US Laws, Codes, Statutes & Cases

287.001  Legislative intent.

287.012  Definitions.

287.017  Purchasing categories, threshold amounts; procedures for automatic adjustment by department.

287.022  Purchase of insurance.

287.025  Prohibition against certain insurance coverage on specified state property or insurable subjects.

287.032  Purpose of department.

287.042  Powers, duties, and functions.

287.045  Procurement of products and materials with recycled content.

287.055  Acquisition of professional architectural, engineering, landscape architectural, or surveying and mapping services; definitions; procedures; contingent fees prohibited; penalties.

287.056  Purchases from purchasing agreements and state term contracts.

287.057  Procurement of commodities or contractual services.

287.0572  Present-value methodology.

287.058  Contract document.

287.05805  Contract requirement for use of state funds to purchase or improve real property.

287.0582  Contracts which require annual appropriation; contingency statement.

287.0585  Late payments by contractors to subcontractors and suppliers; penalty.

287.059  Private attorney services.

287.0595  Pollution response action contracts; department rules.

287.063  Deferred-payment commodity contracts; preaudit review.

287.064  Consolidated financing of deferred-payment purchases.

287.0641  Agreement not debt or pledge of faith or credit of state.

287.0731  Team for contract negotiations.

287.082  Commodities manufactured, grown, or produced in state given preference.

287.0821  All American and Genuine Florida meat or meat products.

287.0822  Beef and pork; prohibition on purchase; bid specifications; penalty.

287.083  Purchase of commodities.

287.0834  Motor vehicles; energy-saving equipment and additives.

287.084  Preference to Florida businesses.

287.087  Preference to businesses with drug-free workplace programs.

287.092  Preference to certain foreign manufacturers.

287.093  Minority business enterprises; procurement of personal property and services from funds set aside for such purpose.

287.0931  Minority business enterprises; participation in bond underwriting.

287.0935  Surety bond insurers.

287.094  Minority business enterprise programs; penalty for discrimination and false representation.

287.0943  Certification of minority business enterprises.

287.09431  Statewide and interlocal agreement on certification of business concerns for the status of minority business enterprise.

287.09451  Office of Supplier Diversity; powers, duties, and functions.

287.0947  Florida Advisory Council on Small and Minority Business Development; creation; membership; duties.

287.095  Department of Corrections; prison industry programs.

287.115  Chief Financial Officer; annual report.

287.131  Assistance of Department of Financial Services.

287.132  Legislative intent with respect to integrity of public contracting and purchasing process.

287.133  Public entity crime; denial or revocation of the right to transact business with public entities.

287.134  Discrimination; denial or revocation of the right to transact business with public entities.

287.1345  Surcharge on users of state term contracts; deposit of proceeds collected.

287.001  Legislative intent.--The Legislature recognizes that fair and open competition is a basic tenet of public procurement; that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically; and that documentation of the acts taken and effective monitoring mechanisms are important means of curbing any improprieties and establishing public confidence in the process by which commodities and contractual services are procured. It is essential to the effective and ethical procurement of commodities and contractual services that there be a system of uniform procedures to be utilized by state agencies in managing and procuring commodities and contractual services; that detailed justification of agency decisions in the procurement of commodities and contractual services be maintained; and that adherence by the agency and the vendor to specific ethical considerations be required.

History.--s. 3, ch. 82-196; s. 10, ch. 90-268; s. 7, ch. 2002-207.

287.012  Definitions.--As used in this part, the term:

(1)  "Agency" means any of the various state officers, departments, boards, commissions, divisions, bureaus, and councils and any other unit of organization, however designated, of the executive branch of state government. "Agency" does not include the university and college boards of trustees or the state universities and colleges.

(2)  "Agency head" means, with respect to an agency headed by a collegial body, the executive director or chief administrative officer of the agency.

(3)  "Artist" means an individual or group of individuals who profess and practice a demonstrated creative talent and skill in the area of music, dance, drama, folk art, creative writing, painting, sculpture, photography, graphic arts, craft arts, industrial design, costume design, fashion design, motion pictures, television, radio, or tape and sound recording or in any other related field.

(4)  "Best value" means the highest overall value to the state based on objective factors that include, but are not limited to, price, quality, design, and workmanship.

(5)  "Commodity" means any of the various supplies, materials, goods, merchandise, food, equipment, information technology, and other personal property, including a mobile home, trailer, or other portable structure with floor space of less than 5,000 square feet, purchased, leased, or otherwise contracted for by the state and its agencies. "Commodity" also includes interest on deferred-payment commodity contracts approved pursuant to s. 287.063 entered into by an agency for the purchase of other commodities. However, commodities purchased for resale are excluded from this definition. Further, a prescribed drug, medical supply, or device required by a licensed health care provider as a part of providing health services involving examination, diagnosis, treatment, prevention, medical consultation, or administration for clients at the time the service is provided is not considered to be a "commodity." Printing of publications shall be considered a commodity when let upon contract pursuant to s. 283.33, whether purchased for resale or not.

(6)  "Competitive sealed bids," "competitive sealed proposals," or "competitive sealed replies" means the process of receiving two or more sealed bids, proposals, or replies submitted by responsive vendors and includes bids, proposals, or replies transmitted by electronic means in lieu of or in addition to written bids, proposals, or replies.

(7)  "Competitive solicitation" or "solicitation" means an invitation to bid, a request for proposals, or an invitation to negotiate.

(8)  "Contractor" means a person who contracts to sell commodities or contractual services to an agency.

(9)  "Contractual service" means the rendering by a contractor of its time and effort rather than the furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent contractors, and such services may include, but are not limited to, evaluations; consultations; maintenance; accounting; security; management systems; management consulting; educational training programs; research and development studies or reports on the findings of consultants engaged thereunder; and professional, technical, and social services. "Contractual service" does not include any contract for the furnishing of labor or materials for the construction, renovation, repair, modification, or demolition of any facility, building, portion of building, utility, park, parking lot, or structure or other improvement to real property entered into pursuant to chapter 255 and rules adopted thereunder.

(10)  "Department" means the Department of Management Services.

(11)  "Electronic posting" or "electronically post" means the posting of solicitations, agency decisions or intended decisions, or other matters relating to procurement on a centralized Internet website designated by the department for this purpose.

(12)  "Eligible user" means any person or entity authorized by the department pursuant to rule to purchase from state term contracts or to use the on-line procurement system.

(13)  "Exceptional purchase" means any purchase of commodities or contractual services excepted by law or rule from the requirements for competitive solicitation, including, but not limited to, purchases from a single source; purchases upon receipt of less than two responsive bids, proposals, or replies; purchases made by an agency, after receiving approval from the department, from a contract procured, pursuant to s. 287.057(1), (2), or (3), by another agency; and purchases made without advertisement in the manner required by s. 287.042(3)(b).

(14)  "Extension" means an increase in the time allowed for the contract period due to circumstances which, without fault of either party, make performance impracticable or impossible, or which prevent a new contract from being executed, with or without a proportional increase in the total dollar amount, with any increase to be based on the method and rate previously established in the contract.

(15)  "Information technology" has the meaning ascribed in s. 282.0041.

(16)  "Invitation to bid" means a written solicitation for competitive sealed bids. The invitation to bid is used when the agency is capable of specifically defining the scope of work for which a contractual service is required or when the agency is capable of establishing precise specifications defining the actual commodity or group of commodities required. A written solicitation includes a solicitation that is electronically posted.

(17)  "Invitation to negotiate" means a written solicitation for competitive sealed replies to select one or more vendors with which to commence negotiations for the procurement of commodities or contractual services. The invitation to negotiate is used when the agency determines that negotiations may be necessary for the state to receive the best value. A written solicitation includes a solicitation that is electronically posted.

(18)  "Minority business enterprise" has the meaning ascribed in s. 288.703.

(19)  "Office" means the Office of Supplier Diversity of the Department of Management Services.

(20)  "Renewal" means contracting with the same contractor for an additional contract period after the initial contract period, only if pursuant to contract terms specifically providing for such renewal.

(21)  "Request for information" means a written request made by an agency to vendors for information concerning commodities or contractual services. Responses to these requests are not offers and may not be accepted by the agency to form a binding contract.

(22)  "Request for proposals" means a written solicitation for competitive sealed proposals. The request for proposals is used when it is not practicable for the agency to specifically define the scope of work for which the commodity, group of commodities, or contractual service is required and when the agency is requesting that a responsible vendor propose a commodity, group of commodities, or contractual service to meet the specifications of the solicitation document. A written solicitation includes a solicitation that is electronically posted.

(23)  "Request for a quote" means an oral or written request for written pricing or services information from a state term contract vendor for commodities or contractual services available on a state term contract from that vendor.

(24)  "Responsible vendor" means a vendor who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance.

(25)  "Responsive bid," "responsive proposal," or "responsive reply" means a bid, or proposal, or reply submitted by a responsive and responsible vendor that conforms in all material respects to the solicitation.

(26)  "Responsive vendor" means a vendor that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.

(27)  "State term contract" means a term contract that is competitively procured by the department pursuant to s. 287.057 and that is used by agencies and eligible users pursuant to s. 287.056.

(28)  "Term contract" means an indefinite quantity contract to furnish commodities or contractual services during a defined period.

History.--s. 22, ch. 69-106; s. 1, ch. 80-374; ss. 4, 8, ch. 82-196; s. 1, ch. 83-99; s. 1, ch. 83-192; s. 1, ch. 84-158; s. 29, ch. 85-349; s. 1, ch. 86-52; ss. 6, 20, ch. 88-384; s. 1, ch. 89-289; s. 2, ch. 90-147; s. 4, ch. 90-224; s. 11, ch. 90-268; s. 36, ch. 90-335; s. 15, ch. 92-98; s. 107, ch. 92-142; s. 246, ch. 92-279; s. 55, ch. 92-326; s. 8, ch. 94-322; s. 1, ch. 95-168; s. 8, ch. 96-236; s. 24, ch. 96-320; s. 16, ch. 98-65; s. 74, ch. 98-279; s. 31, ch. 2000-164; s. 9, ch. 2000-286; s. 2, ch. 2001-278; s. 8, ch. 2002-207.

287.017  Purchasing categories, threshold amounts; procedures for automatic adjustment by department.--

(1)  The following purchasing categories are hereby created:

(a)  CATEGORY ONE: $15,000.

(b)  CATEGORY TWO: $25,000.

(c)  CATEGORY THREE: $50,000.

(d)  CATEGORY FOUR: $150,000.

(e)  CATEGORY FIVE: $250,000.

(2)  The department shall adopt rules to adjust the amounts provided in subsection (1) based upon the rate of change of a nationally recognized price index. Such rules shall include, but not be limited to, the following:

(a)  Designation of the nationally recognized price index or component thereof used to calculate the proper adjustment authorized in this section.

(b)  The procedure for rounding results.

(c)  The effective date of each adjustment based upon the previous calendar year data.

History.--ss. 5, 13, ch. 86-204; ss. 12, 34, ch. 90-268; s. 3, ch. 96-236; s. 17, ch. 98-65; s. 75, ch. 98-279; s. 43, ch. 99-399; s. 9, ch. 2002-207.

287.022  Purchase of insurance.--

(1)  Insurance, while not a commodity, nevertheless shall be purchased for all agencies by the department, except that agencies may purchase title insurance for land acquisition and may make emergency purchases of insurance pursuant to s. 287.057(5)(a). The procedures for purchasing insurance, whether the purchase is made by the department or by the agencies, shall be the same as those set forth herein for the purchase of commodities.

(2)  When an insurer or agent pays a commission or any portion thereof to any person, on insurance purchased under this part, such payment shall be reported to the department in writing and under oath within 30 days thereafter. Any failure to report as required herein shall subject the insurer or agent to the penalties provided in s. 624.15.

(3)  The department and the Division of State Group Insurance shall not prohibit or limit any properly licensed insurer, health maintenance organization, prepaid limited health services organization, or insurance agent from competing for any insurance product or plan purchased, provided, or endorsed by the department or the division on the basis of the compensation arrangement used by the insurer or organization for its agents.

History.--s. 22, ch. 69-106; s. 1, ch. 89-232; s. 13, ch. 90-268; s. 76, ch. 98-279; s. 2, ch. 2001-192; s. 11, ch. 2001-278; s. 10, ch. 2002-207.

287.025  Prohibition against certain insurance coverage on specified state property or insurable subjects.--

(1)  No primary contract of insurance shall be purchased on insurable subjects or property titled in the name of the state or its departments, divisions, bureaus, commissions, or agencies with respect to any of the following properties, coverages, or insurable subjects:

(a)  Physical damage insurance on motor vehicles which are licensed for use on the public highways of this state. For the purpose of this chapter, the term "physical damage insurance" means coverage against collision, upset or overturn, fire, theft, combined additional coverage, or comprehensive;

(b)  Physical damage insurance on watercraft and related equipment;

(c)  Loss of rental income on any buildings unless the buildings are financed in whole or in part by revenue bonds or certificates the terms of which require such coverage or unless otherwise authorized by law;

(d)  Miscellaneous equipment which is subject to a transportation feature and subject to ordinarily being covered by an inland marine insurance floater. The term "miscellaneous equipment" does not include boilers and machinery or nuclear equipment;

(e)  Museum collections, artifacts, relics, or fine arts;

(f)  Hull coverage on aircraft;

(g)  Glass insurance;

(h)  Coverage for loss against vandalism or malicious mischief unless these perils are included within an all-risks-of-physical-loss form; and

(i)  Insurance against loss or damage to livestock and services of a veterinary for such animals.

(2)  Excess insurance may be purchased to cover loss for physical damage on the above-described properties or risk if the aggregate exposure at any one location or actual cash value of any one item exceeds the sum of $10,000. However, no excess insurance shall be purchased on any items listed in paragraphs (1)(c), (e), (g), (h), and (i), regardless of value or risk.

(3)  Any items, property, or insurable subjects titled in the name of the state or its departments, divisions, bureaus, commissions, or agencies which are not included or insured by the State Risk Management Trust Fund under chapter 284 or specifically designated not to be insured by this section shall be eligible subjects for insurance coverage through commercial insurance carriers as otherwise provided by law.

(4)  No primary insurance contracts shall be purchased on any property or insurable subjects when the same is loaned to, leased by, or intended to be leased by, the state or its departments, divisions, bureaus, commissions, or agencies unless such coverage is required by the terms of the lease agreement and unless the insurance coverages required by the provisions of the lease are approved in writing by the Department of Management Services.

History.--ss. 1, 2, 3, 4, ch. 70-435; s. 1, ch. 73-64; s. 1, ch. 84-27; s. 247, ch. 92-279; s. 55, ch. 92-326; s. 63, ch. 96-418; s. 18, ch. 2000-122.

287.032  Purpose of department.--It shall be the purpose of the Department of Management Services:

(1)  To promote efficiency, economy, and the conservation of energy and to effect coordination in the purchase of commodities and contractual services for the state.

(2)  To provide uniform commodity and contractual service procurement policies, rules, procedures, and forms for use by agencies and eligible users.

(3)  To procure and distribute federal surplus tangible personal property allocated to the state by the Federal Government.

History.--s. 22, ch. 69-106; s. 8, ch. 69-82; s. 1, ch. 76-29; s. 1, ch. 77-316; s. 2, ch. 80-374; s. 7, ch. 82-196; s. 248, ch. 92-279; s. 55, ch. 92-326; s. 77, ch. 98-279; s. 11, ch. 2002-207.

287.042  Powers, duties, and functions.--The department shall have the following powers, duties, and functions:

(1)(a)  To canvass all sources of supply, establish and maintain a vendor list, and contract for the purchase, lease, or acquisition, including purchase by installment sales or lease-purchase contracts which may provide for the payment of interest on unpaid portions of the purchase price, of all commodities and contractual services required by any agency under this chapter. Any contract providing for deferred payments and the payment of interest shall be subject to specific rules adopted by the department.

(b)  The department may remove from its vendor list any source of supply which fails to fulfill any of its duties specified in a contract with the state. It may reinstate any such source of supply when it is satisfied that further instances of default will not occur.

(c)  In order to promote cost-effective procurement of commodities and contractual services, the department or an agency may enter into contracts that limit the liability of a vendor consistent with s. 672.719.

(d)  The department shall issue commodity numbers for all products of the corporation operating the correctional industry program which meet or exceed department specifications.

(e)  The department shall include the products offered by the corporation on any listing prepared by the department which lists state term contracts executed by the department. The products or services shall be placed on such list in a category based upon specification criteria developed through a joint effort of the department and the corporation and approved by the department.

(f)  The corporation may submit products and services to the department for testing, analysis, and review relating to the quality and cost comparability. If, after review and testing, the department approves of the products and services, the department shall give written notice thereof to the corporation. The corporation shall pay a reasonable fee charged for testing its products by the Department of Agriculture and Consumer Services.

(g)  The department shall include products and services that are offered by a qualified nonprofit agency for the blind or for the other severely handicapped organized pursuant to chapter 413 and that have been determined to be suitable for purchase pursuant to s. 413.035 on any department listing of state term contracts. The products and services shall be placed on such list in a category based upon specification criteria developed by the department in consultation with the qualified nonprofit agency.

(h)  The department may collect fees for the use of its electronic information services. The fees may be imposed on an individual transaction basis or as a fixed subscription for a designated period of time. At a minimum, the fees shall be determined in an amount sufficient to cover the department's projected costs of such services, including overhead in accordance with the policies of the Department of Management Services for computing its administrative assessment. All fees collected pursuant to this paragraph shall be deposited in the Grants and Donations Trust Fund for disbursement as provided by law.

(2)(a)  To establish purchasing agreements and procure state term contracts for commodities and contractual services, pursuant to s. 287.057, under which state agencies shall, and eligible users may, make purchases pursuant to s. 287.056. The department may restrict purchases from some term contracts to state agencies only for those term contracts where the inclusion of other governmental entities will have an adverse effect on competition or to those federal facilities located in this state. In such planning or purchasing the Office of Supplier Diversity may monitor to ensure that opportunities are afforded for contracting with minority business enterprises. The department, for state term contracts, and all agencies, for multiyear contractual services or term contracts, shall explore reasonable and economical means to utilize certified minority business enterprises. Purchases by any county, municipality, private nonprofit community transportation coordinator designated pursuant to chapter 427, while conducting business related solely to the Commission for the Transportation Disadvantaged, or other local public agency under the provisions in the state purchasing contracts, and purchases, from the corporation operating the correctional work programs, of products or services that are subject to paragraph (1)(f), are exempt from the competitive solicitation requirements otherwise applying to their purchases.

(b)  As an alternative to any provision in s. 120.57(3)(c), the department may proceed with the competitive solicitation or contract award process of a term contract when the secretary of the department or his or her designee sets forth in writing particular facts and circumstances which demonstrate that the delay incident to staying the solicitation or contract award process would be detrimental to the interests of the state. After the award of a contract resulting from a competitive solicitation in which a timely protest was received and in which the state did not prevail, the contract may be canceled and reawarded.

(c)  Any person who files an action protesting a decision or intended decision pertaining to contracts administered by the department, a water management district, or an agency pursuant to s. 120.57(3)(b) shall post with the department, the water management district, or the agency at the time of filing the formal written protest a bond payable to the department, the water management district, or agency in an amount equal to 1 percent of the estimated contract amount. For protests of decisions or intended decisions pertaining to exceptional purchases, the bond shall be in an amount equal to 1 percent of the estimated contract amount for the exceptional purchase. The estimated contract amount shall be based upon the contract price submitted by the protestor or, if no contract price was submitted, the department, water management district, or agency shall estimate the contract amount based on factors including, but not limited to, the price of previous or existing contracts for similar commodities or contractual services, the amount appropriated by the Legislature for the contract, or the fair market value of similar commodities or contractual services. The agency shall provide the estimated contract amount to the vendor within 72 hours, excluding Saturdays, Sundays, and state holidays, after the filing of the notice of protest by the vendor. The estimated contract amount is not subject to protest pursuant to s. 120.57(3). The bond shall be conditioned upon the payment of all costs and charges that are adjudged against the protestor in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond, the department, the water management district, or agency may, in either case, accept a cashier's check, official bank check, or money order in the amount of the bond. If, after completion of the administrative hearing process and any appellate court proceedings, the department, water management district, or agency prevails, it shall recover all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. This section shall not apply to protests filed by the Office of Supplier Diversity. Upon payment of such costs and charges by the protestor, the bond, cashier's check, official bank check, or money order shall be returned to the protestor. If, after the completion of the administrative hearing process and any appellate court proceedings, the protestor prevails, the protestor shall recover from the department, water management district, or agency all costs and charges which shall be included in the final order or judgment, excluding attorney's fees.

(3)  To establish a system of coordinated, uniform procurement policies, procedures, and practices to be used by agencies in acquiring commodities and contractual services, which shall include, but not be limited to:

(a)  Development of a list of interested vendors to be maintained by classes of commodities and contractual services. This list shall not be used to prequalify vendors or to exclude any interested vendor from bidding.

(b)1.  Development of procedures for advertising solicitations. These procedures must provide for electronic posting of solicitations for at least 10 days before the date set for receipt of bids, proposals, or replies, unless the department or other agency determines in writing that a shorter period of time is necessary to avoid harming the interests of the state. The Office of Supplier Diversity may consult with the department regarding the development of solicitation distribution procedures to ensure that maximum distribution is afforded to certified minority business enterprises as defined in s. 288.703.

2.  Development of procedures for electronic posting. The department shall designate a centralized website on the Internet for the department and other agencies to electronically post solicitations, decisions or intended decisions, and other matters relating to procurement.

(c)  Development of procedures for the receipt and opening of bids, proposals, or replies by an agency. Such procedures shall provide the Office of Supplier Diversity an opportunity to monitor and ensure that the contract award is consistent with the requirements of s. 287.09451.

(d)  Development of procedures to be used by an agency in deciding to contract, including, but not limited to, identifying and assessing in writing project needs and requirements, availability of agency employees, budgetary constraints or availability, facility equipment availability, current and projected agency workload capabilities, and the ability of any other state agency to perform the services.

(e)  Development of procedures to be used by an agency in maintaining a contract file for each contract which shall include, but not be limited to, all pertinent information relating to the contract during the preparatory stages; a copy of the solicitation; documentation relating to the solicitation process; opening of bids, proposals, or replies; evaluation and tabulation of bids, proposals, or replies; and determination and notice of award of contract.

(f)  Development of procedures to be used by an agency for issuing solicitations that include requirements to describe commodities, services, scope of work, and deliverables in a manner that promotes competition.

(g)  Development of procedures to be used by an agency when issuing requests for information and requests for quotes.

(4)(a)  To prescribe the methods of securing competitive sealed bids, proposals, and replies. Such methods may include, but are not limited to, procedures for identifying vendors; setting qualifications; conducting conferences or written question and answer periods for purposes of responding to vendor questions; evaluating bids, proposals, and replies; ranking and selecting vendors; and conducting negotiations.

(b)  To prescribe, in consultation with the State Technology Office, procedures for procuring information technology and information technology consultant services which provide for public announcement and qualification, competitive solicitations, contract award, and prohibition against contingent fees. Such procedures shall be limited to information technology consultant contracts for which the total project costs, or planning or study activities, are estimated to exceed the threshold amount provided for in s. 287.017, for CATEGORY TWO.

(5)  To prescribe specific commodities and quantities to be purchased locally.

(6)(a)  To govern the purchase by any agency of any commodity or contractual service and to establish standards and specifications for any commodity.

(b)  Except for the purchase of insurance, the department may delegate to agencies the authority for the procurement of and contracting for commodities or contractual services.

(7)  To establish definitions and classes of commodities and contractual services. Agencies shall follow the definitions and classes of commodities and contractual services established by the department in acquiring or purchasing commodities or contractual services. The authority of the department under this section shall not be construed to impair or interfere with the determination by state agencies of their need for, or their use of, services including particular specifications.

(8)  To provide any commodity and contractual service purchasing rules to the Chief Financial Officer and all agencies through an electronic medium or other means. Agencies may not approve any account or request any payment of any account for the purchase of any commodity or the procurement of any contractual service covered by a purchasing or contractual service rule except as authorized therein. The department shall furnish copies of rules adopted by the department to any county, municipality, or other local public agency requesting them.

(9)  To require that every agency furnish information relative to its commodity and contractual services purchases and methods of purchasing commodities and contractual services to the department when so requested.

(10)  To prepare statistical data concerning the method of procurement, terms, usage, and disposition of commodities and contractual services by agencies. All agencies shall furnish such information for this purpose to the office and to the department, as the department or office may call for, but no less frequently than annually, on such forms or in such manner as the department may prescribe.

(11)  To establish and maintain programs for the purpose of disseminating information to government, industry, educational institutions, and the general public concerning policies, procedures, rules, and forms for the procurement of commodities and contractual services.

(12)  Except as otherwise provided herein, to adopt rules necessary to carry out the purposes of this section, including the authority to delegate to any agency any and all of the responsibility conferred by this section, retaining to the department any and all authority for supervision thereof. Such purchasing of commodities and procurement of contractual services by state agencies shall be in strict accordance with the rules and procedures prescribed by the department.

(13)  If the department determines in writing that it is in the best interest of the state, to award to multiple suppliers contracts for commodities and contractual services established by the department for use by all agencies. Such awards may be on a statewide or regional basis. If regional contracts are established by the department, multiple supplier awards may be based upon multiple awards for regions. Agencies may award contracts to a responsible and responsive vendor on a statewide or regional basis.

(14)  To procure and distribute federal surplus tangible personal property allocated to the state by the Federal Government.

(15)(a)  To enter into joint agreements with governmental agencies, as defined in s. 163.3164(10), for the purpose of pooling funds for the purchase of commodities or information technology that can be used by multiple agencies. However, the department shall consult with the State Technology Office on joint agreements that involve the purchase of information technology. Agencies entering into joint purchasing agreements with the department or the State Technology Office shall authorize the department or the State Technology Office to contract for such purchases on their behalf.

(b)  Each agency that has been appropriated or has existing funds for such purchases, shall, upon contract award by the department, transfer their portion of the funds into the department's Grants and Donations Trust Fund for payment by the department. These funds shall be transferred by the Executive Office of the Governor pursuant to the agency budget amendment request provisions in chapter 216.

(c)  Agencies that sign such joint agreements are financially obligated for their portion of the agreed-upon funds. If any agency becomes more than 90 days delinquent in paying such funds, the department shall certify to the Chief Financial Officer the amount due, and the Chief Financial Officer shall transfer the amount due to the Grants and Donations Trust Fund of the department from any of the agency's available funds. The Chief Financial Officer shall report all such transfers and the reasons for such transfers to the Executive Office of the Governor and the legislative appropriations committees.

(16)(a)  To evaluate contracts let by the Federal Government, another state, or a political subdivision for the provision of commodities and contract services, and, when it is determined in writing to be cost-effective and in the best interest of the state, to enter into a written agreement authorizing an agency to make purchases under a contract approved by the department and let by the Federal Government, another state, or a political subdivision.

(b)  For contracts pertaining to the provision of information technology, the State Technology Office, in consultation with the department, shall assess the technological needs of a particular agency, evaluate the contracts, and determine whether to enter into a written agreement with the letting federal, state, or political subdivision body to provide information technology for a particular agency.

(17)(a)  To enter into contracts pursuant to chapter 957, and to acquire the contractual rights and assume the contractual obligations of the Correctional Privatization Commission in contracts previously entered into pursuant to chapter 957, for the designing, financing, acquiring, leasing, constructing, or operating of private correctional facilities. The department shall enter into a contract or contracts with one contractor per facility for the designing, acquiring, financing, leasing, constructing, and operating of that facility or may, if specifically authorized by the Legislature, separately contract for any such services.

(b)  To manage and enforce compliance with existing or future contracts entered into pursuant to chapter 957.

The department may not delegate the responsibilities conferred by this subsection.

History.--s. 22, ch. 69-106; s. 1, ch. 70-150; s. 1, ch. 79-92; s. 3, ch. 80-374; s. 179, ch. 81-259; ss. 4, 8, ch. 82-196; s. 2, ch. 83-99; s. 2, ch. 83-192; s. 135, ch. 83-217; s. 1, ch. 84-6; s. 1, ch. 85-2; ss. 21, 32, ch. 85-104; s. 7, ch. 88-384; s. 10, ch. 89-291; s. 11, ch. 90-136; s. 14, ch. 90-268; s. 36, ch. 90-302; s. 5, ch. 91-162; s. 1, ch. 91-298; s. 16, ch. 92-98; s. 108, ch. 92-142; ss. 81, 128, ch. 92-152; s. 249, ch. 92-279; s. 55, ch. 92-326; s. 9, ch. 94-322; s. 867, ch. 95-148; s. 2, ch. 95-216; s. 4, ch. 95-396; s. 4, ch. 96-236; s. 61, ch. 96-410; s. 37, ch. 97-100; s. 35, ch. 97-286; s. 20, ch. 97-296; s. 78, ch. 98-279; s. 44, ch. 99-399; s. 8, ch. 2000-133; s. 32, ch. 2000-164; s. 10, ch. 2000-286; s. 54, ch. 2001-61; s. 3, ch. 2001-278; s. 12, ch. 2002-207; s. 943, ch. 2002-387; s. 330, ch. 2003-261; s. 2, ch. 2004-248; s. 23, ch. 2005-2.

287.045  Procurement of products and materials with recycled content.--

(1)(a)  The department, in cooperation with the Department of Environmental Protection, shall review and revise existing procurement procedures and specifications for the purchase of products and materials to eliminate any procedures and specifications that explicitly discriminate against products and materials with recycled content except where such procedures and specifications are necessary to protect the public health, safety, and welfare.

(b)  Each agency shall review and revise its procurement procedures and specifications for the purchase of products and materials to eliminate any procedures and specifications that explicitly discriminate against products and materials with recycled content, except if such procedures and specifications are necessary to protect the public health, safety, and welfare.

(2)(a)  The department and each agency shall review and revise its procurement procedures and specifications for the purchase of products and materials to ensure to the maximum extent feasible that each agency uses state contracts to purchase products or materials that may be recycled or reused when these products or materials are discarded.

(b)  The Auditor General shall assist in monitoring the product procurement requirements.

(3)  As part of the review and revision required in subsection (2), the department and each agency shall review its procurement provisions and specifications for the purchase of products and materials to determine which products or materials with recycled content could be procured by the department or other agencies and the amount of recycled content that can technologically be contained in such products or materials. The department and other agencies must use the amounts of recycled content and postconsumer recovered material determined by the department in issuing solicitations for contracts for the purchase of such products or materials.

(4)  Upon completion of the review required in subsection (3), the department and other agencies shall require that a person who submits a bid, proposal, or reply for a contract for the purchase of products or materials identified in subsection (3) and who wishes to be considered for the price preference described in subsection (5) certify in writing the percentage of recycled content in the product or material that is subject to the bid, proposal, or reply. A person may certify that the product or material contains no recycled content.

(5)  Upon evaluation of bids, proposals, or replies for every public contract that involves the purchase of products or materials identified in subsection (3), the department or other agency shall identify the lowest responsible and responsive vendor and other responsible and responsive vendors who have certified that the products or materials contain at least the minimum percentage of recycled content and postconsumer recovered material that is set forth in the solicitation. The department or agency may consider life-cycle costing when evaluating a bid, proposal, or reply on a product that consists of recycled materials. The department shall adopt rules that specify the criteria to be used when considering life-cycle costing in evaluating bids, proposals, or replies. The rules must take into consideration the specified warranty periods for products and the comparative expected service life relative to the cost of the products. In awarding a contract for the purchase of products or materials, the department or other agency may allow up to a 10-percent price preference to a responsible and responsive vendor who has certified that the products or materials contain at least the minimum percentage of recycled content and postconsumer recovered material and up to an additional 5-percent price preference to a responsible and responsive vendor who has certified that the products or material are made of materials recovered in this state. The amount of the price preference must be commensurate with the certified amounts of recycled material and postconsumer recovered material and materials recycled from products in this state, contained in the product or materials on a sliding scale as established by department rule, which rule shall not become effective prior to November 1, 1994. Reusable materials and products shall be used where economically and technically feasible. If no vendors offer products or materials with measurable life-cycle costing factors or the minimum prescribed recycled and postconsumer content, the contract must be awarded to the lowest qualified responsible and responsive vendor.

(6)  For the purposes of this section, the term "recycled content" means materials that have been recycled that are contained in the products or materials to be procured, including, but not limited to, paper, aluminum, steel, glass, plastics, and composted material. The term does not include the virgin component of internally generated scrap that is commonly used in industrial or manufacturing processes or such waste or scrap purchased from another manufacturer who manufactures the same or a closely related product. Recycled content printing and fine writing grades of paper shall contain at least 10 percent postconsumer recovered materials.

(7)  Any person may request the department to evaluate a product or material with recycled content if the product or material is eligible for inclusion under state contracts. The department shall review each reasonable proposal to determine its merit and, if it finds that the product or material may be used beneficially, it may incorporate that product or material into its procurement procedures.

(8)  The department and each agency shall review and revise its procedures and specifications on a continuing basis to encourage the use of products and materials with recycled content and postconsumer recovered material and shall, in developing new procedures and specifications, encourage the use of products and materials with recycled content and postconsumer recovered material.

(9)  After November 1, 1994, the department may discontinue contracting for products or materials the recycled content of which does not meet the requirements of subsection (3) if it determines that products or materials meeting those requirements are available at a cost not to exceed an additional 10 percent of comparable virgin products.

(10)  An agency, or a vendor contracting with such agency with respect to work performed under contract, must procure products or materials with recycled content if the department determines that those products or materials are available pursuant to subsection (5). Notwithstanding any other provision to the contrary, for the purpose of this section, the term "agency" means any of the various state officers, departments, boards, commissions, divisions, bureaus, and councils and any other unit of organization, however designated, of the executive branch including the Department of the Lottery, the legislative branch, the judicial branch, the university and college boards of trustees, and the state universities and colleges. A decision not to procure such items must be based on the department's determination that such procurement is not reasonably available within an acceptable period of time or fails to meet the performance standards set forth in the applicable specifications or fails to meet the performance standards of the agency.

(11)  Each agency shall report annually to the department its total expenditures on, and use of, products with recycled content and the percentage of its budget that represents purchases of similar products made from virgin materials. The department shall design a uniform reporting mechanism and prepare annual summaries of statewide purchases delineating those with recycled content to be submitted to the Governor, the President of the Senate, and the Speaker of the House of Representatives.

History.--s. 48, ch. 88-130; s. 15, ch. 90-268; s. 4, ch. 93-207; s. 113, ch. 94-356; s. 79, ch. 98-279; s. 13, ch. 2002-207.

287.055  Acquisition of professional architectural, engineering, landscape architectural, or surveying and mapping services; definitions; procedures; contingent fees prohibited; penalties.--

(1)  SHORT TITLE.--This section shall be known as the "Consultants' Competitive Negotiation Act."

(2)  DEFINITIONS.--For purposes of this section:

(a)  "Professional services" means those services within the scope of the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping, as defined by the laws of the state, or those performed by any architect, professional engineer, landscape architect, or registered surveyor and mapper in connection with his or her professional employment or practice.

(b)  "Agency" means the state, a state agency, a municipality, a political subdivision, a school district, or a school board. The term "agency" does not extend to a nongovernmental developer that contributes public facilities to a political subdivision under s. 380.06 or ss. 163.3220-163.3243.

(c)  "Firm" means any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice architecture, engineering, or surveying and mapping in the state.

(d)  "Compensation" means the amount paid by the agency for professional services regardless of whether stated as compensation or stated as hourly rates, overhead rates, or other figures or formulas from which compensation can be calculated.

(e)  "Agency official" means any elected or appointed officeholder, employee, consultant, person in the category of other personal service or any other person receiving compensation from the state, a state agency, municipality, or political subdivision, a school district or a school board.

(f)  "Project" means that fixed capital outlay study or planning activity described in the public notice of the state or a state agency under paragraph (3)(a). A project may include:

1.  A grouping of minor construction, rehabilitation, or renovation activities.

2.  A grouping of substantially similar construction, rehabilitation, or renovation activities.

(g)  A "continuing contract" is a contract for professional services entered into in accordance with all the procedures of this act between an agency and a firm whereby the firm provides professional services to the agency for projects in which construction costs do not exceed $1 million, for study activity when the fee for such professional service does not exceed $50,000, or for work of a specified nature as outlined in the contract required by the agency, with no time limitation except that the contract must provide a termination clause. Firms providing professional services under continuing contracts shall not be required to bid against one another.

(h)  A "design-build firm" means a partnership, corporation, or other legal entity that:

1.  Is certified under s. 489.119 to engage in contracting through a certified or registered general contractor or a certified or registered building contractor as the qualifying agent; or

2.  Is certified under s. 471.023 to practice or to offer to practice engineering; certified under s. 481.219 to practice or to offer to practice architecture; or certified under s. 481.319 to practice or to offer to practice landscape architecture.

(i)  A "design-build contract" means a single contract with a design-build firm for the design and construction of a public construction project.

(j)  A "design criteria package" means concise, performance-oriented drawings or specifications of the public construction project. The purpose of the design criteria package is to furnish sufficient information to permit design-build firms to prepare a bid or a response to an agency's request for proposal, or to permit an agency to enter into a negotiated design-build contract. The design criteria package must specify performance-based criteria for the public construction project, including the legal description of the site, survey information concerning the site, interior space requirements, material quality standards, schematic layouts and conceptual design criteria of the project, cost or budget estimates, design and construction schedules, site development requirements, provisions for utilities, stormwater retention and disposal, and parking requirements applicable to the project.

(k)  A "design criteria professional" means a firm who holds a current certificate of registration under chapter 481 to practice architecture or landscape architecture or a firm who holds a current certificate as a registered engineer under chapter 471 to practice engineering and who is employed by or under contract to the agency for the providing of professional architect services, landscape architect services, or engineering services in connection with the preparation of the design criteria package.

(l)  "Negotiate" or any form of that word means to conduct legitimate, arms length discussions and conferences to reach an agreement on a term or price. For purposes of this section, the term does not include presentation of flat-fee schedules with no alternatives or discussion.

(3)  PUBLIC ANNOUNCEMENT AND QUALIFICATION PROCEDURES.--

(a)1.  Each agency shall publicly announce, in a uniform and consistent manner, each occasion when professional services must be purchased for a project the basic construction cost of which is estimated by the agency to exceed the threshold amount provided in s. 287.017 for CATEGORY FIVE or for a planning or study activity when the fee for professional services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, except in cases of valid public emergencies certified by the agency head. The public notice must include a general description of the project and must indicate how interested consultants may apply for consideration.

2.  Each agency shall provide a good faith estimate in determining whether the proposed activity meets the threshold amounts referred to in this paragraph.

(b)  Each agency shall encourage firms engaged in the lawful practice of their professions that desire to provide professional services to the agency to submit annually statements of qualifications and performance data.

(c)  Any firm or individual desiring to provide professional services to the agency must first be certified by the agency as qualified pursuant to law and the regulations of the agency. The agency must find that the firm or individual to be employed is fully qualified to render the required service. Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record, and experience of the firm or individual.

(d)  Each agency shall evaluate professional services, including capabilities, adequacy of personnel, past record, experience, whether the firm is a certified minority business enterprise as defined by the Florida Small and Minority Business Assistance Act of 1985, and other factors determined by the agency to be applicable to its particular requirements. When securing professional services, an agency must endeavor to meet the minority business enterprise procurement goals under s. 287.09451.

(e)  The public must not be excluded from the proceedings under this section.

(4)  COMPETITIVE SELECTION.--

(a)  For each proposed project, the agency shall evaluate current statements of qualifications and performance data on file with the agency, together with those that may be submitted by other firms regarding the proposed project, and shall conduct discussions with, and may require public presentations by, no fewer than three firms regarding their qualifications, approach to the project, and ability to furnish the required services.

(b)  The agency shall select in order of preference no fewer than three firms deemed to be the most highly qualified to perform the required services. In determining whether a firm is qualified, the agency shall consider such factors as the ability of professional personnel; whether a firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads of the firms; and the volume of work previously awarded to each firm by the agency, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most highly qualified firms. The agency may request, accept, and consider proposals for the compensation to be paid under the contract only during competitive negotiations under subsection (5).

(c)  This subsection does not apply to a professional service contract for a project the basic construction cost of which is estimated by the agency to be not in excess of the threshold amount provided in s. 287.017 for CATEGORY FIVE or for a planning or study activity when the fee for professional services is not in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO. However, if, in using another procurement process, the majority of the compensation proposed by firms is in excess of the appropriate threshold amount, the agency shall reject all proposals and reinitiate the procurement pursuant to this subsection.

(d)  Nothing in this act shall be construed to prohibit a continuing contract between a firm and an agency.

(5)  COMPETITIVE NEGOTIATION.--

(a)  The agency shall negotiate a contract with the most qualified firm for professional services at compensation which the agency determines is fair, competitive, and reasonable. In making such determination, the agency shall conduct a detailed analysis of the cost of the professional services required in addition to considering their scope and complexity. For any lump-sum or cost-plus-a-fixed-fee professional service contract over the threshold amount provided in s. 287.017 for CATEGORY FOUR, the agency shall require the firm receiving the award to execute a truth-in-negotiation certificate stating that wage rates and other factual unit costs supporting the compensation are accurate, complete, and current at the time of contracting. Any professional service contract under which such a certificate is required must contain a provision that the original contract price and any additions thereto will be adjusted to exclude any significant sums by which the agency determines the contract price was increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs. All such contract adjustments must be made within 1 year following the end of the contract.

(b)  Should the agency be unable to negotiate a satisfactory contract with the firm considered to be the most qualified at a price the agency determines to be fair, competitive, and reasonable, negotiations with that firm must be formally terminated. The agency shall then undertake negotiations with the second most qualified firm. Failing accord with the second most qualified firm, the agency must terminate negotiations. The agency shall then undertake negotiations with the third most qualified firm.

(c)  Should the agency be unable to negotiate a satisfactory contract with any of the selected firms, the agency shall select additional firms in the order of their competence and qualification and continue negotiations in accordance with this subsection until an agreement is reached.

(6)  PROHIBITION AGAINST CONTINGENT FEES.--

(a)  Each contract entered into by the agency for professional services must contain a prohibition against contingent fees as follows: "The architect (or registered surveyor and mapper or professional engineer, as applicable) warrants that he or she has not employed or retained any company or person, other than a bona fide employee working solely for the architect (or registered surveyor and mapper, or professional engineer, as applicable) to solicit or secure this agreement and that he or she has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the architect (or registered surveyor and mapper or professional engineer, as applicable) any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this agreement." For the breach or violation of this provision, the agency shall have the right to terminate the agreement without liability and, at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration.

(b)  Any individual, corporation, partnership, firm, or company, other than a bona fide employee working solely for an architect, professional engineer, or registered land surveyor and mapper, who offers, agrees, or contracts to solicit or secure agency contracts for professional services for any other individual, company, corporation, partnership, or firm and to be paid, or is paid, any fee, commission, percentage, gift, or other consideration contingent upon, or resulting from, the award or the making of a contract for professional services shall, upon conviction in a competent court of this state, be found guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083.

(c)  Any architect, professional engineer, or registered surveyor and mapper, or any group, association, company, corporation, firm, or partnership thereof, who offers to pay, or pays, any fee, commission, percentage, gift, or other consideration contingent upon, or resulting from, the award or making of any agency contract for professional services shall, upon conviction in a state court of competent authority, be found guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083.

(d)  Any agency official who offers to solicit or secure, or solicits or secures, a contract for professional services and to be paid, or is paid, any fee, commission, percentage, gift, or other consideration contingent upon the award or making of such a contract for professional services between the agency and any individual person, company, firm, partnership, or corporation shall, upon conviction by a court of competent authority, be found guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083.

(7)  AUTHORITY OF DEPARTMENT OF MANAGEMENT SERVICES.--Notwithstanding any other provision of this section, the Department of Management Services shall be the agency of state government which is solely and exclusively authorized and empowered to administer and perform the functions described in subsections (3), (4), and (5) respecting all projects for which the funds necessary to complete same are appropriated to the Department of Management Services, irrespective of whether such projects are intended for the use and benefit of the Department of Management Services or any other agency of government. However, nothing herein shall be construed to be in derogation of any authority conferred on the Department of Management Services by other express provisions of law. Additionally, any agency of government may, with the approval of the Department of Management Services, delegate to the Department of Management Services authority to administer and perform the functions described in subsections (3), (4), and (5). Under the terms of the delegation, the agency may reserve its right to accept or reject a proposed contract.

(8)  STATE ASSISTANCE TO LOCAL AGENCIES.--On any professional service contract for which the fee is over $25,000, the Department of Transportation or the Department of Management Services shall provide, upon request by a municipality, political subdivision, school board, or school district, and upon reimbursement of the costs involved, assistance in selecting consultants and in negotiating consultant contracts.

(9)  APPLICABILITY TO DESIGN-BUILD CONTRACTS.--

(a)  Except as provided in this subsection, this section is not applicable to the procurement of design-build contracts by any agency, and the agency must award design-build contracts in accordance with the procurement laws, rules, and ordinances applicable to the agency.

(b)  The design criteria package must be prepared and sealed by a design criteria professional employed by or retained by the agency. If the agency elects to enter into a professional services contract for the preparation of the design criteria package, then the design criteria professional must be selected and contracted with under the requirements of subsections (4) and (5). A design criteria professional who has been selected to prepare the design criteria package is not eligible to render services under a design-build contract executed pursuant to the design criteria package.

(c)  Except as otherwise provided in s. 337.11(7), the Department of Management Services shall adopt rules for the award of design-build contracts to be followed by state agencies. Each other agency must adopt rules or ordinances for the award of design-build contracts. Municipalities, political subdivisions, school districts, and school boards shall award design-build contracts by the use of a competitive proposal selection process as described in this subsection, or by the use of a qualifications-based selection process pursuant to subsections (3), (4), and (5) for entering into a contract whereby the selected firm will subsequently establish a guaranteed maximum price and guaranteed completion date. If the procuring agency elects the option of qualifications-based selection, during the selection of the design-build firm the procuring agency shall employ or retain a licensed design professional appropriate to the project to serve as the agency's representative. Procedures for the use of a competitive proposal selection process must include as a minimum the following:

1.  The preparation of a design criteria package for the design and construction of the public construction project.

2.  The qualification and selection of no fewer than three design-build firms as the most qualified, based on the qualifications, availability, and past work of the firms, including the partners or members thereof.

3.  The criteria, procedures, and standards for the evaluation of design-build contract proposals or bids, based on price, technical, and design aspects of the public construction project, weighted for the project.

4.  The solicitation of competitive proposals, pursuant to a design criteria package, from those qualified design-build firms and the evaluation of the responses or bids submitted by those firms based on the evaluation criteria and procedures established prior to the solicitation of competitive proposals.

5.  For consultation with the employed or retained design criteria professional concerning the evaluation of the responses or bids submitted by the design-build firms, the supervision or approval by the agency of the detailed working drawings of the project; and for evaluation of the compliance of the project construction with the design criteria package by the design criteria professional.

6.  In the case of public emergencies, for the agency head to declare an emergency and authorize negotiations with the best qualified design-build firm available at that time.

(10)  REUSE OF EXISTING PLANS.--Notwithstanding any other provision of this section, there shall be no public notice requirement or utilization of the selection process as provided in this section for projects in which the agency is able to reuse existing plans from a prior project of the agency, or, in the case of a board as defined in s. 1013.01, a prior project of that or any other board. Except for plans of a board as defined in s. 1013.01, public notice for any plans that are intended to be reused at some future time must contain a statement that provides that the plans are subject to reuse in accordance with the provisions of this subsection.

(11)  CONSTRUCTION OF LAW.--Nothing in the amendment of this section by chapter 75-281, Laws of Florida, is intended to supersede the provisions of ss. 1013.45 and 1013.46.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, ch. 73-19; ss. 1, 2, 3, ch. 75-281; s. 1, ch. 77-174; s. 1, ch. 77-199; s. 10, ch. 84-321; ss. 23, 32, ch. 85-104; s. 57, ch. 85-349; s. 6, ch. 86-204; s. 1, ch. 88-108; s. 1, ch. 89-158; s. 16, ch. 90-268; s. 15, ch. 91-137; s. 7, ch. 91-162; s. 250, ch. 92-279; s. 55, ch. 92-326; s. 1, ch. 93-95; s. 114, ch. 94-119; s. 10, ch. 94-322; s. 868, ch. 95-148; s. 2, ch. 95-410; s. 45, ch. 96-399; s. 38, ch. 97-100; s. 1, ch. 97-296; s. 80, ch. 98-279; s. 55, ch. 2001-61; s. 63, ch. 2002-20; s. 944, ch. 2002-387; s. 1, ch. 2005-224.

287.056  Purchases from purchasing agreements and state term contracts.--

(1)  Agencies shall, and eligible users may, purchase commodities and contractual services from purchasing agreements established and state term contracts procured, pursuant to s. 287.057, by the department.

(2)  Agencies may have the option to purchase commodities or contractual services from state term contracts procured, pursuant to s. 287.057, by the department which contain a user surcharge pursuant to s. 287.1345 as determined by the department.

(3)  Agencies and eligible users may use a request for quote to obtain written pricing or services information from a state term contract vendor for commodities or contractual services available on state term contract from that vendor. The purpose of a request for quote is to determine whether a price, term, or condition more favorable to the agency or eligible user than that provided in the state term contract is available. Use of a request for quote does not constitute a decision or intended decision that is subject to protest under s. 120.57(3).

History.--s. 17, ch. 92-98; s. 109, ch. 92-142; s. 213, ch. 95-148; s. 30, ch. 95-196; s. 3, ch. 95-216; s. 5, ch. 96-236; s. 81, ch. 98-279; s. 14, ch. 2002-207.

287.057  Procurement of commodities or contractual services.--

(1)(a)  Unless otherwise authorized by law, all contracts for the purchase of commodities or contractual services in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO shall be awarded by competitive sealed bidding. An invitation to bid shall be made available simultaneously to all vendors and must include a detailed description of the commodities or contractual services sought; the time and date for the receipt of bids and of the public opening; and all contractual terms and conditions applicable to the procurement, including the criteria to be used in determining acceptability of the bid. If the agency contemplates renewal of the contract, that fact must be stated in the invitation to bid. The bid shall include the price for each year for which the contract may be renewed. Evaluation of bids shall include consideration of the total cost for each year as submitted by the vendor. Criteria that were not set forth in the invitation to bid may not be used in determining acceptability of the bid.

(b)  The contract shall be awarded with reasonable promptness by written notice to the responsible and responsive vendor that submits the lowest responsive bid. This bid must be determined in writing to meet the requirements and criteria set forth in the invitation to bid.

(2)(a)  If an agency determines in writing that the use of an invitation to bid is not practicable, commodities or contractual services shall be procured by competitive sealed proposals. A request for proposals shall be made available simultaneously to all vendors, and must include a statement of the commodities or contractual services sought; the time and date for the receipt of proposals and of the public opening; and all contractual terms and conditions applicable to the procurement, including the criteria, which shall include, but need not be limited to, price, to be used in determining acceptability of the proposal. The relative importance of price and other evaluation criteria shall be indicated. If the agency contemplates renewal of the commodities or contractual services contract, that fact must be stated in the request for proposals. The proposal shall include the price for each year for which the contract may be renewed. Evaluation of proposals shall include consideration of the total cost for each year as submitted by the vendor.

(b)  The contract shall be awarded to the responsible and responsive vendor whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. The contract file shall contain documentation supporting the basis on which the award is made.

(3)(a)  If the agency determines in writing that the use of an invitation to bid or a request for proposals will not result in the best value to the state, the agency may procure commodities and contractual services by competitive sealed replies. The agency's written determination must specify reasons that explain why negotiation may be necessary in order for the state to achieve the best value and must be approved in writing by the agency head or his or her designee prior to the advertisement of an invitation to negotiate. An invitation to negotiate shall be made available to all vendors simultaneously and must include a statement of the commodities or contractual services sought; the time and date for the receipt of replies and of the public opening; and all terms and conditions applicable to the procurement, including the criteria to be used in determining the acceptability of the reply. If the agency contemplates renewal of the contract, that fact must be stated in the invitation to negotiate. The reply shall include the price for each year for which the contract may be renewed.

(b)  The agency shall evaluate and rank responsive replies against all evaluation criteria set forth in the invitation to negotiate and shall select, based on the ranking, one or more vendors with which to commence negotiations. After negotiations are conducted, the agency shall award the contract to the responsible and responsive vendor that the agency determines will provide the best value to the state. The contract file must contain a short plain statement that explains the basis for vendor selection and that sets forth the vendor's deliverables and price, pursuant to the contract, with an explanation of how these deliverables and price provide the best value to the state.

(4)  Prior to the time for receipt of bids, proposals, or replies, an agency may conduct a conference or written question and answer period for purposes of assuring the vendor's full understanding of the solicitation requirements. The vendors shall be accorded fair and equal treatment.

(5)  When the purchase price of commodities or contractual services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, no purchase of commodities or contractual services may be made without receiving competitive sealed bids, competitive sealed proposals, or competitive sealed replies unless:

(a)  The agency head determines in writing that an immediate danger to the public health, safety, or welfare or other substantial loss to the state requires emergency action. After the agency head makes such a written determination, the agency may proceed with the procurement of commodities or contractual services necessitated by the immediate danger, without receiving competitive sealed bids, competitive sealed proposals, or competitive sealed replies. However, such emergency procurement shall be made by obtaining pricing information from at least two prospective vendors, which must be retained in the contract file, unless the agency determines in writing that the time required to obtain pricing information will increase the immediate danger to the public health, safety, or welfare or other substantial loss to the state. The agency shall furnish copies of all written determinations certified under oath and any other documents relating to the emergency action to the department. A copy of the statement shall be furnished to the Chief Financial Officer with the voucher authorizing payment. The individual purchase of personal clothing, shelter, or supplies which are needed on an emergency basis to avoid institutionalization or placement in a more restrictive setting is an emergency for the purposes of this paragraph, and the filing with the department of such statement is not required in such circumstances. In the case of the emergency purchase of insurance, the period of coverage of such insurance shall not exceed a period of 30 days, and all such emergency purchases shall be reported to the department.

(b)  The purchase is made by an agency from a state term contract procured, pursuant to this section, by the department or by an agency, after receiving approval from the department, from a contract procured, pursuant to subsection (1), subsection (2), or subsection (3), by another agency.

(c)  Commodities or contractual services available only from a single source may be excepted from the competitive-solicitation requirements. When an agency believes that commodities or contractual services are available only from a single source, the agency shall electronically post a description of the commodities or contractual services sought for a period of at least 7 business days. The description must include a request that prospective vendors provide information regarding their ability to supply the commodities or contractual services described. If it is determined in writing by the agency, after reviewing any information received from prospective vendors, that the commodities or contractual services are available only from a single source, the agency shall:

1.  Provide notice of its intended decision to enter a single-source purchase contract in the manner specified in s. 120.57(3), if the amount of the contract does not exceed the threshold amount provided in s. 287.017 for CATEGORY FOUR.

2.  Request approval from the department for the single-source purchase, if the amount of the contract exceeds the threshold amount provided in s. 287.017 for CATEGORY FOUR. The agency shall initiate its request for approval in a form prescribed by the department, which request may be electronically transmitted. The failure of the department to approve or disapprove the agency's request for approval within 21 days after receiving such request shall constitute prior approval of the department. If the department approves the agency's request, the agency shall provide notice of its intended decision to enter a single-source contract in the manner specified in s. 120.57(3).

(d)  When it is in the best interest of the state, the secretary of the department or his or her designee may authorize the Support Program to purchase insurance by negotiation, but such purchase shall be made only under conditions most favorable to the public interest.

(e)  Prescriptive assistive devices for the purpose of medical, developmental, or vocational rehabilitation of clients are excepted from competitive-solicitation requirements and shall be procured pursuant to an established fee schedule or by any other method which ensures the best price for the state, taking into consideration the needs of the client. Prescriptive assistive devices include, but are not limited to, prosthetics, orthotics, and wheelchairs. For purchases made pursuant to this paragraph, state agencies shall annually file with the department a description of the purchases and methods of procurement.

(f)  The following contractual services and commodities are not subject to the competitive-solicitation requirements of this section:

1.  Artistic services.

2.  Academic program reviews.

3.  Lectures by individuals.

4.  Auditing services.

5.  Legal services, including attorney, paralegal, expert witness, appraisal, or mediator services.

6.  Health services involving examination, diagnosis, treatment, prevention, medical consultation, or administration.

7.  Services provided to persons with mental or physical disabilities by not-for-profit corporations which have obtained exemptions under the provisions of s. 501(c)(3) of the United States Internal Revenue Code or when such services are governed by the provisions of Office of Management and Budget Circular A-122. However, in acquiring such services, the agency shall consider the ability of the vendor, past performance, willingness to meet time requirements, and price.

8.  Medicaid services delivered to an eligible Medicaid recipient by a health care provider who has not previously applied for and received a Medicaid provider number from the Agency for Health Care Administration. However, this exception shall be valid for a period not to exceed 90 days after the date of delivery to the Medicaid recipient and shall not be renewed by the agency.

9.  Family placement services.

10.  Prevention services related to mental health, including drug abuse prevention programs, child abuse prevention programs, and shelters for runaways, operated by not-for-profit corporations. However, in acquiring such services, the agency shall consider the ability of the vendor, past performance, willingness to meet time requirements, and price.

11.  Training and education services provided to injured employees pursuant to s. 440.491(6).

12.  Contracts entered into pursuant to s. 337.11.

13.  Services or commodities provided by governmental agencies.

14.  Voter education activities of the Department of State or the supervisors of elections funded by Specific Appropriation 2871H of the 2004-2005 General Appropriations Act, either individually or in the aggregate or with their respective professional associations. This subparagraph expires July 1, 2005.

(g)  Continuing education events or programs that are offered to the general public and for which fees have been collected that pay all expenses associated with the event or program are exempt from requirements for competitive solicitation.

(6)  If less than two responsive bids, proposals, or replies for commodity or contractual services purchases are received, the department or other agency may negotiate on the best terms and conditions. The department or other agency shall document the reasons that such action is in the best interest of the state in lieu of resoliciting competitive sealed bids, proposals, or replies. Each agency shall report all such actions to the department on a quarterly basis, in a manner and form prescribed by the department.

(7)  Upon issuance of any solicitation, an agency shall, upon request by the department, forward to the department one copy of each solicitation for all commodity and contractual services purchases in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO. An agency shall also, upon request, furnish a copy of all competitive-solicitation tabulations. The Office of Supplier Diversity may also request from the agencies any information submitted to the department pursuant to this subsection.

(8)(a)  In order to strive to meet the minority business enterprise procurement goals set forth in s. 287.09451, an agency may reserve any contract for competitive solicitation only among certified minority business enterprises. Agencies shall review all their contracts each fiscal year and shall determine which contracts may be reserved for solicitation only among certified minority business enterprises. This reservation may only be used when it is determined, by reasonable and objective means, before the solicitation that there are capable, qualified certified minority business enterprises available to submit a bid, proposal, or reply on a contract to provide for effective competition. The Office of Supplier Diversity shall consult with any agency in reaching such determination when deemed appropriate.

(b)  Before a contract may be reserved for solicitation only among certified minority business enterprises, the agency head must find that such a reservation is in the best interests of the state. All determinations shall be subject to s. 287.09451(5). Once a decision has been made to reserve a contract, but before sealed bids, proposals, or replies are requested, the agency shall estimate what it expects the amount of the contract to be, based on the nature of the services or commodities involved and their value under prevailing market conditions. If all the sealed bids, proposals, or replies received are over this estimate, the agency may reject the bids, proposals, or replies and request new ones from certified minority business enterprises, or the agency may reject the bids, proposals, or replies and reopen the bidding to all eligible vendors.

(c)  All agencies shall consider the use of price preferences of up to 10 percent, weighted preference formulas, or other preferences for vendors as determined appropriate pursuant to guidelines established in accordance with s. 287.09451(4) to increase the participation of minority business enterprises.

(d)  All agencies shall avoid any undue concentration of contracts or purchases in categories of commodities or contractual services in order to meet the minority business enterprise purchasing goals in s. 287.09451.

(9)  An agency may reserve any contract for competitive solicitation only among vendors who agree to use certified minority business enterprises as subcontractors or subvendors. The percentage of funds, in terms of gross contract amount and revenues, which must be expended with the certified minority business enterprise subcontractors and subvendors shall be determined by the agency before such contracts may be reserved. In order to bid on a contract so reserved, the vendor shall identify those certified minority business enterprises which will be utilized as subcontractors or subvendors by sworn statement. At the time of performance or project completion, the contractor shall report by sworn statement the payments and completion of work for all certified minority business enterprises used in the contract.

(10)  An agency shall not divide the procurement of commodities or contractual services so as to avoid the requirements of subsections (1) through (5).

(11)  A contract for commodities or contractual services may be awarded without competition if state or federal law prescribes with whom the agency must contract or if the rate of payment is established during the appropriations process.

(12)  If two equal responses to a solicitation or a request for quote are received and one response is from a certified minority business enterprise, the agency shall enter into a contract with the certified minority business enterprise.

(13)  Extension of a contract for contractual services shall be in writing for a period not to exceed 6 months and shall be subject to the same terms and conditions set forth in the initial contract. There shall be only one extension of a contract unless the failure to meet the criteria set forth in the contract for completion of the contract is due to events beyond the control of the contractor.

¹(14)(a)  Contracts for commodities or contractual services may be renewed for a period that may not exceed 3 years or the term of the original contract, whichever period is longer. Renewal of a contract for commodities or contractual services shall be in writing and shall be subject to the same terms and conditions set forth in the initial contract. If the commodity or contractual service is purchased as a result of the solicitation of bids, proposals, or replies, the price of the commodity or contractual service to be renewed shall be specified in the bid, proposal, or reply. A renewal contract may not include any compensation for costs associated with the renewal. Renewals shall be contingent upon satisfactory performance evaluations by the agency and subject to the availability of funds. Exceptional purchase contracts pursuant to paragraphs (5)(a) and (c) may not be renewed.

(b)  Notwithstanding paragraph (a), the Department of Children and Family Services may enter into agreements, not to exceed 20 years, with a private provider to finance, design, and construct a forensic treatment facility, as defined in s. 916.106(8), of at least 200 beds and to operate all aspects of daily operations within the forensic treatment facility. The selected contractor is authorized to sponsor the issuance of tax-exempt certificates of participation or other securities to finance the project, and the state is authorized to enter into a lease-purchase agreement for the forensic treatment facility. This paragraph expires July 1, 2006.

(15)  For each contractual services contract, the agency shall designate an employee to function as contract manager who shall be responsible for enforcing performance of the contract terms and conditions and serve as a liaison with the contractor. The agency shall establish procedures to ensure that contractual services have been rendered in accordance with the contract terms prior to processing the invoice for payment.

(16)  Each agency shall designate at least one employee who shall serve as a contract administrator responsible for maintaining a contract file and financial information on all contractual services contracts and who shall serve as a liaison with the contract managers and the department.

(17)  For a contract in excess of the threshold amount provided in s. 287.017 for CATEGORY FOUR, the agency head shall appoint:

(a)  At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought.

(b)  At least three persons to conduct negotiations during a competitive sealed reply procurement who collectively have experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought.

(18)  A person who receives a contract that has not been procured pursuant to subsections (1) through (5) to perform a feasibility study of the potential implementation of a subsequent contract, who participates in the drafting of a solicitation or who develops a program for future implementation, is not eligible to contract with the agency for any other contracts dealing with that specific subject matter, and any firm in which such person has any interest is not eligible to receive such contract. However, this prohibition does not prevent a vendor who responds to a request for information from being eligible to contract with an agency.

(19)  Each agency shall establish a review and approval process for all contractual services contracts costing more than the threshold amount provided for in s. 287.017 for CATEGORY THREE which shall include, but not be limited to, program, financial, and legal review and approval. Such reviews and approvals shall be obtained before the contract is executed.

(20)  In any procurement that costs more than the threshold amount provided for in s. 287.017 for CATEGORY TWO and is accomplished without competition, the individuals taking part in the development or selection of criteria for evaluation, the evaluation process, and the award process shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected.

(21)  Nothing in this section shall affect the validity or effect of any contract in existence on October 1, 1990.

(22)  An agency may contract for services with any independent, nonprofit college or university which is located within the state and is accredited by the Southern Association of Colleges and Schools, on the same basis as it may contract with any state university and college.

(23)(a)  The department, in consultation with the State Technology Office and the Comptroller, shall develop a program for on-line procurement of commodities and contractual services. To enable the state to promote open competition and to leverage its buying power, agencies shall participate in the on-line procurement program, and eligible users may participate in the program. Only vendors prequalified as meeting mandatory requirements and qualifications criteria shall be permitted to participate in on-line procurement. The department, in consultation with the State Technology Office, may contract for equipment and services necessary to develop and implement on-line procurement.

(b)  The department, in consultation with the State Technology Office, shall adopt rules, pursuant to ss. 120.536(1) and 120.54, to administer the program for on-line procurement. The rules shall include, but not be limited to:

1.  Determining the requirements and qualification criteria for prequalifying vendors.

2.  Establishing the procedures for conducting on-line procurement.

3.  Establishing the criteria for eligible commodities and contractual services.

4.  Establishing the procedures for providing access to on-line procurement.

5.  Determining the criteria warranting any exceptions to participation in the on-line procurement program.

(c)1.  The department may impose and shall collect all fees for the use of the on-line procurement systems. Such fees may be imposed on an individual transaction basis or as a fixed percentage of the cost savings generated. At a minimum, the fees must be set in an amount sufficient to cover the projected costs of such services, including administrative and project service costs in accordance with the policies of the department. All fees and surcharges collected under this paragraph shall be deposited in the Grants and Donations Trust Fund as provided by law.

2.  If the department contracts with a provider for on-line procurement, the department, pursuant to appropriation, shall compensate the provider from such fees after the department has satisfied all ongoing costs. The provider shall report transaction data to the department each month so that the department may determine the amount due and payable to the department from each vendor.

3.  All fees that are due and payable to the state on a transactional basis or as a fixed percentage of the cost savings generated are subject to s. 215.31 and must be remitted within 40 days after receipt of payment for which such fees are due. For any fees that are not remitted within 40 days, the vendor shall pay interest at the rate established under s. 55.03(1) on the unpaid balance from the expiration of the 40-day period until the fees are remitted.

(24)(a)  The State Technology Office shall establish, in consultation with the department, state strategic information technology alliances for the acquisition and use of information technology and related material with prequalified contractors or partners to provide the state with efficient, cost-effective, and advanced information technology.

(b)  In consultation with and under contract to the State Technology Office, the state strategic information technology alliances shall design, develop, and deploy projects providing the information technology needed to collect, store, and process the state's data and information, provide connectivity, and integrate and standardize computer networks and information systems of the state.

(c)  The partners in the state strategic information technology alliances shall be industry leaders with demonstrated experience in the public and private sectors.

(d)  The State Technology Office, in consultation with the department, shall adopt rules, pursuant to ss. 120.536(1) and 120.54, to administer the state strategic information technology alliances.

²(25)  For the 2005-2006 fiscal year only, notwithstanding any specific provision of this chapter or chapter 255 to the contrary, the Department of Management Services is authorized to issue an invitation to negotiate to contract for 384 additional beds for expansion at the Gadsden Correctional Facility to house medium-custody female inmates and for 235 additional beds for expansion at the Bay Correctional Facility and 235 additional beds at Moore Haven Correctional Facility to house medium-custody and close-custody inmates. Any such invitation to negotiate shall be limited to modifications of existing contracts between the Department of Management Services and firms currently operating private correctional facilities and shall be for design, financing, acquisition, leasing, construction, and operation of the additional beds. By October 1, 2005, and quarterly thereafter, the department shall report to the President of the Senate and the Speaker of the House of Representatives on the specific activities completed and remaining to be completed, along with timeframes for each activity, to add the additional beds. Procurement should be completed in a manner that allows sufficient time for the new beds to become operational by July 2007. This subsection expires July 1, 2006.

History.--s. 1, ch. 78-4; s. 2, ch. 80-206; s. 4, ch. 80-374; s. 1, ch. 82-121; s. 9, ch. 82-196; s. 3, ch. 83-99; s. 3, ch. 83-192; s. 7, ch. 86-204; s. 9, ch. 88-384; s. 1, ch. 89-377; s. 17, ch. 90-268; s. 8, ch. 91-162; s. 251, ch. 92-279; s. 55, ch. 92-326; s. 7, ch. 93-161; s. 11, ch. 94-322; s. 869, ch. 95-148; s. 6, ch. 96-236; s. 30, ch. 97-153; s. 82, ch. 98-279; s. 11, ch. 99-4; s. 50, ch. 99-8; s. 45, ch. 99-399; s. 33, ch. 2000-164; s. 11, ch. 2000-286; s. 56, ch. 2001-61; s. 4, ch. 2001-278; s. 37, ch. 2002-1; s. 15, ch. 2002-207; s. 331, ch. 2003-261; s. 20, ch. 2004-5; ss. 9, 58, ch. 2004-269; s. 1, ch. 2005-59; ss. 6, 15, ch. 2005-71.

¹Note.--

A.  Section 6, ch. 2005-71, amended subsection (14) "[i]n order to implement Specific Appropriations 395-404 of the 2005-2006 General Appropriations Act." Some proviso language relating to these appropriations was vetoed. See ch. 2005-70, the 2005-2006 General Appropriations Act.

B.  Section 54, ch. 2005-71, provides that "[a] section of this act that implements a specific appropriation or specifically identified proviso language in the 2005-2006 General Appropriations Act is void if the specific appropriation or specifically identified proviso language is vetoed. A section of this act that implements more than one specific appropriation or more than one portion of specifically identified proviso language in the 2005-2006 General Appropriations Act is void if all the specific appropriations or portions of specifically identified proviso language are vetoed." Not all portions of specifically identified proviso language relating to the amendment of s. 287.057(14) were vetoed.

²Note.--Section 15, ch. 2005-71, added subsection (25) "[i]n order to implement Specific Appropriations 676 and 688 of the 2005-2006 General Appropriations Act."

287.0572  Present-value methodology.--

(1)  The cost of bids, proposals, or replies for state contracts that include provisions for unequal payment streams or unequal time payment periods shall be evaluated using present-value methodology. Each agency, as defined in s. 287.012(1), shall perform the evaluation using the present-value discount rate supplied by the department. The present-value discount rate shall be the rate for United States Treasury notes and bonds published in the Interest Rates: Money and Capital Markets section of the most recent copy of the Federal Reserve Bulletin published at the time of issuance of the request for proposals, the invitation to negotiate, or the invitation to bid.

(2)  The department may adopt rules to administer subsection (1).

History.--ss. 1, 2, ch. 85-122; s. 252, ch. 92-279; s. 55, ch. 92-326; s. 16, ch. 2002-207.

287.058  Contract document.--

(1)  Every procurement of contractual services in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO, except for the providing of health and mental health services or drugs in the examination, diagnosis, or treatment of sick or injured state employees or the providing of other benefits as required by the provisions of chapter 440, shall be evidenced by a written agreement embodying all provisions and conditions of the procurement of such services, which provisions and conditions shall, where applicable, include, but shall not be limited to:

(a)  A provision that bills for fees or other compensation for services or expenses be submitted in detail sufficient for a proper preaudit and postaudit thereof.

(b)  A provision that bills for any travel expenses be submitted in accordance with s. 112.061. A state agency may establish rates lower than the maximum provided in s. 112.061.

(c)  A provision allowing unilateral cancellation by the agency for refusal by the contractor to allow public access to all documents, papers, letters, or other material made or received by the contractor in conjunction with the contract, unless the records are exempt from s. 24(a) of Art. I of the State Constitution and s. 119.07(1).

(d)  A provision dividing the contract into units of deliverables, which shall include, but not be limited to, reports, findings, and drafts, that must be received and accepted in writing by the contract manager prior to payment.

(e)  A provision specifying the criteria and the final date by which such criteria must be met for completion of the contract.

(f)  A provision specifying that the contract may be renewed for a period that may not exceed 3 years or the term of the original contract, whichever period is longer, specifying the renewal price for the contractual service as set forth in the bid, proposal, or reply, specifying that costs for the renewal may not be charged, and specifying that renewals shall be contingent upon satisfactory performance evaluations by the agency and subject to the availability of funds. Exceptional purchase contracts pursuant to s. 287.057(5)(a) and (c) may not be renewed.

In lieu of a written agreement, the department may authorize the use of a purchase order for classes of contractual services, if the provisions of paragraphs (a)-(f) are included in the purchase order or solicitation. The purchase order must include, but need not be limited to, an adequate description of the services, the contract period, and the method of payment. In lieu of printing the provisions of paragraphs (a)-(f) in the contract document or purchase order, agencies may incorporate the requirements of paragraphs (a)-(f) by reference.

(2)  The written agreement shall be signed by the agency head and the contractor prior to the rendering of any contractual service the value of which is in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO, except in the case of a valid emergency as certified by the agency head. The certification of an emergency shall be prepared within 30 days after the contractor begins rendering the service and shall state the particular facts and circumstances which precluded the execution of the written agreement prior to the rendering of the service. If the agency fails to have the contract signed by the agency head and the contractor prior to rendering the contractual service, and if an emergency does not exist, the agency head shall, no later than 30 days after the contractor begins rendering the service, certify the specific conditions and circumstances to the department as well as describe actions taken to prevent recurrence of such noncompliance. The agency head may delegate the certification only to other senior management agency personnel. A copy of the certification shall be furnished to the Chief Financial Officer with the voucher authorizing payment. The department shall report repeated instances of noncompliance by an agency to the Auditor General. Nothing in this subsection shall be deemed to authorize additional compensation prohibited by s. 215.425. The procurement of contractual services shall not be divided so as to avoid the provisions of this section.

(3)  Notwithstanding the provisions of subsections (1) and (2), in those cases in which state agencies are unable to procure a written agreement for the providing of health and mental health services or drugs in the examination, diagnosis, or treatment of sick or injured persons in the care or custody of a state agency, those services and drugs may be obtained by purchase order. The purchase order shall contain sufficient detail for a proper audit and shall be signed by purchasing or contracting personnel acting on behalf of the agency.

(4)  Every procurement of contractual services of the value of the threshold amount provided in s. 287.017 for CATEGORY TWO or less, except for the providing of health and mental health services or drugs in the examination, diagnosis, or treatment of sick or injured state employees or the providing of other benefits as required by the provisions of chapter 440, shall be evidenced by a written agreement or purchase order. The written agreement or purchase order must contain sufficient detail for a proper audit, must be signed by purchasing or contracting personnel acting on behalf of the agency, and may contain the provisions and conditions provided in subsection (1).

(5)  Unless otherwise provided in the General Appropriations Act or the substantive bill implementing the General Appropriations Act, the Chief Financial Officer may waive the requirements of this section for services which are included in s. 287.057(5)(f).

History.--s. 10, ch. 82-196; s. 4, ch. 83-192; s. 1, ch. 85-30; s. 47, ch. 86-183; s. 8, ch. 86-204; s. 10, ch. 88-384; s. 20, ch. 88-557; s. 18, ch. 90-268; s. 8, ch. 93-161; s. 2, ch. 95-420; s. 7, ch. 96-236; s. 83, ch. 98-279; s. 3, ch. 2001-266; s. 12, ch. 2001-278; s. 17, ch. 2002-207; s. 332, ch. 2003-261.

287.05805  Contract requirement for use of state funds to purchase or improve real property.--Each state agency shall include in its standard contract document a requirement that any state funds provided for the purchase of or improvements to real property are contingent upon the contractor or political subdivision granting to the state a security interest in the property at least to the amount of state funds provided for at least 5 years from the date of purchase or the completion of the improvements or as further required by law.

History.--s. 70, ch. 2000-367.

Note.--Former s. 253.85.

287.0582  Contracts which require annual appropriation; contingency statement.--No executive branch public officer or employee shall enter into any contract on behalf of the state, which contract binds the state or its executive agencies for the purchase of services or tangible personal property for a period in excess of 1 fiscal year, unless the following statement is included in the contract: "The State of Florida's performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature."

History.--s. 3, ch. 85-122.

287.0585  Late payments by contractors to subcontractors and suppliers; penalty.--

(1)  When a contractor receives from a state agency any payment for contractual services, commodities, supplies, or construction contracts, except those construction contracts subject to the provisions of chapter 339, the contractor shall pay such moneys received to each subcontractor and supplier in proportion to the percentage of work completed by each subcontractor and supplier at the time of receipt of the payment. If the contractor receives less than full payment, then the contractor shall be required to disburse only the funds received on a pro rata basis with the contractor, subcontractors, and suppliers, each receiving a prorated portion based on the amount due on the payment. If the contractor without reasonable cause fails to make payments required by this section to subcontractors and suppliers within 7 working days after the receipt by the contractor of full or partial payment, the contractor shall pay to the subcontractors and suppliers a penalty in the amount of one-half of 1 percent of the amount due, per day, from the expiration of the period allowed herein for payment. Such penalty shall be in addition to actual payments owed and shall not exceed 15 percent of the outstanding balance due. In addition to other fines or penalties, a person found not in compliance with any provision of this subsection may be ordered by the court to make restitution for attorney's fees and all related costs to the aggrieved party or the Department of Legal Affairs when it provides legal assistance pursuant to this section. The Department of Legal Affairs may provide legal assistance to subcontractors or vendors in proceedings brought against contractors under the provisions of this section.

(2)  This section shall not apply when the contract between the contractor and subcontractors or subvendors provides otherwise, or when payments under the contract are otherwise governed by ss. 255.0705-255.078.

History.--s. 5, ch. 85-104; s. 2, ch. 89-200; s. 9, ch. 91-162; s. 14, ch. 2005-230.

¹287.059  Private attorney services.--

(1)  For purposes of this section, the term "agency" or "state agency" includes state officers, departments, boards, commissions, divisions, bureaus, councils, and units of organization, however designated, of the executive branch of state government, community and junior colleges, and multicounty special districts exclusive of those created by interlocal agreement or which have elected governing boards.

(2)  No agency shall contract for private attorney services without the prior written approval of the Attorney General, except that such written approval is not required for private attorney services:

(a)  Procured by the Executive Office of the Governor, offices under the jurisdiction of the Financial Services Commission, or any department under the exclusive jurisdiction of a single Cabinet officer.

(b)  Provided by legal services organizations to indigent clients.

(c)  Necessary to represent the state in litigation involving the State Risk Management Trust Fund pursuant to part II of chapter 284.

(d)  Procured by the university and college boards of trustees or the state universities and colleges.

(e)  Procured by community and junior colleges and multicounty special districts.

(f)  Procured by the Board of Trustees for the Florida School for the Deaf and the Blind.

(3)  An agency requesting approval for the use of private attorney services shall first offer to contract with the Department of Legal Affairs for such attorney services at a cost pursuant to mutual agreement. The Attorney General shall decide on a case-by-case basis to accept or decline to provide such attorney services as staffing, expertise, or other legal or economic considerations warrant. If the Attorney General declines to provide the requested attorney services, the Attorney General's written approval shall include a statement that the private attorney services requested cannot be provided by the office of the Attorney General or that such private attorney services are cost-effective in the opinion of the Attorney General. The Attorney General shall not consider political affiliation in making such decision. The office of the Attorney General shall respond to the request of an agency for prior written approval within 10 working days after receiving such request. The Attorney General may request additional information necessary for evaluation of a request. The Attorney General shall respond to the request within 10 working days after receipt of the requested information. Those agencies exempt from written approval from the Attorney General, as described in paragraphs (2)(a)-(f), may contract with the Department of Legal Affairs for attorney services. The Attorney General shall determine on a case-by-case basis whether to provide such attorney services as staffing, expertise, or other legal considerations warrant. The Attorney General may adopt, by rule, a form on which agencies requesting written approval for private attorney services shall provide information concerning:

(a)  The nature of the attorney services to be provided and the issues involved.

(b)  The need for use of private attorneys, rather than agency staff attorneys, utilizing the criteria provided in subsection (9).

(c)  The criteria by which the agency selected the private attorney or law firm it proposes to employ, utilizing the criteria provided in subsection (10).

(d)  Competitive fees for similar attorney services.

(e)  The agency's analysis estimating the number of hours for attorney services, the costs, the total contract amount, and, when appropriate, a risk or cost-benefit analysis.

(f)  Which partners, associates, paralegals, research associates, or other personnel will be used, and how their time will be billed to the agency.

(g)  Any other information which the Attorney General deems appropriate for the proper evaluation of the need for such private attorney services.

(4)  When written approval has been received from the Attorney General, the general counsel for the agency shall review the form and legality of the contract for private attorney services and shall indicate his or her approval by signing the contract. After a contract is approved and signed by the general counsel, in order to effectuate that contract the agency head must sign the contract. The agency head shall also maintain custody of the contract.

(5)  The agency head or a designee shall give written approval prior to contracting for private attorney services for all agencies exempt from written approval of the Attorney General as described in paragraphs (2)(a)-(f).

(6)  The Attorney General shall, by rule, adopt a standard fee schedule for private attorney services using hourly rates or an alternative billing methodology. The Attorney General shall take into consideration the following factors:

(a)  Type of controversy involved and complexity of the legal services needed.

(b)  Geographic area where the attorney services are to be provided.

(c)  Novelty of the legal questions involved.

(d)  Amount of experience desired for the particular kind of attorney services to be provided.

(e)  Other factors deemed appropriate by the Attorney General.

(f)  The most cost-effective or appropriate billing methodology.

(7)(a)  A contingency fee contract must be commercially reasonable. As used in this subsection, the term "commercially reasonable" means no more than the amount permissible pursuant to rule 4-1.5 of the rules regulating The Florida Bar and case law interpreting that rule.

(b)  If the amount of the fee is in dispute, the counsel retained by the state shall participate in mandatory binding arbitration. Payment of all attorney's fees is subject to appropriation. Attorney's fees shall be forfeited if, during the pendency of the case, the counsel retained by the state takes a public position that is adverse to the state's litigation or settlement posture.

(8)  All agencies, when contracting for private attorney services, must use the standard fee schedule for private attorney services as established pursuant to this section unless the head of the agency, or his or her designee, waives use of the schedule and sets forth the reasons for deviating from the schedule in writing to the Attorney General. Such waiver must demonstrate necessity based upon criteria for deviation from the schedule which the Attorney General shall establish by rule.

(9)  The Attorney General shall develop guidelines that may be used by agencies to determine when it is necessary and appropriate to seek private attorney services in lieu of staff attorney services.

(10)  Agencies are encouraged to use the following criteria when selecting outside firms for attorney services:

(a)  The magnitude or complexity of the case.

(b)  The firm's ratings and certifications.

(c)  The firm's minority status.

(d)  The firm's physical proximity to the case and the agency.

(e)  The firm's prior experience with the agency.

(f)  The firm's prior experience with similar cases or issues.

(g)  The firm's billing methodology and proposed rate.

(h)  The firm's current or past adversarial position, or conflict of interest, with the agency.

(i)  The firm's willingness to use resources of the agency to minimize costs.

(11)  The Attorney General shall develop a standard addendum to every contract for attorney services that must be used by all agencies, unless waived by the Attorney General, describing in detail what is expected of both the contracted private attorney and the contracting agency. The addendum must address the internal system of governance if multiple law firms are parties to the contract and must, at a minimum, require that each firm identify one member who is authorized to legally bind the firm.

(12)  Contracts for attorney services shall be originally executed for 1 year only, except that multiyear contracts may be entered into provided they are subject to annual appropriations and annual written approval from the Attorney General as described in subsection (3). Any amendments to extend the contract period or increase the billing rate or overall contract amount shall be considered new contracts for purposes of the written approval process described in subsection (3).

(13)  The office of the Attorney General shall periodically prepare and distribute to agencies a roster by geographic location of private attorneys under contract with agencies, their fees, and primary area of legal specialization.

(14)  The office of the Attorney General is authorized to competitively bid and contract with one or more court reporting services, on a circuitwide basis, on behalf of all state agencies in accordance with s. 287.057(2). The office of the Attorney General shall develop requests for proposal for court reporter services in consultation with the Florida Court Reporters Association. All agencies shall utilize the contracts for court reporting services entered into by the office of the Attorney General where in force, unless otherwise ordered by a court or unless an agency has a contract for court reporting services executed prior to May 5, 1993.

(15)  The Attorney General's office may, by rule, adopt standard fee schedules for court reporting services for each judicial circuit in consultation with the Florida Court Reporters Association. Agencies, when contracting for court reporting services, must use the standard fee schedule for court reporting services established pursuant to this section, provided no state contract is applicable or unless the head of the agency or his or her designee waives use of the schedule and sets forth the reasons for deviating from the schedule in writing to the Attorney General. Such waiver must demonstrate necessity based upon criteria for deviation from the schedule which the Attorney General shall establish by rule. Any proposed fee schedule under this section shall be submitted to the Governor, the Speaker of the House of Representatives, the President of the Senate, and the Chief Justice of the Florida Supreme Court at least 60 days prior to publication of the notice to adopt the rule.

(16)  Each private attorney who is under contract to provide attorney services for the state or a state agency shall, from the inception of the contractual relationship until at least 4 years after the contract expires or terminates, maintain detailed current records, including documentation of all expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that concern the provision of such attorney services. The private attorney shall make all such records available for inspection and copying upon request in accordance with chapter 119.

History.--s. 5, ch. 82-196; s. 2, ch. 84-158; s. 1, ch. 90-147; s. 19, ch. 90-268; s. 16, ch. 92-170; s. 9, ch. 93-161; s. 13, ch. 94-124; s. 870, ch. 95-148; ss. 10, 11, ch. 95-222; s. 54, ch. 99-13; s. 5, ch. 99-280; s. 19, ch. 2000-122; s. 4, ch. 2001-266; s. 18, ch. 2002-207; s. 333, ch. 2003-261.

¹Note.--Section 1, ch. 92-37, provides that "[n]otwithstanding the provisions of chapter 39, Florida Statutes, to the contrary, the attorneys whose compensation was provided in the November 1989 Supplemental Appropriations Act and is continued in subsequent general appropriations acts shall provide legal representation in cases arising under sections 39.40-39.474, Florida Statutes." Provisions within chapter 39 were transferred to other locations by ch. 97-238, ch