| 1 | Representative(s) Kottkamp offered the following: |
| 2 |
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| 3 | Amendment (with title amendment) |
| 4 | Remove everything after the enacting clause, and insert: |
| 5 |
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| 6 | Section 1. Paragraph (i) is added to subsection (2) of |
| 7 | section 20.22, Florida Statutes, to read: |
| 8 | 20.22 Department of Management Services.--There is created |
| 9 | a Department of Management Services. |
| 10 | (2) The following divisions and programs within the |
| 11 | Department of Management Services are established: |
| 12 | (i) Center for Efficient Government. |
| 13 | Section 2. Section 287.0571, Florida Statutes, is created |
| 14 | to read: |
| 15 | 287.0571 Applicability of ss. 287.0571-287.0578.-- |
| 16 | (1) Sections 287.0571-287.0578 shall be known as the |
| 17 | "Center for Efficient Government Act". |
| 18 | (2) It is the intent of the Legislature that state |
| 19 | agencies focus on their core missions and deliver services |
| 20 | effectively and efficiently by leveraging resources and |
| 21 | contracting with the private sector for services that can be |
| 22 | more effectively provided by the private sector and that reduce |
| 23 | the cost of government for all citizens of the state. |
| 24 | (3) The provisions of this act shall not be required to |
| 25 | apply to procurements of commodities and contractual services |
| 26 | listed in s. 287.057(5)(e), (f), and (g) and (22). |
| 27 | (4) The provisions of this act shall not apply to: |
| 28 | (a) Procurements of commodities and contractual services |
| 29 | subject to s. 287.055. |
| 30 | (b) Contracts in support of the planning, development, |
| 31 | implementation, operation, or maintenance of the road, bridge, |
| 32 | and public transportation construction program of the Department |
| 33 | of Transportation. |
| 34 | (5) Only the provisions of ss. 287.0571?287.0576, |
| 35 | 287.0578, and section 13 of this act shall apply to procurements |
| 36 | governed by the provisions of HB 1827 or SB 1476, 2005 Regular |
| 37 | Session of the Legislature, or similar legislation, if adopted |
| 38 | in the same legislative session or an extension thereof and |
| 39 | enacted into law. |
| 40 | Section 3. Section 287.0573, Florida Statutes, is created |
| 41 | to read: |
| 42 | 287.0573 Definitions.--For the purposes of this act: |
| 43 | (1) "Center" means the Center for Efficient Government. |
| 44 | (2) "Centralized gate process" means the system of review |
| 45 | phases for a proposed procurement of contractual services, the |
| 46 | conclusion of each phase being a "gate" or decision point at |
| 47 | which the commission determines whether the procurement under |
| 48 | consideration may proceed to the next phase. |
| 49 | (3) "Commission" means the Commission on Efficient |
| 50 | Government. |
| 51 | Section 4. Section 287.0574, Florida Statutes, is created |
| 52 | to read: |
| 53 | 287.0574 Criteria for procurement of contractual |
| 54 | services.-- |
| 55 | (1) The agency must include with its final legislative |
| 56 | budget request the business cases for procurements for |
| 57 | contractual services that the agency proposes in the fiscal year |
| 58 | for which the final legislative budget request is submitted, in |
| 59 | the manner and form prescribed in the legislative budget request |
| 60 | instructions pursuant to s. 216.023. |
| 61 | (2) When compared to the cost and quality of service |
| 62 | performed by state employees, an agency may procure a |
| 63 | contractual service currently or previously provided by state |
| 64 | employees only if, upon full implementation of a procurement, |
| 65 | it: |
| 66 | (a) Results in reasonable cost savings while maintaining |
| 67 | at least the same quality of service; |
| 68 | (b) Reasonably increases the quality of service while not |
| 69 | exceeding the same level of cost; or |
| 70 | (c) Significantly increases measurable outputs and quality |
| 71 | while minimally increasing costs, at levels and percentages |
| 72 | proposed by the procuring agency and approved in writing in |
| 73 | advance of the procurement by the commission. Only projects with |
| 74 | an annual cost below $10 million in each fiscal year may meet |
| 75 | this criterion. |
| 76 | Section 5. Section 287.0575, Florida Statutes, is created |
| 77 | to read: |
| 78 | 287.0575 Commission on Efficient Government; membership; |
| 79 | duties; Center for Efficient Government; duties.-- |
| 80 | (1) The Commission on Efficient Government is created |
| 81 | within the Department of Management Services to oversee the |
| 82 | Center for Efficient Government and carry out the |
| 83 | responsibilities specified in this section. |
| 84 | (a) The commission shall consist of seven members |
| 85 | appointed by the Governor: |
| 86 | 1. Four members shall be heads of executive branch |
| 87 | agencies. |
| 88 | 2. Three members shall be from the private sector and, |
| 89 | collectively, shall have experience with procurement, |
| 90 | successfully increasing operational efficiency, and implementing |
| 91 | complex projects in the private sector business environment. No |
| 92 | private sector member of the commission may at any time during |
| 93 | his or her appointment to the commission be registered to lobby |
| 94 | the executive or legislative branch. |
| 95 | (b) By August 1, 2005, the Governor shall appoint two |
| 96 | private sector members and two agency heads for terms of 3 years |
| 97 | and one private sector member and two agency heads for terms of |
| 98 | 4 years. Thereafter, each member shall serve for a term of 4 |
| 99 | years. The private sector members shall serve without |
| 100 | compensation but shall be entitled to reimbursement for per diem |
| 101 | and travel expenses pursuant to s. 112.061. |
| 102 | (c) No member of the commission shall participate in |
| 103 | commission review of a procurement when his or her agency is |
| 104 | conducting the procurement or, in the case of a private sector |
| 105 | member, he or she has a business relationship with an entity |
| 106 | that is involved or could potentially be involved in the |
| 107 | procurement. |
| 108 | (d) The members of the commission may not delegate their |
| 109 | membership to a designee. |
| 110 | (e) A quorum shall consist of at least four members, |
| 111 | including at least two private-sector members. At least one |
| 112 | private-sector member must vote on the prevailing side for |
| 113 | commission action to take effect. |
| 114 | (f) Any vacancy on the commission shall be filled in the |
| 115 | same manner as the original appointment, and any member |
| 116 | appointed to fill a vacancy occurring for a reason other than |
| 117 | the expiration of a term shall serve only for the unexpired term |
| 118 | of the member's predecessor. |
| 119 | (g) At the first meeting of the commission after August 1, |
| 120 | 2005, the members of the commission shall elect, by majority |
| 121 | vote of those in attendance, a member to serve as chair of the |
| 122 | commission. No later than September 1 of each succeeding year, |
| 123 | the commission shall elect a new chair. |
| 124 | (h) The commission shall: |
| 125 | 1. Oversee the Center for Efficient Government. |
| 126 | 2. Adopt the centralized gate process. |
| 127 | 3. Review, evaluate, and grant approval of, withhold |
| 128 | approval of, or deny approval of a proposed procurement at each |
| 129 | gate established within the centralized gate process. The |
| 130 | commission shall adopt rules regarding the procurements that |
| 131 | must pass through the centralized gate process. Such |
| 132 | procurements shall include, at a minimum, those subject to the |
| 133 | requirements of s. 287.0576(1). |
| 134 | 4. Approve templates and guidelines and adopt rules |
| 135 | prescribing standards and procedures for use by agencies during |
| 136 | the procurement process which shall, at a minimum, include the |
| 137 | requirements under ss. 287.0576-287.0577 for procurements of |
| 138 | contractual services. |
| 139 | 5. Implement a plan for providing information and |
| 140 | documentation to the Legislature and the Governor on behalf of |
| 141 | agencies and in compliance with the provisions of this chapter. |
| 142 | The plan shall include, at a minimum, providing copies of |
| 143 | documents to be reviewed by the commission to the President of |
| 144 | the Senate, the Speaker of the House of Representatives, the |
| 145 | Governor, and the chairs of the relevant appropriations and |
| 146 | substantive legislative committees at least 14 days prior to the |
| 147 | meeting of the commission at which the proposed procurement will |
| 148 | be discussed. |
| 149 | 6. Review the performance of procurements which have |
| 150 | advanced through the full centralized gate process. |
| 151 | (2) The Center for Efficient Government is created in the |
| 152 | department to establish and promote best business practices so |
| 153 | that the delivery of services to citizens of the state are |
| 154 | provided in the most effective and cost-efficient manner |
| 155 | possible. The secretary of the department shall appoint a |
| 156 | director of the center. The duties and responsibilities of the |
| 157 | center are: |
| 158 | (a) Recommending and implementing a centralized gate |
| 159 | process for reviewing and evaluating, and granting, withholding, |
| 160 | or denying approval of, agency procurements which, at a minimum, |
| 161 | shall include the requirements contained in s. 287.0576(1) and |
| 162 | (2) for contractual services procurements. |
| 163 | (b) Providing support and assistance to the commission, |
| 164 | including, but not limited to, reviewing and validating agency |
| 165 | business cases, recommending standards, processes, templates, |
| 166 | and guidelines for use by agencies during the procurement |
| 167 | process and providing information and documentation as requested |
| 168 | or required by law. |
| 169 | (c) Assisting agencies directly in the procurement process |
| 170 | as needed to ensure a high-quality procurement, including, but |
| 171 | not limited to, developing and updating business cases, drafting |
| 172 | solicitation and contract documents, participating in contract |
| 173 | negotiations, identifying performance measures, and advising |
| 174 | agencies on performance measurement, contract management, and |
| 175 | change management. The center shall also provide information, |
| 176 | training, and technical assistance to agencies on the use of the |
| 177 | standards, processes, templates, and guidelines developed for |
| 178 | use by agencies during the procurement process. |
| 179 | (d) Collecting data and information from agencies on an |
| 180 | ongoing basis with regard to the status and results of |
| 181 | procurements that have advanced completely through the |
| 182 | centralized gate process, recommending incorporation of any |
| 183 | lessons learned from such projects into commission standards, |
| 184 | procedures, templates, and guidelines, as appropriate, and |
| 185 | identifying and disseminating to agencies information regarding |
| 186 | best practices in procurement, particularly contractual services |
| 187 | procurements. |
| 188 | (e) Developing and implementing, in consultation with the |
| 189 | Agency for Workforce Innovation, guidelines for assisting |
| 190 | employees whose jobs are eliminated as a result of procurements. |
| 191 | (3) The department shall employ an adequate number of |
| 192 | highly skilled, credentialed staff who collectively possess |
| 193 | significant expertise and experience as required to carry out |
| 194 | the responsibilities of this act. |
| 195 | (4) Agencies shall submit to the center all information, |
| 196 | documents, or other materials required by commission rule or |
| 197 | this chapter. |
| 198 | Section 6. Section 287.0576, Florida Statutes, is created |
| 199 | to read: |
| 200 | 287.0576 Review and analysis of proposed procurement of |
| 201 | contractual services; centralized gate process.-- |
| 202 | (1) At a minimum, procurements required to undergo review |
| 203 | and analysis through the centralized gate process adopted by the |
| 204 | commission are: |
| 205 | (a) Contractual services procurements that have an |
| 206 | estimated total cost of $10 million or more in any fiscal year. |
| 207 | (b) New contractual services procurements that will |
| 208 | require adjustments to the agency's budget, in accordance with |
| 209 | chapter 216, totaling $1 million or more. Amendments to existing |
| 210 | contracts are excluded. |
| 211 | (c) Contractual services procurements that do not involve |
| 212 | an outlay of state funds estimated to total $10 million or more |
| 213 | in any fiscal year because of the provision of services by the |
| 214 | contractor at a rate significantly below market rate, the |
| 215 | significant investment of other resources by the agency, or |
| 216 | other reason, but in which the total value of the services |
| 217 | performed by the agency and contractor under the contract is |
| 218 | estimated to total $10 million or more in any fiscal year. |
| 219 | Examples of such procurements include, but are not limited to, |
| 220 | free, no-cost, or codevelopment contracts. |
| 221 | (d) Contractual services procurements for which the sum of |
| 222 | gross revenues or shared savings to be generated for the state |
| 223 | and contractor over the term of the contract plus the sum of any |
| 224 | payments to the contractor by the agency over the term of the |
| 225 | contract, if any, is estimated to total $10 million or more in |
| 226 | any fiscal year. |
| 227 | (e) Contractual services procurements that do not meet the |
| 228 | criteria in paragraphs (a)-(d) that the Legislature has directed |
| 229 | to be subject to the centralized gate process. |
| 230 | (2) Extensions and renewals of contracts resulting from |
| 231 | procurements in subsection (1) and extensions and renewals of |
| 232 | contracts meeting the criteria identified in paragraphs (1)(a), |
| 233 | (c), and (d) which did not pass through the center shall undergo |
| 234 | review and analysis through the centralized gate process |
| 235 | implemented by the center, though, notwithstanding any law to |
| 236 | the contrary, such contracts shall pass only through such gates |
| 237 | as the commission determines are appropriate based on the |
| 238 | legislative intent of this act. |
| 239 |
|
| 240 | For purposes of determining whether a procurement meets the |
| 241 | requirements of this section, multiple contractual services |
| 242 | procurements for substantially similar or related functions or |
| 243 | responsibilities occurring in a coordinated fashion or in close |
| 244 | time proximity to one another are considered a single |
| 245 | contractual services procurement for purposes of meeting the |
| 246 | thresholds set forth in this section. |
| 247 | (3) The centralized gate process shall require, at a |
| 248 | minimum, review of the procurement by the commission at each |
| 249 | gate. At each gate, the commission shall determine by majority |
| 250 | vote to: |
| 251 | (a) Approve the procurement, if the agency has |
| 252 | sufficiently met the requirements of the current gate, and |
| 253 | advance the procurement to the next phase; |
| 254 | (b) Withhold approval of the procurement, if additional |
| 255 | work must be completed in order to satisfy the requirements of |
| 256 | the current gate, and retain the procurement in that phase; or |
| 257 | (c) Deny the procurement, if the procurement is not a good |
| 258 | business decision, and remove the procurement from |
| 259 | consideration. |
| 260 |
|
| 261 | Notwithstanding the provisions of this section, the commission |
| 262 | may not deny procurements which are required by law. If the |
| 263 | commission determines that a procurement required by law is not |
| 264 | a good business decision, the commission shall withhold approval |
| 265 | and transmit to the President of the Senate, the Speaker of the |
| 266 | House of Representatives, and the Governor the reasons why the |
| 267 | procurement should not be completed and any recommendation for |
| 268 | legislative action. If the President of the Senate or the |
| 269 | Speaker of the House of Representatives has not responded within |
| 270 | 14 business days of receipt of the communication, the commission |
| 271 | shall proceed at its discretion consistent with the Legislative |
| 272 | intent of this act. |
| 273 |
|
| 274 | Notwithstanding any law to the contrary, agencies under the |
| 275 | individual control of the Attorney General, the Chief Financial |
| 276 | Officer, or the Commissioner of Agriculture are subject to the |
| 277 | provisions of this act, except that the commission shall not |
| 278 | grant, withhold, or deny approval of a procurement by such |
| 279 | agency but instead may only provide recommendations to the |
| 280 | agency. The respective agency head shall have sole authority to |
| 281 | grant, withhold, or deny approval of such procurement. |
| 282 | (4) The gates and required documentation comprising the |
| 283 | centralized gate process shall, at a minimum, consist of: |
| 284 | (a) The proposal identification gate, which shall include |
| 285 | the business case. |
| 286 | (b) The procurement preparation gate, which shall include |
| 287 | the updated business case and the solicitation documents prior |
| 288 | to the issuance of such documents. An agency may not release |
| 289 | solicitation documents without the commission's approval at this |
| 290 | gate. The commission must review and approve the written |
| 291 | determination of the agency required pursuant to s. |
| 292 | 287.057(3)(a) before granting approval for the use of an |
| 293 | invitation to negotiate, or withhold approval pending submission |
| 294 | by the agency of an acceptable alternative solicitation method. |
| 295 | (c) The contract development gate, which shall include the |
| 296 | final business case and the proposed unexecuted contract. An |
| 297 | agency may not execute the contract without the commission's |
| 298 | approval at this gate. |
| 299 | (d) The transition management gate, which shall include |
| 300 | updates to the final business case and, for a procurement of |
| 301 | contractual services, an analysis of the agency's and |
| 302 | contractor's readiness for the contractor to perform the |
| 303 | proposed responsibility or function. An agency may not |
| 304 | transition to contractor performance without the commission's |
| 305 | approval at this gate. |
| 306 | (e) The post-implementation gate, which shall include |
| 307 | updates to the final business case and a report on the adequacy |
| 308 | of contractor performance. |
| 309 | (5)(a) Any executed contract for a procurement passing |
| 310 | through the centralized gate process pursuant to this section |
| 311 | shall be null and void if an agency fails to comply with the |
| 312 | commission decision at the proposal identification, procurement |
| 313 | preparation, or contract development gate. |
| 314 | (b) Failure to comply with any other requirements of this |
| 315 | act or implementing rules shall not affect the validity of the |
| 316 | competitive solicitation and award process or any contract. |
| 317 | (6) The commission shall take action at each gate within |
| 318 | 60 days of the submission of a procurement by an agency. If the |
| 319 | commission does not take action within this timeframe, the |
| 320 | agency head shall determine whether to grant, withhold, or deny |
| 321 | approval of the procurement at that gate based on the rules and |
| 322 | guidelines of the commission for that gate and shall notify the |
| 323 | Governor, the President of the Senate, the Speaker of the House |
| 324 | of Representatives, and the commission of such action and the |
| 325 | circumstances thereof. |
| 326 | (7) During the terms of the contracts, the agency shall |
| 327 | annually submit with its legislative budget request a status |
| 328 | report for each procurement that has passed through at least the |
| 329 | first three gates of the centralized gate process describing the |
| 330 | progress made to date, actual completion dates in comparison to |
| 331 | planned completion dates, actual costs incurred in comparison to |
| 332 | projected costs incurred, current issues requiring resolution, |
| 333 | planned project milestones, deliverables, and expenditures for |
| 334 | the next reporting period, and any other information relating to |
| 335 | the contractual services that may be requested. |
| 336 | Section 7. Section 287.0577, Florida Statutes, is created |
| 337 | to read: |
| 338 | 287.0577 Requirements for procurement of certain |
| 339 | contractual services.--In addition to the other applicable |
| 340 | requirements of this chapter, an agency shall comply with the |
| 341 | following requirements for, at a minimum, procurements of |
| 342 | contractual services estimated to total $1 million or more in |
| 343 | any fiscal year and those subject to review under s. |
| 344 | 287.0576(1)(b), (c), (d), and (e) and (2): |
| 345 | (1) BUSINESS CASE.--The agency shall develop a business |
| 346 | case which describes and analyzes the procurement. The business |
| 347 | case is not subject to challenge or protest pursuant to chapter |
| 348 | 120. The business case shall include, but not be limited to, the |
| 349 | information in paragraphs (a)-(l). For procurements not subject |
| 350 | to commission review, the agency shall provide a copy of the |
| 351 | business case to the President of the Senate and the Speaker of |
| 352 | the House at least 14 days prior to releasing a solicitation. |
| 353 | For procurements subject to commission review, the business case |
| 354 | shall be in such detail as is appropriate given the current |
| 355 | phase of the procurement but shall contain sufficient |
| 356 | information to enable the commission to determine at that gate |
| 357 | whether the procurement may proceed to the next procurement |
| 358 | phase: |
| 359 | (a)1. A detailed description of the function or |
| 360 | responsibility for which the procurement is proposed; |
| 361 | 2. If the agency is currently performing the function or |
| 362 | responsibility, a description and analysis of the agency's |
| 363 | current performance, including, but not limited to, baseline |
| 364 | costs and performance metrics; |
| 365 | 3. The goals desired to be achieved through the |
| 366 | procurement and the rationale for such goals; and |
| 367 | 4. A citation of the existing or proposed legal authority |
| 368 | for contracting for the function or responsibility. |
| 369 | (b)1. A description of available options for achieving the |
| 370 | goals. If state employees are currently performing the function |
| 371 | or responsibility, at least one option involving maintaining |
| 372 | state provision of the function or responsibility shall be |
| 373 | included. |
| 374 | 2. A description of the current market for the contractual |
| 375 | services which are under consideration for procurement. |
| 376 | 3. An analysis of the advantages and disadvantages of each |
| 377 | option, including, at a minimum, potential performance |
| 378 | improvements and risks. |
| 379 | (c) A cost-benefit analysis documenting the direct and |
| 380 | indirect specific baseline costs, savings, and qualitative and |
| 381 | quantitative benefits involved in or resulting from the |
| 382 | implementation of the recommended option or options. Such |
| 383 | analysis shall specify the schedule that, at a minimum, must be |
| 384 | adhered to in order to achieve the estimated savings. All |
| 385 | elements of cost shall be clearly identified in the cost-benefit |
| 386 | analysis, described in the business case, and supported by |
| 387 | applicable records and reports. The agency head shall attest |
| 388 | that, based on the data and information underlying the business |
| 389 | case, to the best of his or her knowledge, all projected costs, |
| 390 | savings, and benefits are valid and achievable. "Cost" means the |
| 391 | reasonable, relevant, and verifiable cost which may include, but |
| 392 | not be limited to, elements such as personnel costs, materials |
| 393 | and supplies, services, equipment, capital depreciation costs, |
| 394 | rent, maintenance and repairs, utilities, insurance, personnel |
| 395 | travel, overhead, and interim and final payments. The |
| 396 | appropriate elements shall depend on the nature of the specific |
| 397 | initiative. "Savings" means the difference between the direct |
| 398 | and indirect actual annual baseline costs compared to the |
| 399 | projected annual cost for the contracted functions or |
| 400 | responsibilities in any succeeding state fiscal year during the |
| 401 | term of the contract. |
| 402 | (d) A description of variance among agency policies and |
| 403 | processes and, as appropriate, a discussion of options for or a |
| 404 | plan to standardize, consolidate, or revise current policies and |
| 405 | processes, if any, to reduce the customization of any proposed |
| 406 | solution that would otherwise be required. |
| 407 | (e) A description of the specific performance standards |
| 408 | that must, at a minimum, be met to ensure adequate performance. |
| 409 | (f) A statement of the potential impact on federal, state, |
| 410 | and local revenues and expenditures. The statement shall |
| 411 | specifically describe the effect on general revenue, trust |
| 412 | funds, general revenue service charges, and interest on trust |
| 413 | funds together with the potential direct or indirect effect on |
| 414 | federal funding and cost allocations. |
| 415 | (g) The projected timeframe for key events, from the |
| 416 | beginning of the procurement process through the expiration of a |
| 417 | contract. |
| 418 | (h) A plan to ensure compliance with public records law |
| 419 | which must include components that: |
| 420 | 1. Provide public access to public records at a cost that |
| 421 | does not exceed that provided in chapter 119. |
| 422 | 2. Ensure the confidentiality of records that are exempt |
| 423 | or confidential under law. |
| 424 | 3. Meet all legal requirements for record retention |
| 425 | provided by law. |
| 426 | 4. Require transfer to the state, at no cost, of all |
| 427 | public records in possession of the contractor upon termination |
| 428 | of the contract. |
| 429 | (i) A specific and feasible contingency plan addressing |
| 430 | contractor nonperformance and a description of the tasks |
| 431 | involved in and costs required for its implementation. |
| 432 | (j) An agency transition plan for addressing changes in |
| 433 | the number of agency personnel, affected business processes, |
| 434 | employee transition issues, and communication with affected |
| 435 | stakeholders, such as agency clients and the public. The |
| 436 | transition plan shall contain a reemployment and retraining |
| 437 | assistance plan for employees who are not retained by the agency |
| 438 | or employed by the contractor. |
| 439 | (k) A listing of any assets proposed for surplus or use by |
| 440 | a contractor. For those assets proposed to be used by a |
| 441 | contractor, the business case shall include a description of the |
| 442 | proposed requirements for maintaining those assets by the |
| 443 | contractor or the agency in accordance with chapter 273, a plan |
| 444 | for the transitioning of the assets upon termination of the |
| 445 | contract, and a description of how the planned use by a |
| 446 | contractor is in the best interest of the agency and state. |
| 447 | (l) A plan for ensuring access by persons with |
| 448 | disabilities in compliance with applicable state and federal |
| 449 | law. |
| 450 |
|
| 451 | If a contractual services procurement meets the criteria for |
| 452 | submission of feasibility study documentation as required by the |
| 453 | legislative budget request instructions established pursuant to |
| 454 | s. 216.023, the agency shall submit such documentation. |
| 455 | (2) SOLICITATION REQUIREMENTS.--The solicitation for a |
| 456 | contractual services procurement shall include, at a minimum: |
| 457 | (a) A detailed description of the function or |
| 458 | responsibility under consideration for contracting and, if the |
| 459 | function or responsibility is currently being performed by an |
| 460 | agency, a description and analysis of the agency's current |
| 461 | performance. |
| 462 | (b) Requirements that are achievable, unambiguous, |
| 463 | measurable, meaningful, and complete. |
| 464 | (c) The criteria that after contract execution will be |
| 465 | used to assess contractor performance and the minimum acceptable |
| 466 | contractor performance levels. |
| 467 | (3) CONTRACT.--Each contract must include, but need not be |
| 468 | limited to: |
| 469 | (a) A detailed scope of work that clearly specifies each |
| 470 | service or deliverable to be provided, including a description |
| 471 | of each deliverable or activity that is quantifiable, |
| 472 | measurable, and verifiable. |
| 473 | (b) All service-level agreements describing all services |
| 474 | to be provided under the terms of the agreement, the agency's |
| 475 | service requirements and performance objectives, and specific |
| 476 | responsibilities of the agency and the contractor. |
| 477 | (c) Associated costs and savings, specific payment terms |
| 478 | and payment schedule, including incentive and disincentive |
| 479 | provisions, criteria governing payment, and a clear and specific |
| 480 | implementation schedule that will be implemented in order to |
| 481 | complete all required activities needed to transfer the service |
| 482 | from the agency to the contractor and operate the service |
| 483 | successfully. |
| 484 | (d) Clear and specific identification of all required |
| 485 | performance standards, which must include, at a minimum: |
| 486 | 1. Detailed measurable acceptance criteria for each |
| 487 | deliverable and service to be provided to the agency under the |
| 488 | terms of the contract which document the required performance |
| 489 | level. |
| 490 | 2. A method for monitoring and reporting progress in |
| 491 | achieving specified performance standards and levels. |
| 492 | 3. The sanctions or disincentives that shall be assessed |
| 493 | for nonperformance by the contractor or agency. |
| 494 | (e) A requirement that the contractor maintain adequate |
| 495 | accounting records that comply with all applicable federal and |
| 496 | state laws and generally accepted accounting principles. |
| 497 | (f) A requirement authorizing state access to and audit of |
| 498 | all records related to the contract or any responsibilities or |
| 499 | functions under the contract for state audit and legislative |
| 500 | oversight purposes and a requirement for service organization |
| 501 | audits in accordance with professional auditing standards, if |
| 502 | appropriate. |
| 503 | (g) A requirement describing the timing and substance of |
| 504 | all plans and status or progress reports that are to be |
| 505 | provided. All plans and status or progress reports must comply |
| 506 | with any relevant state and federal standards. |
| 507 | (h) A requirement that the contractor comply with public |
| 508 | records laws. The contractor must: |
| 509 | 1. Keep and maintain the public records that ordinarily |
| 510 | and necessarily would be required by the state agency in order |
| 511 | to perform the function or service. |
| 512 | 2. Provide the public with access to such public records |
| 513 | on the same terms and conditions that the state agency would and |
| 514 | at a cost that does not exceed that provided in chapter 119. |
| 515 | 3. Ensure the confidentiality of records that are exempt |
| 516 | from public disclosure or made confidential under law. |
| 517 | 4. Meet all requirements for retaining records and |
| 518 | transfer to the state, at no cost, all public records in |
| 519 | possession of the contractor upon termination of the contract |
| 520 | and destroy any duplicate public records which are exempt and |
| 521 | confidential. All records stored electronically must be provided |
| 522 | to the state in a format that is compatible with information |
| 523 | technology systems of the state. |
| 524 | (i) A requirement that any state funds provided for the |
| 525 | purchase of or improvements to real property be made contingent |
| 526 | upon the contractor granting to the state a security interest in |
| 527 | the property which is at least equal to the amount of the state |
| 528 | funds provided for the most recent years following the date of |
| 529 | purchase or the completion of improvements, or as otherwise |
| 530 | required by law. The contract must include a provision that, if |
| 531 | the contractor disposes of the property before the agency's |
| 532 | interest is vacated, the contractor will refund the |
| 533 | proportionate share of the state's initial investment, as |
| 534 | adjusted by depreciation. |
| 535 | (j) If a contract involves the development or creation of |
| 536 | intellectual property, the contract must specify the ownership |
| 537 | of such intellectual property and any rights of the state to |
| 538 | use, modify, reproduce, or disseminate the intellectual |
| 539 | property. |
| 540 | (k) A provision that the contractor annually submit and |
| 541 | verify, pursuant to s. 92.525, all required financial |
| 542 | statements. |
| 543 | (l) A requirement that the contractor shall interview and |
| 544 | consider for employment with the contractor each displaced state |
| 545 | employee who is interested in such employment. |
| 546 | (m) Provisions requiring that venue for any action |
| 547 | regarding the contract shall be in Leon County and that the |
| 548 | contract shall be interpreted according to the laws of this |
| 549 | state. |
| 550 | (4) AMENDMENTS.--An agency may not amend a contract |
| 551 | without first submitting the proposed contract amendment to the |
| 552 | Executive Office of the Governor for approval and notifying the |
| 553 | chairs of the legislative appropriations committees of such |
| 554 | submission if the effect of the amendment would be to: |
| 555 | (a) Increase the value of the contract by $1 million or |
| 556 | more for those contracts with a total value of at least $1 |
| 557 | million but less than $10 million; or |
| 558 | (b) Increase the value of the contract by 10 percent or |
| 559 | more for those contracts with a total value of $10 million or |
| 560 | more. |
| 561 |
|
| 562 | An agency shall not divide a contract amendment so as to avoid |
| 563 | the requirements of this section. |
| 564 | (5) In addition to the requirements of subsections |
| 565 | 287.057(13) and (14), prior to the renewal or extension of a |
| 566 | contract, an agency shall document whether all specific direct |
| 567 | and indirect costs, savings, performance standards, and |
| 568 | qualitative and quantitative benefits identified in the contract |
| 569 | have been met by the contractor and the agency. If the actual |
| 570 | performance of the contractor does not meet the required |
| 571 | performance as identified in the contract, the agency shall |
| 572 | explain the reasons why and provide justification for the |
| 573 | extensions or renewal of the contract. This documentation shall |
| 574 | be included in the official contract file. |
| 575 | Section 8. Section 287.0578, Florida Statutes, is created |
| 576 | to read: |
| 577 | 287.0578 Subsequent inconsistent laws.--Subsequent |
| 578 | inconsistent laws shall supersede this act only to the extent |
| 579 | they do so by express reference to this section. |
| 580 | Section 9. Paragraph (b) of subsection (17) of section |
| 581 | 287.057, Florida Statutes, is amended to read: |
| 582 | 287.057 Procurement of commodities or contractual |
| 583 | services.-- |
| 584 | (17) For a contract in excess of the threshold amount |
| 585 | provided in s. 287.017 for CATEGORY FOUR, the agency head shall |
| 586 | appoint: |
| 587 | (b) At least three persons to conduct negotiations during |
| 588 | a competitive sealed reply procurement who collectively have |
| 589 | experience and knowledge in negotiating contracts, contract |
| 590 | procurement, and the program areas and service requirements for |
| 591 | which commodities or contractual services are sought. When the |
| 592 | annual value of a contract is in excess of $1 million, at least |
| 593 | one of the persons conducting negotiations must be certified as |
| 594 | a contract negotiator based upon rules adopted by the Department |
| 595 | of Management Services. |
| 596 | Section 10. Section 215.4211, Florida Statutes, is created |
| 597 | to read: |
| 598 | 215.4211 Review of contracts for state agencies.--The |
| 599 | Chief Financial Officer may request, as he or she deems |
| 600 | necessary, the option to review and provide comments prior to |
| 601 | the execution of any contract that is required to be in |
| 602 | compliance with the provisions of s. 287.0577(3). |
| 603 | Section 11. Section 216.1817, Florida Statutes, is created |
| 604 | to read: |
| 605 | 216.1817 Placement of positions in reserve; |
| 606 | reestablishment of positions.--If a procurement of contractual |
| 607 | services involves the performance of functions or |
| 608 | responsibilities that are being shifted from state employees to |
| 609 | a contractor, the agency shall identify within the business case |
| 610 | prepared pursuant to s. 287.0577 all resources which are |
| 611 | affected, including full-time equivalent positions. All full- |
| 612 | time equivalent positions identified in the business case shall |
| 613 | be placed in reserve by the Executive Office of the Governor |
| 614 | until the end of the second year of the contract. However, in |
| 615 | the business case, the agency may account for any savings from |
| 616 | the full-time equivalent positions identified and held in |
| 617 | reserve. Notwithstanding the provisions of s. 216.262, the |
| 618 | Executive Office of the Governor shall request authority from |
| 619 | the Legislative Budget Commission to reestablish full-time |
| 620 | equivalent positions above the number fixed by the Legislature |
| 621 | if a contract is terminated and the performance of the functions |
| 622 | or responsibilities must be returned to the agency. |
| 623 | Section 12. Section 287.074, Florida Statutes, is created |
| 624 | to read: |
| 625 | 287.074 Actions reserved to public officers or |
| 626 | employees.-- |
| 627 | (1) Only a public officer or a public employee upon whom |
| 628 | the public officer has delegated authority shall, consistent |
| 629 | with law, take actions including, but not limited to: |
| 630 | (a) Selecting state employees; |
| 631 | (b) Approving position descriptions, performance |
| 632 | standards, or salary adjustments for state employees; and |
| 633 | (c) Hiring, promoting, disciplining, demoting, and |
| 634 | dismissing a state employee. |
| 635 | (2) Only a public officer shall, consistent with law, |
| 636 | commission and appoint state officers. |
| 637 | Section 13. A contractor, as defined in chapter 287, |
| 638 | Florida Statutes, or its employees, agents, or subcontractors, |
| 639 | may not knowingly participate, through decision, approval, |
| 640 | disapproval, preparation of any part of a purchase request, |
| 641 | investigation, or auditing, in the procurement of contractual |
| 642 | services by an agency from an entity in which the contractor, or |
| 643 | its employees, agents, or subcontractors has a material |
| 644 | interest. |
| 645 | Section 14. The Center for Efficient Government and the |
| 646 | Commission on Efficient Government shall terminate on July 1, |
| 647 | 2010, unless reenacted by the Legislature prior to that date. It |
| 648 | is the intent of the Legislature that, beginning July 1, 2010, |
| 649 | the various state agencies shall perform the review functions |
| 650 | required under this act for procurements of contractual services |
| 651 | under their jurisdiction. It is also the intent of the |
| 652 | Legislature that beginning July 1, 2010, the positions |
| 653 | authorized by this act shall remain with the Department of |
| 654 | Management Services, which shall continue providing technical |
| 655 | assistance as required in this act. |
| 656 | Section 15. Section 287.0572, Florida Statutes, is |
| 657 | renumbered as section 287.0579, Florida Statutes: |
| 658 | 287.0579 287.0572 Present-value methodology.-- |
| 659 | (1) The cost of bids, proposals, or replies for state |
| 660 | contracts that include provisions for unequal payment streams or |
| 661 | unequal time payment periods shall be evaluated using present- |
| 662 | value methodology. Each agency, as defined in s. 287.012(1), |
| 663 | shall perform the evaluation using the present-value discount |
| 664 | rate supplied by the department. The present-value discount rate |
| 665 | shall be the rate for United States Treasury notes and bonds |
| 666 | published in the Interest Rates: Money and Capital Markets |
| 667 | section of the most recent copy of the Federal Reserve Bulletin |
| 668 | published at the time of issuance of the request for proposals, |
| 669 | the invitation to negotiate, or the invitation to bid. |
| 670 | (2) The department may adopt rules to administer |
| 671 | subsection (1). |
| 672 | Section 16. Subsection (3) of section 119.0721, Florida |
| 673 | Statutes, is amended to read: |
| 674 | 119.0721 Social security number exemption.-- |
| 675 | (3) An agency shall not deny a commercial entity engaged |
| 676 | in the performance of a commercial activity, which, for purposes |
| 677 | of this subsection, means an activity that provides a product or |
| 678 | service that is available from a private source as defined in s. |
| 679 | 14.203 or its agents, employees, or contractors access to social |
| 680 | security numbers, provided the social security numbers will be |
| 681 | used only in the normal course of business for legitimate |
| 682 | business purposes, and provided the commercial entity makes a |
| 683 | written request for social security numbers, verified as |
| 684 | provided in s. 92.525, legibly signed by an authorized officer, |
| 685 | employee, or agent of the commercial entity. The verified |
| 686 | written request must contain the commercial entity's name, |
| 687 | business mailing and location addresses, business telephone |
| 688 | number, and a statement of the specific purposes for which it |
| 689 | needs the social security numbers and how the social security |
| 690 | numbers will be used in the normal course of business for |
| 691 | legitimate business purposes. The aggregate of these requests |
| 692 | shall serve as the basis for the agency report required in |
| 693 | subsection (7). An agency may request any other information as |
| 694 | may be reasonably necessary to verify the identity of the entity |
| 695 | requesting the social security numbers and the specific purposes |
| 696 | for which such numbers will be used; however, an agency has no |
| 697 | duty to inquire beyond the information contained in the verified |
| 698 | written request. A legitimate business purpose includes |
| 699 | verification of the accuracy of personal information received by |
| 700 | a commercial entity in the normal course of its business; use in |
| 701 | a civil, criminal, or administrative proceeding; use for |
| 702 | insurance purposes; use in law enforcement and investigation of |
| 703 | crimes; use in identifying and preventing fraud; use in |
| 704 | matching, verifying, or retrieving information; and use in |
| 705 | research activities. A legitimate business purpose does not |
| 706 | include the display or bulk sale of social security numbers to |
| 707 | the general public or the distribution of such numbers to any |
| 708 | customer that is not identifiable by the distributor. |
| 709 | Section 17. Section 14.203, Florida Statutes, is repealed. |
| 710 | Section 18. There is hereby appropriated $1,023,554 |
| 711 | recurring budget authority to the Department of Management |
| 712 | Services from the General Revenue Fund, and nine full-time |
| 713 | equivalent positions are authorized, to carry out the activities |
| 714 | of the Center for Efficient Government and the Commission on |
| 715 | Efficient Government as provided in this act. |
| 716 | Section 19. This act shall take effect July 1, 2005. |
| 717 |
|
| 718 |
|
| 719 | ================= T I T L E A M E N D M E N T ================= |
| 720 |
|
| 721 | Remove the entire title, and insert: |
| 722 |
|
| 723 | A bill to be entitled |
| 724 | An act relating to procurement of contractual services by |
| 725 | an agency; amending s. 20.22, F.S.; placing the Center for |
| 726 | Efficient Government in the Department of Management |
| 727 | Services; creating s. 287.0571, F.S.; providing a popular |
| 728 | name; providing legislative intent; providing that |
| 729 | procurements of specified commodities and services are not |
| 730 | subject to the act; providing specified applicability; |
| 731 | creating s. 287.0573, F.S.; providing definitions; |
| 732 | creating s. 287.0574, F.S.; providing criteria for the |
| 733 | procurement of contractual services by an agency; |
| 734 | requiring an agency to include with its final legislative |
| 735 | budget request the business cases for specified |
| 736 | procurements; creating s. 287.0575, F.S.; creating the |
| 737 | Commission on Efficient Government within the Department |
| 738 | of Management Services; providing for purpose, membership, |
| 739 | and organization of the commission; providing duties and |
| 740 | responsibilities of the commission; creating the Center |
| 741 | for Efficient Government; providing purpose and |
| 742 | organization of the center; providing duties and |
| 743 | responsibilities of the center; requiring the center to |
| 744 | recommend and implement a centralized gate process for |
| 745 | reviewing, evaluating, and approving agency procurements; |
| 746 | requiring state agencies to submit specified information, |
| 747 | documents, and other materials required under commission |
| 748 | rules; creating s. 287.0576, F.S.; specifying procurements |
| 749 | which must be reviewed and evaluated under the centralized |
| 750 | gate process; providing minimum requirements for the |
| 751 | centralized gate process; providing for specified |
| 752 | determinations by the commission at each gate; providing |
| 753 | procedure with respect to an unfavorable finding by the |
| 754 | commission with respect to a procurement required by law; |
| 755 | providing that agencies under the individual control of |
| 756 | the Attorney General, Chief Financial Officer, or |
| 757 | Commissioner of Agriculture are subject to the act, with |
| 758 | specified exceptions; providing authority of the agency |
| 759 | head with respect to procurements by such agencies; |
| 760 | establishing the gates within the centralized gate |
| 761 | process; requiring agencies to submit specified documents |
| 762 | for commission review at each gate; providing for |
| 763 | nullification of executed contracts for procurement under |
| 764 | specified circumstances; requiring the commission to take |
| 765 | action at each gate within a specified time period; |
| 766 | providing procedure if the commission does not take action |
| 767 | within such time period; requiring the submission of |
| 768 | annual status reports; creating s. 287.0577, F.S.; |
| 769 | providing requirements for procurement of certain |
| 770 | contractual services; requiring an agency to develop a |
| 771 | business case which describes and analyzes a contractual |
| 772 | services procurement under consideration; providing that |
| 773 | the business case is not subject to challenge or protest |
| 774 | under the Administrative Procedure Act; providing required |
| 775 | components of a business case; defining "cost" and |
| 776 | "savings"; providing requirements with respect to the |
| 777 | solicitation for a contractual services procurement; |
| 778 | providing contract requirements for a contractual services |
| 779 | procurement; providing requirements with respect to |
| 780 | contract amendments; providing that specified contract |
| 781 | amendments must be submitted to the Executive Office of |
| 782 | the Governor for approval; requiring notification of such |
| 783 | submission to the chairs of the legislative appropriations |
| 784 | committees; prohibiting the division of a contract |
| 785 | amendment to avoid specified requirements; requiring |
| 786 | documentation of contractor performance prior to renewal |
| 787 | or extension of a contract; creating s. 287.0578, F.S.; |
| 788 | providing for conditional supersession of the act; |
| 789 | amending s. 287.057, F.S.; providing a requirement with |
| 790 | respect to the composition of persons chosen to conduct |
| 791 | negotiations during a specified competitive sealed reply |
| 792 | procurement; creating s. 215.4211, F.S.; authorizing the |
| 793 | Chief Financial Officer to review contracts for state |
| 794 | agencies; creating s. 216.1817, F.S.; requiring the |
| 795 | placement of full-time equivalent positions in reserve |
| 796 | under certain conditions; providing for the |
| 797 | reestablishment of full-time equivalent positions upon |
| 798 | termination of a contract and reversion of functions and |
| 799 | responsibilities to the agency; creating s. 287.074, F.S.; |
| 800 | providing that only public officers or employees must |
| 801 | perform certain functions; providing restrictions on |
| 802 | contractor involvement in the procurement of contractual |
| 803 | services; providing for future termination of the Center |
| 804 | for Efficient Government and the Commission on Efficient |
| 805 | Government; providing legislative intent with respect to |
| 806 | the performance of review functions and assistance to |
| 807 | agencies for procurements of contractual services by state |
| 808 | agencies after a specified date; providing that positions |
| 809 | authorized under the act shall remain with the Department |
| 810 | of Management Services after a specified date; repealing |
| 811 | s. 14.203, F.S., which creates the State Council on |
| 812 | Competitive Government and provides duties and authority |
| 813 | of the council; providing an appropriation; providing |
| 814 | full-time equivalent positions; amending s. 119.0721, |
| 815 | F.S.; removing a cross reference; clarifying the meaning |
| 816 | of "commercial activity" to conform to the removal of the |
| 817 | reference; providing an effective date. |
| 818 |
|
| 819 | WHEREAS, the private sector can often perform services with |
| 820 | greater efficiency and effectiveness at a lower cost than the |
| 821 | state, and |
| 822 | WHEREAS, the state has long been a leader in innovative |
| 823 | practices, in part because of its partnerships with the private |
| 824 | sector, and |
| 825 | WHEREAS, the state desires to reap the benefits of lower |
| 826 | costs, high quality, and innovation by working closely with the |
| 827 | private sector, and |
| 828 | WHEREAS, the state still maintains responsibility for |
| 829 | ensuring that the services performed by the private sector on |
| 830 | behalf of the state are of high quality, cost-effective, and |
| 831 | appropriate functions for the private sector, and |
| 832 | WHEREAS, leading businesses have developed best practices |
| 833 | to determine what to obtain from the market and how to ensure |
| 834 | that such services are provided at the desired quality and at |
| 835 | the appropriate cost, and |
| 836 | WHEREAS, the executive branch has made great progress in |
| 837 | promoting the use of such best practices, and the citizens of |
| 838 | the state could benefit by the increased adoption across state |
| 839 | government of such best practices, NOW, THEREFORE, |