Florida Senate - 2013 CS for SB 1150
By the Committee on Governmental Oversight and Accountability;
and Senators Benacquisto and Brandes
585-02417-13 20131150c1
1 A bill to be entitled
2 An act relating to state contracting; amending s.
3 215.971, F.S.; requiring agreements funded with state
4 or federal financial assistance to include additional
5 provisions; authorizing the Chief Financial Officer to
6 audit agreements before execution and providing
7 requirements for such audits; requiring state agencies
8 to designate a grants manager for each agreement and
9 providing requirements and procedures for managers;
10 requiring the Chief Financial Officer to perform
11 audits of executed agreements and to discuss such
12 audits with agency officials; requiring the agency
13 head to respond to the audit; reordering and amending
14 s. 215.985, F.S.; revising provisions relating to the
15 Chief Financial Officer’s intergovernmental contract
16 tracking system under the Transparency Florida Act;
17 requiring state agencies to post certain information
18 in the tracking system and to update that information;
19 requiring that exempt and confidential information be
20 redacted from contracts and procurement documents
21 posted on the system; authorizing the Chief Financial
22 Officer to make available to the public the
23 information posted on the system through a secure
24 website; authorizing the Department of Financial
25 Services to adopt rules; repealing s. 216.0111, F.S.,
26 relating to a requirement that state agencies report
27 certain contract information to the Department of
28 Financial Services and transferring that requirement
29 to s. 215.985, F.S.; amending s. 287.057, F.S.;
30 requiring certain contract managers to be certified
31 and directing the Department of Management Services to
32 be responsible for establishing the requirements for
33 certification; amending s. 287.058, F.S.; authorizing
34 the Chief Financial Officer to audit contracts before
35 execution and providing requirements for such audits;
36 creating s. 287.136, F.S.; requiring the Chief
37 Financial Officer to perform audits of executed
38 contract documents and to discuss such audits with the
39 agency officials; requiring the agency head to respond
40 to the audit; providing an effective date.
41
42 Be It Enacted by the Legislature of the State of Florida:
43
44 Section 1. Section 215.971, Florida Statutes, is amended to
45 read:
46 215.971 Agreements funded with federal or and state
47 assistance.—
48 (1) For An agency agreement that provides state financial
49 assistance to a recipient or subrecipient, as those terms are
50 defined in s. 215.97, or that provides federal financial
51 assistance to a subrecipient, as defined by applicable United
52 States Office of Management and Budget circulars, must the
53 agreement shall include all of the following:
54 (a)(1) A provision specifying a scope of work that clearly
55 establishes the tasks that the recipient or subrecipient is
56 required to perform.; and
57 (b)(2) A provision dividing the agreement into quantifiable
58 units of deliverables that must be received and accepted in
59 writing by the agency before payment. Each deliverable must be
60 directly related to the scope of work and must specify the
61 required minimum level of service to be performed and the
62 criteria for evaluating the successful completion of each
63 deliverable.
64 (c) A provision specifying the financial consequences that
65 apply if the recipient or subrecipient fails to perform the
66 minimum level of service required by the agreement. The
67 provision can be excluded from the agreement only if financial
68 consequences are prohibited by the federal agency awarding the
69 grant. Funds refunded to a state agency from a recipient or
70 subrecipient for failure to perform as required under the
71 agreement may be expended only in direct support of the program
72 from which the agreement originated.
73 (d) A provision specifying that a recipient or subrecipient
74 of federal or state financial assistance may expend funds only
75 for allowable costs resulting from obligations incurred during
76 the specified agreement period.
77 (e) A provision specifying that any balance of unobligated
78 funds which has been advanced or paid must be refunded to the
79 state agency.
80 (f) A provision specifying that any funds paid in excess of
81 the amount to which the recipient or subrecipient is entitled
82 under the terms and conditions of the agreement must be refunded
83 to the state agency.
84 (g) Any additional information required pursuant to s.
85 215.97.
86 (2) The Chief Financial Officer may audit an agreement
87 funded with state or federal assistance before the execution of
88 such agreement in accordance with rules adopted by the
89 Department of Financial Services. The audit must ensure that
90 applicable laws have been met; that the agreement document
91 contains a clear statement of work, quantifiable and measurable
92 deliverables, performance measures, financial consequences for
93 nonperformance, and clear terms and conditions that protect the
94 interests of the state; and that the associated costs of the
95 agreement are not unreasonable or inappropriate. The audit must
96 ensure that all contracting laws have been met and that
97 documentation is available to support the agreement. An
98 agreement that does not comply with this section may be returned
99 to the submitting agency for revision.
100 (a) The Chief Financial Officer may establish dollar
101 thresholds and other criteria for determining which agreements
102 will be audited before execution. The Chief Financial Officer
103 may revise such thresholds and other criteria for an agency or
104 unit of an agency as he or she deems appropriate.
105 (b) The Chief Financial Officer shall have up to 10
106 business days after receipt of the proposed grant agreement to
107 make a final determination of any deficiencies in the agreement
108 and shall provide the agency with information regarding any
109 deficiencies at the conclusion of the review. The Chief
110 Financial Officer and the agency entering into the agreement may
111 agree to a longer review period. The agency is responsible for
112 addressing the deficiencies and shall have the option to
113 resubmit the agreement for subsequent review before execution.
114 The Chief Financial Officer shall perform a subsequent review to
115 verify that all deficiencies have been addressed upon processing
116 the first payment.
117 (3) For each agreement funded with federal or state
118 financial assistance, the state agency shall designate an
119 employee to function as a grant manager who shall be responsible
120 for enforcing performance of the agreement’s terms and
121 conditions and who shall serve as a liaison with the recipient
122 or subrecipient.
123 (a) Each grant manager who is responsible for agreements in
124 excess of the threshold amount for CATEGORY TWO under s. 287.017
125 must complete the training and become a certified contract
126 manager as provided under s. 287.057(14).
127 (b) The Chief Financial Officer shall establish and
128 disseminate uniform procedures for grant management pursuant to
129 s. 17.03(3) to ensure that services have been rendered in
130 accordance with agreement terms before the agency processes an
131 invoice for payment. The procedures must include, but need not
132 be limited to, procedures for monitoring and documenting
133 recipient or subrecipient performance, reviewing and documenting
134 all deliverables for which payment is requested by the recipient
135 or subrecipient, and providing written certification by the
136 grant manager of the agency’s receipt of goods and services.
137 (c) The grant manager shall reconcile and verify all funds
138 received against all funds expended during the grant agreement
139 period and produce a final reconciliation report. The final
140 report must identify any funds paid in excess of the
141 expenditures incurred by the recipient or subrecipient.
142 (4) The Chief Financial Officer shall perform audits of the
143 executed state and federal grant agreement documents and grant
144 manager’s records in order to ensure that adequate internal
145 controls are in place for complying with the terms and
146 conditions of such agreements and for validation and receipt of
147 goods and services.
148 (a) At the conclusion of the audit, the Chief Financial
149 Officer’s designee shall discuss the audit and potential
150 findings with the official whose office is subject to audit. The
151 final audit report shall be submitted to the agency head.
152 (b) Within 30 days after the receipt of the final audit
153 report, the agency head shall submit to the Chief Financial
154 Officer or designee, his or her written statement of explanation
155 or rebuttal concerning findings requiring corrective action,
156 including corrective action to be taken to preclude a
157 recurrence.
158 Section 2. Subsection (2) of section 215.985, Florida
159 Statutes, is reordered and amended and subsection (16) of that
160 section is amended, to read:
161 215.985 Transparency in government spending.—
162 (2) As used in this section, the term:
163 (c)(a) “Governmental entity” means any state, regional,
164 county, municipal, special district, or other political
165 subdivision whether executive, judicial, or legislative,
166 including, but not limited to, any department, division, bureau,
167 commission, authority, district, or agency thereof, or any
168 public school, Florida College System institution, state
169 university, or associated board.
170 (d)(b) “Website” means a site on the Internet which is
171 easily accessible to the public at no cost and does not require
172 the user to provide any information.
173 (a)(c) “Committee” means the Legislative Auditing Committee
174 created in s. 11.40.
175 (b) “Contract” means any written agreement or purchase
176 order issued for the purchase of goods or services and any
177 written agreements for the receipt of federal or state financial
178 assistance.
179 (16) The Chief Financial Officer shall establish and
180 maintain a secure, shared state contract tracking provide public
181 access to a state contract management system.
182 (a) Within 30 calendar days after executing a contract,
183 each state agency as defined in s. 216.011(1) shall post all of
184 the following that provides information and documentation
185 relating to that contract on the contract tracking system, as
186 required by rule: contracts procured by governmental entities.
187 1. The names of the contracting entities.
188 2. The procurement method.
189 3. The contract beginning and end dates.
190 4. The nature or type of the commodities or services
191 purchased.
192 5. Applicable contract unit prices and deliverables.
193 6. Total compensation to be paid or received under the
194 contract.
195 7. All payments made to the contractor to date.
196 8. Applicable contract performance measures.
197 9. The justification for not using competitive solicitation
198 to procure the contract, including citation to any statutory
199 exemption or exception from competitive solicitation, if
200 applicable.
201 10. Electronic copies of the contract and procurement
202 documents that have been redacted to conceal exempt or
203 confidential information.
204 11. Any other information required by the Chief Financial
205 Officer.
206 (a) The data collected in the system must include, but need
207 not be limited to, the contracting agency; the procurement
208 method; the contract beginning and ending dates; the type of
209 commodity or service; the purpose of the commodity or service;
210 the compensation to be paid; compliance information, such as
211 performance metrics for the service or commodity; contract
212 violations; the number of extensions or renewals; and the
213 statutory authority for providing the service.
214 (b) The affected state governmental agency shall update the
215 information described in paragraph (a) in the contract tracking
216 system within 30 calendar days after a major modification or
217 amendment change to an existing contract or the execution of a
218 new contract, agency procurement staff of the affected state
219 governmental entity shall update the necessary information in
220 the state contract management system. A major modification or
221 amendment change to a contract includes, but is not limited to,
222 a renewal, termination, or extension of the contract, or an
223 amendment to the contract as determined by the Chief Financial
224 Officer.
225 (c) Each state agency identified in paragraph (a) shall
226 redact, as defined in s. 119.011, exempt or confidential
227 information from the contract or procurement documents before
228 posting an electronic copy on the contract tracking system.
229 1. If a state agency becomes aware that an electronic copy
230 of a contract or procurement document that it posted has not
231 been properly redacted, the state agency must immediately notify
232 the Chief Financial Officer so that the contract or procurement
233 document may be removed. Within 7 business days, the state
234 agency shall provide the Chief Financial Officer with a properly
235 redacted copy for posting.
236 2. If a party to a contract, or authorized representative,
237 discovers that an electronic copy of a contract or procurement
238 document on the system has not been properly redacted, the party
239 or representative may request the state agency that posted the
240 document to redact the exempt or confidential information. Upon
241 receipt of a request in compliance with this subparagraph, the
242 state agency that posted the document shall redact the exempt or
243 confidential information.
244 a. Such request must be in writing and delivered by mail,
245 facsimile, or electronic transmission or in person to the state
246 agency that posted the information. The request must identify
247 the specific document, the page numbers that include the exempt
248 or confidential information, the information that is exempt or
249 confidential, and the relevant statutory exemption. A fee may
250 not be charged for a redaction made pursuant to such request.
251 b. If necessary, a party to the contract may petition the
252 circuit court for an order directing compliance with this
253 paragraph.
254 3. The Chief Financial Officer, the Department of Financial
255 Services, or any officer, employee, or contractor thereof, is
256 not responsible for redacting exempt or confidential information
257 from an electronic copy of a contract or procurement document
258 posted by another state agency on the system and is not liable
259 for the failure of the state agency to redact the exempt or
260 confidential information. The Chief Financial Officer may notify
261 the posting state agency if a document posted on the tracking
262 system contains exempt or confidential information.
263 (d) Pursuant to ss. 119.01 and 119.07, the Chief Financial
264 Officer may make information posted on the contract tracking
265 system available for viewing and download by the public through
266 a secure website. Unless otherwise provided by law, information
267 retrieved electronically pursuant to this paragraph is not
268 admissible in court as an authenticated document.
269 1. The Chief Financial Officer may regulate and prohibit
270 the posting of records that could facilitate identity theft or
271 fraud, such as signatures; compromise or reveal an agency
272 investigation; reveal the identity of undercover personnel;
273 reveal proprietary confidential business information or trade
274 secrets; reveal an individual’s medical information; or reveal
275 any other record or information that the Chief Financial Officer
276 believes may jeopardize the health, safety, or welfare of the
277 public. However, such prohibition does not supersede the duty of
278 a state agency to provide a copy of a public record upon
279 request. The Chief Financial Officer shall use appropriate
280 Internet security measures to ensure that no person has the
281 ability to alter or modify records available on the website.
282 2. Records made available on the website, including
283 electronic copies of contracts or procurement documents, may not
284 reveal information made exempt or confidential by law. Notice of
285 the right of an affected party to request redaction of exempt or
286 confidential information pursuant to paragraph (c) must be
287 displayed on the website.
288 (e) The posting of information on the contract tracking
289 system or the provision of contract information on a website for
290 public viewing and downloading does not supersede the duty of a
291 state agency to respond to a public record request for such
292 information or to a subpoena for such information.
293 1. A request for a copy of a contract or procurement
294 document or a certified copy of a contract or procurement
295 document must be made to the state agency that is party to the
296 contract. Such request may not be made to the Chief Financial
297 Officer or the Department of Financial Services or any officer,
298 employee, or contractor thereof unless the Chief Financial
299 Officer or department is a party to the contract.
300 2. A subpoena for a copy of a contract or procurement
301 document or certified copy of a contract or procurement document
302 must be served on the state agency that is a party to the
303 contract and that maintains the original documents. The Chief
304 Financial Officer or the Department of Financial Services or any
305 officer, employee, or contractor thereof may not be served a
306 subpoena for those records unless the Chief Financial Officer or
307 the department is a party to the contract.
308 (f) The Chief Financial Officer may adopt rules to
309 administer this subsection.
310 Section 3. Section 216.0111, Florida Statutes, is repealed.
311 Section 4. Subsection (14) of section 287.057, Florida
312 Statutes, is amended to read:
313 287.057 Procurement of commodities or contractual
314 services.—
315 (14) For each contractual services contract, the agency
316 shall designate an employee to function as contract manager who
317 is shall be responsible for enforcing performance of the
318 contract terms and conditions and serve as a liaison with the
319 contractor. Each contract manager who is responsible for
320 contracts in excess of the threshold amount for CATEGORY TWO
321 established under s. 287.017 must be a certified contract
322 manager. The Department of Management Services is responsible
323 for establishing and disseminating the requirements for
324 certification, which include completing the attend training
325 conducted by the Chief Financial Officer for accountability in
326 contracts and grant management. The Chief Financial Officer
327 shall establish and disseminate uniform procedures pursuant to
328 s. 17.03(3) to ensure that contractual services have been
329 rendered in accordance with the contract terms before the agency
330 processes the invoice for payment. The procedures must shall
331 include, but need not be limited to, procedures for monitoring
332 and documenting contractor performance, reviewing and
333 documenting all deliverables for which payment is requested by
334 vendors, and providing written certification by contract
335 managers of the agency’s receipt of goods and services.
336 Section 5. Subsection (7) is added to section 287.058,
337 Florida Statutes, to read:
338 287.058 Contract document.—
339 (7) The Chief Financial Officer may audit a contract
340 subject to this chapter before the execution of such contract in
341 accordance with rules adopted by the Department of Financial
342 Services. The audit must ensure that applicable laws have been
343 met; that the contract document contains a clear statement of
344 work, quantifiable and measurable deliverables, performance
345 measures, financial consequences for nonperformance, and clear
346 terms and conditions that protect the interests of the state;
347 and that the associated costs of the contract are not
348 unreasonable or inappropriate. The audit must ensure that all
349 contracting laws have been met and that documentation is
350 available to support the contract. A contract that does not
351 comply with this section may be returned to the submitting
352 agency for revision.
353 (a) The Chief Financial Officer may establish dollar
354 thresholds and other criteria for sampling the contracts that
355 are to be audited before execution. The Chief Financial Officer
356 may revise such thresholds and other criteria for an agency or
357 unit of an agency as deemed appropriate.
358 (b) The Chief Financial Officer has up to 10 business days
359 after receipt of the proposed contract to make a final
360 determination of any deficiencies in the contract and shall
361 include information regarding the deficiencies in the audit
362 report provided to the agency entering into the contract. The
363 Chief Financial Officer and the agency entering into the
364 contract may agree to a longer review period. The agency is
365 responsible for addressing the deficiencies and shall have the
366 option to resubmit the contract for subsequent review before
367 execution. The Chief Financial Officer shall perform a
368 subsequent review to verify that all deficiencies have been
369 addressed upon processing the first payment.
370 Section 6. Section 287.136, Florida Statutes, is created to
371 read:
372 287.136 Audit of executed contract documents.—The Chief
373 Financial Officer shall perform audits of the executed contract
374 documents and contract manager’s records to ensure that adequate
375 internal controls are in place for complying with the terms and
376 conditions of the contract and for the validation and receipt of
377 goods and services.
378 (1) At the conclusion of the audit, the Chief Financial
379 Officer’s designee shall discuss the audit and potential
380 findings with the official whose office is subject to audit. The
381 final audit report shall be submitted to the agency head.
382 (2) Within 30 days after the receipt of the final audit
383 report, the agency head shall submit to the Chief Financial
384 Officer or designee, his or her written statement of explanation
385 or rebuttal concerning findings requiring corrective action,
386 including corrective action to be taken to preclude a
387 recurrence.
388 Section 7. This act shall take effect July 1, 2013.