1 | A bill to be entitled |
2 | An act relating to the Department of Management Services; |
3 | amending ss. 17.11, 255.102, and 287.012, F.S.; conforming |
4 | provisions to the elimination of the Office of Supplier |
5 | Diversity and the transfer of its duties to the Division |
6 | of State Purchasing; amending s. 287.042, F.S.; providing |
7 | that fees collected by the department for the use of its |
8 | electronic information services in excess of the |
9 | obligations and encumbrances to cover the department's |
10 | costs of providing the services shall be calculated |
11 | annually and transferred to the General Revenue Fund; |
12 | conforming provisions to the elimination of the Office of |
13 | Supplier Diversity and the transfer of its duties to the |
14 | Division of State Purchasing; amending s. 287.057, F.S.; |
15 | conforming provisions to the elimination of the Office of |
16 | Supplier Diversity and the transfer of its duties to the |
17 | Division of State Purchasing; conforming cross-references; |
18 | providing that fees collected by the department for the |
19 | use of the services of its online procurement systems in |
20 | excess of the obligations and encumbrances to cover the |
21 | department's costs of providing the services shall be |
22 | calculated annually and transferred to the General Revenue |
23 | Fund; amending s. 287.094, F.S.; conforming provisions to |
24 | the elimination of the Office of Supplier Diversity and |
25 | the transfer of its duties to the Division of State |
26 | Purchasing; providing that certain complaints formerly |
27 | filed with the office may be filed with agency inspectors |
28 | general; providing that a business certified by the office |
29 | as a minority business enterprise under s. 287.0943, F.S., |
30 | as of a specified date shall continue to be recognized as |
31 | a certified minority business enterprise for purposes of |
32 | doing business with state government for a specified |
33 | period; amending s. 287.0943, F.S.; providing for |
34 | certification of minority businesses by other specified |
35 | governments if certification criteria meet, at a minimum, |
36 | the state's criteria; providing duties of the Division of |
37 | State Purchasing; eliminating provisions relating to the |
38 | certification of minority business enterprises by the |
39 | Office of Supplier Diversity; deleting provisions relating |
40 | to the Minority Business Certification Task Force; |
41 | deleting provisions relating to review and evaluation of |
42 | certification programs and procedures of statewide and |
43 | interlocal minority business certification agreements; |
44 | amending s. 287.09431, F.S.; conforming provisions to the |
45 | elimination of the Office of Supplier Diversity and the |
46 | transfer of its duties to the Division of State |
47 | Purchasing; conforming cross-references; amending s. |
48 | 287.09451, F.S.; deleting provisions creating the Office |
49 | of Supplier Diversity within the department; providing for |
50 | assumption of specified powers and duties by the Division |
51 | of State Purchasing; eliminating provisions relating to |
52 | the certification of minority business enterprises by the |
53 | office; deleting provisions relating to specified |
54 | communication and advocacy duties of the office; deleting |
55 | obsolete provisions; amending ss. 288.703, 288.712, and |
56 | 288.955, F.S.; conforming provisions to the elimination of |
57 | the Office of Supplier Diversity and the transfer of its |
58 | duties to the Division of State Purchasing; amending s. |
59 | 287.05721, F.S.; repealing the definition of "council" as |
60 | it relates to the Council on Efficient Government; |
61 | repealing s. 287.0573, F.S., creating the Council on |
62 | Efficient Government within the department; amending s. |
63 | 287.0574, F.S.; conforming provisions to the elimination |
64 | of the Council on Efficient Government; requiring that a |
65 | business case be submitted in the form and manner required |
66 | by the budget instructions; providing an effective date. |
67 |
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68 | Be It Enacted by the Legislature of the State of Florida: |
69 |
|
70 | Section 1. Subsection (2) of section 17.11, Florida |
71 | Statutes, is amended to read: |
72 | 17.11 To report disbursements made.- |
73 | (2) The Chief Financial Officer shall also cause to have |
74 | reported from the Florida Accounting Information Resource |
75 | Subsystem no less than quarterly the disbursements which |
76 | agencies made to small businesses, as defined in the Florida |
77 | Small and Minority Business Assistance Act; to certified |
78 | minority business enterprises in the aggregate; and to certified |
79 | minority business enterprises broken down into categories of |
80 | minority persons, as well as gender and nationality subgroups. |
81 | This information shall be made available to the agencies, the |
82 | Division of State Purchasing Office of Supplier Diversity, the |
83 | Governor, the President of the Senate, and the Speaker of the |
84 | House of Representatives. Each agency shall be responsible for |
85 | the accuracy of information entered into the Florida Accounting |
86 | Information Resource Subsystem for use in this reporting. |
87 | Section 2. Section 255.102, Florida Statutes, is amended |
88 | to read: |
89 | 255.102 Contractor utilization of minority business |
90 | enterprises.- |
91 | (1) Agencies shall consider the use of price preferences, |
92 | weighted preference formulas, or other preferences for |
93 | construction contracts, as determined appropriate by the |
94 | Division of State Purchasing Office of Supplier Diversity to |
95 | increase minority participation. |
96 | (2) The Division of State Purchasing Office of Supplier |
97 | Diversity, in collaboration with the Board of Governors of the |
98 | State University System, shall adopt rules to determine what is |
99 | a "good faith effort" for purposes of contractor compliance with |
100 | minority participation goals established for competitively |
101 | awarded building and construction projects. Pro forma efforts |
102 | shall not be considered good faith. Factors which shall be |
103 | considered by the state agency in determining whether a |
104 | contractor has made good faith efforts shall include, but not be |
105 | limited to: |
106 | (a) Whether the contractor attended any presolicitation or |
107 | prebid meetings that were scheduled by the agency to inform |
108 | minority business enterprises of contracting and subcontracting |
109 | opportunities. |
110 | (b) Whether the contractor advertised in general |
111 | circulation, trade association, or minority-focus media |
112 | concerning the subcontracting opportunities. |
113 | (c) Whether the contractor provided written notice to all |
114 | relevant subcontractors listed on the minority vendor list for |
115 | that locality and statewide as provided by the agency as of the |
116 | date of issuance of the invitation to bid, that their interest |
117 | in the contract was being solicited in sufficient time to allow |
118 | the minority business enterprises to participate effectively. |
119 | (d) Whether the contractor followed up initial |
120 | solicitations of interest by contacting minority business |
121 | enterprises, the Division of State Purchasing Office of Supplier |
122 | Diversity, or minority persons who responded and provided |
123 | detailed information about prebid meetings, access to plans, |
124 | specifications, contractor's project manager, subcontractor |
125 | bonding, if any, payment schedule, bid addenda, and other |
126 | assistance provided by the contractor to enhance minority |
127 | business enterprise participation. |
128 | (e) Whether the contractor selected portions of the work |
129 | to be performed by minority business enterprises in order to |
130 | increase the likelihood of meeting the minority business |
131 | enterprise procurement goals, including, where appropriate, |
132 | breaking down contracts into economically feasible units to |
133 | facilitate minority business enterprise participation under |
134 | reasonable and economical conditions of performance. |
135 | (f) Whether the contractor provided the Division of State |
136 | Purchasing Office of Supplier Diversity as well as interested |
137 | minority business enterprises or minority persons with adequate |
138 | information about the plans, specifications, and requirements of |
139 | the contract or the availability of jobs at a time no later than |
140 | when such information was provided to other subcontractors. |
141 | (g) Whether the contractor negotiated in good faith with |
142 | interested minority business enterprises or minority persons, |
143 | not rejecting minority business enterprises or minority persons |
144 | as unqualified without sound reasons based on a thorough |
145 | investigation of their capabilities or imposing implausible |
146 | conditions of performance on the contract. |
147 | (h) Whether the contractor diligently seeks to replace a |
148 | minority business enterprise subcontractor that is unable to |
149 | perform successfully with another minority business enterprise. |
150 | (i) Whether the contractor effectively used the services |
151 | of available minority community organizations; minority |
152 | contractors' groups; local, state, and federal minority business |
153 | assistance offices; and other organizations that provide |
154 | assistance in the recruitment and placement of minority business |
155 | enterprises or minority persons. |
156 | (3) If an agency considers any other criteria in |
157 | determining whether a contractor has made a good faith effort, |
158 | the agency shall adopt such criteria in accordance with s. |
159 | 120.54, and, where required by that section, by rule, after May |
160 | 31, 1994. In adopting such criteria, the agency shall identify |
161 | the specific factors in as objective a manner as possible to be |
162 | used to assess a contractor's performance against said criteria. |
163 | (4) Notwithstanding the provisions of s. 287.09451 to the |
164 | contrary, agencies shall monitor good faith efforts of |
165 | contractors in competitively awarded building and construction |
166 | projects, in accordance with rules established pursuant to this |
167 | section. It is the responsibility of the contractor to exercise |
168 | good faith efforts in accordance with rules established pursuant |
169 | to this section, and to provide documentation necessary to |
170 | assess efforts to include minority business participation. |
171 | Section 3. Subsections (11) through (18) of section |
172 | 287.012, Florida Statutes, are redesignated as subsections (12) |
173 | through (19), respectively, and present subsection (19) of that |
174 | section is amended to read: |
175 | 287.012 Definitions.-As used in this part, the term: |
176 | (11)(19) "Division" "Office" means the Division of State |
177 | Purchasing Office of Supplier Diversity of the Department of |
178 | Management Services. |
179 | Section 4. Paragraph (h) of subsection (1), paragraphs (a) |
180 | and (c) of subsection (2), paragraphs (b) and (c) of subsection |
181 | (3), and subsection (10) of section 287.042, Florida Statutes, |
182 | are amended to read: |
183 | 287.042 Powers, duties, and functions.-The department |
184 | shall have the following powers, duties, and functions: |
185 | (1) |
186 | (h)1. The department may collect fees for the use of its |
187 | electronic information services. The fees may be imposed on an |
188 | individual transaction basis or as a fixed subscription for a |
189 | designated period of time. At a minimum, the fees shall be |
190 | determined in an amount sufficient to cover the department's |
191 | projected costs of the services, including overhead in |
192 | accordance with the policies of the Department of Management |
193 | Services for computing its administrative assessment. All fees |
194 | collected under this paragraph shall be deposited in the |
195 | Operating Trust Fund for disbursement as provided by law. |
196 | 2. Effective July 1, 2010, any fees collected pursuant to |
197 | subparagraph 1. and remaining in the Operating Trust Fund in |
198 | excess of the obligations and encumbrances to cover the |
199 | department's costs of providing services pursuant to |
200 | subparagraph 1. shall be calculated as of June 5 each year and |
201 | transferred to the General Revenue Fund before June 30 of each |
202 | year. |
203 | (2)(a) To establish purchasing agreements and procure |
204 | state term contracts for commodities and contractual services, |
205 | pursuant to s. 287.057, under which state agencies shall, and |
206 | eligible users may, make purchases pursuant to s. 287.056. The |
207 | department may restrict purchases from some term contracts to |
208 | state agencies only for those term contracts where the inclusion |
209 | of other governmental entities will have an adverse effect on |
210 | competition or to those federal facilities located in this |
211 | state. In such planning or purchasing the department Office of |
212 | Supplier Diversity may monitor to ensure that opportunities are |
213 | afforded for contracting with minority business enterprises. The |
214 | department, for state term contracts, and all agencies, for |
215 | multiyear contractual services or term contracts, shall explore |
216 | reasonable and economical means to utilize certified minority |
217 | business enterprises. Purchases by any county, municipality, |
218 | private nonprofit community transportation coordinator |
219 | designated pursuant to chapter 427, while conducting business |
220 | related solely to the Commission for the Transportation |
221 | Disadvantaged, or other local public agency under the provisions |
222 | in the state purchasing contracts, and purchases, from the |
223 | corporation operating the correctional work programs, of |
224 | products or services that are subject to paragraph (1)(f), are |
225 | exempt from the competitive solicitation requirements otherwise |
226 | applying to their purchases. |
227 | (c) Any person who files an action protesting a decision |
228 | or intended decision pertaining to contracts administered by the |
229 | department, a water management district, or an agency pursuant |
230 | to s. 120.57(3)(b) shall post with the department, the water |
231 | management district, or the agency at the time of filing the |
232 | formal written protest a bond payable to the department, the |
233 | water management district, or agency in an amount equal to 1 |
234 | percent of the estimated contract amount. For protests of |
235 | decisions or intended decisions pertaining to exceptional |
236 | purchases, the bond shall be in an amount equal to 1 percent of |
237 | the estimated contract amount for the exceptional purchase. The |
238 | estimated contract amount shall be based upon the contract price |
239 | submitted by the protestor or, if no contract price was |
240 | submitted, the department, water management district, or agency |
241 | shall estimate the contract amount based on factors including, |
242 | but not limited to, the price of previous or existing contracts |
243 | for similar commodities or contractual services, the amount |
244 | appropriated by the Legislature for the contract, or the fair |
245 | market value of similar commodities or contractual services. The |
246 | agency shall provide the estimated contract amount to the vendor |
247 | within 72 hours, excluding Saturdays, Sundays, and state |
248 | holidays, after the filing of the notice of protest by the |
249 | vendor. The estimated contract amount is not subject to protest |
250 | pursuant to s. 120.57(3). The bond shall be conditioned upon the |
251 | payment of all costs and charges that are adjudged against the |
252 | protestor in the administrative hearing in which the action is |
253 | brought and in any subsequent appellate court proceeding. In |
254 | lieu of a bond, the department, the water management district, |
255 | or agency may, in either case, accept a cashier's check, |
256 | official bank check, or money order in the amount of the bond. |
257 | If, after completion of the administrative hearing process and |
258 | any appellate court proceedings, the department, water |
259 | management district, or agency prevails, it shall recover all |
260 | costs and charges which shall be included in the final order or |
261 | judgment, excluding attorney's fees. This section shall not |
262 | apply to protests filed by the Office of Supplier Diversity. |
263 | Upon payment of such costs and charges by the protestor, the |
264 | bond, cashier's check, official bank check, or money order shall |
265 | be returned to the protestor. If, after the completion of the |
266 | administrative hearing process and any appellate court |
267 | proceedings, the protestor prevails, the protestor shall recover |
268 | from the department, water management district, or agency all |
269 | costs and charges which shall be included in the final order or |
270 | judgment, excluding attorney's fees. |
271 | (3) To establish a system of coordinated, uniform |
272 | procurement policies, procedures, and practices to be used by |
273 | agencies in acquiring commodities and contractual services, |
274 | which shall include, but not be limited to: |
275 | (b)1. Development of procedures for advertising |
276 | solicitations. These procedures must provide for electronic |
277 | posting of solicitations for at least 10 days before the date |
278 | set for receipt of bids, proposals, or replies, unless the |
279 | department or other agency determines in writing that a shorter |
280 | period of time is necessary to avoid harming the interests of |
281 | the state. The Office of Supplier Diversity may consult with the |
282 | department may develop regarding the development of solicitation |
283 | distribution procedures to ensure that maximum distribution is |
284 | afforded to certified minority business enterprises as defined |
285 | in s. 288.703. |
286 | 2. Development of procedures for electronic posting. The |
287 | department shall designate a centralized website on the Internet |
288 | for the department and other agencies to electronically post |
289 | solicitations, decisions or intended decisions, and other |
290 | matters relating to procurement. |
291 | (c) Development of procedures for the receipt and opening |
292 | of bids, proposals, or replies by an agency. Such procedures |
293 | shall provide the department Office of Supplier Diversity an |
294 | opportunity to monitor and ensure that the contract award is |
295 | consistent with the requirements of s. 287.09451. |
296 | (10) To prepare statistical data concerning the method of |
297 | procurement, terms, usage, and disposition of commodities and |
298 | contractual services by agencies. All agencies shall furnish |
299 | such information for this purpose to the division office and to |
300 | the department, as the department or division office may call |
301 | for, but no less frequently than annually, on such forms or in |
302 | such manner as the department may prescribe. |
303 | Section 5. Subsection (7), paragraphs (a), (b), and (c) of |
304 | subsection (8), and paragraph (c) of subsection (23) of section |
305 | 287.057, Florida Statutes, are amended to read: |
306 | 287.057 Procurement of commodities or contractual |
307 | services.- |
308 | (7) Upon issuance of any solicitation, an agency shall, |
309 | upon request by the department, forward to the department one |
310 | copy of each solicitation for all commodity and contractual |
311 | services purchases in excess of the threshold amount provided in |
312 | s. 287.017 for CATEGORY TWO. An agency shall also, upon request, |
313 | furnish a copy of all competitive-solicitation tabulations. The |
314 | Office of Supplier Diversity may also request from the agencies |
315 | any information submitted to the department pursuant to this |
316 | subsection. |
317 | (8)(a) In order to strive to meet the minority business |
318 | enterprise procurement goals set forth in s. 287.09451, an |
319 | agency may reserve any contract for competitive solicitation |
320 | only among certified minority business enterprises. Agencies |
321 | shall review all their contracts each fiscal year and shall |
322 | determine which contracts may be reserved for solicitation only |
323 | among certified minority business enterprises. This reservation |
324 | may only be used when it is determined, by reasonable and |
325 | objective means, before the solicitation that there are capable, |
326 | qualified certified minority business enterprises available to |
327 | submit a bid, proposal, or reply on a contract to provide for |
328 | effective competition. The department may Office of Supplier |
329 | Diversity shall consult with any agency in reaching such |
330 | determination when deemed appropriate. |
331 | (b) Before a contract may be reserved for solicitation |
332 | only among certified minority business enterprises, the agency |
333 | head must find that such a reservation is in the best interests |
334 | of the state. All determinations shall be subject to s. |
335 | 287.09451(3)(5). Once a decision has been made to reserve a |
336 | contract, but before sealed bids, proposals, or replies are |
337 | requested, the agency shall estimate what it expects the amount |
338 | of the contract to be, based on the nature of the services or |
339 | commodities involved and their value under prevailing market |
340 | conditions. If all the sealed bids, proposals, or replies |
341 | received are over this estimate, the agency may reject the bids, |
342 | proposals, or replies and request new ones from certified |
343 | minority business enterprises, or the agency may reject the |
344 | bids, proposals, or replies and reopen the bidding to all |
345 | eligible vendors. |
346 | (c) All agencies shall consider the use of price |
347 | preferences of up to 10 percent, weighted preference formulas, |
348 | or other preferences for vendors as determined appropriate |
349 | pursuant to guidelines established in accordance with s. |
350 | 287.09451(2)(4) to increase the participation of minority |
351 | business enterprises. |
352 | (23) The department, in consultation with the Agency for |
353 | Enterprise Information Technology and the Comptroller, shall |
354 | develop a program for online procurement of commodities and |
355 | contractual services. To enable the state to promote open |
356 | competition and to leverage its buying power, agencies shall |
357 | participate in the online procurement program, and eligible |
358 | users may participate in the program. Only vendors prequalified |
359 | as meeting mandatory requirements and qualifications criteria |
360 | may participate in online procurement. |
361 | (c) The department may impose and shall collect all fees |
362 | for the use of the online procurement systems. |
363 | 1. The fees may be imposed on an individual transaction |
364 | basis or as a fixed percentage of the cost savings generated. At |
365 | a minimum, the fees must be set in an amount sufficient to cover |
366 | the projected costs of the services, including administrative |
367 | and project service costs in accordance with the policies of the |
368 | department. |
369 | 2. If the department contracts with a provider for online |
370 | procurement, the department, pursuant to appropriation, shall |
371 | compensate the provider from the fees after the department has |
372 | satisfied all ongoing costs. The provider shall report |
373 | transaction data to the department each month so that the |
374 | department may determine the amount due and payable to the |
375 | department from each vendor. |
376 | 3. All fees that are due and payable to the state on a |
377 | transactional basis or as a fixed percentage of the cost savings |
378 | generated are subject to s. 215.31 and must be remitted within |
379 | 40 days after receipt of payment for which the fees are due. For |
380 | fees that are not remitted within 40 days, the vendor shall pay |
381 | interest at the rate established under s. 55.03(1) on the unpaid |
382 | balance from the expiration of the 40-day period until the fees |
383 | are remitted. |
384 | 4. All fees and surcharges collected under this paragraph |
385 | shall be deposited in the Operating Trust Fund for disbursement |
386 | as provided by law. |
387 | 5. Effective July 1, 2010, any fees collected pursuant to |
388 | subparagraph 1. and remaining in the Operating Trust Fund in |
389 | excess of the obligations and encumbrances to cover the |
390 | department's costs of providing services pursuant to |
391 | subparagraph 1. shall be calculated as of June 5 each year and |
392 | transferred to the General Revenue Fund before June 30 of each |
393 | year. |
394 | Section 6. Subsections (3) and (4) of section 287.094, |
395 | Florida Statutes, are amended to read: |
396 | 287.094 Minority business enterprise programs; penalty for |
397 | discrimination and false representation.- |
398 | (3) Any contractor, firm, or individual shall be barred |
399 | from doing business with state government for a period of 36 |
400 | months, and shall be permanently disqualified from doing |
401 | business with state government as a certified minority business |
402 | enterprise, if the division office has determined that the |
403 | contractor, firm, or individual has not acted in good faith to |
404 | fulfill the terms of a contract calling for it to use the |
405 | services or commodities of a certified minority business |
406 | enterprise. If the Department of Legal Affairs, agency final |
407 | order, or a court of law determines that a person was involved |
408 | in a violation of this section, knew about such violation, or |
409 | collaborated with a contractor or firm in such violation, the |
410 | person, or any contractor or firm the person is employed by or |
411 | affiliated with, shall be barred from doing business with state |
412 | government for a period of at least 36 months. |
413 | (4) No agency shall deny any contractor, firm, or |
414 | individual a fair opportunity to compete in the public |
415 | procurement of commodities and services based on race, national |
416 | origin, gender, religion, or physical disability, which for |
417 | purposes of this subsection constitutes prohibited |
418 | discrimination. Complaints alleging prohibited discrimination by |
419 | an agency in its public procurement may be filed with the |
420 | Inspector General for the agency that is the subject of the |
421 | complaint Office of Supplier Diversity within 60 days after the |
422 | facts giving rise to the complaint are known or reasonably |
423 | should have been discovered. Any complaint shall be filed in |
424 | writing and must set forth the specific facts giving rise to the |
425 | claim of prohibited discrimination. The Office of Supplier |
426 | Diversity shall, within 10 days, refer the complaint to the |
427 | Inspector General for the agency that is the subject of the |
428 | complaint, who shall coordinate a prompt investigation and issue |
429 | written findings of fact. These findings shall be reviewed by |
430 | the Chief Inspector General or his or her designee, who is |
431 | authorized to conduct any further investigation deemed necessary |
432 | or appropriate. Upon a final determination that an agency has |
433 | abused its discretion by engaging in prohibited discrimination, |
434 | the Chief Inspector General shall refer any state employee |
435 | determined to have participated in the prohibited discrimination |
436 | for disciplinary action in accordance with chapter 60K(9), |
437 | Florida Administrative Code, and subsequently enacted rules, up |
438 | to and including termination. |
439 | Section 7. A business certified by the Office of Supplier |
440 | Diversity as a minority business enterprise under s. 287.0943, |
441 | Florida Statutes, as of June 30, 2010, shall continue to be |
442 | recognized as a certified minority business enterprise for |
443 | purposes of doing business with state government for 2 years |
444 | from the effective date of certification, but not later than |
445 | June 30, 2012. |
446 | Section 8. Section 287.0943, Florida Statutes, is amended |
447 | to read: |
448 | 287.0943 Certification of minority business enterprises.- |
449 | (1) A business certified by a department of the Federal |
450 | Government or any local governmental jurisdiction or |
451 | organization shall be accepted by the Department of Management |
452 | Services, Office of Supplier Diversity, as a certified minority |
453 | business enterprise for purposes of doing business with state |
454 | government when the minority business enterprise has obtained |
455 | certification or recertification within the past 2 years and the |
456 | Office of Supplier Diversity determines that the state's |
457 | minority business enterprise certification criteria used in the |
458 | certification process met, at a minimum, the criteria adopted by |
459 | the Department of Management Services are applied in the local |
460 | certification process. |
461 | (2)(a) The office is hereby directed to convene a |
462 | "Minority Business Certification Task Force." The task force |
463 | shall meet as often as necessary, but no less frequently than |
464 | annually. |
465 | (b) The task force shall be regionally balanced and |
466 | comprised of officials representing the department, counties, |
467 | municipalities, school boards, special districts, and other |
468 | political subdivisions of the state who administer programs to |
469 | assist minority businesses in procurement or development in |
470 | government-sponsored programs. The following organizations may |
471 | appoint two members each of the task force who fit the |
472 | description above: |
473 | 1. The Florida League of Cities, Inc. |
474 | 2. The Florida Association of Counties. |
475 | 3. The Florida School Boards Association, Inc. |
476 | 4. The Association of Special Districts. |
477 | 5. The Florida Association of Minority Business Enterprise |
478 | Officials. |
479 | 6. The Florida Association of Government Purchasing |
480 | Officials. |
481 |
|
482 | In addition, the Office of Supplier Diversity shall appoint |
483 | seven members consisting of three representatives of minority |
484 | business enterprises, one of whom should be a woman business |
485 | owner, two officials of the office, and two at-large members to |
486 | ensure balance. The chairperson of the Legislative Committee on |
487 | Intergovernmental Relations or a designee shall be a member of |
488 | the task force, ex officio. A quorum shall consist of one-third |
489 | of the current members, and the task force may take action by |
490 | majority vote. Any vacancy may only be filled by the |
491 | organization or agency originally authorized to appoint the |
492 | position. |
493 | (c) The purpose of the task force will be to propose |
494 | uniform criteria and procedures by which participating entities |
495 | and organizations can qualify businesses to participate in |
496 | procurement or contracting programs as certified minority |
497 | business enterprises in accordance with the certification |
498 | criteria established by law. |
499 | (d) A final list of the criteria and procedures proposed |
500 | by the task force shall be considered by the secretary. The task |
501 | force may seek technical assistance from qualified providers of |
502 | technical, business, and managerial expertise to ensure the |
503 | reliability of the certification criteria developed. |
504 | (a)(e) In assessing the status of ownership and control, |
505 | certification criteria shall, at a minimum: |
506 | 1. Link ownership by a minority person, as defined in s. |
507 | 288.703(3), or as dictated by the legal obligations of a |
508 | certifying organization, to day-to-day control and financial |
509 | risk by the qualifying minority owner, and to demonstrated |
510 | expertise or licensure of a minority owner in any trade or |
511 | profession that the minority business enterprise will offer to |
512 | the state when certified. Businesses must comply with all state |
513 | licensing requirements prior to becoming certified as a minority |
514 | business enterprise. |
515 | 2. If present ownership was obtained by transfer, require |
516 | the minority person on whom eligibility is based to have owned |
517 | at least 51 percent of the applicant firm for a minimum of 2 |
518 | years, when any previous majority ownership interest in the firm |
519 | was by a nonminority who is or was a relative, former employer, |
520 | or current employer of the minority person on whom eligibility |
521 | is based. This requirement shall not apply to minority persons |
522 | who are otherwise eligible who take a 51-percent-or-greater |
523 | interest in a firm that requires professional licensure to |
524 | operate and who will be the qualifying licenseholder for the |
525 | firm when certified. A transfer made within a related immediate |
526 | family group from a nonminority person to a minority person in |
527 | order to establish ownership by a minority person shall be |
528 | deemed to have been made solely for purposes of satisfying |
529 | certification criteria and shall render such ownership invalid |
530 | for purposes of qualifying for such certification if the |
531 | combined total net asset value of all members of such family |
532 | group exceeds $1 million. For purposes of this subparagraph, the |
533 | term "related immediate family group" means one or more children |
534 | under 16 years of age and a parent of such children or the |
535 | spouse of such parent residing in the same house or living unit. |
536 | 3. Require that prospective certified minority business |
537 | enterprises be currently performing or seeking to perform a |
538 | useful business function. A "useful business function" is |
539 | defined as a business function which results in the provision of |
540 | materials, supplies, equipment, or services to customers. Acting |
541 | as a conduit to transfer funds to a nonminority business does |
542 | not constitute a useful business function unless it is done so |
543 | in a normal industry practice. As used in this section, the term |
544 | "acting as a conduit" means, in part, not acting as a regular |
545 | dealer by making sales of material, goods, or supplies from |
546 | items bought, kept in stock, and regularly sold to the public in |
547 | the usual course of business. Brokers, manufacturer's |
548 | representatives, sales representatives, and nonstocking |
549 | distributors are considered as conduits that do not perform a |
550 | useful business function, unless normal industry practice |
551 | dictates. |
552 | (b)(f) When a business receives payments or awards |
553 | exceeding $100,000 in one fiscal year, a review of its |
554 | certification status or an audit will be conducted within 2 |
555 | years. In addition, random reviews or audits will be conducted |
556 | as deemed appropriate by the Office of Supplier Diversity. |
557 | (c)(g) The certification criteria approved by the task |
558 | force and adopted by the Department of Management Services shall |
559 | be included in a statewide and interlocal agreement as defined |
560 | in s. 287.09431 and, in accordance with s. 163.01, shall be |
561 | executed according to the terms included therein. |
562 | (d)(h) The certification procedures should allow an |
563 | applicant seeking certification to designate on the application |
564 | form the information the applicant considers to be proprietary, |
565 | confidential business information. As used in this paragraph, |
566 | "proprietary, confidential business information" includes, but |
567 | is not limited to, any information that would be exempt from |
568 | public inspection pursuant to the provisions of chapter 119; |
569 | trade secrets; internal auditing controls and reports; contract |
570 | costs; or other information the disclosure of which would injure |
571 | the affected party in the marketplace or otherwise violate s. |
572 | 286.041. The executor in receipt of the application shall issue |
573 | written and final notice of any information for which |
574 | noninspection is requested but not provided for by law. |
575 | (e)(i) A business that is certified under the provisions |
576 | of the statewide and interlocal agreement shall be deemed a |
577 | certified minority enterprise in all jurisdictions or |
578 | organizations where the agreement is in effect, and that |
579 | business is deemed available to do business as such within any |
580 | such jurisdiction or with any such organization statewide. All |
581 | state agencies must accept minority business enterprises |
582 | certified in accordance with the statewide and interlocal |
583 | agreement of s. 287.09431, and that business shall also be |
584 | deemed a "certified minority business enterprise" as defined in |
585 | s. 288.703. However, any governmental jurisdiction or |
586 | organization that administers a minority business purchasing |
587 | program may reserve the right to establish further certification |
588 | procedures necessary to comply with federal law. |
589 | (j) The statewide and interlocal agreement shall be guided |
590 | by the terms and conditions found therein and may be amended at |
591 | any meeting of the task force and subsequently adopted by the |
592 | secretary of the Department of Management Services. The amended |
593 | agreement must be enacted, initialed, and legally executed by at |
594 | least two-thirds of the certifying entities party to the |
595 | existing agreement and adopted by the state as originally |
596 | executed in order to bind the certifying entity. |
597 | (k) The task force shall meet for the first time no later |
598 | than 45 days after the effective date of this act. |
599 | (3)(a) The office shall review and evaluate the |
600 | certification programs and procedures of all prospective |
601 | executors of the statewide and interlocal agreement to determine |
602 | if their programs exhibit the capacity to meet the standards of |
603 | the agreement. |
604 | (b) The evaluations shall, at a minimum, consider: the |
605 | certifying entity's capacity to conduct investigations of |
606 | applicants seeking certification under the designated criteria; |
607 | the ability of the certifying entity to collect the requisite |
608 | data and to establish adequate protocol to store and exchange |
609 | said information among the executors of the agreement and to |
610 | provide adequate security to prevent unauthorized access to |
611 | information gathered during the certification process; and the |
612 | degree to which any legal obligations or supplemental |
613 | requirements unique to the certifying entity exceed the capacity |
614 | of that entity to conduct certifications. |
615 | (3)(c) Any firms certified by organizations or |
616 | governmental entities determined not to meet the state |
617 | certification criteria shall not be eligible to participate as |
618 | certified minority business enterprises in the minority business |
619 | assistance programs of the state. For a period of 1 year from |
620 | the effective date of this legislation, the executor of the |
621 | statewide and interlocal agreement may elect to accept only |
622 | minority business enterprises certified pursuant to criteria in |
623 | place at the time the agreement was signed. After the 1-year |
624 | period, Either party to the statewide and interlocal agreement |
625 | may elect to withdraw from the agreement without further notice. |
626 | (d) Any organizations or governmental entities determined |
627 | by the office not to meet the standards of the agreement shall |
628 | not be eligible to execute the statewide and interlocal |
629 | agreement as a participating organization until approved by the |
630 | office. |
631 | (e) Any participating program receiving three or more |
632 | challenges to its certification decisions pursuant to subsection |
633 | (4) from other organizations that are executors to the statewide |
634 | and interlocal agreement, shall be subject to a review by the |
635 | office, as provided in paragraphs (a) and (b), of the |
636 | organization's capacity to perform under such agreement and in |
637 | accordance with the core criteria established by the task force. |
638 | The office shall submit a report to the secretary of the |
639 | Department of Management Services regarding the results of the |
640 | review. |
641 | (f) The office shall maintain a directory of all executors |
642 | of the statewide and interlocal agreement. The directory should |
643 | be communicated to the general public. |
644 | (4) A certification may be challenged by any executor to |
645 | the statewide and interlocal agreement upon the grounds of |
646 | failure by the certifying organization to adhere to the adopted |
647 | criteria or to the certifying organization's rules and |
648 | procedures, or on the grounds of a misrepresentation or fraud by |
649 | the certified minority business enterprise. The challenge shall |
650 | proceed according to procedures specified in the agreement. |
651 | (5)(a) The secretary of the Department of Management |
652 | Services shall execute the statewide and interlocal agreement |
653 | established under s. 287.09431 on behalf of the state. The |
654 | office shall certify minority business enterprises in accordance |
655 | with the laws of this state and, by affidavit, shall recertify |
656 | such minority business enterprises not less than once each year. |
657 | (b) The office shall contract with parties to the |
658 | statewide and interlocal agreement to perform onsite visits |
659 | associated with state certifications. |
660 | (6)(a) The office shall maintain up-to-date records of all |
661 | certified minority business enterprises, as defined in s. |
662 | 288.703, and of applications for certification that were denied |
663 | and shall make this list available to all agencies. The division |
664 | office shall, for statistical purposes, collect and track |
665 | subgroupings of gender and nationality status for each certified |
666 | minority business enterprise. Agency spending shall also be |
667 | tracked for these subgroups. The records may include information |
668 | about minority business enterprises that provide legal services, |
669 | auditing services, and health services. Agencies shall use this |
670 | list in efforts to meet the minority business enterprise |
671 | procurement goals set forth in s. 287.09451. |
672 | (b) The office shall establish and administer a |
673 | computerized data bank to carry out the requirements of |
674 | paragraph (a), to be available to all executors of the statewide |
675 | and interlocal agreement. Data maintained in the data bank shall |
676 | be sufficient to allow each executor to reasonably monitor |
677 | certifications it has issued. |
678 | (7) The office shall identify minority business |
679 | enterprises eligible for certification in all areas of state |
680 | services and commodities purchasing. The office may contract |
681 | with a private firm or other agency, if necessary, in seeking to |
682 | identify minority business enterprises for certification. |
683 | Agencies may request the office to identify certifiable minority |
684 | business enterprises that are in the business of providing a |
685 | given service or commodity; the office shall respond to such |
686 | requests and seek out such certifiable minority business |
687 | enterprises. |
688 | (8) The office shall adopt rules necessary to implement |
689 | this section. |
690 | (7)(9) State agencies shall comply with this act except to |
691 | the extent that the requirements of this act are in conflict |
692 | with federal law. |
693 | (8)(10) Any transfer of ownership or permanent change in |
694 | the management and daily operations of a certified minority |
695 | business enterprise which may affect certification must be |
696 | reported to the original certifying jurisdiction or entity and |
697 | to the office within 14 days of the transfer or change taking |
698 | place. In the event of a transfer of ownership, the transferee |
699 | seeking to do business with the state as a certified minority |
700 | business enterprise is responsible for such reporting. In the |
701 | event of a permanent change in the management and daily |
702 | operations, owners seeking to do business with the state as a |
703 | certified minority business enterprise are responsible for |
704 | reporting such change to the office. Any person violating the |
705 | provisions of this subsection commits shall be guilty of a |
706 | misdemeanor of the first degree, punishable as provided in s. |
707 | 775.082 or s. 775.083. |
708 | (9)(11) To deter fraud in the program, the Auditor General |
709 | may review the criteria by which a business became certified as |
710 | a certified minority business enterprise. |
711 | (10)(12) Any executor of the statewide and interlocal |
712 | agreement may revoke the certification or recertification of a |
713 | firm doing business as a certified minority business enterprise |
714 | if the minority business enterprise does not meet the |
715 | requirements of the jurisdiction or certifying entity that |
716 | certified or recertified the firm as a certified minority |
717 | business enterprise, or the requirements of subsection (2), s. |
718 | 288.703, and any rule of the division office or the Department |
719 | of Management Services or if the business acquired certification |
720 | or recertification by means of falsely representing any entity |
721 | as a minority business enterprise for purposes of qualifying for |
722 | certification or recertification. |
723 | (11)(13) Unless permanently revoked, a certified minority |
724 | business enterprise for which certification or recertification |
725 | has been revoked may not apply or reapply for certification or |
726 | recertification for a minimum of 36 months after the date of the |
727 | notice of revocation. |
728 | (12)(14)(a) Except for certification decisions issued by |
729 | the Office of Supplier Diversity, An executor to the statewide |
730 | and interlocal agreement shall, in accordance with its rules and |
731 | procedures: |
732 | 1. Give reasonable notice to affected persons or parties |
733 | of its decision to deny certification based on failure to meet |
734 | eligibility requirements of the statewide and interlocal |
735 | agreement of s. 287.09431, together with a summary of the |
736 | grounds therefor. |
737 | 2. Give affected persons or parties an opportunity, at a |
738 | convenient time and place, to present to the agency written or |
739 | oral evidence in opposition to the action or of the executor's |
740 | refusal to act. |
741 | 3. Give a written explanation of any subsequent decision |
742 | of the executor overruling the objections. |
743 | (b) An applicant that is denied minority business |
744 | enterprise certification based on failure to meet eligibility |
745 | requirements of the statewide and interlocal agreement pursuant |
746 | to s. 287.09431 may not reapply for certification or |
747 | recertification until at least 6 months after the date of the |
748 | notice of the denial of certification or recertification. |
749 | (13)(15) The division office shall adopt rules in |
750 | compliance with this part. |
751 | Section 9. Section 287.09431, Florida Statutes, is amended |
752 | to read: |
753 | 287.09431 Statewide and interlocal agreement on |
754 | certification of business concerns for the status of minority |
755 | business enterprise.-The statewide and interlocal agreement on |
756 | certification of business concerns for the status of minority |
757 | business enterprise is hereby enacted and entered into with all |
758 | jurisdictions or organizations legally joining therein. If, |
759 | within 2 years from the date that the certification core |
760 | criteria are approved by the Department of Labor and Employment |
761 | Security, the agreement included herein is not executed by a |
762 | majority of county and municipal governing bodies that |
763 | administer a minority business assistance program on the |
764 | effective date of this act, then the Legislature shall review |
765 | this agreement. It is the intent of the Legislature that if the |
766 | agreement is not executed by a majority of the requisite |
767 | governing bodies, then a statewide uniform certification process |
768 | should be adopted, and that said agreement should be repealed |
769 | and replaced by a mandatory state government certification |
770 | process. |
771 | ARTICLE I |
772 | PURPOSE, FINDINGS, AND POLICY.- |
773 | (1) The parties to this agreement, desiring by common |
774 | action to establish a uniform certification process in order to |
775 | reduce the multiplicity of applications by business concerns to |
776 | state and local governmental programs for minority business |
777 | assistance, declare that it is the policy of each of them, on |
778 | the basis of cooperation with one another, to remedy social and |
779 | economic disadvantage suffered by certain groups, resulting in |
780 | their being historically underutilized in ownership and control |
781 | of commercial enterprises. Thus, the parties seek to address |
782 | this history by increasing the participation of the identified |
783 | groups in opportunities afforded by government procurement. |
784 | (2) The parties find that the State of Florida presently |
785 | certifies firms for participation in the minority business |
786 | assistance programs of the state. The parties find further that |
787 | some counties, municipalities, school boards, special districts, |
788 | and other divisions of local government require a separate, yet |
789 | similar, and in most cases redundant certification in order for |
790 | businesses to participate in the programs sponsored by each |
791 | government entity. |
792 | (3) The parties find further that this redundant |
793 | certification has proven to be unduly burdensome to the |
794 | minority-owned firms intended to benefit from the underlying |
795 | purchasing incentives. |
796 | (4) The parties agree that: |
797 | (a) They will facilitate integrity, stability, and |
798 | cooperation in the statewide and interlocal certification |
799 | process, and in other elements of programs established to assist |
800 | minority-owned businesses. |
801 | (b) They shall cooperate with agencies, organizations, and |
802 | associations interested in certification and other elements of |
803 | minority business assistance. |
804 | (c) It is the purpose of this agreement to provide for a |
805 | uniform process whereby the status of a business concern may be |
806 | determined in a singular review of the business information for |
807 | these purposes, in order to eliminate any undue expense, delay, |
808 | or confusion to the minority-owned businesses in seeking to |
809 | participate in the minority business assistance programs of |
810 | state and local jurisdictions. |
811 | ARTICLE II |
812 | DEFINITIONS.-As used in this agreement and contracts made |
813 | pursuant to it, unless the context clearly requires otherwise: |
814 | (1) "Awarding organization" means any political |
815 | subdivision or organization authorized by law, ordinance, or |
816 | agreement to enter into contracts and for which the governing |
817 | body has entered into this agreement. |
818 | (2) "Department" means the Department of Labor and |
819 | Employment Security. |
820 | (3) "Minority" means a person who is a lawful, permanent |
821 | resident of the state, having origins in one of the minority |
822 | groups as described and adopted by the Department of Labor and |
823 | Employment Security, hereby incorporated by reference. |
824 | (4) "Minority business enterprise" means any small |
825 | business concern as defined in subsection (6) that meets all of |
826 | the criteria described and adopted by the Department of Labor |
827 | and Employment Security, hereby incorporated by reference. |
828 | (5) "Participating state or local organization" means any |
829 | political subdivision of the state or organization designated by |
830 | such that elects to participate in the certification process |
831 | pursuant to this agreement, which has been approved according to |
832 | s. 287.0943(3) and has legally entered into this agreement. |
833 | (6) "Small business concern" means an independently owned |
834 | and operated business concern which is of a size and type as |
835 | described and adopted by vote related to this agreement of the |
836 | commission, hereby incorporated by reference. |
837 | ARTICLE III |
838 | STATEWIDE AND INTERLOCAL CERTIFICATIONS.- |
839 | (1) All awarding organizations shall accept a |
840 | certification granted by any participating organization which |
841 | has been approved according to s. 287.0943(3) and has entered |
842 | into this agreement, as valid status of minority business |
843 | enterprise. |
844 | (2) A participating organization shall certify a business |
845 | concern that meets the definition of minority business |
846 | enterprise in this agreement, in accordance with the duly |
847 | adopted eligibility criteria. |
848 | (3) All participating organizations shall issue notice of |
849 | certification decisions granting or denying certification to all |
850 | other participating organizations within 14 days of the |
851 | decision. Such notice may be made through electronic media. |
852 | (4) No certification will be granted without an onsite |
853 | visit to verify ownership and control of the prospective |
854 | minority business enterprise, unless verification can be |
855 | accomplished by other methods of adequate verification or |
856 | assessment of ownership and control. |
857 | (5) The certification of a minority business enterprise |
858 | pursuant to the terms of this agreement shall not be suspended, |
859 | revoked, or otherwise impaired except on any grounds which would |
860 | be sufficient for revocation or suspension of a certification in |
861 | the jurisdiction of the participating organization. |
862 | (6) The certification determination of a party may be |
863 | challenged by any other participating organization by the |
864 | issuance of a timely written notice by the challenging |
865 | organization to the certifying organization's determination |
866 | within 10 days of receiving notice of the certification |
867 | decision, stating the grounds therefor. |
868 | (7) The sole accepted grounds for challenge shall be the |
869 | failure of the certifying organization to adhere to the adopted |
870 | criteria or the certifying organization's rules or procedures, |
871 | or the perpetuation of a misrepresentation or fraud by the firm. |
872 | (8) The certifying organization shall reexamine its |
873 | certification determination and submit written notice to the |
874 | applicant and the challenging organization of its findings |
875 | within 30 days after the receipt of the notice of challenge. |
876 | (9) If the certification determination is affirmed, the |
877 | challenging agency may subsequently submit timely written notice |
878 | to the firm of its intent to revoke certification of the firm. |
879 | ARTICLE IV |
880 | APPROVED AND ACCEPTED PROGRAMS.-Nothing in this agreement |
881 | shall be construed to repeal or otherwise modify any ordinance, |
882 | law, or regulation of a party relating to the existing minority |
883 | business assistance provisions and procedures by which minority |
884 | business enterprises participate therein. |
885 | ARTICLE V |
886 | TERM.-The term of the agreement shall be 5 years, after |
887 | which it may be reexecuted by the parties. |
888 | ARTICLE VI |
889 | AGREEMENT EVALUATION.-The designated state and local |
890 | officials may meet from time to time as a group to evaluate |
891 | progress under the agreement, to formulate recommendations for |
892 | changes, or to propose a new agreement. |
893 | ARTICLE VII |
894 | OTHER ARRANGEMENTS.-Nothing in this agreement shall be |
895 | construed to prevent or inhibit other arrangements or practices |
896 | of any party in order to comply with federal law. |
897 | ARTICLE VIII |
898 | EFFECT AND WITHDRAWAL.- |
899 | (1) This agreement shall become effective when properly |
900 | executed by a legal representative of the participating |
901 | organization, when enacted into the law of the state and after |
902 | an ordinance or other legislation is enacted into law by the |
903 | governing body of each participating organization. Thereafter it |
904 | shall become effective as to any participating organization upon |
905 | the enactment of this agreement by the governing body of that |
906 | organization. |
907 | (2) Any party may withdraw from this agreement by enacting |
908 | legislation repealing the same, but no such withdrawal shall |
909 | take effect until one year after the governing body of the |
910 | withdrawing party has given notice in writing of the withdrawal |
911 | to the other parties. |
912 | (3) No withdrawal shall relieve the withdrawing party of |
913 | any obligations imposed upon it by law. |
914 | ARTICLE IX |
915 | FINANCIAL RESPONSIBILITY.- |
916 | (1) A participating organization shall not be financially |
917 | responsible or liable for the obligations of any other |
918 | participating organization related to this agreement. |
919 | (2) The provisions of this agreement shall constitute |
920 | neither a waiver of any governmental immunity under Florida law |
921 | nor a waiver of any defenses of the parties under Florida law. |
922 | The provisions of this agreement are solely for the benefit of |
923 | its executors and not intended to create or grant any rights, |
924 | contractual or otherwise, to any person or entity. |
925 | ARTICLE X |
926 | VENUE AND GOVERNING LAW.-The obligations of the parties to |
927 | this agreement are performable only within the county where the |
928 | participating organization is located, and statewide for the |
929 | Office of Supplier Diversity, and venue for any legal action in |
930 | connection with this agreement shall lie, for any participating |
931 | organization except the Office of Supplier Diversity, |
932 | exclusively in the county where the participating organization |
933 | is located. This agreement shall be governed by and construed in |
934 | accordance with the laws and court decisions of the state. |
935 | ARTICLE XI |
936 | CONSTRUCTION AND SEVERABILITY.-This agreement shall be |
937 | liberally construed so as to effectuate the purposes thereof. |
938 | The provisions of this agreement shall be severable and if any |
939 | phrase, clause, sentence, or provision of this agreement is |
940 | declared to be contrary to the State Constitution or the United |
941 | States Constitution, or the application thereof to any |
942 | government, agency, person, or circumstance is held invalid, the |
943 | validity of the remainder of this agreement and the |
944 | applicability thereof to any government, agency, person, or |
945 | circumstance shall not be affected thereby. If this agreement |
946 | shall be held contrary to the State Constitution, the agreement |
947 | shall remain in full force and effect as to all severable |
948 | matters. |
949 | Section 10. Section 287.09451, Florida Statutes, is |
950 | amended to read: |
951 | 287.09451 Division Office of Supplier Diversity; powers, |
952 | duties, and functions.- |
953 | (1) The Legislature finds that there is evidence of a |
954 | systematic pattern of past and continuing racial discrimination |
955 | against minority business enterprises and a disparity in the |
956 | availability and use of minority business enterprises in the |
957 | state procurement system. It is determined to be a compelling |
958 | state interest to rectify such discrimination and disparity. |
959 | Based upon statistical data profiling this discrimination, the |
960 | Legislature has enacted race-conscious and gender-conscious |
961 | remedial programs to ensure minority participation in the |
962 | economic life of the state, in state contracts for the purchase |
963 | of commodities and services, and in construction contracts. The |
964 | purpose and intent of this section is to increase participation |
965 | by minority business enterprises accomplished by encouraging the |
966 | use of minority business enterprises and the entry of new and |
967 | diversified minority business enterprises into the marketplace. |
968 | (2) The Office of Supplier Diversity is established within |
969 | the Department of Management Services to assist minority |
970 | business enterprises in becoming suppliers of commodities, |
971 | services, and construction to state government. |
972 | (3) The secretary shall appoint an executive director for |
973 | the Office of Supplier Diversity, who shall serve at the |
974 | pleasure of the secretary. |
975 | (2)(4) The division Office of Supplier Diversity shall |
976 | have the following powers, duties, and functions: |
977 | (a) To adopt rules to determine what constitutes a "good |
978 | faith effort" for purposes of state agency compliance with the |
979 | minority business enterprise procurement goals set forth in s. |
980 | 287.042. Factors which shall be considered by the Minority |
981 | Business Enterprise Assistance Office in determining good faith |
982 | effort shall include, but not be limited to: |
983 | 1. Whether the agency scheduled presolicitation or prebid |
984 | meetings for the purpose of informing minority business |
985 | enterprises of contracting and subcontracting opportunities. |
986 | 2. Whether the contractor advertised in general |
987 | circulation, trade association, or minority-focus media |
988 | concerning the subcontracting opportunities. |
989 | 3. Whether the agency effectively used services and |
990 | resources of available minority community organizations; |
991 | minority contractors' groups; local, state, and federal minority |
992 | business assistance offices; and other organizations that |
993 | provide assistance in the recruitment and placement of minority |
994 | business enterprises or minority persons. |
995 | 4. Whether the agency provided written notice to a |
996 | reasonable number of minority business enterprises that their |
997 | interest in contracting with the agency was being solicited in |
998 | sufficient time to allow the minority business enterprises to |
999 | participate effectively. |
1000 | (b) To adopt rules to determine what constitutes a "good |
1001 | faith effort" for purposes of contractor compliance with |
1002 | contractual requirements relating to the use of services or |
1003 | commodities of a minority business enterprise under s. |
1004 | 287.094(2). Factors which shall be considered by the division |
1005 | Office of Supplier Diversity in determining whether a contractor |
1006 | has made good faith efforts shall include, but not be limited |
1007 | to: |
1008 | 1. Whether the contractor attended any presolicitation or |
1009 | prebid meetings that were scheduled by the agency to inform |
1010 | minority business enterprises of contracting and subcontracting |
1011 | opportunities. |
1012 | 2. Whether the contractor advertised in general |
1013 | circulation, trade association, or minority-focus media |
1014 | concerning the subcontracting opportunities. |
1015 | 3. Whether the contractor provided written notice to a |
1016 | reasonable number of specific minority business enterprises that |
1017 | their interest in the contract was being solicited in sufficient |
1018 | time to allow the minority business enterprises to participate |
1019 | effectively. |
1020 | 4. Whether the contractor followed up initial |
1021 | solicitations of interest by contacting minority business |
1022 | enterprises or minority persons to determine with certainty |
1023 | whether the minority business enterprises or minority persons |
1024 | were interested. |
1025 | 5. Whether the contractor selected portions of the work to |
1026 | be performed by minority business enterprises in order to |
1027 | increase the likelihood of meeting the minority business |
1028 | enterprise procurement goals, including, where appropriate, |
1029 | breaking down contracts into economically feasible units to |
1030 | facilitate minority business enterprise participation. |
1031 | 6. Whether the contractor provided interested minority |
1032 | business enterprises or minority persons with adequate |
1033 | information about the plans, specifications, and requirements of |
1034 | the contract or the availability of jobs. |
1035 | 7. Whether the contractor negotiated in good faith with |
1036 | interested minority business enterprises or minority persons, |
1037 | not rejecting minority business enterprises or minority persons |
1038 | as unqualified without sound reasons based on a thorough |
1039 | investigation of their capabilities. |
1040 | 8. Whether the contractor effectively used the services of |
1041 | available minority community organizations; minority |
1042 | contractors' groups; local, state, and federal minority business |
1043 | assistance offices; and other organizations that provide |
1044 | assistance in the recruitment and placement of minority business |
1045 | enterprises or minority persons. |
1046 | (c) To adopt rules and do all things necessary or |
1047 | convenient to guide all state agencies toward making |
1048 | expenditures for commodities, contractual services, |
1049 | construction, and architectural and engineering services with |
1050 | certified minority business enterprises in accordance with the |
1051 | minority business enterprise procurement goals set forth in s. |
1052 | 287.042. |
1053 | (d) To monitor the degree to which agencies procure |
1054 | services, commodities, and construction from minority business |
1055 | enterprises in conjunction with the Department of Financial |
1056 | Services as specified in s. 17.11. |
1057 | (e) To receive and disseminate information relative to |
1058 | procurement opportunities, availability of minority business |
1059 | enterprises, and technical assistance. |
1060 | (f) To advise agencies on methods and techniques for |
1061 | achieving procurement objectives. |
1062 | (g) To provide a central minority business enterprise |
1063 | certification process which includes independent verification of |
1064 | status as a minority business enterprise. |
1065 | (h) To develop procedures to investigate complaints |
1066 | against minority business enterprises or contractors alleged to |
1067 | violate any provision related to this section or s. 287.0943, |
1068 | that may include visits to worksites or business premises, and |
1069 | to refer all information on businesses suspected of |
1070 | misrepresenting minority status to the Department of Management |
1071 | Services for investigation. When an investigation is completed |
1072 | and there is reason to believe that a violation has occurred, |
1073 | the Department of Labor and Employment Security shall refer the |
1074 | matter to the office of the Attorney General, Department of |
1075 | Legal Affairs, for prosecution. |
1076 | (i) To maintain a directory of all minority business |
1077 | enterprises which have been certified and provide this |
1078 | information to any agency or business requesting it. |
1079 | (j) To encourage all firms which do more than $1 million |
1080 | in business with the state within a 12-month period to develop, |
1081 | implement, and submit to this office a minority business |
1082 | development plan. |
1083 | (k) To communicate on a monthly basis with the Small and |
1084 | Minority Business Advisory Council to keep the council informed |
1085 | on issues relating to minority enterprise procurement. |
1086 | (l) To serve as an advocate for minority business |
1087 | enterprises, and coordinate with the small and minority business |
1088 | ombudsman, as defined in s. 288.703, which duties shall include: |
1089 | 1. Ensuring that agencies supported by state funding |
1090 | effectively target the delivery of services and resources, as |
1091 | related to minority business enterprises. |
1092 | 2. Establishing standards within each industry with which |
1093 | the state government contracts on how agencies and contractors |
1094 | may provide the maximum practicable opportunity for minority |
1095 | business enterprises. |
1096 | 3. Assisting agencies and contractors by providing |
1097 | outreach to minority businesses, by specifying and monitoring |
1098 | technical and managerial competence for minority business |
1099 | enterprises, and by consulting in planning of agency procurement |
1100 | to determine how best to provide opportunities for minority |
1101 | business enterprises. |
1102 | 4. Integrating technical and managerial assistance for |
1103 | minority business enterprises with government contracting |
1104 | opportunities. |
1105 | (m) To certify minority business enterprises, as defined |
1106 | in s. 288.703, and as specified in ss. 287.0943 and 287.09431, |
1107 | and shall recertify such minority businesses at least once every |
1108 | 2 years. Minority business enterprises must be recertified at |
1109 | least once every 2 years by affidavit. |
1110 | (g)(n)1. To develop procedures to be used by an agency in |
1111 | identifying commodities, contractual services, architectural and |
1112 | engineering services, and construction contracts, except those |
1113 | architectural, engineering, construction, or other related |
1114 | services or contracts subject to the provisions of chapter 339, |
1115 | that could be provided by minority business enterprises. Each |
1116 | agency is encouraged to spend 21 percent of the moneys actually |
1117 | expended for construction contracts, 25 percent of the moneys |
1118 | actually expended for architectural and engineering contracts, |
1119 | 24 percent of the moneys actually expended for commodities, and |
1120 | 50.5 percent of the moneys actually expended for contractual |
1121 | services during the previous fiscal year, except for the state |
1122 | university construction program which shall be based upon public |
1123 | education capital outlay projections for the subsequent fiscal |
1124 | year, and reported to the Legislature pursuant to s. 216.023, |
1125 | for the purpose of entering into contracts with certified |
1126 | minority business enterprises as defined in s. 288.703(2), or |
1127 | approved joint ventures. However, in the event of budget |
1128 | reductions pursuant to s. 216.221, the base amounts may be |
1129 | adjusted to reflect such reductions. The overall spending goal |
1130 | for each industry category shall be subdivided as follows: |
1131 | a. For construction contracts: 4 percent for black |
1132 | Americans, 6 percent for Hispanic-Americans, and 11 percent for |
1133 | American women. |
1134 | b. For architectural and engineering contracts: 9 percent |
1135 | for Hispanic-Americans, 1 percent for Asian-Americans, and 15 |
1136 | percent for American women. |
1137 | c. For commodities: 2 percent for black Americans, 4 |
1138 | percent for Hispanic-Americans, 0.5 percent for Asian-Americans, |
1139 | 0.5 percent for Native Americans, and 17 percent for American |
1140 | women. |
1141 | d. For contractual services: 6 percent for black |
1142 | Americans, 7 percent for Hispanic-Americans, 1 percent for |
1143 | Asian-Americans, 0.5 percent for Native Americans, and 36 |
1144 | percent for American women. |
1145 | 2. For the purposes of commodities contracts for the |
1146 | purchase of equipment to be used in the construction and |
1147 | maintenance of state transportation facilities involving the |
1148 | Department of Transportation, "minority business enterprise" has |
1149 | the same meaning as provided in s. 288.703. "Minority person" |
1150 | has the same meaning as in s. 288.703(3). In order to ensure |
1151 | that the goals established under this paragraph for contracting |
1152 | with certified minority business enterprises are met, the |
1153 | department, with the assistance of the Office of Supplier |
1154 | Diversity, shall make recommendations to the Legislature on |
1155 | revisions to the goals, based on an updated statistical |
1156 | analysis, at least once every 5 years. Such recommendations |
1157 | shall be based on statistical data indicating the availability |
1158 | of and disparity in the use of minority businesses contracting |
1159 | with the state. The results of the first updated disparity study |
1160 | must be presented to the Legislature no later than December 1, |
1161 | 1996. |
1162 | 3. In determining the base amounts for assessing |
1163 | compliance with this paragraph, the division Office of Supplier |
1164 | Diversity may develop, by rule, guidelines for all agencies to |
1165 | use in establishing such base amounts. These rules must include, |
1166 | but are not limited to, guidelines for calculation of base |
1167 | amounts, a deadline for the agencies to submit base amounts, a |
1168 | deadline for approval of the base amounts by the division Office |
1169 | of Supplier Diversity, and procedures for adjusting the base |
1170 | amounts as a result of budget reductions made pursuant to s. |
1171 | 216.221. |
1172 | 4. To determine guidelines for the use of price |
1173 | preferences, weighted preference formulas, or other preferences, |
1174 | as appropriate to the particular industry or trade, to increase |
1175 | the participation of minority businesses in state contracting. |
1176 | These guidelines shall include consideration of: |
1177 | a. Size and complexity of the project. |
1178 | b. The concentration of transactions with minority |
1179 | business enterprises for the commodity or contractual services |
1180 | in question in prior agency contracting. |
1181 | c. The specificity and definition of work allocated to |
1182 | participating minority business enterprises. |
1183 | d. The capacity of participating minority business |
1184 | enterprises to complete the tasks identified in the project. |
1185 | e. The available pool of minority business enterprises as |
1186 | prime contractors, either alone or as partners in an approved |
1187 | joint venture that serves as the prime contractor. |
1188 | 5. To determine guidelines for use of joint ventures to |
1189 | meet minority business enterprises spending goals. For purposes |
1190 | of this section, "joint venture" means any association of two or |
1191 | more business concerns to carry out a single business enterprise |
1192 | for profit, for which purpose they combine their property, |
1193 | capital, efforts, skills, and knowledge. The guidelines shall |
1194 | allow transactions with joint ventures to be eligible for credit |
1195 | against the minority business enterprise goals of an agency when |
1196 | the contracting joint venture demonstrates that at least one |
1197 | partner to the joint venture is a certified minority business |
1198 | enterprise as defined in s. 288.703, and that such partner is |
1199 | responsible for a clearly defined portion of the work to be |
1200 | performed, and shares in the ownership, control, management, |
1201 | responsibilities, risks, and profits of the joint venture. Such |
1202 | demonstration shall be by verifiable documents and sworn |
1203 | statements and may be reviewed by the division Office of |
1204 | Supplier Diversity at or before the time a contract |
1205 | proposal, or reply is submitted. An agency may count toward its |
1206 | minority business enterprise goals a portion of the total dollar |
1207 | amount of a contract equal to the percentage of the ownership |
1208 | and control held by the qualifying certified minority business |
1209 | partners in the contracting joint venture, so long as the joint |
1210 | venture meets the guidelines adopted by the division office. |
1211 | (h)(o)1. To establish a system to record and measure the |
1212 | use of certified minority business enterprises in state |
1213 | contracting. This system shall maintain information and |
1214 | statistics on certified minority business enterprise |
1215 | participation, awards, dollar volume of expenditures and agency |
1216 | goals, and other appropriate types of information to analyze |
1217 | progress in the access of certified minority business |
1218 | enterprises to state contracts and to monitor agency compliance |
1219 | with this section. Such reporting must include, but is not |
1220 | limited to, the identification of all subcontracts in state |
1221 | contracting by dollar amount and by number of subcontracts and |
1222 | the identification of the utilization of certified minority |
1223 | business enterprises as prime contractors and subcontractors by |
1224 | dollar amounts of contracts and subcontracts, number of |
1225 | contracts and subcontracts, minority status, industry, and any |
1226 | conditions or circumstances that significantly affected the |
1227 | performance of subcontractors. Agencies shall report their |
1228 | compliance with the requirements of this reporting system at |
1229 | least annually and at the request of the division office. All |
1230 | agencies shall cooperate with the division office in |
1231 | establishing this reporting system. Except in construction |
1232 | contracting, all agencies shall review contracts costing in |
1233 | excess of CATEGORY FOUR as defined in s. 287.017 to determine if |
1234 | such contracts could be divided into smaller contracts to be |
1235 | separately solicited and awarded, and shall, when economical, |
1236 | offer such smaller contracts to encourage minority |
1237 | participation. |
1238 | 2. To report agency compliance with the provisions of |
1239 | subparagraph 1. for the preceding fiscal year to the Governor |
1240 | and Cabinet, the President of the Senate, and the Speaker of the |
1241 | House of Representatives, and the secretary of the Department of |
1242 | Labor and Employment Security on or before February 1 of each |
1243 | year. The report must contain, at a minimum, the following: |
1244 | a. Total expenditures of each agency by industry. |
1245 | b. The dollar amount and percentage of contracts awarded |
1246 | to certified minority business enterprises by each state agency. |
1247 | c. The dollar amount and percentage of contracts awarded |
1248 | indirectly to certified minority business enterprises as |
1249 | subcontractors by each state agency. |
1250 | d. The total dollar amount and percentage of contracts |
1251 | awarded to certified minority business enterprises, whether |
1252 | directly or indirectly, as subcontractors. |
1253 | e. A statement and assessment of good faith efforts taken |
1254 | by each state agency. |
1255 | f. A status report of agency compliance with subsection |
1256 | (4)(6), as determined by the Minority Business Enterprise |
1257 | Office. |
1258 | (3)(5)(a) Each agency shall, at the time the |
1259 | specifications or designs are developed or contract sizing is |
1260 | determined for any proposed procurement costing in excess of |
1261 | CATEGORY FOUR, as defined in s. 287.017, forward a notice to the |
1262 | division Office of Supplier Diversity of the proposed |
1263 | procurement and any determination on the designs of |
1264 | specifications of the proposed procurement that impose |
1265 | requirements on prospective vendors, no later than 30 days prior |
1266 | to the issuance of a solicitation, except that this provision |
1267 | shall not apply to emergency acquisitions. The 30-day notice |
1268 | period shall not toll the time for any other procedural |
1269 | requirements. |
1270 | (b) If the division Office of Supplier Diversity |
1271 | determines that the proposed procurement will not likely allow |
1272 | opportunities for minority business enterprises, the division |
1273 | office may, within 20 days after it receives the information |
1274 | specified in paragraph (a), propose the implementation of |
1275 | minority business enterprise utilization provisions or submit |
1276 | alternative procurement methods that would significantly |
1277 | increase minority business enterprise contracting opportunities. |
1278 | (c) Whenever the agency and the division Office of |
1279 | Supplier Diversity disagree, the matter shall be submitted for |
1280 | determination to the head of the agency or the senior-level |
1281 | official designated pursuant to this section as liaison for |
1282 | minority business enterprise issues. |
1283 | (d) If the proposed procurement proceeds to competitive |
1284 | solicitation, the division office is hereby granted standing to |
1285 | protest, pursuant to this section, in a timely manner, any |
1286 | contract award during competitive solicitation for contractual |
1287 | services and construction contracts that fail to include |
1288 | minority business enterprise participation, if any responsible |
1289 | and responsive vendor has demonstrated the ability to achieve |
1290 | any level of participation, or, any contract award for |
1291 | commodities where, a reasonable and economical opportunity to |
1292 | reserve a contract, statewide or district level, for minority |
1293 | participation was not executed or, an agency failed to adopt an |
1294 | applicable preference for minority participation. The bond |
1295 | requirement shall be waived for the division office purposes of |
1296 | this subsection. |
1297 | (e) An agency may presume that a vendor offering no |
1298 | minority participation has not made a good faith effort when |
1299 | other vendors offer minority participation of firms listed as |
1300 | relevant to the agency's purchasing needs in the pertinent |
1301 | locality or statewide to complete the project. |
1302 | (f) Paragraph (a) will not apply when the division Office |
1303 | of Supplier Diversity determines that an agency has established |
1304 | a work plan to allow advance consultation and planning with |
1305 | minority business enterprises and where such plan clearly |
1306 | demonstrates: |
1307 | 1. A high level of advance planning by the agency with |
1308 | minority business enterprises. |
1309 | 2. A high level of accessibility, knowledge, and |
1310 | experience by minority business enterprises in the agency's |
1311 | contract decisionmaking process. |
1312 | 3. A high quality of agency monitoring and enforcement of |
1313 | internal implementation of minority business utilization |
1314 | provisions. |
1315 | 4. A high quality of agency monitoring and enforcement of |
1316 | contractor utilization of minority business enterprises, |
1317 | especially tracking subcontractor data, and ensuring the |
1318 | integrity of subcontractor reporting. |
1319 | 5. A high quality of agency outreach, agency networking of |
1320 | major vendors with minority vendors, and innovation in |
1321 | techniques to improve utilization of minority business |
1322 | enterprises. |
1323 | 6. Substantial commitment, sensitivity, and proactive |
1324 | attitude by the agency head and among the agency minority |
1325 | business staff. |
1326 | (4)(6) Each state agency shall coordinate its minority |
1327 | business enterprise procurement activities with the division |
1328 | Office of Supplier Diversity. At a minimum, each agency shall: |
1329 | (a) Adopt a minority business enterprise utilization plan |
1330 | for review and approval by the division Office of Supplier |
1331 | Diversity which should require meaningful and useful methods to |
1332 | attain the legislative intent in assisting minority business |
1333 | enterprises. |
1334 | (b) Designate a senior-level employee in the agency as a |
1335 | minority enterprise assistance officer, responsible for |
1336 | overseeing the agency's minority business utilization |
1337 | activities, and who is not also charged with purchasing |
1338 | responsibility. A senior-level agency employee and agency |
1339 | purchasing officials shall be accountable to the agency head for |
1340 | the agency's minority business utilization performance. The |
1341 | division Office of Supplier Diversity shall advise each agency |
1342 | on compliance performance. |
1343 | (c) If an agency deviates significantly from its |
1344 | utilization plan in 2 consecutive or 3 out of 5 total fiscal |
1345 | years, the division Office of Supplier Diversity may review any |
1346 | and all solicitations and contract awards of the agency as |
1347 | deemed necessary until such time as the agency meets its |
1348 | utilization plan. |
1349 | Section 11. Subsections (4) and (6) of section 288.703, |
1350 | Florida Statutes, are amended to read: |
1351 | 288.703 Definitions.-As used in this act, the following |
1352 | words and terms shall have the following meanings unless the |
1353 | content shall indicate another meaning or intent: |
1354 | (4) "Certified minority business enterprise" means a |
1355 | business which has been certified by the certifying organization |
1356 | or jurisdiction in accordance with s. 287.0943(1) and (2). |
1357 | (6) "Ombudsman" means an office or individual whose |
1358 | responsibilities include coordinating with the Division of State |
1359 | Purchasing Office of Supplier Diversity for the interests of and |
1360 | providing assistance to small and minority business enterprises |
1361 | in dealing with governmental agencies and in developing |
1362 | proposals for changes in state agency rules. |
1363 | Section 12. Subsection (5) of section 288.712, Florida |
1364 | Statutes, is amended to read: |
1365 | 288.712 Guarantor funds.- |
1366 | (5) The board shall do all of the following to implement |
1367 | the black contractors bonding program: |
1368 | (a) Conduct outreach, marketing, and recruitment of black |
1369 | contractors. |
1370 | (b) Provide assistance to the Office of Supplier Diversity |
1371 | within the Department of Management Services, as needed, to |
1372 | certify new black business enterprises and to train appropriate |
1373 | department staff. |
1374 | (b)(c) Provide business development services to black |
1375 | business enterprises in the developmental and transitional |
1376 | stages of the program, including financing and bonding |
1377 | assistance and management and technical assistance. |
1378 | (c)(d) Develop a mentor program to bring businesses into a |
1379 | working relationship with black contractors in a way that |
1380 | commercially benefits both entities and serves the purpose of |
1381 | the program. |
1382 | (d)(e) No later than December 31, 2007, prepare and submit |
1383 | to the Governor a detailed report outlining and evaluating the |
1384 | progress made in implementing the black contractors bonding |
1385 | program. |
1386 | (e)(f) Establish a process by which black contractors may |
1387 | apply for contract assistance, financial and bonding assistance, |
1388 | management and technical assistance, and mentoring |
1389 | opportunities. |
1390 | Section 13. Paragraphs (k), (l), and (m) of subsection (9) |
1391 | of section 288.955, Florida Statutes, are amended to read: |
1392 | 288.955 Scripps Florida Funding Corporation.- |
1393 | (9) PERFORMANCE EXPECTATIONS.-In addition to the |
1394 | provisions prescribed in subsection (8), the contract between |
1395 | the corporation and the grantee shall include a provision that |
1396 | the grantee, in cooperation with the Office of Tourism, Trade, |
1397 | and Economic Development, shall report to the corporation on |
1398 | performance expectations that reflect the aspirations of the |
1399 | Governor and the Legislature for the benefits accruing to this |
1400 | state as a result of the funds appropriated pursuant to this |
1401 | section. These shall include, but are not limited to, |
1402 | performance expectations addressing: |
1403 | (k) The establishment and implementation of policies to |
1404 | promote supplier diversity by complying using the guidelines |
1405 | developed by the Office of Supplier Diversity under s. 287.09451 |
1406 | and to comply with the ordinances, including any small business |
1407 | ordinances, enacted by the county and which are applicable to |
1408 | the biomedical research institution and campus located in this |
1409 | state. |
1410 | (l) The designation by the grantee of a representative to |
1411 | coordinate with the Office of Supplier Diversity. |
1412 | (l)(m) The establishment and implementation of a program |
1413 | to conduct workforce recruitment activities at public and |
1414 | private colleges and universities and community colleges in this |
1415 | state which request the participation of the grantee. |
1416 |
|
1417 | The contract shall require the grantee to provide information to |
1418 | the corporation on the progress in meeting these performance |
1419 | expectations on an annual basis. It is the intent of the |
1420 | Legislature that, in fulfilling its obligation to work with |
1421 | Florida's public and private colleges and universities, Scripps |
1422 | Florida work with such colleges and universities regardless of |
1423 | size. |
1424 | Section 14. Section 287.05721, Florida Statutes, is |
1425 | amended to read: |
1426 | 287.05721 Definitions.-As used in ss. 287.0571-287.0574, |
1427 | the term: |
1428 | (1) "Council" means the Council on Efficient Government. |
1429 | (2) "outsource" means the process of contracting with a |
1430 | vendor to provide a service as defined in s. 216.011(1)(f), in |
1431 | whole or in part, or an activity as defined in s. |
1432 | 216.011(1)(rr), while a state agency retains the responsibility |
1433 | and accountability for the service or activity and there is a |
1434 | transfer of management responsibility for the delivery of |
1435 | resources and the performance of those resources. |
1436 | Section 15. Section 287.0573, Florida Statutes, is |
1437 | repealed. |
1438 | Section 16. Subsections (1) through (4) of section |
1439 | 287.0574, Florida Statutes, are amended to read: |
1440 | 287.0574 Business cases to outsource; review and analysis; |
1441 | requirements.- |
1442 | (1) A business case to outsource having a projected cost |
1443 | exceeding $10 million in any fiscal year shall require: |
1444 | (a) An initial business case analysis conducted by the |
1445 | state agency and submitted to the council, the Governor, the |
1446 | President of the Senate, and the Speaker of the House of |
1447 | Representatives at least 60 days before a solicitation is |
1448 | issued. The council shall evaluate the business case analysis |
1449 | and submit an advisory report to the state agency, the Governor, |
1450 | the President of the Senate, and the Speaker of the House of |
1451 | Representatives when the advisory report is completed, but at |
1452 | least 30 days before the agency issues the solicitation. |
1453 | (b) A final business case analysis conducted by the state |
1454 | agency and submitted after the conclusion of any negotiations, |
1455 | at least 30 days before execution of a contract, to the council, |
1456 | the Governor, the President of the Senate, and the Speaker of |
1457 | the House of Representatives. |
1458 | (2) A proposal to outsource having a projected cost that |
1459 | ranges from $1 million to $10 million in any fiscal year shall |
1460 | require: |
1461 | (a) An initial business case analysis conducted by the |
1462 | state agency and submission of the business case, at least 30 |
1463 | days before issuing a solicitation, to the council, the |
1464 | Governor, the President of the Senate, and the Speaker of the |
1465 | House of Representatives. |
1466 | (b) A final business case analysis conducted by the state |
1467 | agency and submitted after the conclusion of any negotiations, |
1468 | at least 30 days before execution of a contract, to the council, |
1469 | the Governor, the President of the Senate, and the Speaker of |
1470 | the House of Representatives. |
1471 | (3) A business case to outsource having a projected cost |
1472 | that is less than $1 million in any fiscal year shall require a |
1473 | final business case analysis conducted by the state agency after |
1474 | the conclusion of any negotiations and provided at least 30 days |
1475 | before execution of a contract to the council. The council shall |
1476 | provide such business cases in its annual report to the |
1477 | Legislature. |
1478 | (4) For any proposed outsourcing, the state agency shall |
1479 | develop a business case that justifies the proposal to |
1480 | outsource. In order to reduce any administrative burden, the |
1481 | council may allow a state agency shall to submit the business |
1482 | case in the form and manner required by the budget instructions |
1483 | issued pursuant to s. 216.023(1), (2), and (4)(a)7., augmented |
1484 | with additional information if necessary, to ensure that the |
1485 | requirements of this section are met. The business case is not |
1486 | subject to challenge or protest pursuant to chapter 120. The |
1487 | business case must include, but need not be limited to: |
1488 | (a) A detailed description of the service or activity for |
1489 | which the outsourcing is proposed. |
1490 | (b) A description and analysis of the state agency's |
1491 | current performance, based on existing performance metrics if |
1492 | the state agency is currently performing the service or |
1493 | activity. |
1494 | (c) The goals desired to be achieved through the proposed |
1495 | outsourcing and the rationale for such goals. |
1496 | (d) A citation to the existing or proposed legal authority |
1497 | for outsourcing the service or activity. |
1498 | (e) A description of available options for achieving the |
1499 | goals. If state employees are currently performing the service |
1500 | or activity, at least one option involving maintaining state |
1501 | provision of the service or activity shall be included. |
1502 | (f) An analysis of the advantages and disadvantages of |
1503 | each option, including, at a minimum, potential performance |
1504 | improvements and risks. |
1505 | (g) A description of the current market for the |
1506 | contractual services that are under consideration for |
1507 | outsourcing. |
1508 | (h) A cost-benefit analysis documenting the direct and |
1509 | indirect specific baseline costs, savings, and qualitative and |
1510 | quantitative benefits involved in or resulting from the |
1511 | implementation of the recommended option or options. Such |
1512 | analysis must specify the schedule that, at a minimum, must be |
1513 | adhered to in order to achieve the estimated savings. All |
1514 | elements of cost must be clearly identified in the cost-benefit |
1515 | analysis, described in the business case, and supported by |
1516 | applicable records and reports. The state agency head shall |
1517 | attest that, based on the data and information underlying the |
1518 | business case, to the best of his or her knowledge, all |
1519 | projected costs, savings, and benefits are valid and achievable. |
1520 | As used in this section, the term "cost" means the reasonable, |
1521 | relevant, and verifiable cost, which may include, but is not |
1522 | limited to, elements such as personnel, materials and supplies, |
1523 | services, equipment, capital depreciation, rent, maintenance and |
1524 | repairs, utilities, insurance, personnel travel, overhead, and |
1525 | interim and final payments. The appropriate elements shall |
1526 | depend on the nature of the specific initiative. As used in this |
1527 | section, the term "savings" means the difference between the |
1528 | direct and indirect actual annual baseline costs compared to the |
1529 | projected annual cost for the contracted functions or |
1530 | responsibilities in any succeeding state fiscal year during the |
1531 | term of the contract. |
1532 | (i) A description of differences among current state |
1533 | agency policies and processes and, as appropriate, a discussion |
1534 | of options for or a plan to standardize, consolidate, or revise |
1535 | current policies and processes, if any, to reduce the |
1536 | customization of any proposed solution that would otherwise be |
1537 | required. |
1538 | (j) A description of the specific performance standards |
1539 | that must, at a minimum, be met to ensure adequate performance. |
1540 | (k) The projected timeframe for key events from the |
1541 | beginning of the procurement process through the expiration of a |
1542 | contract. |
1543 | (l) A plan to ensure compliance with the public records |
1544 | law. |
1545 | (m) A specific and feasible contingency plan addressing |
1546 | contractor nonperformance and a description of the tasks |
1547 | involved in and costs required for its implementation. |
1548 | (n) A state agency's transition plan for addressing |
1549 | changes in the number of agency personnel, affected business |
1550 | processes, employee transition issues, and communication with |
1551 | affected stakeholders, such as agency clients and the public. |
1552 | The transition plan must contain a reemployment and retraining |
1553 | assistance plan for employees who are not retained by the state |
1554 | agency or employed by the contractor. |
1555 | (o) A plan for ensuring access by persons with |
1556 | disabilities in compliance with applicable state and federal |
1557 | law. |
1558 | (p) A description of legislative and budgetary actions |
1559 | necessary to accomplish the proposed outsourcing. |
1560 | Section 17. This act shall take effect July 1, 2010. |