HB 1891

1
A bill to be entitled
2An act relating to the Department of Management Services;
3amending s. 255.249, F.S.; removing a requirement regarding
4certain agencies planning to terminate a lease; providing that
5the Department of Management Services, rather than agencies
6acting on their own behalf, shall lease space for agencies;
7limiting scope of provisions to certain departments; providing
8for moving of agencies into vacated spaces; providing conditions
9under which an agency may reject a proposed move; providing for
10competitive solicitation of leases; providing bid procedures;
11providing conditions for space allocation; requiring adoption of
12a quality standard; requiring the department to coordinate
13strategic planning regarding state owned facilities with local
14governments; amending s. 255.25, F.S.; providing criteria for
15agencies to monitor market conditions and initiate negotiations;
16authorizing the department to negotiate to procure new leases
17for the colocation of agencies; providing conditions for lease
18procurement; changing the requirement for competitive bidding
19for leases of real property for agencies to a requirement for
20competitive solicitation; requiring a business case analysis for
21extension of a lease; providing that state agencies may not
22lease a privately owned building if such building was in the
23Florida Facilities Pool in the previous 3 years; repealing s.
24270.27, F.S., relating to the sale of unused public lands;
25creating s. 215.3215,F.S.; authorizing agencies or contractors
26to levy or impose on certain noncontract parties certain fees,
27taxes, or charges only if authorized by law; amending s.
28287.057, F.S.; requiring certified negotiators for certain
29procurements;  revising provisions relating to on-line
30procurement programs; prohibiting agencies from procuring
31certain contractual services except as provided by law;
32requiring agencies to provide information to the Legislature
33regarding such procurements; requiring certain contract
34provisions for such procurements; requiring the department to
35establish a database; providing exceptions; providing an
36appropriation; providing effective dates.
37
38Be It Enacted by the Legislature of the State of Florida:
39
40     Section 1.  Subsections (2), (3), and (4) of section
41255.249, Florida Statutes, are amended, and subsections (6) and
42(7) are added to said section, to read:
43     255.249  Department of Management Services; responsibility;
44department rules.--
45     (2)(a)  The department shall have the responsibility and
46authority to procure and manage all leases of privately owned
47buildings on behalf of any executive agency, except as set forth
48in s. 255.248. All cost savings resulting from leases negotiated
49or renegotiated by the department shall be deposited in escrow
50for tenant improvements to the leased space or deposited in the
51General Revenue Fund. require any state agency planning to
52terminate a lease for the purpose of occupying space in a new
53state-owned office building, the funds for which are
54appropriated after June 30, 2000, to state why the proposed
55relocation is in the best interest of the state.
56     (b)  Information on the costs and benefits of any lease
57that has been negotiated or renegotiated by the department shall
58be provided to the chair and vice chair of the Legislative
59Budget Commission if the annualized cost of the new or
60renegotiated lease is in excess of $1 million and if it
61represents a greater than 10 percent change in the annualized
62cost of the department's or other executive agency's original
63lease. The head of the department or an executive agency that
64provides information under this subparagraph may be requested to
65make a presentation at a future Legislative Budget Commission
66meeting.
67     (c)  This subsection does not apply to the Department of
68Legal Affairs, the Department of Financial Services, or the
69Department of Agriculture and Consumer Services unless the
70cabinet officer requests that the department perform the
71service, or part thereof, for the cabinet officer's agency.
72     (3)  The department may assign one or more agencies to move
73into space vacated by another executive agency. The executive
74agency that requested space may reject the department's transfer
75of the executive agency into the vacated space based on
76excessive cost, unfavorable lease terms or conditions, negative
77impact on employee productivity, security concerns, poor
78location, poor building quality, insufficient parking, excessive
79moving costs, or difficult access for persons served by the
80executive agency. In order to reject the transfer, the agency
81head of the executive agency must state in writing the specific
82reason or reasons for rejecting the vacated space shall, to the
83extent feasible, coordinate the vacation of privately owned
84leased space with the expiration of the lease on that space and,
85when a lease is terminated before expiration of its base term,
86will make a reasonable effort to place another state agency in
87the space vacated. Any state agency may lease the space in any
88building that was subject to a lease terminated by a state
89agency for a period of time equal to the remainder of the base
90term without the requirement of competitive bidding.
91     (4)  The department shall promulgate rules pursuant to
92chapter 120 providing:
93     (a)  Methods for accomplishing the duties outlined in
94subsections subsection (1), (2), and (3).
95     (b)  Procedures requiring the competitive solicitation of,
96and procedures for, evaluating and accepting responses to
97competitive solicitations for soliciting and accepting
98competitive proposals for, leased space of 5,000 square feet or
99more in privately owned buildings., for evaluating the proposals
100received, for exemption from competitive bidding requirements of
101any However, a lease the purpose of which is to provide the
102provision of care and living space for persons, or a lease for
103emergency space needs as provided in s. 255.25(6), is exempt
104from the competitive solicitation requirement 255.25(10), and
105for the securing of at least three documented quotes for a lease
106that is not required to be competitively bid. The procedures may
107be simplified for a solicitation of less than 5,000 square feet.
108     (c)  Adoption of a standard method for determining square
109footage or any other measurement used as the basis for lease
110payments, or other charges.
111     (d)  Methods of allocating space in both state-owned office
112buildings and privately owned buildings leased by the state
113based on use, personnel, and office equipment
114     (e)  Acceptable terms and conditions for inclusion in lease
115agreements.
116     (f)  Maximum rental rates, by geographic areas or by
117county, for leasing privately owned space.
118     (g)  A standard method for the assessment of rent to state
119agencies and other authorized occupants of state-owned office
120space, notwithstanding the source of funds.
121     (h)  For full disclosure of the names and the extent of
122interest of the owners holding a 4-percent or more interest in
123any privately owned property leased to the state or in the
124entity holding title to the property, for exemption from such
125disclosure of any beneficial interest which is represented by
126stock in any corporation registered with the Securities and
127Exchange Commission or registered pursuant to chapter 517, which
128stock is for sale to the general public, and for exemption from
129such disclosure of any leasehold interest in property located
130outside the territorial boundaries of the United States.
131     (i)  For full disclosure of the names of all public
132officials, agents, or employees holding any interest in any
133privately owned property leased to the state or in the entity
134holding title to the property, and the nature and extent of
135their interest, for exemption from such disclosure of any
136beneficial interest which is represented by stock in any
137corporation registered with the Securities and Exchange
138Commission or registered pursuant to chapter 517, which stock is
139for sale to the general public, and for exemption from such
140disclosure of any leasehold interest in property located outside
141the territorial boundaries of the United States.
142     (j)  A method for reporting leases for nominal or no
143consideration.
144     (k)  Adoption of the Building Owners and Managers
145Association Metropolitan Base Building Classification, or
146equivalent, as a standard method for rating the quality of
147privately owned buildings. When practical, A or B class space
148according to Building Owners and Managers Association standards
149must be used For a lease of less than 5,000 square feet, a
150method for certification by the agency head or the agency head's
151designated representative that all criteria for leasing have
152been fully complied with and for the filing of a copy of such
153lease and all supporting documents with the department for its
154review and approval as to technical sufficiency.
155     (6)  On or before January 1, 2005, and annually thereafter,
156the Department of Management Services shall submit a report to
157the presiding officers of the Legislature which sets forth the
158department's enterprise plan for the next 5 years for the use of
159state-owned and state-leased space and for any acquisition,
160financing, refinancing, or disposition of state real property
161and improvements that the department is permitted by law to
162execute. If the department intends to deviate from the
163enterprise plan after submission of the annual report, the
164department must provide notice to the presiding officers of the
165Legislature at least 30 days prior to the execution of any
166deviation.
167     (7)  The department shall coordinate with local governments
168and with the appropriate economic development organization in
169the capitol area in regards to the strategic planning for the
170management of state owned facilities.
171     Section 2.  Section 255.25, Florida Statutes, is amended to
172read:
173     255.25  Leasing Approval required prior to construction or
174lease of buildings.--
175     (1)(a)  No state agency may lease space in a private
176building that is to be constructed for state use unless prior
177approval of the architectural design and preliminary
178construction plans is first obtained from the department of
179Management Services.
180     (b)  During the term of existing leases, each agency shall
181monitor market conditions and shall initiate negotiations for
182each lease held in the private sector to effect the best overall
183lease terms reasonably available to that agency. Amendments to
184leases may be permitted to modify any lease provisions or any
185other terms or conditions, except to the extent specifically
186prohibited by this chapter. The Department of Management
187Services shall serve as a mediator in lease renegotiations if
188the agency and the lessor are unable to reach a compromise
189within 6 months of renegotiation and if either the agency or
190lessor requests the Department of Management Services'
191intervention.
192     (c)  When specifically authorized by the Appropriations Act
193and in accordance with s. 255.2501, if applicable, the
194department of Management Services may approve a lease-purchase,
195sale-leaseback, or tax-exempt leveraged lease contract or other
196financing technique for the acquisition, renovation, or
197construction of a state fixed capital outlay project when it is
198in the best interest of the state.
199     (d)  The Department of Management Services in order to seek
200economies of scale and the opportunity to colocate executive
201agencies, may competitively negotiate to procure new leases,
202renegotiate existing leases, or otherwise consolidate existing
203leases into a large scale lease or leases covering one or more
204privately owned buildings. The department may promulgate rules
205establishing procedures to procure and manage large-scale and
206provide a method for allocating lease costs among executive
207agencies.
208     (2)(a)  Except as provided in s. 255.2501, no state agency
209may lease a building or any part thereof unless prior approval
210of the lease conditions and of the need therefor is first
211obtained from the department of Management Services. Any
212approved lease may include an option to purchase or an option to
213renew the lease, or both, upon such terms and conditions as are
214established by the department subject to final approval by the
215head of the Department of Management Services and s. 255.2502.
216     (b)  The Department of Management Services and an executive
217agency allowed to directly procure a The approval of the
218Department of Management Services, except for technical
219sufficiency, need not be obtained for the lease or an extension
220of a lease must comply of less than 5,000 square feet of space
221within a privately owned building, provided the agency head or
222the agency head's designated representative has certified
223compliance with applicable leasing criteria as may be provided
224pursuant to this section and s. 255.249(4)(k) and shall
225determine that has determined such lease is to be in the best
226interest of the state. Such a lease which is for a term
227extending beyond the end of a fiscal year is subject to the
228provisions of ss. 216.311, 255.2502, and 255.2503.
229     (c)  The Department of Management Services shall adopt as a
230rule uniform leasing procedures for use by each state agency
231other than the Department of Transportation. Each state agency
232shall ensure that the leasing practices of that agency are in
233substantial compliance with the uniform leasing rules adopted
234under this section and ss. 255.249, 255.2502, and 255.2503.
235     (3)(a)  Except as provided in subsection (10), no state
236agency shall enter into a lease as lessee for the use of 5,000
237square feet or more of space in a privately owned building
238except upon advertisement for and receipt of competitive bids
239and award to the lowest and best bidder. The Department of
240Management Services shall have the authority to approve a lease
241for 5,000 square feet or more of space that covers more than 1
242fiscal year, subject to the provisions of ss. 216.311, 255.2501,
243255.2502, and 255.2503, if such lease is, in the judgment of the
244department, in the best interests of the state. This paragraph
245does not apply to buildings or facilities of any size leased for
246the purpose of providing care and living space for persons.
247     (b)  The Department of Management Services, or an executive
248agency that may procure its own space, may negotiate with the
249owner of a privately owned building to enter into an extension
250approve extensions of an existing lease of 5,000 square feet or
251more of space if such extension is extensions are determined to
252be in the best interests of the state., but in no case shall the
253total of such extensions exceed 11 months. If at the end of the
25411th month an agency still needs that space, it shall be
255procured by competitive bid in accordance with s. 255.249(4)(b).
256However, an agency that determines that it is in its best
257interest to remain in the space it currently occupies may
258negotiate a replacement lease with the lessor if an When
259determining the best interests of the state, the department or
260agency must use an independent comparative market analysis to
261show demonstrates that the negotiated lease rate for the
262extension is rates offered are within market rates for
263comparable the space, that and the cost of the extension new
264lease does not exceed the cost of a comparable space lease plus
265documented moving costs, and that the space will adequately
266serve the public. A present-value analysis and the consumer
267price index shall be used in the calculation of lease costs. The
268term of the replacement lease may not exceed the base term of
269the expiring lease.
270     (b)(c)  Any person who files an action protesting a
271decision or intended decision pertaining to a competitive bid
272for space to be leased by the agency pursuant to s. 120.57(3)(b)
273shall post with the state agency at the time of filing the
274formal written protest a bond payable to the agency in an amount
275equal to 1 percent of the estimated total rental of the basic
276lease period or $5,000, whichever is greater, which bond shall
277be conditioned upon the payment of all costs which may be
278adjudged against him or her in the administrative hearing in
279which the action is brought and in any subsequent appellate
280court proceeding. If the agency prevails after completion of the
281administrative hearing process and any appellate court
282proceedings, it shall recover all costs and charges which shall
283be included in the final order or judgment, excluding attorney's
284fees. Upon payment of such costs and charges by the person
285protesting the award, the bond shall be returned to him or her.
286If the person protesting the award prevails, the bond shall be
287returned to that person and he or she shall recover from the
288agency all costs and charges which shall be included in the
289final order of judgment, excluding attorney's fees.
290     (c)(d)  The agency and the lessor, when entering into a
291lease for 5,000 or more square feet of a privately owned
292building, shall, before the effective date of the lease, agree
293upon and separately state the cost of tenant improvements which
294may qualify for reimbursement if the lease is terminated before
295the expiration of its base term. The department shall serve as
296mediator if the agency and the lessor are unable to agree. The
297amount agreed upon and stated shall, if appropriated, be
298amortized over the original base term of the lease on a
299straight-line basis.
300     (d)(e)  The unamortized portion of tenant improvements, if
301appropriated, will be paid in equal monthly installments over
302the remaining term of the lease. If any portion of the original
303leased premises is occupied after termination but during the
304original term by a tenant that does not require material changes
305to the premises, the repayment of the cost of tenant
306improvements applicable to the occupied but unchanged portion
307shall be abated during occupancy. The portion of the repayment
308to be abated shall be based on the ratio of leased space to
309unleased space.
310     (4)(a)  The department of Management Services shall not
311authorize any state agency to enter into a lease agreement for
312space in a privately owned building when suitable space is
313available in a state-owned building located in the same
314geographic region, except upon presentation to the department of
315sufficient written justification, acceptable to the department,
316that a separate space is required in order to fulfill the
317statutory duties of the agency making such request. The term
318"state-owned building" as used in this subsection means any
319state-owned facility regardless of use or control.
320     (b)  State agencies shall cooperate with local governmental
321units by using suitable, existing publicly owned facilities,
322subject to the provisions of ss. 255.2501, 255.2502, and
323255.2503. Agencies may utilize unexpended funds appropriated for
324lease payments to:
325     1.  Pay their proportion of operating costs.
326     2.  Renovate applicable spaces.
327     (5)  Before construction or renovation of any state-owned
328building or state-leased space is commenced, the Department of
329Management Services shall ascertain, by submission of proposed
330plans to the Division of State Fire Marshal for review, that the
331proposed construction or renovation plan complies with the
332uniform firesafety standards required by the Division of State
333Fire Marshal. The review of construction or renovation plans for
334state-leased space shall be completed within 10 calendar days of
335receipt of the plans by the Division of State Fire Marshal. The
336review of construction or renovation plans for a state-owned
337building shall be completed within 30 calendar days of receipt
338of the plans by the Division of State Fire Marshal. The
339responsibility for submission and retrieval of the plans called
340for in this subsection shall not be imposed on the design
341architect or engineer, but shall be the responsibility of the
342two agencies. Whenever the Division of State Fire Marshal
343determines that a construction or renovation plan is not in
344compliance with such uniform firesafety standards, the Division
345of State Fire Marshal may issue an order to cease all
346construction or renovation activities until compliance is
347obtained, except those activities required to achieve such
348compliance. The Department of Management Services shall withhold
349approval of any proposed lease until the construction or
350renovation plan complies with the uniform firesafety standards
351of the Division of State Fire Marshal. The cost of all
352modifications or renovations made for the purpose of bringing
353leased property into compliance with the uniform firesafety
354standards shall be borne by the lessor.
355     (6)  Before construction or substantial improvement of any
356state-owned building is commenced, the Department of Management
357Services must ascertain that the proposed construction or
358substantial improvement complies with the flood plain management
359criteria for mitigation of flood hazards, as prescribed in the
360October 1, 1986, rules and regulations of the Federal Emergency
361Management Agency, and the department shall monitor the project
362to assure compliance with the criteria. In accordance with
363chapter 120, the Department of Management Services shall adopt
364any necessary rules to ensure that all such proposed state
365construction and substantial improvement of state buildings in
366designated flood-prone areas complies with the flood plain
367management criteria. Whenever the department determines that a
368construction or substantial improvement project is not in
369compliance with the established flood plain management criteria,
370the department may issue an order to cease all construction or
371improvement activities until compliance is obtained, except
372those activities required to achieve such compliance.
373     (7)  This section does not apply to any lease having a term
374of less than 120 consecutive days for the purpose of securing
375the one-time special use of the leased property. This section
376does not apply to any lease for nominal or no consideration.
377     (8)  No executive agency may shall enter into more than one
378lease for space in a the same privately owned building if such
379building was in the Florida Facilities Pool at any time in the 3
380years prior to the commencement of the lease facility or complex
381within any 12-month period except upon the solicitation of
382competitive bids.
383     (9)  Specialized educational facilities, excluding
384classrooms, shall be exempt from the competitive bid
385requirements for leasing pursuant to this section if the
386executive head of any state agency certifies in writing that
387said facility is available from a single source and that the
388competitive bid requirements would be detrimental to the state.
389Such certification shall include documentation of evidence of
390steps taken to determine sole-source status.
391     (10)  The Department of Management Services may approve
392emergency acquisition of space without competitive bids if
393existing state-owned or state-leased space is destroyed or
394rendered uninhabitable by an act of God, fire, malicious
395destruction, or structural failure, or by legal action, if the
396chief administrator of the state agency or the chief
397administrator's designated representative certifies in writing
398that no other agency-controlled space is available to meet this
399emergency need, but in no case shall the lease for such space
400exceed 11 months. If the lessor elects not to replace or
401renovate the destroyed or uninhabitable facility, the agency
402shall procure the needed space by competitive bid in accordance
403with s. 255.249(4)(b). If the lessor elects to replace or
404renovate the destroyed or uninhabitable facility and the
405construction or renovations will not be complete at the end of
406the 11-month lease, the agency may modify the lease to extend it
407on a month-to-month basis for an additional 6 months to allow
408completion of such construction or renovations.
409     (11)  In any leasing of space that is accomplished without
410competition, the individuals taking part in the development or
411selection of criteria for evaluation, in the evaluation, and in
412the award processes shall attest in writing that they are
413independent of, and have no conflict of interest in, the
414entities evaluated and selected.
415     Section 3.  Section 270.27, Florida Statutes, is repealed.
416     Section 4.  Section 215.3215, Florida Statutes, is created
417to read:
418     215.3215  Charges by agencies or contractors.--Specific
419statutory authority authorizing the maximum amount of a fee,
420tax, or other charge shall be required for an agency, as defined
421in s. 287.012(1), or contractor with such agency to levy or
422impose upon a person who is not a party to the contract a fee,
423tax, or other charge which funds the contract or provides
424payment to the contractor, regardless of whether the levy or
425imposition is direct or indirect or is mandatory or optional.
426     Section 5.  Subsections (17) and (23) of section 287.057,
427Florida Statutes, are amended, and a new subsection (25) is
428added to said section, to read:
429     287.057  Procurement of commodities or contractual
430services.--
431     (17)  For a contract in excess of the threshold amount
432provided in s. 287.017 for CATEGORY FOUR, the agency head shall
433appoint:
434     (a)  At least three persons to evaluate proposals and
435replies who collectively have experience and knowledge in the
436program areas and service requirements for which commodities or
437contractual services are sought.
438     (b)  At least three persons to conduct negotiations during
439a competitive sealed reply procurement who collectively have
440experience and knowledge in negotiating contracts, contract
441procurement, and the program areas and service requirements for
442which commodities or contractual services are sought. As of
443January 1, 2005, when the contract is in excess of $1 million,
444at least one of the persons conducting negotiations must be a
445certified negotiator as established by the department. The
446department shall, by rule, establish the experience, knowledge,
447and training required to be a certified negotiator.
448     (23)(a)  The department, in consultation with the Chief
449Financial Officer State Technology Office and the Comptroller,
450shall develop a program for on-line procurement of commodities
451and contractual services. To enable the state to promote open
452competition and to leverage its buying power, agencies shall
453participate in the on-line procurement program, and eligible
454users and cabinet agencies may participate in the program. Only
455vendors prequalified as meeting mandatory requirements and
456qualifications criteria shall be permitted to participate in on-
457line procurement. The department, in consultation with the State
458Technology Office, may contract for equipment and services
459necessary to develop and implement on-line procurement.
460     (b)  The department, in consultation with the State
461Technology Office, shall adopt rules, pursuant to ss. 120.536(1)
462and 120.54, to administer the program for on-line procurement.
463The rules shall include, but not be limited to:
464     1.  Determining the requirements and qualification criteria
465for prequalifying vendors.
466     2.  Establishing the procedures for conducting on-line
467procurement.
468     3.  Establishing the criteria for eligible commodities and
469contractual services.
470     4.  Establishing the procedures for providing access to on-
471line procurement.
472     5.  Determining the criteria warranting any exceptions to
473participation in the on-line procurement program.
474     (c)  The department may collect fees for the use of the on-
475line procurement program systems. Purchase of commodities and
476contractual services from vendors that are registered with the
477on-line procurement program may be considered use of the
478program. The fees may be imposed on an individual transaction
479basis or as a fixed percentage of the cost savings generated. At
480a minimum, the fees must be set in an amount sufficient to cover
481the projected costs of such services, including administrative
482and project service costs in accordance with the policies of the
483department; however, fees imposed on an individual transaction
484basis may not exceed 1 percent of the transaction amount. For
485the purposes of compensating the provider, the department may
486authorize the provider to collect and retain a portion of the
487fees. The providers may withhold the portion retained from the
488amount of fees to be remitted to the department. The department
489may negotiate the retainage as a percentage of such fees charged
490to users, as a flat amount, or as any other method the
491department deems feasible. All fees and surcharges collected
492under this paragraph shall be collected by the department and
493deposited in the Grants and Donation Trust Fund as provided by
494law.
495     (25)(a)  Legal authority is required for contractual
496services procurements with a cost greater than $10 million over
497the contract term which shift functions or responsibilities from
498agency staff to the private sector where the agency remains
499accountable while the private sector entity performs the
500function or responsibility. At least 60 days prior to the
501Legislative session, if the agency seeks authority by law to
502procure such contractual services, or 30 days prior to issuing a
503solicitation, if the agency has legal authority to procure such
504contractual services, upon issuance of a solicitation, and upon
505execution of a contract, the agency shall provide to the
506President of the Senate and the Speaker of the House of
507Representatives current cost-benefit analyses, business case
508analyses, plans for contract management, proposed performance
509contracting procedures, detailed service comparisons, and
510information about impacts to approved performance standards
511regarding the proposed procurement. The contract for such
512procurement shall include at a minimum a detailed scope of work
513specifying services and deliverables; specific payment terms,
514including incentive and penalty provisions; implementation
515schedules; required performance measures; provisions for the
516transfer of the function or responsibility if the contractor
517ceases to perform; and requirements for access to public records
518consistent with law. The department shall maintain a database
519containing, for procurements subject to this subsection, the
520agency name, the name and description of the contractual service
521procured, and the names of the prime contractor and any
522subcontractors; projected and actual completion dates by project
523phase; a description of performance measures contained in the
524contract, projected performance, and actual performance; and
525projected costs and revenues, as applicable, and actual costs
526and revenues.
527     (b)  This subsection shall not apply to any procurement for
528which a contract was executed prior to July 1, 1994, for
529contractual services substantially similar in nature and purpose
530to those to be procured in the proposed contract.
531     Section 6.  Effective October 1, 2004, there is hereby
532appropriated from the Grants and Donation Trust Fund in the
533Department of Management Services $5,000,000 in the Special
534Categories Contractual Services for the purpose of transferring
535funds to the on-line procurement program contractor, in
536accordance with s. 287.057, Florida Statutes.
537     Section 7.  The amendment to section 287.057(23)(c),
538Florida Statutes, which removes authority for the provider to
539collect and retain fees and require the department to collect
540the fees, shall take effect October 1, 2004.
541     Section 8.  Except as otherwise provided herein, this act
542shall take effect July 1, 2004.
543


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