| 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 |
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| 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. |