1 | A bill to be entitled |
2 | An act relating to procurement of contractual services by |
3 | an agency; amending s. 20.22, F.S.; placing the Center for |
4 | Efficient Government in the Department of Management |
5 | Services; creating s. 287.0571, F.S.; providing that |
6 | procurements of specified commodities and services are not |
7 | subject to the act; creating s. 287.0573, F.S.; providing |
8 | definitions; creating s. 287.0574, F.S.; providing |
9 | criteria for the procurement of contractual services by an |
10 | agency; creating s. 287.0575, F.S.; creating the |
11 | Commission on Efficient Government within the Department |
12 | of Management Services; providing for purpose, membership, |
13 | and organization of the commission; providing duties and |
14 | responsibilities of the commission; creating the Center |
15 | for Efficient Government; providing purpose and |
16 | organization of the center; providing duties and |
17 | responsibilities of the center; requiring the center to |
18 | create a centralized gate process for reviewing, |
19 | evaluating, and approving agency procurements; providing |
20 | that the commission, the center, and activities related to |
21 | the implementation of the centralized gate process are not |
22 | subject to the rulemaking requirements of ch. 120, F.S.; |
23 | requiring state agencies to submit specified information, |
24 | documents, and other materials required under policies of |
25 | the commission or the center; creating s. 287.0576, F.S.; |
26 | specifying procurements which must be reviewed and |
27 | evaluated under the centralized gate process; providing |
28 | minimum requirements for the centralized gate process; |
29 | providing for specified determinations by the commission |
30 | at each gate; providing procedure with respect to a |
31 | recommendation by the commission of denial of a |
32 | procurement required by law; providing that agencies under |
33 | the individual control of the Attorney General, Chief |
34 | Financial Officer, or Commissioner of Agriculture are |
35 | subject to the act, with specified exceptions; providing |
36 | authority of the agency head with respect to procurements |
37 | by such agencies; establishing the gates within the |
38 | centralized gate process; requiring agencies to submit |
39 | specified documents for commission review; providing for |
40 | nullification of executed contracts for procurement under |
41 | specified circumstances; creating s. 287.0577, F.S.; |
42 | providing requirements for procurement of certain |
43 | contractual services; requiring an agency to develop a |
44 | business case which describes and analyzes a contractual |
45 | services procurement under consideration; providing |
46 | required components of a business case; defining "cost" |
47 | and "savings"; providing requirements with respect to the |
48 | solicitation for a contractual services procurement; |
49 | providing contract requirements for a contractual services |
50 | procurement; requiring the submission of specified annual |
51 | reports; creating s. 216.1817, F.S.; permitting budgetary |
52 | changes for a contractual services procurement only under |
53 | specified conditions; requiring the placement of full-time |
54 | equivalent positions in reserve under certain conditions; |
55 | providing for the reestablishment of full-time equivalent |
56 | positions upon termination of a contract and reversion of |
57 | functions and responsibilities to the agency; providing |
58 | for future termination of the Center for Efficient |
59 | Government and the Commission on Efficient Government; |
60 | providing legislative intent with respect to the |
61 | performance of review functions and assistance to agencies |
62 | for procurements of contractual services by state agencies |
63 | after a specified date; providing that positions |
64 | authorized under the act shall remain with the Department |
65 | of Management Services after a specified date; repealing |
66 | s. 14.203, F.S., which creates the State Council on |
67 | Competitive Government and provides duties and authority |
68 | of the council; providing an appropriation; providing |
69 | full-time equivalent positions; amending s. 119.0721, |
70 | F.S.; removing a cross reference; clarifying the meaning |
71 | of "commercial activity" to conform to the removal of the |
72 | reference; providing an effective date. |
73 |
|
74 | WHEREAS, the private sector can often perform services with |
75 | greater efficiency and effectiveness at a lower cost than the |
76 | state, and |
77 | WHEREAS, the state has long been a leader in innovative |
78 | practices, in part because of its partnerships with the private |
79 | sector, and |
80 | WHEREAS, the state desires to continue to reap the benefits |
81 | of lower costs, high quality, and innovation by working closely |
82 | with the private sector, and |
83 | WHEREAS, the state still maintains responsibility for |
84 | ensuring that the services performed by the private sector on |
85 | behalf of the state are of high quality, provided cost- |
86 | effectively, and appropriate for private provision, and |
87 | WHEREAS, leading businesses have developed best practices |
88 | to determine what to obtain from the market and how to ensure |
89 | that such services are provided at the desired quality and at |
90 | the appropriate cost, and |
91 | WHEREAS, the executive branch has made great progress in |
92 | promoting the use of such best practices, and the citizens of |
93 | the state could benefit by the increased adoption across state |
94 | government of such best practices, NOW, THEREFORE, |
95 |
|
96 | Be It Enacted by the Legislature of the State of Florida: |
97 |
|
98 | Section 1. Paragraph (i) is added to subsection (2) of |
99 | section 20.22, Florida Statutes, to read: |
100 | 20.22 Department of Management Services.--There is created |
101 | a Department of Management Services. |
102 | (2) The following divisions and programs within the |
103 | Department of Management Services are established: |
104 | (i) Center for Efficient Government. |
105 | Section 2. Section 287.0571, Florida Statutes, is created |
106 | to read: |
107 | 287.0571 Applicability of ss. 287.0571-287.0577.-- |
108 | Procurements of commodities and contractual services listed in |
109 | s. 287.057(5)(e), (f), and (g) shall not be subject to ss. |
110 | 287.0571-287.0577. |
111 | Section 3. Section 287.0573, Florida Statutes, is created |
112 | to read: |
113 | 287.0573 Definitions.--For the purposes of ss. 287.0571- |
114 | 287.0571-287.0577: |
115 | (1) "Center" means the Center for Efficient Government |
116 | established under s. 287.0575(2). |
117 | (2) "Centralized gate process" means the system of review |
118 | phases established under s. 287.0576 for a proposed procurement |
119 | of contractual services, the conclusion of each phase being a |
120 | "gate" or decision point at which the commission determines |
121 | whether the procurement under consideration may proceed to the |
122 | next phase. |
123 | (3) "Commission" means the Commission on Efficient |
124 | Government established under s. 287.0575(1). |
125 | (4) "Inherently governmental function or responsibility" |
126 | means a function or responsibility which entails the exercise of |
127 | sovereign power and is therefore so intimately related to the |
128 | public interest that it mandates performance by a public officer |
129 | or a public employee upon whom the public officer has delegated |
130 | authority for the performance of such acts. Inherently |
131 | governmental functions or responsibilities include those |
132 | activities which require either the exercise of discretion in |
133 | applying governmental authority or the use of value judgment in |
134 | making decisions for the government. Inherently governmental |
135 | functions or responsibilities are categorized as follows: |
136 | (a) The act of governing or discretionary exercise of |
137 | governmental authority which includes, but is not limited to, |
138 | such activities as criminal investigations, prosecutions, and |
139 | other judicial functions; management of government programs |
140 | requiring value judgments; selection of program priorities; |
141 | regulation of natural resources; regulation of industry and |
142 | commerce; determination of agency policy, including, but not |
143 | limited to, determining the content and application of |
144 | regulations; binding the state by contract, policy, regulation, |
145 | authorization, order, or otherwise; commissioning, appointing, |
146 | directing, selecting, or controlling state officers or |
147 | employees; approval of position descriptions and performance |
148 | standards for state employees; exertion of ultimate control over |
149 | the acquisition, use, or disposition of the real, personal, |
150 | tangible, or intangible property of the state, including the |
151 | collection, control, or disbursement of state funds; awarding, |
152 | administering, and terminating contracts; determining whether |
153 | contract costs are reasonable, allocable, and allowable; |
154 | approval of contractual documents; approval of state licensing |
155 | actions and inspections; determination of budget policy, |
156 | guidance, and strategy. |
157 | (b) Monetary transactions and entitlements which include, |
158 | but are not limited to, tax collection and revenue |
159 | disbursements; control of state funds; and the administration of |
160 | public trusts. |
161 |
|
162 | Inherently governmental functions or responsibilities do not |
163 | include gathering information for or providing advice, opinions, |
164 | recommendations, or ideas to state officials. They do not |
165 | include functions that are primarily ministerial and internal in |
166 | nature, such as building security, mail operations, operation of |
167 | cafeterias, housekeeping, facilities operations and maintenance, |
168 | warehouse operations, motor vehicle fleet management operations, |
169 | or other routine electrical or mechanical services. |
170 | Section 4. Section 287.0574, Florida Statutes, is created |
171 | to read: |
172 | 287.0574 Criteria for procurement of contractual |
173 | services.--An agency may procure a contractual service only if: |
174 | (1) The procurement does not involve the performance by a |
175 | contractor of an inherently governmental function or |
176 | responsibility; and |
177 | (2) Upon full implementation of a procurement in which the |
178 | performance of functions or responsibilities are shifted from |
179 | state employees to a contractor, the implementation results in |
180 | reasonable cost savings while maintaining at least the same |
181 | quality of service or reasonably increases the quality of |
182 | service while not exceeding the same level of cost. |
183 | Section 5. Section 287.0575, Florida Statutes, is created |
184 | to read: |
185 | 287.0575 Commission on Efficient Government; membership; |
186 | duties; Center for Efficient Government; duties.-- |
187 | (1) The Commission on Efficient Government is created |
188 | within the Department of Management Services to oversee the |
189 | Center for Efficient Government and carry out the |
190 | responsibilities specified in this section. |
191 | (a) The commission shall consist of seven members |
192 | appointed by the Governor: |
193 | 1. Four members shall be heads of executive branch |
194 | agencies. |
195 | 2. Three members shall be from the private sector and have |
196 | significant relevant business experience but shall not be |
197 | employed by or have a business relationship with any entity that |
198 | seeks to contract with or has a contract with the state during |
199 | the member's term on the commission. If feasible, the three |
200 | private-sector members shall collectively have experience with |
201 | procurement, successfully increasing operational efficiency, and |
202 | implementing complex projects. |
203 | (b) By August 1, 2005, the Governor shall appoint two |
204 | private sector members and two agency heads for terms of 3 years |
205 | and one private sector member and two agency heads for terms of |
206 | 4 years. Thereafter, each member shall serve for a term of 4 |
207 | years. The private sector members shall serve without |
208 | compensation but shall be entitled to reimbursement for per diem |
209 | and travel expenses pursuant to s. 112.061. |
210 | (c) No member of the commission who is the head of an |
211 | executive branch agency shall be disqualified from participating |
212 | in commission review of a procurement because his or her agency |
213 | is involved in the procurement. |
214 | (d) The members of the commission may not delegate their |
215 | membership to a designee. |
216 | (e) A quorum shall consist of at least four members, |
217 | including at least one private-sector member. At least one |
218 | private-sector member must vote on the prevailing side. |
219 | (f) Any vacancy on the commission shall be filled in the |
220 | same manner as the original appointment, and any member |
221 | appointed to fill a vacancy occurring for a reason other than |
222 | the expiration of a term shall serve only for the unexpired term |
223 | of the member's predecessor. |
224 | (g) At the first meeting of the commission after August 1, |
225 | 2005, the members of the commission shall elect, by majority |
226 | vote of those in attendance, a member to serve as chair of the |
227 | commission. No later than September 1 of each succeeding year, |
228 | the commission shall elect a new chair. |
229 | (h) The commission shall: |
230 | 1. Oversee the Center for Efficient Government. |
231 | 2. Review and approve the centralized gate process created |
232 | by the center under subsection (2). |
233 | 3. Review, evaluate, and grant approval of, withhold |
234 | approval of, or deny approval of a proposed procurement at the |
235 | gates established within the centralized gate process. The |
236 | commission shall determine the criteria regarding which |
237 | procurements must pass through the centralized gate process. |
238 | Such procurements shall include, at a minimum, those subject to |
239 | the requirements of s. 287.0576. |
240 | 4. Approve standards, processes, templates, and guidelines |
241 | for use by agencies during the procurement process which shall, |
242 | at a minimum, include the requirements under s. 287.0577 for |
243 | procurements of contractual services. |
244 | 5. Implement a plan for providing information and |
245 | documentation to the Legislature and the Governor on behalf of |
246 | agencies and in compliance with the provisions of this chapter. |
247 | The system shall include, at a minimum, providing copies of |
248 | documents to be reviewed by the commission to the President of |
249 | the Senate, the Speaker of the House of Representatives, the |
250 | Governor, and the chairs of the relevant appropriations and |
251 | substantive legislative committees at least 14 days prior to the |
252 | meeting of the commission at which the proposed procurement will |
253 | be discussed. |
254 | 6. Review the performance of procurements which have |
255 | advanced through the full centralized gate process. |
256 | (2) The Center for Efficient Government is created in the |
257 | department to establish and promote best business practices so |
258 | that the delivery of services to citizens of the state may be |
259 | provided in the most effective and cost-efficient manner |
260 | possible. The secretary of the department shall appoint a |
261 | director of the center. The center shall have the following |
262 | duties and responsibilities: |
263 | (a) Create a centralized gate process for reviewing, |
264 | evaluating, and approving agency procurements which, at a |
265 | minimum, shall include the requirements contained in s. 287.0576 |
266 | for contractual services procurements. |
267 | (b) Provide information, training, and technical |
268 | assistance to agencies on the use of the standards, processes, |
269 | templates, and guidelines developed for use by agencies during |
270 | the procurement process. |
271 | (c) Provide support and assistance to the commission, |
272 | including, but not limited to, reviewing and validating agency |
273 | business cases, developing standards, processes, templates, and |
274 | guidelines for use by agencies during the procurement process |
275 | and providing information and documentation as requested or |
276 | required by law. |
277 | (d) Assist agencies directly in the procurement process as |
278 | needed to ensure a high-quality procurement, including, but not |
279 | limited to, developing and updating business cases, drafting |
280 | solicitation and contract documents, participating in contract |
281 | negotiations, identifying performance measures, and advising |
282 | agencies on performance measurement, contract management, and |
283 | change management. To carry out this responsibility, the |
284 | department shall employ an adequate number of highly skilled, |
285 | credentialed staff who collectively possess significant |
286 | expertise and experience in these areas. |
287 | (e) Collect data and information from agencies on an |
288 | ongoing basis with regard to the status and results of |
289 | procurements which have advanced completely through the |
290 | centralized gate process and recommend incorporation of any |
291 | lessons learned from such projects into center standards, |
292 | processes, templates, and guidelines, as appropriate, and |
293 | identify and disseminate to agencies information regarding best |
294 | practices in procurement, particularly contractual services |
295 | procurements. |
296 | (f) Develop and implement, in consultation with the Agency |
297 | for Workforce Innovation, guidelines for assisting employees |
298 | whose jobs are eliminated as a result of procurements. |
299 | (3) The center and commission and the activities conducted |
300 | by the department pursuant to this act to implement the |
301 | centralized gate process and provide assistance and information |
302 | shall not be subject to the rulemaking requirements of chapter |
303 | 120. |
304 | (4) Agencies shall submit to the center all information, |
305 | documents, or other materials required by center or commission |
306 | policy or this chapter. |
307 | Section 6. Section 287.0576, Florida Statutes, is created |
308 | to read: |
309 | 287.0576 Review and analysis of proposed procurement of |
310 | contractual services; centralized gate process.-- |
311 | (1) At a minimum, the following procurements shall be |
312 | required to undergo review and analysis through the centralized |
313 | gate process established by the Center for Efficient Government: |
314 | (a) Contractual services procurements which have a total |
315 | cost of $10 million or more. |
316 | (b) New contractual services procurements that will |
317 | require adjustments to the agency's budget in accordance with |
318 | chapter 216. Amendments to existing contracts are excluded. |
319 | (c) Contractual services procurements that do not involve |
320 | an outlay of state funds totaling $10 million or more because of |
321 | the provision of services by the contractor at a rate |
322 | significantly below market rate, the significant investment of |
323 | other resources by the agency, or other reason, but in which the |
324 | total value of the services performed by the agency and |
325 | contractor under the contract is estimated to total $10 million |
326 | or more. Examples of such procurements include, but are not |
327 | limited to, free, no-cost, or codevelopment contracts. |
328 | (d) Contractual services procurements for which the sum of |
329 | gross revenues or shared savings to be generated for the state |
330 | and contractor over the term of the contract plus the sum of any |
331 | payments to the contractor by the agency over the term of the |
332 | contract, if any, totals $10 million or more. |
333 | (e) Contractual services procurements which the |
334 | Legislature has directed to advance through the centralized gate |
335 | process. |
336 | (2) Extensions and renewals of procurements in paragraphs |
337 | (1)(a)-(e) shall be required to undergo review and analysis |
338 | through the centralized gate process established by the Center |
339 | for Efficient Government though, notwithstanding any law to the |
340 | contrary, such procurements shall only be required to pass |
341 | through such gates as the commission determines are appropriate. |
342 |
|
343 | For purposes of determining whether a procurement meets the |
344 | requirements of this subsection, multiple contractual services |
345 | procurements for substantially similar or related functions or |
346 | responsibilities occurring in a coordinated fashion or in close |
347 | time proximity to one another shall be considered a single |
348 | contractual services procurement for purposes of meeting the |
349 | thresholds for this section. |
350 | (3) If the volume of projects required to pass through the |
351 | centralized gate process pursuant to subsection (1) exceeds the |
352 | capacity of the commission and center to process them, the |
353 | commission shall prioritize the projects for commission review |
354 | and center assistance based upon criteria it shall determine, |
355 | which shall, at a minimum, include consideration of the |
356 | estimated contract cost, impact on the public, impact on state |
357 | employees, complexity, and potential risk of the procurement. |
358 | For projects required to pass through the centralized gate |
359 | process that the commission does not prioritize for review, the |
360 | agency shall instead conduct its own review based upon the |
361 | standards, processes, templates, and guidelines of the |
362 | commission and shall provide information to the Legislature at |
363 | least 14 days prior to agency approval at each gate in |
364 | accordance with s. 287.0575(1)(h)5. The commission shall report |
365 | to the President of the Senate, the Speaker of the House of |
366 | Representatives, and the Governor if it is required to |
367 | prioritize projects pursuant to this subsection. |
368 | (4) The centralized gate process shall require, at a |
369 | minimum, review of the procurement by the commission at the |
370 | conclusion of important stages, or gates, in the procurement |
371 | process, as specified in subsection (5), for those procurements |
372 | subject to review under this act. At each gate, the commission |
373 | shall determine by majority vote whether: |
374 | (a) The agency has sufficiently met the requirements of |
375 | the current phase such that the procurement may advance through |
376 | the gate, at which point the commission shall grant approval and |
377 | the procurement shall advance to the next phase; |
378 | (b) Additional work must be completed in order to satisfy |
379 | the requirements of the center for the phase under consideration |
380 | before the procurement may advance through the gate to the next |
381 | phase, at which point the commission shall withhold approval and |
382 | the procurement shall not advance; or |
383 | (c) The procurement is not a good business decision and |
384 | should not be made, at which point the commission shall deny the |
385 | procurement and the procurement shall be removed from |
386 | consideration. |
387 |
|
388 | Notwithstanding the provisions of this section, the commission |
389 | may not deny procurements which are required by law. If the |
390 | commission believes that a denial would be appropriate for such |
391 | a procurement, the commission shall withhold approval and |
392 | transmit to the President of the Senate, the Speaker of the |
393 | House of Representatives, and the Governor the reasons why the |
394 | procurement should not be completed and any recommendation for |
395 | legislative action. If the President of the Senate or the |
396 | Speaker of the House of Representatives has not responded in 14 |
397 | days, the commission shall proceed at its discretion. |
398 |
|
399 | Notwithstanding any law to the contrary, agencies under the |
400 | individual control of the Attorney General, the Chief Financial |
401 | Officer, or the Commissioner of Agriculture are subject to the |
402 | provisions of ss. 287.0571-287.0577, except that the commission |
403 | shall not grant, withhold, or deny approval of a procurement by |
404 | such agency but instead may only provide recommendations to the |
405 | agency, and the approval of the commission shall not be required |
406 | for the agency to take any action in regard to the procurement. |
407 | The respective agency head shall have sole authority to grant, |
408 | withhold, or deny approval of such procurement. |
409 | (5) The gates comprising the centralized gate process |
410 | shall be established and designated as provided in paragraphs |
411 | (a)-(e) and shall require, at a minimum, submission by the |
412 | agency and review by the commission of the following documents: |
413 | (a) The proposal identification gate, which shall include |
414 | the business case. |
415 | (b) The procurement preparation gate, which shall include |
416 | the updated business case and the solicitation documents prior |
417 | to the issuance of such documents. An agency may not release |
418 | solicitation documents without the commission's approval at this |
419 | gate. |
420 | (c) The contract development gate, which shall include the |
421 | updated business case and the proposed unexecuted contract. An |
422 | agency may not execute the contract without the commission's |
423 | approval at this gate. |
424 | (d) The transition management gate, which shall include |
425 | the updated business case and, for a procurement of contractual |
426 | services, an analysis of the agency's and contractor's readiness |
427 | for the contractor to perform the proposed responsibility or |
428 | function. An agency may not transition to contractor |
429 | performance without the commission's approval at this gate. |
430 | (e) The post-implementation gate, which shall include the |
431 | updated business case and a report on the adequacy of contractor |
432 | performance. |
433 | (6) If the commission withholds approval of a proposed |
434 | procurement, the agency may request that the review of the |
435 | procurement be repeated at a future commission meeting. |
436 | (7) Any executed contract for a procurement required to |
437 | pass through the centralized gate process pursuant to this |
438 | section shall be null and void if: |
439 | (a) The procurement does not pass through the centralized |
440 | gate process; or |
441 | (b) The agency executes a contract without the |
442 | commission's approval at the contract development gate. |
443 |
|
444 | This subsection does not apply to procurements which the |
445 | commission does not prioritize for review pursuant to subsection |
446 | (3). |
447 | Section 7. Section 287.0577, Florida Statutes, is created |
448 | to read: |
449 | 287.0577 Requirements for procurement of certain |
450 | contractual services.--In addition to the other applicable |
451 | requirements of this chapter, an agency shall comply with the |
452 | requirements of subsections (1)-(4) for a procurement of |
453 | contractual services subject to review under s. 287.0576: |
454 | (1) BUSINESS CASE.--The agency shall develop a business |
455 | case which describes and analyzes the procurement. The business |
456 | case is not subject to challenge or protest pursuant to ch. 120. |
457 | The business case shall include, but not be limited to, the |
458 | following information: |
459 | (a)1. A detailed description of the function or |
460 | responsibility for which the procurement is proposed, including |
461 | the reasons why the function or responsibility is not inherently |
462 | governmental; |
463 | 2. If the agency is currently performing the function or |
464 | responsibility, a description and analysis of the agency's |
465 | current performance, including, but not limited to, baseline |
466 | costs and performance metrics; |
467 | 3. The goals desired to be achieved through the |
468 | procurement and the rationale for such goals; and |
469 | 4. A citation of the existing or proposed legal authority |
470 | for contracting for the function or responsibility. |
471 | (b)1. A description of available options for achieving the |
472 | goals. If state employees are currently performing the function |
473 | or responsibility, an option involving maintaining state |
474 | provision of the function or responsibility shall be included. |
475 | 2. For options involving procurement of a contractual |
476 | service, a description of the current market for such service. |
477 | 3. An analysis of the advantages and disadvantages of each |
478 | option, including, at a minimum, potential performance |
479 | improvements and risks. |
480 | (c) A cost-benefit analysis documenting the direct and |
481 | indirect specific baseline costs, savings, and qualitative and |
482 | quantitative benefits involved in or resulting from the |
483 | implementation of the recommended option or options. Such |
484 | analysis shall specify the schedule that, at a minimum, must be |
485 | adhered to in order to achieve the estimated savings. All |
486 | elements of cost shall be clearly identified in the cost-benefit |
487 | analysis, described in the business case, and supported by |
488 | applicable records and reports. The agency head shall certify |
489 | that all projected costs, savings, and benefits are valid and |
490 | achievable. "Cost" means the reasonable, relevant, and |
491 | verifiable cost which may include, but not be limited to, |
492 | elements such as personnel costs, materials and supplies, |
493 | services, equipment, capital depreciation costs, rent, |
494 | maintenance and repairs, utilities, insurance, personnel travel, |
495 | overhead, and interim and final payments. The appropriate |
496 | elements shall depend on the nature of the specific initiative. |
497 | "Savings" means the difference between the direct and indirect |
498 | actual annual baseline costs compared to the projected annual |
499 | cost for the contracted functions or responsibilities in any |
500 | succeeding state fiscal year during the term of the contract. |
501 | (d) A description of variance among agency policies and |
502 | processes and a plan to standardize, consolidate, or revise |
503 | current policies and processes, if any, to reduce the |
504 | customization of any proposed solution that would otherwise be |
505 | required. |
506 | (e) A description of the specific performance standards |
507 | that must, at a minimum, be met to ensure adequate performance. |
508 | (f) A statement of the potential impact on state revenues |
509 | and expenditures for the period beginning with the execution of |
510 | a contract and extending for 5 years after full implementation |
511 | of the contract or for the term of the contract, whichever is |
512 | longer. The statement shall specifically describe the effect on |
513 | general revenue, trust funds, general revenue service charges, |
514 | and interest on trust funds together with the potential direct |
515 | or indirect effect on federal funding and cost allocations. |
516 | (g) The projected timeframe for key events, from the |
517 | beginning of the procurement process through the expiration of a |
518 | contract. |
519 | (h) A plan to ensure compliance with public records law |
520 | which must include components that: |
521 | 1. Provide public access to public records at a cost that |
522 | does not exceed that provided in chapter 119. |
523 | 2. Ensure the confidentiality of records that are exempt |
524 | or confidential under law. |
525 | 3. Meet all legal requirements for record retention |
526 | provided by law. |
527 | 4. Require transfer to the state, at no cost, of all |
528 | public records in possession of the contractor upon termination |
529 | of the contract. |
530 | (i) A specific and feasible contingency plan addressing |
531 | contractor nonperformance and a description of the tasks |
532 | involved in and costs required for its implementation. |
533 | (j) An agency transition plan for addressing changes in |
534 | organizational structure, affected business processes, employee |
535 | transition issues, and communication with affected stakeholders, |
536 | such as agency clients and the public. The transition plan shall |
537 | contain a reemployment and retraining assistance plan for |
538 | employees who are not retained by the agency or employed by the |
539 | contractor. |
540 | (k) A listing of any assets proposed for surplus. |
541 | (l) A plan for ensuring access by persons with |
542 | disabilities in compliance with applicable state and federal |
543 | law. |
544 |
|
545 | If a contractual services procurement would require integration |
546 | with or would in any way impact other state information |
547 | technology systems, the agency shall submit the feasibility |
548 | study documentation as required by the legislative budget |
549 | request instructions established pursuant to s. 216.023. |
550 | (2) SOLICITATION REQUIREMENTS.--The solicitation for a |
551 | contractual services procurement shall include, at a minimum: |
552 | (a) A detailed description of the function or |
553 | responsibility under consideration for contracting and, if the |
554 | function or responsibility is currently being performed by an |
555 | agency, a description and analysis of the agency's current |
556 | performance. |
557 | (b) Requirements that are achievable, unambiguous, |
558 | measurable, meaningful, and complete. |
559 | (c) The criteria that after contract execution will be |
560 | used to assess contractor performance and the minimum acceptable |
561 | contractor performance levels. |
562 | (3) CONTRACT REQUIREMENTS.-- At a minimum, the written |
563 | contract shall include: |
564 | (a) Specific terms and conditions providing a clearly |
565 | defined scope of work that is directly related to the goals and |
566 | objectives of the procurement. The terms must include: |
567 | 1. A detailed scope of work that clearly specifies each |
568 | service and deliverable to be provided. |
569 | 2. All service-level agreements describing all necessary |
570 | performance requirements and responsibilities of the state and |
571 | the contractor. |
572 | 3. Associated costs and savings, specific payment terms, |
573 | including incentive, disincentive, and penalty provisions, |
574 | criteria governing payment, and a clear and specific project |
575 | schedule. |
576 | (b) Specific identification of all required performance |
577 | measures and levels that shall include, but not be limited to: |
578 | 1. Acceptance criteria for each deliverable and service to |
579 | be provided to the state under the terms of the contract, which |
580 | document to the greatest extent possible the required |
581 | performance level. Acceptance criteria must be detailed, clear, |
582 | and unambiguous and shall be used to measure deliverables and |
583 | services under the contract. Payment shall be tied to successful |
584 | production of deliverables. |
585 | 2. A method for monitoring and reporting progress in |
586 | achieving specified performance outcomes and associated |
587 | performance incentives. |
588 | 3. The sanctions or penalties that shall be assessed for |
589 | nonperformance by the contractor. |
590 | (c) A description of deliverables, activities, or events |
591 | that are directly related to the scope of work which must be |
592 | quantifiable, measurable, and verifiable. |
593 | (d) A management plan for organizational change that |
594 | clearly identifies any changes in organizational structure, |
595 | including staffing and personnel changes in all affected |
596 | agencies. Such plan must specify a feasible mechanism for |
597 | continuing the operation of the service if the contractor fails |
598 | to comply with the performance standards in the contract. |
599 | (e) A requirement that the contractor maintain adequate |
600 | accounting records that comply with all applicable federal and |
601 | state laws and generally accepted accounting principles. |
602 | (f) A requirement authorizing state access to and audit of |
603 | all records related to the contract or any responsibilities or |
604 | functions under the contract for state audit and legislative |
605 | oversight purposes and a requirement for service organization |
606 | audits in accordance with professional auditing standards, if |
607 | appropriate. |
608 | (g) A requirement that ownership of any intellectual |
609 | property critical for the assumption of the contracted function |
610 | or responsibility by the state or another contractor shall |
611 | revert to the state in the event the contractor ceases to |
612 | provide the contracted function or responsibility. |
613 | (h) A requirement describing the timing and substance of |
614 | all status or progress reports that are to be provided under the |
615 | contract. All such reports must comply with any relevant state |
616 | and federal standards for planning, implementation, operations, |
617 | and oversight. |
618 | (i) A requirement that the contractor comply with the |
619 | public records law. The contractor shall: |
620 | 1. Keep and maintain the public records that an agency |
621 | would ordinarily and necessarily be required to keep and |
622 | maintain in the performance of the function or responsibility. |
623 | 2. Provide public access to such public records on the |
624 | same terms and conditions required of an agency at a cost that |
625 | does not exceed that provided in chapter 119. |
626 | 3. Ensure the confidentiality of records which are exempt |
627 | or confidential under law. |
628 | 4. Meet all legal requirements for record retention. |
629 | 5. Transfer to the state, at no cost to the state, all |
630 | public records in the possession of the contractor upon |
631 | termination of the contract and destroy at a minimum any |
632 | duplicate public records which are exempt and confidential. All |
633 | records that are stored electronically must be provided to the |
634 | state in a format compatible with state information technology |
635 | systems. |
636 | (j) A requirement that the contractor shall interview and |
637 | consider for employment with the contractor each impacted state |
638 | employee who is interested in such employment. |
639 | (k) Provisions requiring that venue for any action |
640 | regarding the contract shall be in Leon County and that the |
641 | contract shall be interpreted according to the laws of this |
642 | state. |
643 | (4) REPORTS.--During the term of the contract, the agency |
644 | shall annually submit with its legislative budget request a |
645 | project status report for each procurement which has passed |
646 | through at least the first three gates of the centralized gate |
647 | process, describing the progress made to date, actual completion |
648 | dates in comparison to planned completion dates, actual costs |
649 | incurred in comparison to projected costs incurred, current |
650 | issues requiring resolution, planned project milestones, |
651 | deliverables, and expenditures for the next reporting period and |
652 | any other information relating to the contractual services that |
653 | may be requested. |
654 | Section 8. Section 216.1817, Florida Statutes, is created |
655 | to read: |
656 | 216.1817 Limitation on budgetary changes for contractual |
657 | services procurement; placement of positions in reserve; re- |
658 | establishment of positions.-- |
659 | (1) Any budgetary changes for a contractual services |
660 | procurement that are inconsistent with the agency's approved |
661 | budget may not be made to existing programs unless such changes |
662 | are recommended to the Legislative Budget Commission by the |
663 | Governor, and the Legislative Budget Commission expressly |
664 | approves such program changes. |
665 | (2) If a procurement of contractual services involves the |
666 | performance of functions or responsibilities that are being |
667 | shifted from state employees to a contractor, the agency shall |
668 | identify within the business case prepared pursuant to s. |
669 | 287.0577 all resources which are affected, including full-time |
670 | equivalent positions. All full-time equivalent positions |
671 | identified in the business case shall be placed in reserve by |
672 | the Executive Office of the Governor until the end of the second |
673 | year of the contract. Notwithstanding the provisions of s. |
674 | 216.262, the Executive Office of the Governor shall request |
675 | authority from the Legislative Budget Commission to reestablish |
676 | full-time equivalent positions above the number fixed by the |
677 | Legislature when a contract is terminated and the performance of |
678 | the functions or responsibilities must be returned to the |
679 | agency. |
680 | Section 9. The Center for Efficient Government and the |
681 | Commission on Efficient Government shall terminate on July 1, |
682 | 2010, unless reenacted by the Legislature prior to that date. It |
683 | is the intent of the Legislature that, beginning July 1, 2010, |
684 | the various state agencies shall perform the review functions |
685 | required under this act for procurements of contractual services |
686 | under their jurisdiction. It is also the intent of the |
687 | Legislature that beginning July 1, 2010, the positions |
688 | authorized by this act shall remain with the Department of |
689 | Management Services, which shall continue providing technical |
690 | assistance as required in this act. |
691 | Section 10. Section 14.203, Florida Statutes, is repealed. |
692 | Section 11. There is hereby appropriated $2 million |
693 | recurring budget authority to the Department of Management |
694 | Services from the General Revenue Fund, and 16 full-time |
695 | equivalent positions are authorized, to carry out the activities |
696 | of the Center for Efficient Government and the Commission on |
697 | Efficient Government as provided in this act. |
698 | Section 12. Section 287.0572, Florida Statutes, is |
699 | renumbered as section 287.0579, Florida Statutes: |
700 | 287.0579 287.0572 Present-value methodology.-- |
701 | (1) The cost of bids, proposals, or replies for state |
702 | contracts that include provisions for unequal payment streams or |
703 | unequal time payment periods shall be evaluated using present- |
704 | value methodology. Each agency, as defined in s. 287.012(1), |
705 | shall perform the evaluation using the present-value discount |
706 | rate supplied by the department. The present-value discount rate |
707 | shall be the rate for United States Treasury notes and bonds |
708 | published in the Interest Rates: Money and Capital Markets |
709 | section of the most recent copy of the Federal Reserve Bulletin |
710 | published at the time of issuance of the request for proposals, |
711 | the invitation to negotiate, or the invitation to bid. |
712 | (2) The department may adopt rules to administer |
713 | subsection (1). |
714 | Section 13. Subsection (3) of section 119.0721, Florida |
715 | Statutes, is amended to read: |
716 | 119.0721 Social security number exemption.-- |
717 | (3) An agency shall not deny a commercial entity engaged |
718 | in the performance of a commercial activity, which for purposes |
719 | of this subsection means an activity that provides a product or |
720 | service that is available from a private source, as defined in |
721 | s. 14.203 or its agents, employees, or contractors access to |
722 | social security numbers, provided the social security numbers |
723 | will be used only in the normal course of business for |
724 | legitimate business purposes, and provided the commercial entity |
725 | makes a written request for social security numbers, verified as |
726 | provided in s. 92.525, legibly signed by an authorized officer, |
727 | employee, or agent of the commercial entity. The verified |
728 | written request must contain the commercial entity's name, |
729 | business mailing and location addresses, business telephone |
730 | number, and a statement of the specific purposes for which it |
731 | needs the social security numbers and how the social security |
732 | numbers will be used in the normal course of business for |
733 | legitimate business purposes. The aggregate of these requests |
734 | shall serve as the basis for the agency report required in |
735 | subsection (7). An agency may request any other information as |
736 | may be reasonably necessary to verify the identity of the entity |
737 | requesting the social security numbers and the specific purposes |
738 | for which such numbers will be used; however, an agency has no |
739 | duty to inquire beyond the information contained in the verified |
740 | written request. A legitimate business purpose includes |
741 | verification of the accuracy of personal information received by |
742 | a commercial entity in the normal course of its business; use in |
743 | a civil, criminal, or administrative proceeding; use for |
744 | insurance purposes; use in law enforcement and investigation of |
745 | crimes; use in identifying and preventing fraud; use in |
746 | matching, verifying, or retrieving information; and use in |
747 | research activities. A legitimate business purpose does not |
748 | include the display or bulk sale of social security numbers to |
749 | the general public or the distribution of such numbers to any |
750 | customer that is not identifiable by the distributor. |
751 | Section 14. This act shall take effect July 1, 2005. |