Senate Bill sb2316c1

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    Florida Senate - 2006                           CS for SB 2316

    By the Committee on Governmental Oversight and Productivity;
    and Senator Sebesta




    585-2198-06

  1                      A bill to be entitled

  2         An act relating to public records; amending s.

  3         119.071, F.S.; creating a temporary exemption

  4         from public-records requirements for rejected

  5         bids and proposals received by a state agency

  6         if the agency reissues the invitation to bid or

  7         request for proposals; creating a temporary

  8         exemption for a competitive sealed reply in

  9         response to an invitation to negotiate;

10         providing an extension of the temporary

11         exemption if the agency reissues the invitation

12         to negotiate; amending s. 286.0113, F.S.;

13         creating an exemption from public-meetings

14         requirements for a negotiation with a vendor;

15         requiring a recording of the meeting;

16         temporarily exempting the recording from

17         disclosure; providing for future legislative

18         review and repeal of such exemption under the

19         Open Government Sunset Review Act; providing a

20         statement of public necessity; providing an

21         effective date.

22  

23  Be It Enacted by the Legislature of the State of Florida:

24  

25         Section 1.  Paragraph (b) of subsection (1) of section

26  119.071, Florida Statutes, is amended to read:

27         119.071  General exemptions from inspection or copying

28  of public records.--

29         (1)  AGENCY ADMINISTRATION.--

30         (b)1.a.  Sealed bids or proposals received by an agency

31  pursuant to invitations to bid or requests for proposals are

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    Florida Senate - 2006                           CS for SB 2316
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 1  exempt from s. 119.07(1) and s. 24(a), Art. I of the State

 2  Constitution until such time as the agency provides notice of

 3  a decision or intended decision pursuant to s. 120.57(3)(a) or

 4  within 10 days after bid or proposal opening, whichever is

 5  earlier.

 6         b.  If an agency rejects all bids or proposals

 7  submitted in response to an invitation to bid or request for

 8  proposals and the agency concurrently provides notice of its

 9  intent to reissue the invitation to bid or request for

10  proposals, the rejected bids or proposals remain exempt from

11  s. 119.07(1) and s. 24(a), Art. I of the State Constitution

12  until such time as the agency provides notice of a decision or

13  intended decision pursuant to s. 120.57(3)(a) concerning the

14  reissued invitation to bid or request for proposals or until

15  the agency withdraws the reissued invitation to bid or request

16  for proposals. This sub-subparagraph is subject to the Open

17  Government Sunset Review Act in accordance with s. 119.15, and

18  shall stand repealed on October 2, 2011, unless reviewed and

19  saved from repeal through reenactment by the Legislature.

20         2.a.  A competitive sealed reply in response to an

21  invitation to negotiate, as defined in s. 287.012, is exempt

22  from s. 119.07(1) and s. 24(a), Art. I of the State

23  Constitution until such time as the agency provides notice of

24  a decision or intended decision pursuant to s. 120.57(3)(a) or

25  until 20 days after the final competitive sealed replies are

26  all opened, whichever occurs earlier.

27         b.  If an agency rejects all competitive sealed replies

28  in response to an invitation to negotiate and the agency

29  concurrently provides notice of its intent to reissue the

30  invitation to negotiate and if the agency reissues the

31  invitation to negotiate within 90 days after such notice to

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    Florida Senate - 2006                           CS for SB 2316
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 1  reissue, the rejected replies remain exempt from s. 119.07(1)

 2  and s. 24(a), Art. I of the State Constitution until such time

 3  as the agency provides notice of a decision or intended

 4  decision pursuant to s. 120.57(3)(a) concerning the reissued

 5  invitation to negotiate or until the agency withdraws the

 6  reissued invitation to negotiate. A competitive sealed reply

 7  is not exempt for longer than 12 months after the initial

 8  agency notice rejecting all replies.

 9         3.  This subparagraph is subject to the Open Government

10  Sunset Review Act in accordance with s. 119.15, and shall

11  stand repealed on October 2, 2011, unless reviewed and saved

12  from repeal through reenactment by the Legislature.

13         Section 2.  Section 286.0113, Florida Statutes, is

14  amended to read:

15         286.0113  General exemptions from public meetings.--

16         (1)  Those portions of any meeting which would reveal a

17  security system plan or portion thereof made confidential and

18  exempt by s. 119.071(3)(a) are exempt from the provisions of

19  s. 286.011 and s. 24(b), Art. I of the State Constitution.

20  This section is subject to the Open Government Sunset Review

21  Act, in accordance with s. 119.15, and shall stand repealed on

22  October 2, 2006, unless reviewed and saved from repeal through

23  reenactment by the Legislature.

24         (2)(a)  A meeting at which a negotiation with a vendor

25  is conducted pursuant to s. 287.057(3) is exempt from s.

26  286.011 and s. 24(b), Art. I of the State Constitution.

27         (b)1.  A complete recording shall be made of any

28  meeting made exempt in paragraph (a). No portion of the

29  meeting may be held off the record.

30         2.  The recording is exempt from s. 119.07(1) and s.

31  24(a), Art. I of the State Constitution until such time as the

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    Florida Senate - 2006                           CS for SB 2316
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 1  agency provides notice of a decision or intended decision

 2  pursuant to s. 120.57(3)(a) or until 20 days after the final

 3  competitive sealed replies are all opened, whichever occurs

 4  earlier.

 5         3.  If the agency rejects all sealed replies, the

 6  recording remains exempt from s. 119.07(1) and s. 24(a), Art.

 7  I of the State Constitution until such time as the agency

 8  provides notice of a decision or intended decision pursuant to

 9  s. 120.57(3)(a) concerning the reissued invitation to

10  negotiate or until the agency withdraws the reissued

11  invitation to negotiate. A recording is not exempt for longer

12  than 12 months after the initial agency notice rejecting all

13  replies.

14         (c)  This subsection is subject to the Open Government

15  Sunset Review Act in accordance with s. 119.15, and shall

16  stand repealed on October 2, 2011, unless reviewed and saved

17  from repeal through reenactment by the Legislature.

18         Section 3.  (1)  The Legislature finds that it is a

19  public necessity that sealed bids or proposals submitted in

20  response to an invitation to bid or requests for proposals

21  that are rejected by an agency be made exempt temporarily from

22  public-records requirements if the agency concurrently

23  provides notice of its intent to reissue the invitation to bid

24  or request for proposals. Such records will be made available

25  when the agency provides notice of a decision or intended

26  decision, as required under the Administrative Procedure Act,

27  or if the agency withdraws the reissued invitation to bid or

28  request for proposals. Temporarily protecting such information

29  ensures that the process of invitations to bid and requests

30  for proposals remains economical and equitable, while still

31  preserving oversight after an agency decision is made.

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    Florida Senate - 2006                           CS for SB 2316
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 1         (2)  The Legislature further finds that it is a public

 2  necessity that a competitive sealed reply in response to an

 3  invitation to negotiate be made exempt temporarily from

 4  public-records requirements. In addition, a competitive sealed

 5  reply in response to an invitation to negotiate which is

 6  rejected by an agency should be made exempt temporarily from

 7  public-records requirements if the agency concurrently

 8  provides notice of its intent to reissue the invitation to

 9  negotiate. Such reply will be made available when the agency

10  provides notice of a decision or intended decision, as

11  required under the Administrative Procedure Act, or if the

12  agency withdraws the reissued invitation to negotiate.

13  Temporarily protecting such reply ensures that the process of

14  invitations to negotiate remains economical and equitable,

15  while still preserving oversight after an agency decision is

16  made.

17         (3)  Additionally, the Legislature finds that it is a

18  public necessity that a meeting at which a negotiation with a

19  vendor is conducted pursuant to s. 287.057(3), Florida

20  Statutes, be made exempt from public-meetings requirements.

21  Protecting such meetings ensures that the process of

22  invitations to negotiate remains economical and equitable,

23  while still preserving oversight after an agency decision is

24  made through the requirement that a complete recording be made

25  of those meetings. Furthermore, the recording of that closed

26  portion of the meeting must be made exempt temporarily from

27  public-records requirements in order to preserve the purpose

28  for the public-meetings exemption. In addition, it is unfair

29  and inequitable to compel vendors to disclose during the

30  negotiation process the nature and details of their offers to

31  competitors and to others beyond the agency. Further, the

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    Florida Senate - 2006                           CS for SB 2316
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 1  Legislature finds that such disclosure impedes full and frank

 2  discussion of the strength, weakness, and value of an offer,

 3  thereby limiting the agency's ability to obtain the best value

 4  for the state. The Legislature also finds that it is unfair

 5  and inequitable to publicly discuss and otherwise disclose

 6  negotiation strategies, assessment of vendors' offers or

 7  positions, or the nature or details of offers. The public and

 8  private harm stemming from these practices outweighs the

 9  temporary delay in making meetings and records related to the

10  negotiation process open to the public.

11         Section 4.  This act shall take effect upon becoming a

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    Florida Senate - 2006                           CS for SB 2316
    585-2198-06




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2316

 3                                 

 4  Extends the temporary exemption for bids or proposals received
    pursuant to an invitation to bid or a request for proposals if
 5  all bids or proposals are rejected and the agency concurrently
    provides notice of its intent to reissue the bid or request
 6  for proposals. In such cases, the rejected bids or proposals
    remain exempt until the agency provides notice of a decision
 7  or intended decision concerning the invitation to bid or
    request for proposals.
 8  
    Creates an exemption for competitive sealed replies in
 9  response to an invitation to negotiate until an agency
    provides notice of a decision or intended decision or until 20
10  days after the final competitive sealed replies are all
    opened, whichever is earlier. If the agency rejects all
11  replies and concurrently provides notice of intent to reissue
    the invitation to negotiate, and reissues the invitation
12  within 90 days, the rejected replies remain exempt until the
    agency provides notice of a decision or intended decision or
13  until the agency withdraws the invitation. In no event are
    replies exempt longer than 12 months after the initial agency
14  notice rejecting all replies.

15  Creates a meeting exemption for negotiations. Requires all
    such exempt meetings to be recorded. Exempts records of such
16  meetings until such time as the agency provides a decision or
    intended decision or until 20 days after the final competitive
17  sealed replies are all opened, whichever is earlier. If the
    agency rejects all sealed replies, the recording remains
18  exempt until such time as the agency provides notice of a
    decision or intended decision concerning the reissued
19  invitation to negotiate or until the agency withdraws the
    reissued invitation to negotiate. In no event is a recording
20  exempt for more than twelve months after the initial agency
    notice rejecting all replies.
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