Florida Senate - 2023                                    SB 1188
       By Senator Boyd
       20-01811A-23                                          20231188__
    1                        A bill to be entitled                      
    2         An act relating to contract liability; amending s.
    3         287.058, F.S.; requiring that certain procurement
    4         contracts contain a provision specifying a finite
    5         maximum limit of liability for a contractor; requiring
    6         maximum liability terms for such contract or purchase
    7         order to be specified as a defined monetary threshold
    8         or formula; providing applicability; reenacting ss.
    9         287.0571(5) and 1002.84(13), F.S., relating to
   10         contract requirements for proposed outsourcing and
   11         procurement contract requirements for early learning
   12         coalitions, respectively, to incorporate the amendment
   13         made to s. 287.058, F.S., in references thereto;
   14         providing an effective date.
   16  Be It Enacted by the Legislature of the State of Florida:
   18         Section 1. Present paragraph (i) of subsection (1) of
   19  section 287.058, Florida Statutes, is redesignated as paragraph
   20  (j), and a new paragraph (i) is added to that subsection, to
   21  read:
   22         287.058 Contract document.—
   23         (1) Every procurement of contractual services in excess of
   24  the threshold amount provided in s. 287.017 for CATEGORY TWO,
   25  except for the providing of health and mental health services or
   26  drugs in the examination, diagnosis, or treatment of sick or
   27  injured state employees or the providing of other benefits as
   28  required by chapter 440, shall be evidenced by a written
   29  agreement embodying all provisions and conditions of the
   30  procurement of such services, which shall, where applicable,
   31  include, but not be limited to, a provision:
   32         (i) Specifying a finite maximum limit of liability for the
   33  contractor by a defined monetary threshold or monetary formula.
   34         1.Liability terms as enumerated under any contract or
   35  purchase order of a governmental entity must specify a defined
   36  monetary threshold or monetary formula that establishes the
   37  maximum liability of the contractor for the contract or purchase
   38  order.
   39         2.The monetary threshold or monetary formula may not apply
   40  to claims arising under separate contractual provisions specific
   41  to indemnification.
   43  In lieu of a written agreement, the agency may authorize the use
   44  of a purchase order for classes of contractual services if the
   45  provisions of paragraphs (a)-(j) (a)-(i) are included in the
   46  purchase order or solicitation. The purchase order must include,
   47  but need not be limited to, an adequate description of the
   48  services, the contract period, and the method of payment. In
   49  lieu of printing the provisions of paragraphs (a)-(c) and (g) in
   50  the contract document or purchase order, agencies may
   51  incorporate the requirements of paragraphs (a)-(c) and (g) by
   52  reference.
   53         Section 2. For the purpose of incorporating the amendment
   54  made by this act to section 287.058, Florida Statutes, in a
   55  reference thereto, subsection (5) of section 287.0571, Florida
   56  Statutes, is reenacted to read:
   57         287.0571 Business case to outsource; applicability.—
   58         (5) In addition to the contract requirements provided in s.
   59  287.058, each contract for a proposed outsourcing, pursuant to
   60  this section, must include, but need not be limited to, the
   61  following contractual provisions:
   62         (a) A scope-of-work provision that clearly specifies each
   63  service or deliverable to be provided, including a description
   64  of each deliverable or activity that is quantifiable,
   65  measurable, and verifiable. This provision must include a clause
   66  that states if a particular service or deliverable is
   67  inadvertently omitted or not clearly specified but determined to
   68  be operationally necessary and verified to have been performed
   69  by the agency within the 12 months before the execution of the
   70  contract, such service or deliverable will be provided by the
   71  contractor through the identified contract-amendment process.
   72         (b) A service-level-agreement provision describing all
   73  services to be provided under the terms of the agreement, the
   74  state agency’s service requirements and performance objectives,
   75  specific responsibilities of the state agency and the
   76  contractor, and the process for amending any portion of the
   77  service-level agreement. Each service-level agreement must
   78  contain an exclusivity clause that allows the state agency to
   79  retain the right to perform the service or activity, directly or
   80  with another contractor, if service levels are not being
   81  achieved.
   82         (c) A provision that identifies all associated costs,
   83  specific payment terms, and payment schedules, including
   84  provisions governing incentives and financial disincentives and
   85  criteria governing payment.
   86         (d) A provision that identifies a clear and specific
   87  transition plan that will be implemented in order to complete
   88  all required activities needed to transfer the service or
   89  activity from the state agency to the contractor and operate the
   90  service or activity successfully.
   91         (e) A performance-standards provision that identifies all
   92  required performance standards, which must include, at a
   93  minimum:
   94         1. Detailed and measurable acceptance criteria for each
   95  deliverable and service to be provided to the state agency under
   96  the terms of the contract which document the required
   97  performance level.
   98         2. A method for monitoring and reporting progress in
   99  achieving specified performance standards and levels.
  100         3. The sanctions or disincentives that shall be imposed for
  101  nonperformance by the contractor or state agency.
  102         (f) A provision that requires the contractor and its
  103  subcontractors to maintain adequate accounting records that
  104  comply with all applicable federal and state laws and generally
  105  accepted accounting principles.
  106         (g) A provision that authorizes the state agency to have
  107  access to and to audit all records related to the contract and
  108  subcontracts, or any responsibilities or functions under the
  109  contract and subcontracts, for purposes of legislative
  110  oversight, and a requirement for audits by a service
  111  organization in accordance with professional auditing standards,
  112  if appropriate.
  113         (h) A provision that requires the contractor to interview
  114  and consider for employment with the contractor each displaced
  115  state employee who is interested in such employment.
  116         (i) A contingency-plan provision that describes the
  117  mechanism for continuing the operation of the service or
  118  activity, including transferring the service or activity back to
  119  the state agency or successor contractor if the contractor fails
  120  to perform and comply with the performance standards and levels
  121  of the contract and the contract is terminated.
  122         (j) A provision that requires the contractor and its
  123  subcontractors to comply with public records laws, specifically
  124  to:
  125         1. Keep and maintain the public records that ordinarily and
  126  necessarily would be required by the state agency in order to
  127  perform the service or activity.
  128         2. Provide the public with access to such public records on
  129  the same terms and conditions that the state agency would
  130  provide the records and at a cost that does not exceed that
  131  provided in chapter 119 or as otherwise provided by law.
  132         3. Ensure that records that are exempt or records that are
  133  confidential and exempt are not disclosed except as authorized
  134  by law.
  135         4. Meet all requirements for retaining records and transfer
  136  to the state agency, at no cost, all public records in
  137  possession of the contractor upon termination of the contract
  138  and destroy any duplicate public records that are exempt or
  139  confidential and exempt. All records stored electronically must
  140  be provided to the state agency in a format that is compatible
  141  with the information technology systems of the state agency.
  142         (k)1. A provision that provides that any copyrightable or
  143  patentable intellectual property produced as a result of work or
  144  services performed under the contract, or in any way connected
  145  with the contract, shall be the property of the state, with only
  146  such exceptions as are clearly expressed and reasonably valued
  147  in the contract.
  148         2. A provision that provides that, if the primary purpose
  149  of the contract is the creation of intellectual property, the
  150  state shall retain an unencumbered right to use such property.
  151         (l) If applicable, a provision that allows the agency to
  152  purchase from the contractor, at its depreciated value, assets
  153  used by the contractor in the performance of the contract. If
  154  assets have not depreciated, the agency shall retain the right
  155  to negotiate to purchase at an agreed-upon cost.
  156         Section 3. For the purpose of incorporating the amendment
  157  made by this act to section 287.058, Florida Statutes, in a
  158  reference thereto, subsection (13) of section 1002.84, Florida
  159  Statutes, is reenacted to read:
  160         1002.84 Early learning coalitions; school readiness powers
  161  and duties.—Each early learning coalition shall:
  162         (13) Comply with federal procurement requirements and the
  163  procurement requirements of ss. 215.971, 287.057, and 287.058,
  164  except that an early learning coalition is not required to
  165  competitively procure direct services for school readiness
  166  program and Voluntary Prekindergarten Education Program
  167  providers.
  168         Section 4. This act shall take effect July 1, 2023.