Florida Senate - 2023                      CS for CS for SB 1188
       By the Committees on Fiscal Policy; and Governmental Oversight
       and Accountability; and Senator Boyd
       594-03814-23                                          20231188c2
    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         agreements include a specified provision; reenacting
    5         ss. 287.0571(5) and 1002.84(13), F.S., relating to
    6         contract requirements for proposed outsourcing and
    7         procurement contract requirements for early learning
    8         coalitions, respectively, to incorporate the amendment
    9         made to s. 287.058, F.S., in references thereto;
   10         providing an effective date.
   12  Be It Enacted by the Legislature of the State of Florida:
   14         Section 1. Subsection (8) is added to section 287.058,
   15  Florida Statutes, to read:
   16         287.058 Contract document.—
   17         (8) In addition to any other provision required to be
   18  included, the written agreement for a procurement of contractual
   19  services in excess of the threshold amount provided in s.
   20  287.017 for CATEGORY TWO must include the following limitation
   21  of liability provision for breach of contract:
   23         For all claims against the Contractor under any
   24         contract or purchase order, and regardless of the
   25         basis on which the claim is made, the Contractor’s
   26         liability for direct damages under a contract or
   27         purchase order shall be limited to the greater of
   28         $100,000, the dollar amount of the contract or
   29         purchase order, or two times the charges rendered by
   30         the Contractor under the purchase order. The
   31         limitation of liability contemplated herein does not
   32         apply to any claim arising under an indemnity section
   33         of the agreement or any section of the agreement
   34         relating to insurance for the provision of
   35         Professional Services as defined in section 287.055,
   36         Florida Statutes, unless otherwise agreed to by the
   37         parties to the contract. Unless otherwise specifically
   38         enumerated in the contract or in the purchase order,
   39         no party shall be liable to another for special,
   40         indirect, punitive, or consequential damages,
   41         including lost data or records (unless the contract or
   42         purchase order requires the Contractor to back up data
   43         or records), even if the party has been advised that
   44         such damages are possible. No party shall be liable
   45         for lost profits, lost revenue, or lost institutional
   46         operating savings. The State and Customer may, in
   47         addition to other remedies available to them at law or
   48         equity and upon notice to the Contractor, retain such
   49         monies from amounts due the Contractor as may be
   50         necessary to satisfy any claim for damages, penalties,
   51         costs, and the like asserted by or against them. The
   52         State may set off any liability or other obligation of
   53         the Contractor or its affiliates to the State against
   54         any payments due the Contractor under any contract
   55         with the State.
   56         Section 2. For the purpose of incorporating the amendment
   57  made by this act to section 287.058, Florida Statutes, in a
   58  reference thereto, subsection (5) of section 287.0571, Florida
   59  Statutes, is reenacted to read:
   60         287.0571 Business case to outsource; applicability.—
   61         (5) In addition to the contract requirements provided in s.
   62  287.058, each contract for a proposed outsourcing, pursuant to
   63  this section, must include, but need not be limited to, the
   64  following contractual provisions:
   65         (a) A scope-of-work provision that clearly specifies each
   66  service or deliverable to be provided, including a description
   67  of each deliverable or activity that is quantifiable,
   68  measurable, and verifiable. This provision must include a clause
   69  that states if a particular service or deliverable is
   70  inadvertently omitted or not clearly specified but determined to
   71  be operationally necessary and verified to have been performed
   72  by the agency within the 12 months before the execution of the
   73  contract, such service or deliverable will be provided by the
   74  contractor through the identified contract-amendment process.
   75         (b) A service-level-agreement provision describing all
   76  services to be provided under the terms of the agreement, the
   77  state agency’s service requirements and performance objectives,
   78  specific responsibilities of the state agency and the
   79  contractor, and the process for amending any portion of the
   80  service-level agreement. Each service-level agreement must
   81  contain an exclusivity clause that allows the state agency to
   82  retain the right to perform the service or activity, directly or
   83  with another contractor, if service levels are not being
   84  achieved.
   85         (c) A provision that identifies all associated costs,
   86  specific payment terms, and payment schedules, including
   87  provisions governing incentives and financial disincentives and
   88  criteria governing payment.
   89         (d) A provision that identifies a clear and specific
   90  transition plan that will be implemented in order to complete
   91  all required activities needed to transfer the service or
   92  activity from the state agency to the contractor and operate the
   93  service or activity successfully.
   94         (e) A performance-standards provision that identifies all
   95  required performance standards, which must include, at a
   96  minimum:
   97         1. Detailed and measurable acceptance criteria for each
   98  deliverable and service to be provided to the state agency under
   99  the terms of the contract which document the required
  100  performance level.
  101         2. A method for monitoring and reporting progress in
  102  achieving specified performance standards and levels.
  103         3. The sanctions or disincentives that shall be imposed for
  104  nonperformance by the contractor or state agency.
  105         (f) A provision that requires the contractor and its
  106  subcontractors to maintain adequate accounting records that
  107  comply with all applicable federal and state laws and generally
  108  accepted accounting principles.
  109         (g) A provision that authorizes the state agency to have
  110  access to and to audit all records related to the contract and
  111  subcontracts, or any responsibilities or functions under the
  112  contract and subcontracts, for purposes of legislative
  113  oversight, and a requirement for audits by a service
  114  organization in accordance with professional auditing standards,
  115  if appropriate.
  116         (h) A provision that requires the contractor to interview
  117  and consider for employment with the contractor each displaced
  118  state employee who is interested in such employment.
  119         (i) A contingency-plan provision that describes the
  120  mechanism for continuing the operation of the service or
  121  activity, including transferring the service or activity back to
  122  the state agency or successor contractor if the contractor fails
  123  to perform and comply with the performance standards and levels
  124  of the contract and the contract is terminated.
  125         (j) A provision that requires the contractor and its
  126  subcontractors to comply with public records laws, specifically
  127  to:
  128         1. Keep and maintain the public records that ordinarily and
  129  necessarily would be required by the state agency in order to
  130  perform the service or activity.
  131         2. Provide the public with access to such public records on
  132  the same terms and conditions that the state agency would
  133  provide the records and at a cost that does not exceed that
  134  provided in chapter 119 or as otherwise provided by law.
  135         3. Ensure that records that are exempt or records that are
  136  confidential and exempt are not disclosed except as authorized
  137  by law.
  138         4. Meet all requirements for retaining records and transfer
  139  to the state agency, at no cost, all public records in
  140  possession of the contractor upon termination of the contract
  141  and destroy any duplicate public records that are exempt or
  142  confidential and exempt. All records stored electronically must
  143  be provided to the state agency in a format that is compatible
  144  with the information technology systems of the state agency.
  145         (k)1. A provision that provides that any copyrightable or
  146  patentable intellectual property produced as a result of work or
  147  services performed under the contract, or in any way connected
  148  with the contract, shall be the property of the state, with only
  149  such exceptions as are clearly expressed and reasonably valued
  150  in the contract.
  151         2. A provision that provides that, if the primary purpose
  152  of the contract is the creation of intellectual property, the
  153  state shall retain an unencumbered right to use such property.
  154         (l) If applicable, a provision that allows the agency to
  155  purchase from the contractor, at its depreciated value, assets
  156  used by the contractor in the performance of the contract. If
  157  assets have not depreciated, the agency shall retain the right
  158  to negotiate to purchase at an agreed-upon cost.
  159         Section 3. For the purpose of incorporating the amendment
  160  made by this act to section 287.058, Florida Statutes, in a
  161  reference thereto, subsection (13) of section 1002.84, Florida
  162  Statutes, is reenacted to read:
  163         1002.84 Early learning coalitions; school readiness powers
  164  and duties.—Each early learning coalition shall:
  165         (13) Comply with federal procurement requirements and the
  166  procurement requirements of ss. 215.971, 287.057, and 287.058,
  167  except that an early learning coalition is not required to
  168  competitively procure direct services for school readiness
  169  program and Voluntary Prekindergarten Education Program
  170  providers.
  171         Section 4. This act shall take effect July 1, 2023.