House Bill hb1945
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Florida House of Representatives - 2001 HB 1945
By the Committee on State Administration and
Representative Brummer
1 A bill to be entitled
2 An act relating to procurement of commodities
3 and contractual services; amending s. 287.012,
4 F.S.; revising definitions; amending s.
5 287.042, F.S.; limiting challenges of terms,
6 conditions, and specifications of certain
7 requests or invitations; including invitations
8 to negotiate and requests for quotes within
9 provisions relating to competitive processes;
10 requiring the Department of Management Services
11 to develop certain competitive procurement
12 processes procedures; providing additional
13 criteria for methods of securing competitive
14 sealed bids, responses, quotes, and proposals;
15 amending s. 287.057, F.S.; providing for
16 procurement by invitation to negotiate and for
17 provision by request for a quote under certain
18 circumstances; amending ss. 61.1826, 287.022,
19 287.058, 394.457, 394.47865, 402.73, 408.045,
20 445.024, and 455.2177, F.S.; correcting cross
21 references; providing an effective date.
22
23 Be It Enacted by the Legislature of the State of Florida:
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25 Section 1. Subsections (15), (16), and (17) of section
26 287.012, Florida Statutes, are amended, and subsections (20)
27 and (21) are added to said section, to read:
28 287.012 Definitions.--The following definitions shall
29 apply in this part:
30 (15) "Request for proposals" means a written
31 solicitation for competitive sealed proposals with the title,
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1 date, and hour of the public opening designated. A written
2 solicitation includes a solicitation published or transmitted
3 by electronic means. The request for proposals is used when
4 the agency is incapable of specifically defining the scope of
5 work for which the commodity, group of commodities, or
6 contractual service is required and when the agency is
7 requesting that a qualified proposer of offeror propose a
8 commodity, group of commodities, or contractual service to
9 meet the specifications of the solicitation document. A
10 request for proposals includes, but is not limited to, general
11 information, applicable laws and rules, functional or general
12 specifications, statement of work, proposal instructions, and
13 evaluation criteria. Requests for proposals shall state the
14 relative importance of price and any other evaluation
15 criteria.
16 (16) "Responsive bid" or "responsive proposal" means a
17 bid or proposal submitted by a responsive, and responsible or
18 qualified, bidder or proposer offeror which conforms in all
19 material respects to the invitation to bid or request for
20 proposals.
21 (17) "Responsive bidder" or "responsive proposer
22 offeror" means a person who has submitted a bid or proposal
23 which conforms in all material respects to the invitation to
24 bid or request for proposals.
25 (20) "Invitation to negotiate" means a written
26 solicitation that calls for responses to select one or more
27 persons or business entities with which to commence
28 negotiations for the procurement of commodities or contractual
29 services.
30 (21) "Request for a quote" means a solicitation that
31 calls for pricing information for purposes of competitively
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1 selecting and procuring commodities and contractual services
2 from qualified or registered vendors.
3 Section 2. Paragraph (d) is added to subsection (2) of
4 section 287.042, Florida Statutes, paragraphs (b) and (c) of
5 subsection (4) of said section are amended and paragraph (f)
6 is added to said subsection, and paragraph (a) of subsection
7 (5) of said section is amended, to read:
8 287.042 Powers, duties, and functions.--The department
9 shall have the following powers, duties, and functions:
10 (2)
11 (d) The terms, conditions, and specifications of a
12 request for proposal, invitation to bid, or invitation to
13 negotiate, including any provisions governing the methods for
14 ranking proposals, awarding contracts, reserving rights of
15 further negotiation, or the modification or amendment of any
16 contract, are subject to challenge only by filing a protest
17 within 72 hours after the notice of the terms, conditions, or
18 specifications as provided in s. 120.57(3)(b).
19 (4) To establish a system of coordinated, uniform
20 procurement policies, procedures, and practices to be used by
21 agencies in acquiring commodities and contractual services,
22 which shall include, but not be limited to:
23 (b) Development of procedures for the releasing of
24 requests for proposals, invitations to bid, invitations to
25 negotiate, and other competitive acquisitions which procedures
26 shall include, but are not limited to, notice by publication
27 in the Florida Administrative Weekly, on Government Services
28 Direct, or by mail at least 10 days before the date set for
29 submittal of proposals or bids. The Office of Supplier
30 Diversity may consult with agencies regarding the development
31 of bid distribution procedures to ensure that maximum
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1 distribution is afforded to certified minority business
2 enterprises as defined in s. 288.703.
3 (c) Development of procedures for the receipt and
4 opening of bids, responses, quotes, or proposals by an agency.
5 Such procedures shall provide the Office of Supplier Diversity
6 an opportunity to monitor and ensure that the contract award
7 is consistent with the requirements of s. 287.09451 original
8 request for proposal or invitation to bid, in accordance with
9 s. 287.0945(6), and subject to the review of bid responses
10 within standard timelines.
11 (f) Development of procedures to be used by an agency
12 for issuing invitations to bid, invitations to negotiate,
13 requests for a proposal, requests for a quote, or other
14 competitive procurement processes.
15 (5)(a) To prescribe the methods of securing
16 competitive sealed bids, responses, quotes, and proposals.
17 Such methods may include, but are not limited to, procedures
18 for identifying vendors; setting qualifications; evaluating
19 responses, bids, and proposals; ranking respondents and
20 proposers; selecting invitees and proposers; and conducting
21 negotiations, or negotiating and awarding commodity and
22 contractual services contracts, unless otherwise provided by
23 law.
24 Section 3. Subsection (2) of section 287.057, Florida
25 Statutes, is amended, subsections (3) through (22) of said
26 section are renumbered as subsections (4) through (23),
27 respectively, a new subsection (3) is added to said section,
28 and present subsections (3) and (15) of said section are
29 amended, to read:
30 287.057 Procurement of commodities or contractual
31 services.--
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1 (2) When an agency determines in writing that the use
2 of competitive sealed bidding is not practicable, commodities
3 or contractual services shall be procured by competitive
4 sealed proposals. A request for proposals which includes a
5 statement of the commodities or contractual services sought
6 and all contractual terms and conditions applicable to the
7 procurement of commodities or contractual services, including
8 the criteria, which shall include, but need not be limited to,
9 price, to be used in determining acceptability of the proposal
10 shall be issued. If the agency contemplates renewal of the
11 commodities or contractual services contract, it shall be so
12 stated in the request for proposals. The submitted proposal
13 shall include the price for each year for which the contract
14 may be renewed. Evaluation of proposals shall include
15 consideration of the total cost for each year as quoted by the
16 proposer offeror. To assure full understanding of and
17 responsiveness to the solicitation requirements, discussions
18 may be conducted with qualified proposers offerors. The
19 proposers offerors shall be accorded fair and equal treatment
20 prior to the submittal date specified in the request for
21 proposals with respect to any opportunity for discussion and
22 revision of proposals. The award shall be made to the
23 responsible proposer offeror whose proposal is determined in
24 writing to be the most advantageous to the state, taking into
25 consideration the price and the other criteria set forth in
26 the request for proposals. The contract file shall contain
27 the basis on which the award is made.
28 (3) If the agency determines that the use of an
29 invitation to bid or a request for a proposal is not
30 practical, commodities or contractual services may be procured
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1 by an invitation to negotiate or provided by a request for a
2 quote.
3 (4)(3) When the purchase price of commodities or
4 contractual services exceeds the threshold amount provided in
5 s. 287.017 for CATEGORY TWO, no purchase of commodities or
6 contractual services may be made without receiving competitive
7 sealed bids, or competitive sealed proposals, or responses to
8 an invitation to negotiate or a request for a quote unless:
9 (a) The agency head determines in writing that an
10 immediate danger to the public health, safety, or welfare or
11 other substantial loss to the state requires emergency action.
12 After the agency head makes such a written determination, the
13 agency may proceed with the procurement of commodities or
14 contractual services necessitated by the immediate danger,
15 without competition. However, such emergency procurement shall
16 be made with such competition as is practicable under the
17 circumstances. The agency shall furnish copies of the written
18 determination certified under oath and any other documents
19 relating to the emergency action to the department. A copy of
20 the statement shall be furnished to the Comptroller with the
21 voucher authorizing payment. The individual purchase of
22 personal clothing, shelter, or supplies which are needed on an
23 emergency basis to avoid institutionalization or placement in
24 a more restrictive setting is an emergency for the purposes of
25 this paragraph, and the filing with the department of such
26 statement is not required in such circumstances. In the case
27 of the emergency purchase of insurance, the period of coverage
28 of such insurance shall not exceed a period of 30 days, and
29 all such emergency purchases shall be reported to the
30 department.
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1 (b) Purchasing agreements and contracts executed by
2 the department or by agencies under authority delegated by the
3 department in writing are excepted from bid requirements.
4 (c) Commodities or contractual services available only
5 from a single source may be excepted from the bid requirements
6 if it is determined that such commodities or services are
7 available only from a single source and such determination is
8 documented. However, if such contract is for an amount greater
9 than the threshold amount provided in s. 287.017 for CATEGORY
10 FOUR, the agency head shall file a certification of conditions
11 and circumstances with the department and shall obtain the
12 prior approval of the department. The failure of the
13 department to approve or disapprove the request of an agency
14 for prior approval within 21 days after receiving such request
15 or within 14 days after receiving from the agency additional
16 materials requested by the department shall constitute prior
17 approval of the department. To the greatest extent
18 practicable, but no later than 45 days after authorizing the
19 exception in writing, the department shall combine
20 single-source procurement authorizations for identical
21 information technology resources for which the purchase price
22 exceeds the threshold amount provided in s. 287.017 for
23 CATEGORY FOUR, and shall negotiate and execute volume
24 purchasing agreements for such procurements on behalf of the
25 agencies.
26 (d) When it is in the best interest of the state, the
27 Secretary of Management Services or his or her designee may
28 authorize the Support Program to purchase insurance by
29 negotiation, but such purchase shall be made only under
30 conditions most favorable to the public interest.
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1 (e) Prescriptive assistive devices for the purpose of
2 medical, developmental, or vocational rehabilitation of
3 clients are excepted from competitive sealed bid and
4 competitive sealed proposal requirements and shall be procured
5 pursuant to an established fee schedule or by any other method
6 which ensures the best price for the state, taking into
7 consideration the needs of the client. Prescriptive assistive
8 devices include, but are not limited to, prosthetics,
9 orthotics, and wheelchairs. For purchases made pursuant to
10 this paragraph, state agencies shall annually file with the
11 department a description of the purchases and methods of
12 procurement.
13 (f) The following contractual services and commodities
14 are not subject to the competitive sealed bid requirements of
15 this section:
16 1. Artistic services.
17 2. Academic program reviews.
18 3. Lectures by individuals.
19 4. Auditing services.
20 5. Legal services, including attorney, paralegal,
21 expert witness, appraisal, or mediator services.
22 6. Health services involving examination, diagnosis,
23 treatment, prevention, medical consultation, or
24 administration.
25 7. Services provided to persons with mental or
26 physical disabilities by not-for-profit corporations which
27 have obtained exemptions under the provisions of s. 501(c)(3)
28 of the United States Internal Revenue Code or when such
29 services are governed by the provisions of Office of
30 Management and Budget Circular A-122. However, in acquiring
31 such services, the agency shall consider the ability of the
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1 contractor, past performance, willingness to meet time
2 requirements, and price.
3 8. Medicaid services delivered to an eligible Medicaid
4 recipient by a health care provider who has not previously
5 applied for and received a Medicaid provider number from the
6 Agency for Health Care Administration. However, this exception
7 shall be valid for a period not to exceed 90 days after the
8 date of delivery to the Medicaid recipient and shall not be
9 renewed by the agency.
10 9. Family placement services.
11 10. Prevention services related to mental health,
12 including drug abuse prevention programs, child abuse
13 prevention programs, and shelters for runaways, operated by
14 not-for-profit corporations. However, in acquiring such
15 services, the agency shall consider the ability of the
16 contractor, past performance, willingness to meet time
17 requirements, and price.
18 11. Training and education services provided to
19 injured employees pursuant to s. 440.49(1).
20 12. Contracts entered into pursuant to s. 337.11.
21 13. Services or commodities provided by governmental
22 agencies.
23 (g) Continuing education events or programs that are
24 offered to the general public and for which fees have been
25 collected that pay all expenses associated with the event or
26 program are exempt from competitive sealed bidding.
27 (16)(15) For requests for proposals, a selection team
28 of at least three employees who have experience and knowledge
29 in the program areas and service requirements for which
30 contractual services are sought shall be appointed by the
31 agency head to aid in the evaluation of the proposals and
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1 selection of one or more proposers contractors for contracts
2 of more than the threshold amount provided in s. 287.017 for
3 CATEGORY FOUR.
4 Section 4. Paragraph (e) of subsection (1) of section
5 61.1826, Florida Statutes, is amended to read:
6 61.1826 Procurement of services for State Disbursement
7 Unit and the non-Title IV-D component of the State Case
8 Registry; contracts and cooperative agreements; penalties;
9 withholding payment.--
10 (1) LEGISLATIVE FINDINGS.--The Legislature finds that
11 the clerks of court play a vital role, as essential
12 participants in the establishment, modification, collection,
13 and enforcement of child support, in securing the health,
14 safety, and welfare of the children of this state. The
15 Legislature further finds and declares that:
16 (e) The potential loss of substantial federal funds
17 poses a direct and immediate threat to the health, safety, and
18 welfare of the children and citizens of the state and
19 constitutes an emergency for purposes of s. 287.057(4)(3)(a).
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21 For these reasons, the Legislature hereby directs the
22 Department of Revenue, subject to the provisions of subsection
23 (6), to contract with the Florida Association of Court Clerks
24 and each depository to perform duties with respect to the
25 operation and maintenance of a State Disbursement Unit and the
26 non-Title IV-D component of the State Case Registry as further
27 provided by this section.
28 Section 5. Subsection (1) of section 287.022, Florida
29 Statutes, is amended to read:
30 287.022 Purchase of insurance.--
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1 (1) Insurance, while not a commodity, nevertheless
2 shall be purchased for all agencies by the department, except
3 that agencies may purchase title insurance for land
4 acquisition and may make emergency purchases of insurance
5 pursuant to s. 287.057(4)(3)(a). The procedures for purchasing
6 insurance, whether the purchase is made by the department or
7 by the agencies, shall be the same as those set forth herein
8 for the purchase of commodities.
9 Section 6. Subsection (5) of section 287.058, Florida
10 Statutes, is amended to read:
11 287.058 Contract document.--
12 (5) Unless otherwise provided in the General
13 Appropriations Act or the substantive bill implementing the
14 General Appropriations Act, the Comptroller may waive the
15 requirements of this section for services which are included
16 in s. 287.057(4)(3)(f).
17 Section 7. Subsection (3) of section 394.457, Florida
18 Statutes, is amended to read:
19 394.457 Operation and administration.--
20 (3) POWER TO CONTRACT.--The department may contract to
21 provide, and be provided with, services and facilities in
22 order to carry out its responsibilities under this part with
23 the following agencies: public and private hospitals;
24 receiving and treatment facilities; clinics; laboratories;
25 departments, divisions, and other units of state government;
26 the state colleges and universities; the community colleges;
27 private colleges and universities; counties, municipalities,
28 and any other governmental unit, including facilities of the
29 United States Government; and any other public or private
30 entity which provides or needs facilities or services. Baker
31 Act funds for community inpatient, crisis stabilization,
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1 short-term residential treatment, and screening services must
2 be allocated to each county pursuant to the department's
3 funding allocation methodology. Notwithstanding the provisions
4 of s. 287.057(4)(3)(f), contracts for community-based Baker
5 Act services for inpatient, crisis stabilization, short-term
6 residential treatment, and screening provided under this part,
7 other than those with other units of government, to be
8 provided for the department must be awarded using competitive
9 sealed bids when the county commission of the county receiving
10 the services makes a request to the department's district
11 office by January 15 of the contracting year. The district
12 shall not enter into a competitively bid contract under this
13 provision if such action will result in increases of state or
14 local expenditures for Baker Act services within the district.
15 Contracts for these Baker Act services using competitive
16 sealed bids will be effective for 3 years. Services contracted
17 for by the department may be reimbursed by the state at a rate
18 up to 100 percent. The department shall adopt rules
19 establishing minimum standards for such contracted services
20 and facilities and shall make periodic audits and inspections
21 to assure that the contracted services are provided and meet
22 the standards of the department.
23 Section 8. Paragraph (a) of subsection (1) of section
24 394.47865, Florida Statutes, is amended to read:
25 394.47865 South Florida State Hospital;
26 privatization.--
27 (1) The Department of Children and Family Services
28 shall, through a request for proposals, privatize South
29 Florida State Hospital. The department shall plan to begin
30 implementation of this privatization initiative by July 1,
31 1998.
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1 (a) Notwithstanding s. 287.057(13)(12), the department
2 may enter into agreements, not to exceed 20 years, with a
3 private provider, a coalition of providers, or another agency
4 to finance, design, and construct a treatment facility having
5 up to 350 beds and to operate all aspects of daily operations
6 within the facility. The department may subcontract any or all
7 components of this procurement to a statutorily established
8 state governmental entity that has successfully contracted
9 with private companies for designing, financing, acquiring,
10 leasing, constructing, and operating major privatized state
11 facilities.
12 Section 9. Subsections (1) and (5) of section 402.73,
13 Florida Statutes, are amended to read:
14 402.73 Contracting and performance standards.--
15 (1) The Department of Children and Family Services
16 shall establish performance standards for all contracted
17 client services. Notwithstanding s. 287.057(4)(3)(f), the
18 department must competitively procure any contract for client
19 services when any of the following occurs:
20 (a) The provider fails to meet appropriate performance
21 standards established by the department after the provider has
22 been given a reasonable opportunity to achieve the established
23 standards.
24 (b) A new program or service has been authorized and
25 funded by the Legislature and the annual value of the contract
26 for such program or service is $300,000 or more.
27 (c) The department has concluded, after reviewing
28 market prices and available treatment options, that there is
29 evidence that the department can improve the performance
30 outcomes produced by its contract resources. At a minimum, the
31 department shall review market prices and available treatment
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1 options biennially. The department shall compile the results
2 of the biennial review and include the results in its annual
3 performance report to the Legislature pursuant to chapter
4 94-249, Laws of Florida. The department shall provide notice
5 and an opportunity for public comment on its review of market
6 prices and available treatment options.
7 (5) When it is in the best interest of a defined
8 segment of its consumer population, the department may
9 competitively procure and contract for systems of treatment or
10 service that involve multiple providers, rather than procuring
11 and contracting for treatment or services separately from each
12 participating provider. The department must ensure that all
13 providers that participate in the treatment or service system
14 meet all applicable statutory, regulatory, service-quality,
15 and cost-control requirements. If other governmental entities
16 or units of special purpose government contribute matching
17 funds to the support of a given system of treatment or
18 service, the department shall formally request information
19 from those funding entities in the procurement process and may
20 take the information received into account in the selection
21 process. If a local government contributes match to support
22 the system of treatment or contracted service and if the match
23 constitutes at least 25 percent of the value of the contract,
24 the department shall afford the governmental match contributor
25 an opportunity to name an employee to the selection team
26 required by s. 287.057(16)(15). Any employee so named shall
27 qualify as one of the employees required by s.
28 287.057(16)(15). The selection team shall include the named
29 employee unless the department sets forth in writing the
30 reason such inclusion would be contrary to the best interests
31 of the state. No governmental entity or unit of special
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1 purpose government may name an employee to the selection team
2 if it, or any of its political subdivisions, executive
3 agencies, or special districts, intends to compete for the
4 contract to be awarded. The governmental funding entity or
5 match contributor shall comply with any deadlines and
6 procurement procedures established by the department. The
7 department may also involve nongovernmental funding entities
8 in the procurement process when appropriate.
9 Section 10. Subsection (2) of section 408.045, Florida
10 Statutes, is amended to read:
11 408.045 Certificate of need; competitive sealed
12 proposals.--
13 (2) The agency shall make a decision regarding the
14 issuance of the certificate of need in accordance with the
15 provisions of s. 287.057(16)(15), rules adopted by the agency
16 relating to intermediate care facilities for the
17 developmentally disabled, and the criteria in s. 408.035, as
18 further defined by rule.
19 Section 11. Paragraph (c) of subsection (5) of section
20 445.024, Florida Statutes, is amended to read:
21 445.024 Work requirements.--
22 (5) USE OF CONTRACTS.--Regional workforce boards shall
23 provide work activities, training, and other services, as
24 appropriate, through contracts. In contracting for work
25 activities, training, or services, the following applies:
26 (c) Notwithstanding the exemption from the competitive
27 sealed bid requirements provided in s. 287.057(4)(3)(f) for
28 certain contractual services, each contract awarded under this
29 chapter must be awarded on the basis of a competitive sealed
30 bid, except for a contract with a governmental entity as
31 determined by the regional workforce board.
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1 Section 12. Paragraph (d) of subsection (2) of section
2 455.2177, Florida Statutes, is amended to read:
3 455.2177 Monitoring of compliance with continuing
4 education requirements.--
5 (2) If the compliance monitoring system required under
6 this section is privatized, the following provisions apply:
7 (d) Upon the failure of a vendor to meet its
8 obligations under a contract as provided in paragraph (a), the
9 department may suspend the contract and enter into an
10 emergency contract under s. 287.057(4)(3).
11 Section 13. This act shall take effect July 1, 2002.
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14 HOUSE SUMMARY
15
Revises procurement of commodities and contractual
16 services provisions to limit challenges of terms,
conditions, and specifications of requests for proposals
17 or invitation to bid or negotiate, include invitations to
negotiate and requests for quotes within provisions
18 relating to competitive processes, require the Department
of Management Services to develop procedures for issuing
19 invitations to bid or negotiate or requests for a
proposal or a quote, and provide for procurement by
20 invitation to negotiate and for provision by request for
a quote if an invitation to bid or a request for a
21 proposal is not practical. See bill for details.
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