Senate Bill sb1972

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    Florida Senate - 2007                                  SB 1972

    By the Committee on Governmental Operations





    585-550-07

  1                      A bill to be entitled

  2         An act relating to the leasing of private

  3         property by state agencies; amending s.

  4         255.248, F.S.; defining the term "competitive

  5         solicitation"; amending s. 255.249, F.S.;

  6         removing the expiration of provisions requiring

  7         that the Department of Management Services

  8         annually report to the Governor and the

  9         Legislature certain information concerning

10         leases that are due to expire and amendments

11         and supplements to and waivers of the terms and

12         conditions of lease agreements; requiring that

13         the Department of Management Services adopt

14         rules for soliciting and accepting competitive

15         solicitations for certain leased space, for

16         exempting the lease of care and living space or

17         emergency space from competitive-solicitation

18         requirements, and for securing at least three

19         quotes for a lease that is not required to be

20         competitively solicited; removing the

21         expiration of provisions requiring that

22         specified clauses, which may not be amended,

23         supplemented, or waived, be included in the

24         terms and conditions of a lease; amending s.

25         255.25, F.S.; removing the expiration of

26         provisions requiring that the department

27         approve the terms of a lease by a state agency;

28         requiring an analysis if the department

29         approves an amendment or supplement to or

30         waiver of a term or condition of a lease

31         agreement; prohibiting a state agency from

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 1         entering into certain leases of space in a

 2         privately owned building except upon

 3         advertisement for and receipt of competitive

 4         solicitations; providing exceptions; providing

 5         requirements for the use of invitations to bid,

 6         requests for proposals, and invitations to

 7         negotiate; providing criteria for awarding

 8         contracts; providing criteria for protesting an

 9         agency decision or intended decision pertaining

10         to a competitive solicitation for leased space;

11         removing the expiration of provisions providing

12         legislative intent with respect to the use of

13         state-owned buildings; requiring that the

14         department create a plan for fully using such

15         buildings before leasing private buildings;

16         requiring an annual report to the Legislature

17         and the Governor; providing an effective date.

18  

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

20  

21         Section 1.  Section 255.248, Florida Statutes, is

22  amended to read:

23         255.248  Definitions; ss. 255.249 and 255.25.--As The

24  following definitions shall apply when used in ss. 255.249 and

25  255.25, the term:

26         (1)  The term "State-owned office building" means any

27  building title to which is vested in the state and which is

28  used by one or more executive agencies predominantly for

29  administrative direction and support functions.  This term

30  excludes:

31  

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 1         (a)  District or area offices established for field

 2  operations where law enforcement, military, inspections, road

 3  operations, or tourist welcoming functions are performed.

 4         (b)  All educational facilities and institutions under

 5  the supervision of the Department of Education.

 6         (c)  All custodial facilities and institutions used

 7  primarily for the care, custody, or treatment of wards of the

 8  state.

 9         (d)  Buildings or spaces used for legislative

10  activities.

11         (e)  Buildings purchased or constructed from

12  agricultural or citrus trust funds.

13         (2)  The term "Privately owned building" means shall

14  mean any building not owned by a governmental agency.

15         (3)  "Competitive solicitation" means an invitation to

16  bid, a request for proposals, or an invitation to negotiate.

17         Section 2.  Subsections (3) and (4) of section 255.249,

18  Florida Statutes, are amended to read:

19         255.249  Department of Management Services;

20  responsibility; department rules.--

21         (3)(a)  The department shall, to the extent feasible,

22  coordinate the vacation of privately owned leased space with

23  the expiration of the lease on that space and, when a lease is

24  terminated before expiration of its base term, will make a

25  reasonable effort to place another state agency in the space

26  vacated. Any state agency may lease the space in any building

27  that was subject to a lease terminated by a state agency for a

28  period of time equal to the remainder of the base term without

29  the requirement of competitive bidding.

30         (b)  The department shall annually publish a report

31  that lists, by agency, all leases that are due to expire

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 1  within 24 months. The annual report must include the following

 2  information for each lease: location; size of leased space;

 3  current cost per leased square foot; lease expiration date;

 4  and a determination of whether sufficient state-owned office

 5  space will be available at the expiration of the lease to

 6  house affected employees. The report must also include a list

 7  of amendments and supplements to and waivers of terms and

 8  conditions in lease agreements that have been approved

 9  pursuant to s. 255.25(2)(a) during the previous 12 months and

10  an associated comprehensive analysis, including financial

11  implications, showing that any amendment, supplement, or

12  waiver is in the state's long-term best interest. The

13  department shall furnish this report to the Executive Office

14  of the Governor and the Legislature by September 15 of each

15  year. This paragraph expires July 1, 2007.

16         (4)  The department shall adopt promulgate rules

17  pursuant to chapter 120 providing:

18         (a)  Methods for accomplishing the duties outlined in

19  subsection (1).

20         (b)  Procedures for soliciting and accepting

21  competitive solicitations proposals for leased space of 5,000

22  square feet or more in privately owned buildings, for

23  evaluating the proposals received, for exemption from

24  competitive-solicitation competitive bidding requirements of

25  any lease the purpose of which is the provision of care and

26  living space for persons or emergency space needs as provided

27  in s. 255.25(10), and for the securing of at least three

28  documented quotes for a lease that is not required to be

29  competitively solicitated bid.

30  

31  

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 1         (c)  A standard method for determining square footage

 2  or any other measurement used as the basis for lease payments

 3  or other charges.

 4         (d)  Methods of allocating space in both state-owned

 5  office buildings and privately owned buildings leased by the

 6  state based on use, personnel, and office equipment.

 7         (e)1.  Acceptable terms and conditions for inclusion in

 8  lease agreements.

 9         2.  Such terms and conditions shall include, at a

10  minimum, the following clauses, which may not be amended,

11  supplemented, or waived:

12         a.  As provided in s. 255.2502, "The State of Florida's

13  performance and obligation to pay under this contract is

14  contingent upon an annual appropriation by the Legislature."

15         b.  "The Lessee shall have the right to terminate,

16  without penalty, this lease in the event a State-owned

17  building becomes available to the Lessee for occupancy in the

18  County of ........, Florida, during the term of said lease for

19  the purposes for which this space is being leased upon giving

20  6 months' advance written notice to the Lessor by Certified

21  Mail, Return Receipt Requested."

22  

23  This subparagraph expires July 1, 2007.

24         (f)  Maximum rental rates, by geographic areas or by

25  county, for leasing privately owned space.

26         (g)  A standard method for the assessment of rent to

27  state agencies and other authorized occupants of state-owned

28  office space, notwithstanding the source of funds.

29         (h)  For full disclosure of the names and the extent of

30  interest of the owners holding a 4-percent or more interest in

31  any privately owned property leased to the state or in the

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 1  entity holding title to the property, for exemption from such

 2  disclosure of any beneficial interest that which is

 3  represented by stock in any corporation registered with the

 4  Securities and Exchange Commission or registered pursuant to

 5  chapter 517, which stock is for sale to the general public,

 6  and for exemption from such disclosure of any leasehold

 7  interest in property located outside the territorial

 8  boundaries of the United States.

 9         (i)  For full disclosure of the names of all public

10  officials, agents, or employees holding any interest in any

11  privately owned property leased to the state or in the entity

12  holding title to the property, and the nature and extent of

13  their interest, for exemption from such disclosure of any

14  beneficial interest that which is represented by stock in any

15  corporation registered with the Securities and Exchange

16  Commission or registered pursuant to chapter 517, which stock

17  is for sale to the general public, and for exemption from such

18  disclosure of any leasehold interest in property located

19  outside the territorial boundaries of the United States.

20         (j)  A method for reporting leases for nominal or no

21  consideration.

22         (k)  For a lease of less than 5,000 square feet, a

23  method for certification by the agency head or the agency

24  head's designated representative that all criteria for leasing

25  have been fully complied with and for the filing of a copy of

26  such lease and all supporting documents with the department

27  for its review and approval as to technical sufficiency.

28         Section 3.  Paragraph (d) of subsection (2), subsection

29  (3), and paragraph (c) of subsection (4) of section 255.25,

30  Florida Statutes, are amended to read:

31  

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 1         255.25  Approval required prior to construction or

 2  lease of buildings.--

 3         (2)

 4         (d)  Notwithstanding paragraph (a) and except as

 5  provided in ss. 255.249 and 255.2501, a state agency may not

 6  lease a building or any part thereof unless prior approval of

 7  the lease terms and conditions and of the need therefor is

 8  first obtained from the Department of Management Services. The

 9  department may not approve any term or condition in a lease

10  agreement which has been amended, supplemented, or waived

11  unless a comprehensive analysis, including financial

12  implications, demonstrates that such amendment, supplement, or

13  waiver is in the state's long-term best interest. Any approved

14  lease may include an option to purchase or an option to renew

15  the lease, or both, upon such terms and conditions as are

16  established by the department subject to final approval by the

17  head of the Department of Management Services and the

18  provisions of s. 255.2502. This paragraph expires July 1,

19  2007.

20         (3)(a)  Except as provided in subsection (10), a no

21  state agency may not shall enter into a lease as lessee for

22  the use of 5,000 square feet or more of space in a privately

23  owned building except upon advertisement for and receipt of

24  competitive solicitations bids and award to the lowest and

25  best bidder.

26         1.a.  An invitation to bid shall be made available

27  simultaneously to all vendors and must include a detailed

28  description of the space sought; the time and date for the

29  receipt of bids and of the public opening; and all contractual

30  terms and conditions applicable to the procurement, including

31  the criteria to be used in determining acceptability of the

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 1  bid. If the agency contemplates renewal of the contract, that

 2  fact must be stated in the invitation to bid. The bid must

 3  include the price for each year for which the contract may be

 4  renewed. Evaluation of bids shall include consideration of the

 5  total cost for each year as submitted by the vendor. Criteria

 6  that were not set forth in the invitation to bid may not be

 7  used in determining acceptability of the bid.

 8         b.  The contract shall be awarded with reasonable

 9  promptness by written notice to the responsible and responsive

10  vendor that submits the lowest responsive bid. This bid must

11  be determined in writing to meet the requirements and criteria

12  set forth in the invitation to bid.

13         2.a.  If an agency determines in writing that the use

14  of an invitation to bid is not practicable, leased space shall

15  be procured by competitive sealed proposals. A request for

16  proposals shall be made available simultaneously to all

17  vendors and must include a statement of the space sought; the

18  time and date for the receipt of proposals and of the public

19  opening; and all contractual terms and conditions applicable

20  to the procurement, including the criteria, which must

21  include, but need not be limited to, price, to be used in

22  determining acceptability of the proposal. The relative

23  importance of price and other evaluation criteria shall be

24  indicated. If the agency contemplates renewal of the contract,

25  that fact must be stated in the request for proposals. The

26  proposal must include the price for each year for which the

27  contract may be renewed. Evaluation of proposals shall include

28  consideration of the total cost for each year as submitted by

29  the vendor.

30         b.  The contract shall be awarded to the responsible

31  and responsive vendor whose proposal is determined in writing

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 1  to be the most advantageous to the state, taking into

 2  consideration the price and the other criteria set forth in

 3  the request for proposals. The contract file must contain

 4  documentation supporting the basis on which the award is made.

 5         3.a.  If the agency determines in writing that the use

 6  of an invitation to bid or a request for proposals will not

 7  result in the best value to the state, the agency may procure

 8  leased space by competitive sealed replies. The agency's

 9  written determination must specify reasons that explain why

10  negotiation may be necessary in order for the state to achieve

11  the best value and must be approved in writing by the agency

12  head or his or her designee prior to the advertisement of an

13  invitation to negotiate. Cost savings related to the agency

14  procurement process are not sufficient justification for using

15  an invitation to negotiate. An invitation to negotiate shall

16  be made available to all vendors simultaneously and must

17  include a statement of the space sought; the time and date for

18  the receipt of replies and of the public opening; and all

19  terms and conditions applicable to the procurement, including

20  the criteria to be used in determining the acceptability of

21  the reply. If the agency contemplates renewal of the contract,

22  that fact must be stated in the invitation to negotiate. The

23  reply must include the price for each year for which the

24  contract may be renewed.

25         b.  The agency shall evaluate and rank responsive

26  replies against all evaluation criteria set forth in the

27  invitation to negotiate and shall select, based on the

28  ranking, one or more vendors with which to commence

29  negotiations. After negotiations are conducted, the agency

30  shall award the contract to the responsible and responsive

31  vendor that the agency determines will provide the best value

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 1  to the state. The contract file must contain a short, plain

 2  statement that explains the basis for vendor selection and

 3  sets forth the vendor's deliverables and price pursuant to the

 4  contract, and an explanation of how these deliverables and

 5  price provide the best value to the state.

 6         (b)  The Department of Management Services shall have

 7  the authority to approve a lease for 5,000 square feet or more

 8  of space that covers more than 1 fiscal year, subject to the

 9  provisions of ss. 216.311, 255.2501, 255.2502, and 255.2503,

10  if such lease is, in the judgment of the department, in the

11  best interests of the state. This paragraph does not apply to

12  buildings or facilities of any size leased for the purpose of

13  providing care and living space for persons.

14         (c)(b)  The Department of Management Services may

15  approve extensions of an existing lease of 5,000 square feet

16  or more of space if such extensions are determined to be in

17  the best interests of the state, but in no case shall the

18  total of such extensions exceed 11 months.  If at the end of

19  the 11th month an agency still needs that space, it shall be

20  procured by competitive bid in accordance with s.

21  255.249(4)(b). However, an agency that determines that it is

22  in its best interest to remain in the space it currently

23  occupies may negotiate a replacement lease with the lessor if

24  an independent comparative market analysis demonstrates that

25  the rates offered are within market rates for the space and

26  the cost of the new lease does not exceed the cost of a

27  comparable lease plus documented moving costs. A present-value

28  analysis and the consumer price index shall be used in the

29  calculation of lease costs. The term of the replacement lease

30  may not exceed the base term of the expiring lease.

31  

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 1         (d)(c)  Any person who files an action protesting a

 2  decision or intended decision pertaining to a competitive

 3  solicitation bid for space to be leased by the agency pursuant

 4  to s. 120.57(3)(b) shall post with the state agency at the

 5  time of filing the formal written protest a bond payable to

 6  the agency in an amount equal to 1 percent of the estimated

 7  total rental of the basic lease period or $5,000, whichever is

 8  greater, which bond shall be conditioned upon the payment of

 9  all costs that which may be adjudged against him or her in the

10  administrative hearing in which the action is brought and in

11  any subsequent appellate court proceeding. If the agency

12  prevails after completion of the administrative hearing

13  process and any appellate court proceedings, it shall recover

14  all costs and charges, which shall be included in the final

15  order or judgment, excluding attorney's fees.  Upon payment of

16  such costs and charges by the person protesting the award, the

17  bond shall be returned to him or her.  If the person

18  protesting the award prevails, the bond shall be returned to

19  that person and he or she shall recover from the agency all

20  costs and charges, which shall be included in the final order

21  of judgment, excluding attorney's fees.

22         (e)(d)  The agency and the lessor, when entering into a

23  lease for 5,000 or more square feet of a privately owned

24  building, shall, before the effective date of the lease, agree

25  upon and separately state the cost of tenant improvements

26  which may qualify for reimbursement if the lease is terminated

27  before the expiration of its base term. The department shall

28  serve as mediator if the agency and the lessor are unable to

29  agree. The amount agreed upon and stated shall, if

30  appropriated, be amortized over the original base term of the

31  lease on a straight-line basis.

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 1         (f)(e)  The unamortized portion of tenant improvements,

 2  if appropriated, shall will be paid in equal monthly

 3  installments over the remaining term of the lease. If any

 4  portion of the original leased premises is occupied after

 5  termination but during the original term by a tenant that does

 6  not require material changes to the premises, the repayment of

 7  the cost of tenant improvements applicable to the occupied but

 8  unchanged portion shall be abated during occupancy. The

 9  portion of the repayment to be abated shall be based on the

10  ratio of leased space to unleased space.

11         (4)

12         (c)  Because the state has a substantial financial

13  investment in state-owned buildings, it is legislative policy

14  and intent that when state-owned buildings meet the needs of

15  state agencies, agencies must fully use such buildings before

16  leasing privately owned buildings. By September 15, 2006, the

17  Department of Management Services shall create a 5-year plan

18  for implementing this policy. The department shall update this

19  plan annually, detailing proposed departmental actions to meet

20  the plan's goals. The department shall furnish this plan to

21  the President of the Senate, the Speaker of the House of

22  Representatives, and the Executive Office of the Governor by

23  September 15 of each year. This paragraph expires July 1,

24  2007.

25         Section 4.  This act shall take effect July 1, 2007.

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Defines the term "competitive solicitation" for purposes
      of the leasing of private property by state agencies.
 4    Removes the expiration of provisions requiring that the
      Department of Management Services annually report to the
 5    Governor and Legislature certain information concerning
      leases. Requires that the department adopt rules. Removes
 6    the expiration of provisions requiring that specified
      clauses be included in the terms and conditions of a
 7    lease. Removes the expiration of provisions requiring
      that the department approve the terms of a lease by a
 8    state agency. Prohibits a state agency from entering into
      a lease of 5,000 square feet or more of space in a
 9    privately owned building except upon advertisement for
      and receipt of competitive solicitations. Provides
10    certain exceptions. Provides requirements for the use of
      invitations to bid, requests for proposals, and
11    invitations to negotiate. Provides criteria for awarding
      contracts. Provides criteria for protesting an agency
12    decision or intended decision pertaining to a competitive
      solicitation for leased space. Removes the expiration of
13    provisions providing legislative intent with respect to
      the use of state-owned buildings. Requires the department
14    to submit an annual report to the Governor and
      Legislature. (See bill for details.)
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