HB 745

1	A bill to be entitled
2	An act relating to public records and public meetings;
3	amending s. 119.071, F.S., which provides a temporary
4	exemption from public records requirements for sealed bids
5	or proposals received by an agency pursuant to invitations
6	to bid or requests for proposals; clarifying the exemption
7	to specify applicability of the exemption to invitations
8	to bid or requests for proposals issued pursuant to s.
9	334.30, F.S., relating to public-private transportation
10	facilities; revising the duration of the exemption;
11	redefining "notice of a decision or intended decision";
12	conforming references; amending s. 286.0113, F.S.;
13	providing an exemption from public meeting requirements
14	for a meeting of any governmental entity at which vendors
15	are asked to make oral presentations or answer questions
16	regarding their sealed bids, proposals, or replies in
17	response to a competitive solicitation and for a meeting
18	of any governmental entity at which vendors make oral
19	alternate technical concept presentations; requiring a
20	complete recording to be made of any portion of such
21	meetings; providing an exemption from public records
22	requirements for the recordings of such meetings and for
23	all documents and written materials generated as a result
24	of such meetings; providing for limited duration of the
25	exemptions for such recordings, documents, and written
26	materials; providing for future review and repeal of the
27	exemptions; defining "notice of a decision or intended
28	decision" for purposes of the exemptions; providing a
29	statement of public necessity; providing an effective
30	date.
31
32	Be It Enacted by the Legislature of the State of Florida:
33
34	Section 1.  Paragraph (b) of subsection (1) of section
35	119.071, Florida Statutes, is amended to read:
36	119.071  General exemptions from inspection or copying of
37	public records.-
38	(1)  AGENCY ADMINISTRATION.-
39	(b)1.a.  Sealed bids or proposals received by an agency
40	pursuant to invitations to bid or requests for proposals, which
41	includes invitations to bid or requests for proposals issued
42	pursuant to s. 334.30, are exempt from s. 119.07(1) and s.
43	24(a), Art. I of the State Constitution until such time as the
44	agency provides notice of a decision or intended decision
45	pursuant to subparagraph 3. s. 120.57(3)(a) or within 20 10 days
46	after bid or proposal opening, whichever is earlier.
47	b.  If an agency rejects all bids or proposals submitted in
48	response to an invitation to bid or request for proposals and
49	the agency concurrently provides notice of its intent to reissue
50	the invitation to bid or request for proposals, the rejected
51	bids or proposals remain exempt from s. 119.07(1) and s. 24(a),
52	Art. I of the State Constitution until such time as the agency
53	provides notice of a decision or intended decision pursuant to
54	subparagraph 3. s. 120.57(3)(a) concerning the reissued
55	invitation to bid or request for proposals or until the agency
56	withdraws the reissued invitation to bid or request for
57	proposals. This sub-subparagraph is subject to the Open
58	Government Sunset Review Act in accordance with s. 119.15 and
59	shall stand repealed on October 2, 2011, unless reviewed and
60	saved from repeal through reenactment by the Legislature.
61	2.a.  A competitive sealed reply in response to an
62	invitation to negotiate, as defined in s. 287.012, is exempt
63	from s. 119.07(1) and s. 24(a), Art. I of the State Constitution
64	until such time as the agency provides notice of a decision or
65	intended decision pursuant to subparagraph 3. s. 120.57(3)(a) or
66	until 20 days after the final competitive sealed replies are all
67	opened, whichever occurs earlier.
68	b.  If an agency rejects all competitive sealed replies in
69	response to an invitation to negotiate and concurrently provides
70	notice of its intent to reissue the invitation to negotiate and
71	reissues the invitation to negotiate within 90 days after the
72	notice of intent to reissue the invitation to negotiate, the
73	rejected replies remain exempt from s. 119.07(1) and s. 24(a),
74	Art. I of the State Constitution until such time as the agency
75	provides notice of a decision or intended decision pursuant to
76	subparagraph 3. s. 120.57(3)(a) concerning the reissued
77	invitation to negotiate or until the agency withdraws the
78	reissued invitation to negotiate. A competitive sealed reply is
79	not exempt for longer than 12 months after the initial agency
80	notice rejecting all replies.
81	c.  This subparagraph is subject to the Open Government
82	Sunset Review Act in accordance with s. 119.15 and shall stand
83	repealed on October 2, 2011, unless reviewed and saved from
84	repeal through reenactment by the Legislature.
85	3.  For purposes of this paragraph, "notice of a decision
86	or intended decision" means the agency decision to award the
87	contract or contracts resulting from an invitation to bid,
88	request for proposal, or invitation to negotiate to a vendor or
89	vendors, but this term does not mean any intermediate decision
90	short-listing particular vendors or removing one or more vendors
91	from further consideration.
92	Section 2.  Subsections (3) and (4) are added to section
93	286.0113, Florida Statutes, to read:
94	286.0113  General exemptions from public meetings.-
95	(3)(a)  A meeting of any governmental entity subject to s.
96	286.011 at which vendors are asked to make oral presentations or
97	to answer questions regarding their sealed bids, proposals, or
98	replies in response to a competitive solicitation is exempt from
99	s. 286.011 and s. 24(b), Art. I of the State Constitution.
100	(b)  A meeting of any governmental entity subject to s.
101	286.011 at which vendors make oral alternate technical concept
102	presentations is exempt from s. 286.011 and s. 24(b), Art. I of
103	the State Constitution.
104	(c)1.  A complete recording shall be made of any portion of
105	a meeting made exempt under paragraph (a) or paragraph (b). No
106	portion of such meetings may be held off the record.
107	2.  The recording required under subparagraph 1. and all
108	documents and written materials generated as a result of such
109	meeting are exempt from s. 119.07(1) and s. 24(a), Art. I of the
110	State Constitution until such time as the governmental entity
111	provides notice of a decision or intended decision pursuant to
112	subsection (4) or until 20 days after all sealed bids,
113	proposals, or replies are opened, whichever occurs earlier.
114	3.  If the governmental entity rejects all bids, proposals,
115	or replies, the recording required under subparagraph 1. and all
116	documents and written materials generated as a result of such
117	meeting remain exempt from s. 119.07(1) and s. 24(a), Art. I of
118	the State Constitution until such time as the governmental
119	entity provides notice of a decision or intended decision
120	pursuant to subsection (4) concerning the reissued competitive
121	solicitation or until the governmental entity withdraws the
122	reissued competitive solicitation. The recording and the
123	documents and written materials generated as a result of the
124	meeting are not exempt for longer than 12 months after the
125	initial notice rejecting all bids, proposals, or replies.
126	(d)  This subsection is subject to the Open Government
127	Sunset Review Act in accordance with s. 119.15 and shall stand
128	repealed on October 2, 2015, unless reviewed and saved from
129	repeal through reenactment by the Legislature.
130	(4)  For purposes of this section, "notice of a decision or
131	intended decision" means the decision of the governmental entity
132	to award the contract or contracts resulting from the
133	competitive solicitation to a vendor or vendors, but this term
134	does not mean any intermediate decision short-listing particular
135	vendors or removing one or more vendors from further
136	competition.
137	Section 3.  (1)  It is the finding of the Legislature that
138	it is a public necessity that sealed bids, proposals, or replies
139	submitted in response to a competitive solicitation by an agency
140	be made temporarily exempt from public records requirements and
141	that such records shall only be made publicly available when the
142	agency provides notice of a decision or intended decision on the
143	contract award, or when the agency rejects all bids, proposals,
144	or replies and ultimately withdraws a reissued competitive
145	solicitation. Temporarily protecting such information ensures
146	that the process of responding to a competitive solicitation
147	remains fair and economical for vendors, while still preserving
148	oversight after a procurement decision is made. Further, it is
149	the finding of the Legislature that the exemption from public
150	records requirements for sealed bids or proposals received by an
151	agency pursuant to invitations to bid or requests for proposals
152	under s. 119.071(1)(b), Florida Statutes, includes invitations
153	to bid or requests for proposals issued pursuant to s. 334.30,
154	Florida Statutes, relating to public-private transportation
155	facilities.
156	(2)  The Legislature finds that it is a public necessity
157	that a meeting of any governmental entity subject to s. 286.011,
158	Florida Statutes, at which vendors are asked to make oral
159	presentations or answer questions regarding vendors' sealed
160	bids, proposals, or replies in response to a competitive
161	solicitation be made exempt from public meeting requirements. It
162	is also the finding of the Legislature that a meeting of any
163	governmental entity subject to s. 286.011, Florida Statutes, at
164	which vendors make oral alternate technical concept
165	presentations be made exempt from public meeting requirements.
166	Temporarily protecting such meetings ensures that the process of
167	responding to a competitive solicitation remains fair and
168	economical for vendors, while still preserving oversight after a
169	procurement decision is made through the requirement that a
170	complete recording be made of those meetings. Furthermore, the
171	recordings of those closed portions of meetings and all
172	documents and written materials generated as a result of such
173	meetings must be made temporarily exempt from public records
174	requirements in order to preserve the purpose of the public
175	meeting exemption. It is unfair and inequitable to compel
176	vendors to disclose to competitors the nature and details of
177	their proposals during such meetings. Such disclosure impedes
178	full and frank discussion of the strengths, weaknesses, and
179	value of a proposal, thereby limiting the ability of the
180	governmental entity to obtain the best value for the public. The
181	Legislature also finds that it is unfair and inequitable to
182	publicly discuss any assessment by the governmental entity of
183	the vendors' proposals that might arise during such a meeting.
184	The public and private harm stemming from these practices
185	outweighs the temporary delay in making meetings and records
186	related to the competitive solicitation process open to the
187	public.
188	Section 4.  This act shall take effect July 1, 2010.

CODING: Words stricken are deletions; words underlined are additions.