Amendment
Bill No. 1891
Amendment No. 360737
CHAMBER ACTION
Senate House
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1Representative Benson offered the following:
2
3     Amendment (with title amendment)
4     Remove everything after the enacting clause and insert:
5     Section 1.  Subsections (2), (3), and (4) of section
6255.249, Florida Statutes, are amended, and subsection (6) is
7added to said section, to read:
8     255.249  Department of Management Services; responsibility;
9department rules.--
10     (2)(a)  The department shall have the responsibility and
11authority to procure and manage all leases of privately owned
12buildings on behalf of any executive agency, except as set forth
13in s. 255.248. All cost savings resulting from leases negotiated
14or renegotiated by the department shall be deposited in escrow
15for tenant improvements to the leased space or deposited in the
16General Revenue Fund. require any state agency planning to
17terminate a lease for the purpose of occupying space in a new
18state-owned office building, the funds for which are
19appropriated after June 30, 2000, to state why the proposed
20relocation is in the best interest of the state.
21     (b)  Information on the costs and benefits of any lease
22that has been negotiated or renegotiated by the department shall
23be provided to the chair and vice chair of the Legislative
24Budget Commission if the annualized cost of the new or
25renegotiated lease is in excess of $1 million and if it
26represents a greater than 10 percent change in the annualized
27cost of the department's or other executive agency's original
28lease. The head of the department or an executive agency that
29provides information under this subparagraph may be requested to
30make a presentation at a future Legislative Budget Commission
31meeting.
32     (c)  This subsection does not apply to the Department of
33Legal Affairs, the Department of Financial Services, or the
34Department of Agriculture and Consumer Services unless the
35cabinet officer requests that the department perform the
36service, or part thereof, for the cabinet officer's agency.
37     (3)  The department may assign one or more agencies to move
38into space vacated by another executive agency. The executive
39agency that requested space may reject the department's transfer
40of the executive agency into the vacated space based on
41excessive cost, unfavorable lease terms or conditions, negative
42impact on employee productivity, security concerns, poor
43location, poor building quality, insufficient parking, excessive
44moving costs, or difficult access for persons served by the
45executive agency. In order to reject the transfer, the agency
46head of the executive agency must state in writing the specific
47reason or reasons for rejecting the vacated space shall, to the
48extent feasible, coordinate the vacation of privately owned
49leased space with the expiration of the lease on that space and,
50when a lease is terminated before expiration of its base term,
51will make a reasonable effort to place another state agency in
52the space vacated. Any state agency may lease the space in any
53building that was subject to a lease terminated by a state
54agency for a period of time equal to the remainder of the base
55term without the requirement of competitive bidding.
56     (4)  The department shall promulgate rules pursuant to
57chapter 120 providing:
58     (a)  Methods for accomplishing the duties outlined in
59subsections subsection (1), (2), and (3).
60     (b)  Procedures requiring the competitive solicitation of,
61and procedures for, evaluating and accepting responses to
62competitive solicitations for soliciting and accepting
63competitive proposals for, leased space of 5,000 square feet or
64more in privately owned buildings., for evaluating the proposals
65received, for exemption from competitive bidding requirements of
66any However, a lease the purpose of which is to provide the
67provision of care and living space for persons, or a lease for
68emergency space needs as provided in s. 255.25(6), is exempt
69from the competitive solicitation requirement 255.25(10), and
70for the securing of at least three documented quotes for a lease
71that is not required to be competitively bid. The procedures may
72be simplified for a solicitation of less than 5,000 square feet.
73     (c)  Adoption of a standard method for determining square
74footage or any other measurement used as the basis for lease
75payments, or other charges.
76     (d)  Methods of allocating space in both state-owned office
77buildings and privately owned buildings leased by the state
78based on use, personnel, and office equipment
79     (e)  Acceptable terms and conditions for inclusion in lease
80agreements.
81     (f)  Maximum rental rates, by geographic areas or by
82county, for leasing privately owned space.
83     (g)  A standard method for the assessment of rent to state
84agencies and other authorized occupants of state-owned office
85space, notwithstanding the source of funds.
86     (h)  For full disclosure of the names and the extent of
87interest of the owners holding a 4-percent or more interest in
88any privately owned property leased to the state or in the
89entity holding title to the property, for exemption from such
90disclosure of any beneficial interest which is represented by
91stock in any corporation registered with the Securities and
92Exchange Commission or registered pursuant to chapter 517, which
93stock is for sale to the general public, and for exemption from
94such disclosure of any leasehold interest in property located
95outside the territorial boundaries of the United States.
96     (i)  For full disclosure of the names of all public
97officials, agents, or employees holding any interest in any
98privately owned property leased to the state or in the entity
99holding title to the property, and the nature and extent of
100their interest, for exemption from such disclosure of any
101beneficial interest which is represented by stock in any
102corporation registered with the Securities and Exchange
103Commission or registered pursuant to chapter 517, which stock is
104for sale to the general public, and for exemption from such
105disclosure of any leasehold interest in property located outside
106the territorial boundaries of the United States.
107     (j)  A method for reporting leases for nominal or no
108consideration.
109     (k)  Adoption of the Building Owners and Managers
110Association Metropolitan Base Building Classification, or
111equivalent, as a standard method for rating the quality of
112privately owned buildings. When practical, A or B class space
113according to Building Owners and Managers Association standards
114must be used For a lease of less than 5,000 square feet, a
115method for certification by the agency head or the agency head's
116designated representative that all criteria for leasing have
117been fully complied with and for the filing of a copy of such
118lease and all supporting documents with the department for its
119review and approval as to technical sufficiency.
120     (6)  On or before January 1, 2005, and annually thereafter,
121the Department of Management Services shall submit a report to
122the presiding officers of the Legislature which sets forth the
123department's enterprise plan for the next 5 years for the use of
124state-owned and state-leased space and for any acquisition,
125financing, refinancing, or disposition of state real property
126and improvements that the department is permitted by law to
127execute. If the department intends to deviate from the
128enterprise plan after submission of the annual report, the
129department must provide notice to the presiding officers of the
130Legislature at least 30 days prior to the execution of any
131deviation.
132     Section 2.  Section 255.25, Florida Statutes, is amended to
133read:
134     255.25  Leasing Approval required prior to construction or
135lease of buildings.--
136     (1)(a)  No state agency may lease space in a private
137building that is to be constructed for state use unless prior
138approval of the architectural design and preliminary
139construction plans is first obtained from the department of
140Management Services.
141     (b)  During the term of existing leases, each agency shall
142monitor market conditions and shall initiate negotiations for
143each lease held in the private sector to effect the best overall
144lease terms reasonably available to that agency. Amendments to
145leases may be permitted to modify any lease provisions or any
146other terms or conditions, except to the extent specifically
147prohibited by this chapter. The Department of Management
148Services shall serve as a mediator in lease renegotiations if
149the agency and the lessor are unable to reach a compromise
150within 6 months of renegotiation and if either the agency or
151lessor requests the Department of Management Services'
152intervention.
153     (c)  When specifically authorized by the Appropriations Act
154and in accordance with s. 255.2501, if applicable, the
155department of Management Services may approve a lease-purchase,
156sale-leaseback, or tax-exempt leveraged lease contract or other
157financing technique for the acquisition, renovation, or
158construction of a state fixed capital outlay project when it is
159in the best interest of the state.
160     (d)  The Department of Management Services in order to seek
161economies of scale and the opportunity to colocate executive
162agencies, may competitively negotiate to procure new leases,
163renegotiate existing leases, or otherwise consolidate existing
164leases into a large scale lease or leases covering one or more
165privately owned buildings. The department may promulgate rules
166establishing procedures to procure and manage large-scale and
167provide a method for allocating lease costs among executive
168agencies.
169     (2)(a)  Except as provided in s. 255.2501, no state agency
170may lease a building or any part thereof unless prior approval
171of the lease conditions and of the need therefor is first
172obtained from the department of Management Services. Any
173approved lease may include an option to purchase or an option to
174renew the lease, or both, upon such terms and conditions as are
175established by the department subject to final approval by the
176head of the Department of Management Services and s. 255.2502.
177     (b)  The Department of Management Services and an executive
178agency allowed to directly procure a The approval of the
179Department of Management Services, except for technical
180sufficiency, need not be obtained for the lease or an extension
181of a lease must comply of less than 5,000 square feet of space
182within a privately owned building, provided the agency head or
183the agency head's designated representative has certified
184compliance with applicable leasing criteria as may be provided
185pursuant to this section and s. 255.249(4)(k) and shall
186determine that has determined such lease is to be in the best
187interest of the state. Such a lease which is for a term
188extending beyond the end of a fiscal year is subject to the
189provisions of ss. 216.311, 255.2502, and 255.2503.
190     (c)  The Department of Management Services shall adopt as a
191rule uniform leasing procedures for use by each state agency
192other than the Department of Transportation. Each state agency
193shall ensure that the leasing practices of that agency are in
194substantial compliance with the uniform leasing rules adopted
195under this section and ss. 255.249, 255.2502, and 255.2503.
196     (3)(a)  Except as provided in subsection (10), no state
197agency shall enter into a lease as lessee for the use of 5,000
198square feet or more of space in a privately owned building
199except upon advertisement for and receipt of competitive bids
200and award to the lowest and best bidder. The Department of
201Management Services shall have the authority to approve a lease
202for 5,000 square feet or more of space that covers more than 1
203fiscal year, subject to the provisions of ss. 216.311, 255.2501,
204255.2502, and 255.2503, if such lease is, in the judgment of the
205department, in the best interests of the state. This paragraph
206does not apply to buildings or facilities of any size leased for
207the purpose of providing care and living space for persons.
208     (b)  The Department of Management Services, or an executive
209agency that may procure its own space, may negotiate with the
210owner of a privately owned building to enter into an extension
211approve extensions of an existing lease of 5,000 square feet or
212more of space if such extension is extensions are determined to
213be in the best interests of the state., but in no case shall the
214total of such extensions exceed 11 months. If at the end of the
21511th month an agency still needs that space, it shall be
216procured by competitive bid in accordance with s. 255.249(4)(b).
217However, an agency that determines that it is in its best
218interest to remain in the space it currently occupies may
219negotiate a replacement lease with the lessor if an When
220determining the best interests of the state, the department or
221agency must use an independent comparative market analysis to
222show demonstrates that the negotiated lease rate for the
223extension is rates offered are within market rates for
224comparable the space, that and the cost of the extension new
225lease does not exceed the cost of a comparable space lease plus
226documented moving costs, and that the space will adequately
227serve the public. A present-value analysis and the consumer
228price index shall be used in the calculation of lease costs. The
229term of the replacement lease may not exceed the base term of
230the expiring lease.
231     (b)(c)  Any person who files an action protesting a
232decision or intended decision pertaining to a competitive bid
233for space to be leased by the agency pursuant to s. 120.57(3)(b)
234shall post with the state agency at the time of filing the
235formal written protest a bond payable to the agency in an amount
236equal to 1 percent of the estimated total rental of the basic
237lease period or $5,000, whichever is greater, which bond shall
238be conditioned upon the payment of all costs which may be
239adjudged against him or her in the administrative hearing in
240which the action is brought and in any subsequent appellate
241court proceeding. If the agency prevails after completion of the
242administrative hearing process and any appellate court
243proceedings, it shall recover all costs and charges which shall
244be included in the final order or judgment, excluding attorney's
245fees. Upon payment of such costs and charges by the person
246protesting the award, the bond shall be returned to him or her.
247If the person protesting the award prevails, the bond shall be
248returned to that person and he or she shall recover from the
249agency all costs and charges which shall be included in the
250final order of judgment, excluding attorney's fees.
251     (c)(d)  The agency and the lessor, when entering into a
252lease for 5,000 or more square feet of a privately owned
253building, shall, before the effective date of the lease, agree
254upon and separately state the cost of tenant improvements which
255may qualify for reimbursement if the lease is terminated before
256the expiration of its base term. The department shall serve as
257mediator if the agency and the lessor are unable to agree. The
258amount agreed upon and stated shall, if appropriated, be
259amortized over the original base term of the lease on a
260straight-line basis.
261     (d)(e)  The unamortized portion of tenant improvements, if
262appropriated, will be paid in equal monthly installments over
263the remaining term of the lease. If any portion of the original
264leased premises is occupied after termination but during the
265original term by a tenant that does not require material changes
266to the premises, the repayment of the cost of tenant
267improvements applicable to the occupied but unchanged portion
268shall be abated during occupancy. The portion of the repayment
269to be abated shall be based on the ratio of leased space to
270unleased space.
271     (4)(a)  The department of Management Services shall not
272authorize any state agency to enter into a lease agreement for
273space in a privately owned building when suitable space is
274available in a state-owned building located in the same
275geographic region, except upon presentation to the department of
276sufficient written justification, acceptable to the department,
277that a separate space is required in order to fulfill the
278statutory duties of the agency making such request. The term
279"state-owned building" as used in this subsection means any
280state-owned facility regardless of use or control.
281     (b)  State agencies shall cooperate with local governmental
282units by using suitable, existing publicly owned facilities,
283subject to the provisions of ss. 255.2501, 255.2502, and
284255.2503. Agencies may utilize unexpended funds appropriated for
285lease payments to:
286     1.  Pay their proportion of operating costs.
287     2.  Renovate applicable spaces.
288     (5)  Before construction or renovation of any state-owned
289building or state-leased space is commenced, the Department of
290Management Services shall ascertain, by submission of proposed
291plans to the Division of State Fire Marshal for review, that the
292proposed construction or renovation plan complies with the
293uniform firesafety standards required by the Division of State
294Fire Marshal. The review of construction or renovation plans for
295state-leased space shall be completed within 10 calendar days of
296receipt of the plans by the Division of State Fire Marshal. The
297review of construction or renovation plans for a state-owned
298building shall be completed within 30 calendar days of receipt
299of the plans by the Division of State Fire Marshal. The
300responsibility for submission and retrieval of the plans called
301for in this subsection shall not be imposed on the design
302architect or engineer, but shall be the responsibility of the
303two agencies. Whenever the Division of State Fire Marshal
304determines that a construction or renovation plan is not in
305compliance with such uniform firesafety standards, the Division
306of State Fire Marshal may issue an order to cease all
307construction or renovation activities until compliance is
308obtained, except those activities required to achieve such
309compliance. The Department of Management Services shall withhold
310approval of any proposed lease until the construction or
311renovation plan complies with the uniform firesafety standards
312of the Division of State Fire Marshal. The cost of all
313modifications or renovations made for the purpose of bringing
314leased property into compliance with the uniform firesafety
315standards shall be borne by the lessor.
316     (6)  Before construction or substantial improvement of any
317state-owned building is commenced, the Department of Management
318Services must ascertain that the proposed construction or
319substantial improvement complies with the flood plain management
320criteria for mitigation of flood hazards, as prescribed in the
321October 1, 1986, rules and regulations of the Federal Emergency
322Management Agency, and the department shall monitor the project
323to assure compliance with the criteria. In accordance with
324chapter 120, the Department of Management Services shall adopt
325any necessary rules to ensure that all such proposed state
326construction and substantial improvement of state buildings in
327designated flood-prone areas complies with the flood plain
328management criteria. Whenever the department determines that a
329construction or substantial improvement project is not in
330compliance with the established flood plain management criteria,
331the department may issue an order to cease all construction or
332improvement activities until compliance is obtained, except
333those activities required to achieve such compliance.
334     (7)  This section does not apply to any lease having a term
335of less than 120 consecutive days for the purpose of securing
336the one-time special use of the leased property. This section
337does not apply to any lease for nominal or no consideration.
338     (8)  No executive agency may shall enter into more than one
339lease for space in a the same privately owned building if such
340building was in the Florida Facilities Pool at any time in the 3
341years prior to the commencement of the lease facility or complex
342within any 12-month period except upon the solicitation of
343competitive bids.
344     (9)  Specialized educational facilities, excluding
345classrooms, shall be exempt from the competitive bid
346requirements for leasing pursuant to this section if the
347executive head of any state agency certifies in writing that
348said facility is available from a single source and that the
349competitive bid requirements would be detrimental to the state.
350Such certification shall include documentation of evidence of
351steps taken to determine sole-source status.
352     (10)  The Department of Management Services may approve
353emergency acquisition of space without competitive bids if
354existing state-owned or state-leased space is destroyed or
355rendered uninhabitable by an act of God, fire, malicious
356destruction, or structural failure, or by legal action, if the
357chief administrator of the state agency or the chief
358administrator's designated representative certifies in writing
359that no other agency-controlled space is available to meet this
360emergency need, but in no case shall the lease for such space
361exceed 11 months. If the lessor elects not to replace or
362renovate the destroyed or uninhabitable facility, the agency
363shall procure the needed space by competitive bid in accordance
364with s. 255.249(4)(b). If the lessor elects to replace or
365renovate the destroyed or uninhabitable facility and the
366construction or renovations will not be complete at the end of
367the 11-month lease, the agency may modify the lease to extend it
368on a month-to-month basis for an additional 6 months to allow
369completion of such construction or renovations.
370     (11)  In any leasing of space that is accomplished without
371competition, the individuals taking part in the development or
372selection of criteria for evaluation, in the evaluation, and in
373the award processes shall attest in writing that they are
374independent of, and have no conflict of interest in, the
375entities evaluated and selected.
376     Section 3.  Section 270.27, Florida Statutes, is repealed.
377     Section 4.  Section 215.3215, Florida Statutes, is created
378to read:
379     215.3215  Charges by agencies or contractors.--Specific
380statutory authority authorizing the maximum amount of a fee,
381tax, or other charge shall be required for an agency, as defined
382in s. 287.012(1), or contractor with such agency to levy or
383impose upon a person who is not a party to the contract a fee,
384tax, or other charge which funds the contract or provides
385payment to the contractor, regardless of whether the levy or
386imposition is direct or indirect or is mandatory or optional.
387     Section 5.  Subsections (17) and (23) of section 287.057,
388Florida Statutes, are amended, and a new subsection (25) is
389added to said section, to read:
390     287.057  Procurement of commodities or contractual
391services.--
392     (17)  For a contract in excess of the threshold amount
393provided in s. 287.017 for CATEGORY FOUR, the agency head shall
394appoint:
395     (a)  At least three persons to evaluate proposals and
396replies who collectively have experience and knowledge in the
397program areas and service requirements for which commodities or
398contractual services are sought.
399     (b)  At least three persons to conduct negotiations during
400a competitive sealed reply procurement who collectively have
401experience and knowledge in negotiating contracts, contract
402procurement, and the program areas and service requirements for
403which commodities or contractual services are sought. As of
404January 1, 2005, when the contract is in excess of $1 million,
405at least one of the persons conducting negotiations must be a
406certified negotiator as established by the department. The
407department shall, by rule, establish the experience, knowledge,
408and training required to be a certified negotiator.
409     (23)(a)  The department, in consultation with the Chief
410Financial Officer State Technology Office and the Comptroller,
411shall develop a program for on-line procurement of commodities
412and contractual services. To enable the state to promote open
413competition and to leverage its buying power, agencies shall
414participate in the on-line procurement program, and eligible
415users and cabinet agencies may participate in the program. Only
416vendors prequalified as meeting mandatory requirements and
417qualifications criteria shall be permitted to participate in on-
418line procurement. The department, in consultation with the State
419Technology Office, may contract for equipment and services
420necessary to develop and implement on-line procurement.
421     (b)  The department, in consultation with the State
422Technology Office, shall adopt rules, pursuant to ss. 120.536(1)
423and 120.54, to administer the program for on-line procurement.
424The rules shall include, but not be limited to:
425     1.  Determining the requirements and qualification criteria
426for prequalifying vendors.
427     2.  Establishing the procedures for conducting on-line
428procurement.
429     3.  Establishing the criteria for eligible commodities and
430contractual services.
431     4.  Establishing the procedures for providing access to on-
432line procurement.
433     5.  Determining the criteria warranting any exceptions to
434participation in the on-line procurement program.
435     (c)  The department may collect fees for the use of the on-
436line procurement program systems. Purchase of commodities and
437contractual services from vendors that are registered with the
438on-line procurement program may be considered use of the
439program. The fees may be imposed on an individual transaction
440basis or as a fixed percentage of the cost savings generated. At
441a minimum, the fees must be set in an amount sufficient to cover
442the projected costs of such services, including administrative
443and project service costs in accordance with the policies of the
444department; however, fees imposed on an individual transaction
445basis may not exceed 1 percent of the transaction amount. For
446the purposes of compensating the provider, the department may
447authorize the provider to collect and retain a portion of the
448fees. The providers may withhold the portion retained from the
449amount of fees to be remitted to the department. The department
450may negotiate the retainage as a percentage of such fees charged
451to users, as a flat amount, or as any other method the
452department deems feasible. All fees and surcharges collected
453under this paragraph shall be collected by the department and
454deposited in the Grants and Donation Trust Fund as provided by
455law.
456     (25)(a)  Legal authority is required for contractual
457services procurements with a cost greater than $10 million over
458the contract term which shift functions or responsibilities from
459agency staff to the private sector where the agency remains
460accountable while the private sector entity performs the
461function or responsibility. At least 60 days prior to the
462Legislative session, if the agency seeks authority by law to
463procure such contractual services, or 30 days prior to issuing a
464solicitation, if the agency has legal authority to procure such
465contractual services, upon issuance of a solicitation, and upon
466execution of a contract, the agency shall provide to the
467President of the Senate and the Speaker of the House of
468Representatives current cost-benefit analyses, business case
469analyses, plans for contract management, proposed performance
470contracting procedures, detailed service comparisons, and
471information about impacts to approved performance standards
472regarding the proposed procurement. The contract for such
473procurement shall include at a minimum a detailed scope of work
474specifying services and deliverables; specific payment terms,
475including incentive and penalty provisions; implementation
476schedules; required performance measures; provisions for the
477transfer of the function or responsibility if the contractor
478ceases to perform; and requirements for access to public records
479consistent with law. The department shall maintain a database
480containing, for procurements subject to this subsection, the
481agency name, the name and description of the contractual service
482procured, and the names of the prime contractor and any
483subcontractors; projected and actual completion dates by project
484phase; a description of performance measures contained in the
485contract, projected performance, and actual performance; and
486projected costs and revenues, as applicable, and actual costs
487and revenues.
488     (b)  This subsection shall not apply to any procurement for
489which a contract was executed prior to July 1, 1994, for
490contractual services substantially similar in nature and purpose
491to those to be procured in the proposed contract.
492     Section 6.  Effective October 1, 2004, there is hereby
493appropriated from the Grants and Donation Trust Fund in the
494Department of Management Services $5,000,000 in the Special
495Categories Contractual Services for the purpose of transferring
496funds to the on-line procurement program contractor, in
497accordance with s. 287.057, Florida Statutes.
498     Section 7.  The amendment to section 287.057(23)(c),
499Florida Statutes, which removes authority for the provider to
500collect and retain fees and require the department to collect
501the fees, shall take effect October 1, 2004.
502     Section 8.  Except as otherwise provided herein, this act
503shall take effect July 1, 2004.
504
505================= T I T L E  A M E N D M E N T =================
506     Remove the entire title and insert:
507An act relating to the Department of Management Services;
508amending s. 255.249, F.S.; removing a requirement
509regarding certain agencies planning to terminate a lease;
510providing that the Department of Management Services,
511rather than agencies acting on their own behalf, shall
512lease space for agencies; limiting scope of provisions to
513certain departments; providing for moving of agencies into
514vacated spaces; providing conditions under which an agency
515may reject a proposed move; providing for competitive
516solicitation of leases; providing bid procedures;
517providing conditions for space allocation; requiring
518adoption of a quality standard; amending s. 255.25, F.S.;
519providing criteria for agencies to monitor market
520conditions and initiate negotiations; authorizing the
521department to negotiate to procure new leases for the
522colocation of agencies; providing conditions for lease
523procurement; changing the requirement for competitive
524bidding for leases of real property for agencies to a
525requirement for competitive solicitation; requiring a
526business case analysis for extension of a lease; providing
527that state agencies may not lease a privately owned
528building if such building was in the Florida Facilities
529Pool in the previous 3 years; repealing s. 270.27, F.S.,
530relating to the sale of unused public lands; creating s.
531215.3215,F.S.; authorizing agencies or contractors to levy
532or impose on certain noncontract parties certain fees,
533taxes, or charges only if authorized by law; amending s.
534287.057, F.S.; requiring certified negotiators for certain
535procurements;  revising provisions relating to on-line
536procurement programs; prohibiting agencies from procuring
537certain contractual services except as provided by law;
538requiring agencies to provide information to the
539Legislature regarding such procurements; requiring certain
540contract provisions for such procurements; requiring the
541department to establish a database; providing exceptions;
542providing an appropriation; providing effective dates.


CODING: Words stricken are deletions; words underlined are additions.