by each government entity.

16         (3)  The parties find further that this redundant

17  certification has proven to be unduly burdensome to the

18  minority-owned firms intended to benefit from the underlying

19  purchasing incentives.

20         (4)  The parties agree that:

21         (a)  They will facilitate integrity, stability, and

22  cooperation in the statewide and interlocal certification

23  process, and in other elements of programs established to

24  assist minority-owned businesses.

25         (b)  They shall cooperate with agencies, organizations,

26  and associations interested in certification and other

27  elements of minority business assistance.

28         (c)  It is the purpose of this agreement to provide for

29  a uniform process whereby the status of a business concern may

30  be determined in a singular review of the business information

31  for these purposes, in order to eliminate any undue expense,


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                                          HB 2127, First Engrossed



  1  delay, or confusion to the minority-owned businesses in

  2  seeking to participate in the minority business assistance

  3  programs of state and local jurisdictions.

  4

  5                            ARTICLE II

  6

  7         DEFINITIONS.--As used in this agreement and contracts

  8  made pursuant to it, unless the context clearly requires

  9  otherwise:

10         (1)  "Awarding organization" means any political

11  subdivision or organization authorized by law, ordinance, or

12  agreement to enter into contracts and for which the governing

13  body has entered into this agreement.

14         (2)  "Department" means the Department of Labor and

15  Employment Security.

16         (3)  "Minority" means a person who is a lawful,

17  permanent resident of the state, having origins in one of the

18  minority groups as described and adopted by the Department of

19  Labor and Employment Security, hereby incorporated by

20  reference.

21         (4)  "Minority business enterprise" means any small

22  business concern as defined in subsection (6) that meets all

23  of the criteria described and adopted by the Department of

24  Labor and Employment Security, hereby incorporated by

25  reference.

26         (5)  "Participating state or local organization" means

27  any political subdivision of the state or organization

28  designated by such that elects to participate in the

29  certification process pursuant to this agreement, which has

30  been approved according to s. 287.0943(3)(2) and has legally

31  entered into this agreement.


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                                          HB 2127, First Engrossed



  1         (6)  "Small business concern" means an independently

  2  owned and operated business concern which is of a size and

  3  type as described and adopted by vote related to this

  4  agreement of the commission, hereby incorporated by reference.

  5

  6                           ARTICLE III

  7

  8         STATEWIDE AND INTERLOCAL CERTIFICATIONS.--

  9         (1)  All awarding organizations shall accept a

10  certification granted by any participating organization which

11  has been approved according to s. 287.0943(3)(2) and has

12  entered into this agreement, as valid status of minority

13  business enterprise.

14         (2)  A participating organization shall certify a

15  business concern that meets the definition of minority

16  business enterprise in this agreement, in accordance with the

17  duly adopted eligibility criteria.

18         (3)  All participating organizations shall issue notice

19  of certification decisions granting or denying certification

20  to all other participating organizations within 14 days of the

21  decision. Such notice may be made through electronic media.

22         (4)  No certification will be granted without an onsite

23  visit to verify ownership and control of the prospective

24  minority business enterprise, unless verification can be

25  accomplished by other methods of adequate verification or

26  assessment of ownership and control.

27         (5)  The certification of a minority business

28  enterprise pursuant to the terms of this agreement shall not

29  be suspended, revoked, or otherwise impaired except on any

30  grounds which would be sufficient for revocation or suspension

31


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                                          HB 2127, First Engrossed



  1  of a certification in the jurisdiction of the participating

  2  organization.

  3         (6)  The certification determination of a party may be

  4  challenged by any other participating organization by the

  5  issuance of a timely written notice by the challenging

  6  organization to the certifying organization's determination

  7  within 10 days of receiving notice of the certification

  8  decision, stating the grounds therefor.

  9         (7)  The sole accepted grounds for challenge shall be

10  the failure of the certifying organization to adhere to the

11  adopted criteria or the certifying organization's rules or

12  procedures, or the perpetuation of a misrepresentation or

13  fraud by the firm.

14         (8)  The certifying organization shall reexamine its

15  certification determination and submit written notice to the

16  applicant and the challenging organization of its findings

17  within 30 days after the receipt of the notice of challenge.

18         (9)  If the certification determination is affirmed,

19  the challenging agency may subsequently submit timely written

20  notice to the firm of its intent to revoke certification of

21  the firm.

22

23                            ARTICLE IV

24

25         APPROVED AND ACCEPTED PROGRAMS.--Nothing in this

26  agreement shall be construed to repeal or otherwise modify any

27  ordinance, law, or regulation of a party relating to the

28  existing minority business assistance provisions and

29  procedures by which minority business enterprises participate

30  therein.

31


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                                          HB 2127, First Engrossed



  1                            ARTICLE V

  2

  3         TERM.--The term of the agreement shall be 5 years,

  4  after which it may be reexecuted by the parties.

  5

  6                            ARTICLE VI

  7

  8         AGREEMENT EVALUATION.--The designated state and local

  9  officials may meet from time to time as a group to evaluate

10  progress under the agreement, to formulate recommendations for

11  changes, or to propose a new agreement.

12

13                           ARTICLE VII

14

15         OTHER ARRANGEMENTS.--Nothing in this agreement shall be

16  construed to prevent or inhibit other arrangements or

17  practices of any party in order to comply with federal law.

18

19                           ARTICLE VIII

20

21         EFFECT AND WITHDRAWAL.--

22         (1)  This agreement shall become effective when

23  properly executed by a legal representative of the

24  participating organization, when enacted into the law of the

25  state and after an ordinance or other legislation is enacted

26  into law by the governing body of each participating

27  organization. Thereafter it shall become effective as to any

28  participating organization upon the enactment of this

29  agreement by the governing body of that organization.

30         (2)  Any party may withdraw from this agreement by

31  enacting legislation repealing the same, but no such


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                                          HB 2127, First Engrossed



  1  withdrawal shall take effect until one year after the

  2  governing body of the withdrawing party has given notice in

  3  writing of the withdrawal to the other parties.

  4         (3)  No withdrawal shall relieve the withdrawing party

  5  of any obligations imposed upon it by law.

  6

  7                            ARTICLE IX

  8

  9         FINANCIAL RESPONSIBILITY.--

10         (1)  A participating organization shall not be

11  financially responsible or liable for the obligations of any

12  other participating organization related to this agreement.

13         (2)  The provisions of this agreement shall constitute

14  neither a waiver of any governmental immunity under Florida

15  law nor a waiver of any defenses of the parties under Florida

16  law. The provisions of this agreement are solely for the

17  benefit of its executors and not intended to create or grant

18  any rights, contractual or otherwise, to any person or entity.

19

20                            ARTICLE X

21

22         VENUE AND GOVERNING LAW.--The obligations of the

23  parties to this agreement are performable only within the

24  county where the participating organization is located, and

25  statewide for the Minority Business Advocacy and Assistance

26  Office of Supplier Diversity, and venue for any legal action

27  in connection with this agreement shall lie, for any

28  participating organization except the Minority Business

29  Advocacy and Assistance Office of Supplier Diversity,

30  exclusively in the county where the participating organization

31


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                                          HB 2127, First Engrossed



  1  is located. This agreement shall be governed by and construed

  2  in accordance with the laws and court decisions of the state.

  3

  4                            ARTICLE XI

  5

  6         CONSTRUCTION AND SEVERABILITY.--This agreement shall be

  7  liberally construed so as to effectuate the purposes thereof.

  8  The provisions of this agreement shall be severable and if any

  9  phrase, clause, sentence, or provision of this agreement is

10  declared to be contrary to the State Constitution or the

11  United States Constitution, or the application thereof to any

12  government, agency, person, or circumstance is held invalid,

13  the validity of the remainder of this agreement and the

14  applicability thereof to any government, agency, person, or

15  circumstance shall not be affected thereby. If this agreement

16  shall be held contrary to the State Constitution, the

17  agreement shall remain in full force and effect as to all

18  severable matters.

19         Section 13.  This act shall take effect July 1, 2000.

20

21

22

23

24

25

26

27

28

29

30

31


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