HB 1079 — Agency Contracts for Commodities and Contractual Services

Renewals are contingent upon satisfactory performance evaluations by the agency and subject to the availability of funds.

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 2.

Managing and documenting any changes to the contract throughPage the9 amendment process authorized by the terms of the21 contract.CODING:

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hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1079 2021 through the amendment process authorized by the terms of the contract.

The procedures must include, but need not be limited to, procedures for monitoring and documenting contractor performance, reviewing and documenting all deliverables for which payment is requested by vendors, and providing written certification by contract managers of the Pageagency's 10receipt of 33goods CODING:and services.

(c)(b) Each contract manager who is responsible for contracts in excess of $100,000 annually must, in addition to the accountability in contracts and grant management training Page 10 of 21 CODING:

hb1079-02-c2hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 1079 2021 agency'srequired receiptin ofparagraph goods(b) and services.within 6 months after being assigned responsibility for such contracts, complete training in contract management and become a certified contract manager.

(c)(b) Each contract manager who is responsible for contracts in excess of $100,000 annually must, in addition to the accountability in contracts and grant management training required in paragraph (b) and within 6 months after being assigned responsibility for such contracts, complete training in contract management and become a certified contract manager.

Training must promote best practices and procedures related to negotiating, managing, and ensuring accountability in agency contracts and grant agreements, which Pagemust 11include the use of 33case CODING:studies based upon previous audits, contracts, and grant agreements.

All agency contract managers must become certified within 24 months after establishment of the training and certification requirements by the department Page 11 of 21 CODING:

hb1079-02-c2hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 1079 2021 mustand include the useDepartment of caseFinancial studiesServices. based upon previous audits, contracts, and grant agreements.

All agency contract managers must become certified within 24 months after establishment of the training and certification requirements by the department and the Department of Financial Services.

At least three persons to independently evaluate Pageproposals 12and ofreplies 33who CODING:collectively have experience and knowledge in the program areas and service requirements for the commodity which commodities or contractual services are sought.

2.

At least three persons to a negotiation team to conduct Page 12 of 21 CODING:

hb1079-02-c2hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 1079 2021 proposalsnegotiations andduring repliesa whocompetitive collectivelysealed havereply experienceprocurement. and knowledge in the program areas and service requirements for the commodity which commodities or contractual services are sought.

2.

At least three persons to a negotiation team to conduct negotiations during a competitive sealed reply procurement.

The Project Management Professional shall provide guidance based on his or Pageher 13experience, ofeducation, 33and CODING:competency to lead and direct complex projects.

3.

The department is responsible for establishing and disseminating the certification and training requirements for Page 13 of 21 CODING:

hb1079-02-c2hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 1079 2021 hercertified experience,contract education,negotiators. and competency to lead and direct complex projects.

3.

The department is responsible for establishing and disseminating the certification and training requirements for certified contract negotiators.

At least 12 months' experience as a purchasing agent, contract manager, or contract administrator for an agency or a local governmental entity where at least 50 percent of the designated duties included procuring commodities or contractual services, participating in contract negotiation, contract management, or contract administration, or working as an agency attorney whose duties included providing legal counsel to the agency's purchasing or contracting staff.

Experience during the preceding 5 years in leading at least two federal, state, or local government negotiation teams through a negotiated procurement, or participation in at least three federal, state, or local government negotiated Pageprocurements. 14 of 33 CODING:

(18) Any person who supervises contract administrators or contract or grant managers that meet criteria for certification in subsection (15) shall annually complete public procurement Page 14 of 21 CODING:

hb1079-02-c2hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 1079 2021 procurements.training for supervisors within 12 months of appointment to the supervisory position.

(18) Any person who supervises contract administrators or contract or grant managers that meet criteria for certification in subsection (15) shall annually complete public procurement training for supervisors within 12 months after appointment to the supervisory position.

(26)(a) For each contractual services contract ofin $5excess millionof or$1 greater,million, the agency head shall establish a continuing oversight team after the contract has been awarded.

If the value of the contractual services contract is $10in millionexcess orof greater,$5 million, at least one of the persons on the continuing oversight team must possess at least 5 years of experience in managing contracts of a similar scope or size.

If the value of the contractual services contract is $20in millionexcess orof greater,$20 million, the continuing oversight team shall consist of at least five persons, at least one of the persons on the continuing oversight team must be from a state agency other than the agency or agencies participating in the contract.

Members of the continuing oversight team must be employees of the state and must collectively have experience and knowledge in contract Pagemanagement, 15contract ofadministration, 33contract CODING:enforcement, and the program areas and service requirements for the contractual services purchased.

(b)1.

For contracts in excess of $1 million, each Page 15 of 21 CODING:

hb1079-02-c2hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 1079 2021 management,continuing contractoversight administration,team contractmust enforcement,meet andat theleast programquarterly. areas and service requirements for the contractual services purchased.

(b)1.

For contracts of $5 million or greater, each continuing oversight team must meet at least quarterly.

For contracts in excess of $10 millionmillion, or greater, each continuing oversight team must meet at least monthly.

Within 30 days afterof the formation of the continuing oversight team, the continuing oversight team must convene an initial meeting with representatives of the contractor to achieve a mutual understanding of the contract requirements, to provide the contractor with an orientation to the contract management process, and to provide an explanation of the role of the continuing oversight team, contract manager, and contract administrator.

The contract administrator must be present at each meeting with the contract file and all applicable financial Pageinformation. 16 of 33 CODING:

The continuing oversight team may submit written questions to the contractor concerning any items discussed during a continuing oversight team meeting.

The contractor must respond to the team's questions within 10 business days after Page 16 of 21 CODING:

hb1079-02-c2hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 1079 2021 information.receiving the written questions.

The continuing oversight team may submit written questions to the contractor concerning any items discussed during a continuing oversight team meeting.

The contractor must respond to the team's questions within 10 business days after receiving the written questions.

Subsection (7) is added to section 287.058, PageFlorida 17Statutes, ofto 33read: CODING:

287.058 Contract document.— (7) A contract may not contain a nondisclosure clause that prohibits the contractor from disclosing information relevant to Page 17 of 21 CODING:

hb1079-02-c2hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 1079 2021 Floridathe Statutes,performance of the contract to read:members or staff of the Senate or the House of Representatives.

287.058 Contract document.— (7) A contract may not contain a nondisclosure clause that prohibits the contractor from disclosing information relevant to the performance of the contract to members or staff of the Senate or the House of Representatives.

(b) An agency may not accept a bid, proposal, or reply from, or enter into or renew any contract with, a vendor on the suspended vendor list until such vendor has been removed from the suspended vendor list and returned to the vendor list Pagemaintained 18by ofthe 33department CODING:pursuant to s.

287.042(1)(a) and (b) and the vendor has reimbursed the agency for any reprocurement costs.

(3) An agency shall notify the department of any vendor Page 18 of 21 CODING:

hb1079-02-c2hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 1079 2021 maintainedthat byhas met the departmentgrounds pursuantfor tosuspension s.described in paragraph (2)(a).

287.042(1)(a) and (b) and the vendor has reimbursed the agency for any reprocurement costs.

(3) An agency shall notify the department of any vendor that has met the grounds for suspension described in paragraph (2)(a).

A vendor that fails to timely file a petition in accordance with this subsection is deemed to have waived its right to a hearing, Pageand 19the ofdepartment's 33decision CODING:to remove the vendor from the vendor list becomes final agency action.

(5)(a) The department shall place any vendor removed from the vendor list pursuant to this section on the suspended vendor Page 19 of 21 CODING:

hb1079-02-c2hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 1079 2021 andlist. the department's decision to remove the vendor from the vendor list becomes final agency action.

(5)(a) The department shall place any vendor removed from the vendor list pursuant to this section on the suspended vendor list.

The department may petition for the suspended vendor's removal before the expiration of such period if, in the department's discretion, the department determines that removal Pagefrom 20the ofsuspended 33vendor CODING:list would be in the public interest.

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 from the suspended vendor list would be in the public interest.

287.136 Audit of executed contract documents.— (1)Page After20 execution of a21 contract,CODING: the Chief Financial Officer shall perform audits of the executed contract document and contract manager's records to ensure that adequate internal controls are in place for complying with the terms and conditions of the contract and for the validation and receipt of goods and services.

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hb1079-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 1079 2021 (1) After execution of a contract, the Chief Financial Officer shall perform audits of the executed contract document and contract manager's records to ensure that adequate internal controls are in place for complying with the terms and conditions of the contract and for the validation and receipt of goods and services.

(2) Beginning October 1, 2021, and every 3 years thereafter, each agency inspector general shall complete a risk-risk based compliance audit of all contracts executed by the agency for the preceding 3 fiscal years.

The audit must include an evaluation of,of and identify any trend in,in vendor preference.

The Pageaudit 21findings must be submitted to the agency head, the Secretary of 33the CODING:Department of Management Services, and the Governor.

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 audit findings must be submitted to the agency head, the secretary of the Department of Management Services, and the Governor.

Subsection (1) of section 43.16, Florida Statutes, is amended to read:

43.16 Justice Administrative Commission;

membership, powers and duties.— (1) There is hereby created a Justice Administrative Commission, with headquarters located in the state capital.

The necessary office space for use of the commission shall be furnished by the proper state agency in charge of state buildings.

For purposes of the fees imposed on agencies pursuant to s.

287.057(24) s.

287.057(22), the Justice Administrative Commission shall be exempt from such fees.

Section 9.

Paragraph (a) of subsection (2) of section 215.971, Florida Statutes, is amended to read:

215.971 Agreements funded with federal or state assistance.— (2) For each agreement funded with federal or state financial assistance, the state agency shall designate an employee to function as a grant manager who shall be responsible for enforcing performance of the agreement's terms and conditions and who shall serve as a liaison with the recipient or subrecipient.

(a)1.

Each grant manager who is responsible for agreements Page 22 of 33 CODING:

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 in excess of the threshold amount for CATEGORY TWO under s.

287.017 must, at a minimum, complete training conducted by the Chief Financial Officer for accountability in contracts and grant management.

2.

Effective December 1, 2014, each grant manager responsible for agreements in excess of $100,000 annually must complete the training and become a certified contract manager as provided under s.

287.057(15) s.

287.057(14).

All grant managers must become certified contract managers within 24 months after establishment of the training and certification requirements by the Department of Management Services and the Department of Financial Services.

Section 10.

Paragraph (a) of subsection (3) of section 287.0571, Florida Statutes, is amended to read:

287.0571 Business case to outsource;

applicability.— (3) This section does not apply to:

(a) A procurement of commodities and contractual services listed in s.

287.057(3)(d) and (e) and (23) (21).

Section 11.

Paragraph (b) of subsection (4) of section 295.187, Florida Statutes, is amended to read:

295.187 Florida Veteran Business Enterprise Opportunity Act.— (4) VENDOR PREFERENCE.— (b) Notwithstanding s.

287.057(12) s.

287.057(11), if a veteran business enterprise entitled to the vendor preference Page 23 of 33 CODING:

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 under this section and one or more businesses entitled to this preference or another vendor preference provided by law submit bids, proposals, or replies for procurement of commodities or contractual services which are equal with respect to all relevant considerations, including price, quality, and service, the state agency shall award the procurement or contract to the business having the smallest net worth.

Section 12.

Paragraph (a) of subsection (1) of section 394.47865, Florida Statutes, is amended to read:

394.47865 South Florida State Hospital;

privatization.— (1) The Department of Children and Families shall, through a request for proposals, privatize South Florida State Hospital.

The department shall plan to begin implementation of this privatization initiative by July 1, 1998.

(a) Notwithstanding s.

287.057(14) s.

287.057(13), the department may enter into agreements, not to exceed 20 years, with a private provider, a coalition of providers, or another agency to finance, design, and construct a treatment facility having up to 350 beds and to operate all aspects of daily operations within the facility.

The department may subcontract any or all components of this procurement to a statutorily established state governmental entity that has successfully contracted with private companies for designing, financing, acquiring, leasing, constructing, and operating major privatized state facilities.

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 Section 13.

Paragraph (b) of subsection (2) and subsection (3) of section 402.7305, Florida Statutes, are amended to read:

402.7305 Department of Children and Families;

procurement of contractual services;

contract management.— (2) PROCUREMENT OF COMMODITIES AND CONTRACTUAL SERVICES.— (b) When it is in the best interest of a defined segment of its consumer population, the department may competitively procure and contract for systems of treatment or service that involve multiple providers, rather than procuring and contracting for treatment or services separately from each participating provider.

The department must ensure that all providers that participate in the treatment or service system meet all applicable statutory, regulatory, service quality, and cost control requirements.

If other governmental entities or units of special purpose government contribute matching funds to the support of a given system of treatment or service, the department shall formally request information from those funding entities in the procurement process and may take the information received into account in the selection process.

If a local government contributes matching funds to support the system of treatment or contracted service and if the match constitutes at least 25 percent of the value of the contract, the department shall afford the governmental match contributor an opportunity to name an employee as one of the persons required by s.

287.057(17) s.

287.057(16) to evaluate or negotiate certain Page 25 of 33 CODING:

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 contracts, unless the department sets forth in writing the reason why the inclusion would be contrary to the best interest of the state.

Any employee so named by the governmental match contributor shall qualify as one of the persons required by s.

287.057(17) s.

287.057(16).

A governmental entity or unit of special purpose government may not name an employee as one of the persons required by s.

287.057(17) s.

287.057(16) if it, or any of its political subdivisions, executive agencies, or special districts, intends to compete for the contract to be awarded.

The governmental funding entity or contributor of matching funds must comply with all procurement procedures set forth in s.

287.057 when appropriate and required.

(3) CONTRACT MANAGEMENT REQUIREMENTS AND PROCESS.—The Department of Children and Families shall review the time period for which the department executes contracts and shall execute multiyear contracts to make the most efficient use of the resources devoted to contract processing and execution.

Whenever the department chooses not to use a multiyear contract, a justification for that decision must be contained in the contract.

Notwithstanding s.

287.057(15) s.

287.057(14), the department is responsible for establishing a contract management process that requires a member of the department's Senior Management or Selected Exempt Service to assign in writing the responsibility of a contract to a contract manager.

The department shall maintain a set of procedures describing its Page 26 of 33 CODING:

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 contract management process which must minimally include the following requirements:

(a) The contract manager shall maintain the official contract file throughout the duration of the contract and for a period not less than 6 years after the termination of the contract.

(b) The contract manager shall review all invoices for compliance with the criteria and payment schedule provided for in the contract and shall approve payment of all invoices before their transmission to the Department of Financial Services for payment.

(c) The contract manager shall maintain a schedule of payments and total amounts disbursed and shall periodically reconcile the records with the state's official accounting records.

(d) For contracts involving the provision of direct client services, the contract manager shall periodically visit the physical location where the services are delivered and speak directly to clients receiving the services and the staff responsible for delivering the services.

(e) The contract manager shall meet at least once a month directly with the contractor's representative and maintain records of such meetings.

(f) The contract manager shall periodically document any differences between the required performance measures and the Page 27 of 33 CODING:

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 actual performance measures.

If a contractor fails to meet and comply with the performance measures established in the contract, the department may allow a reasonable period for the contractor to correct performance deficiencies.

If performance deficiencies are not resolved to the satisfaction of the department within the prescribed time, and if no extenuating circumstances can be documented by the contractor to the department's satisfaction, the department must terminate the contract.

The department may not enter into a new contract with that same contractor for the services for which the contract was previously terminated for a period of at least 24 months after the date of termination.

The contract manager shall obtain and enforce corrective action plans, if appropriate, and maintain records regarding the completion or failure to complete corrective action items.

(g) The contract manager shall document any contract modifications, which shall include recording any contract amendments as provided for in this section.

(h) The contract manager shall be properly trained before being assigned responsibility for any contract.

Section 14.

Subsection (2) of section 408.045, Florida Statutes, is amended to read:

408.045 Certificate of need;

competitive sealed proposals.— (2) The agency shall make a decision regarding the Page 28 of 33 CODING:

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 issuance of the certificate of need in accordance with the provisions of s.

287.057(17) s.

287.057(16), rules adopted by the agency relating to intermediate care facilities for the developmentally disabled, and the criteria in s.

408.035, as further defined by rule.

Section 15.

Subsection (42) of section 570.07, Florida Statutes, is amended to read:

570.07 Department of Agriculture and Consumer Services;

functions, powers, and duties.—The department shall have and exercise the following functions, powers, and duties:

(42) Notwithstanding the provisions of s.

287.057(24) s.

287.057(22) that require all agencies to use the online procurement system developed by the Department of Management Services, the department may continue to use its own online system.

However, vendors utilizing such system shall be prequalified as meeting mandatory requirements and qualifications and shall remit fees pursuant to s.

287.057(24) s.

287.057(22), and any rules implementing s.

287.057.

Section 16.

Paragraph (e) of subsection (6) of section 627.351, Florida Statutes, is amended to read:

627.351 Insurance risk apportionment plans.— (6) CITIZENS PROPERTY INSURANCE CORPORATION.— (e) The corporation is subject to s.

287.057 for the purchase of commodities and contractual services except as otherwise provided in this paragraph.

Services provided by Page 29 of 33 CODING:

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 tradepersons or technical experts to assist a licensed adjuster in the evaluation of individual claims are not subject to the procurement requirements of this section.

Additionally, the procurement of financial services providers and underwriters must be made pursuant to s.

627.3513.

Contracts for goods or services valued at or more than $100,000 are subject to approval by the board.

1.

The corporation is an agency for purposes of s.

287.057, except that, for purposes of s.

287.057(24) s.

287.057(22), the corporation is an eligible user.

a.

The authority of the Department of Management Services and the Chief Financial Officer under s.

287.057 extends to the corporation as if the corporation were an agency.

b.

The executive director of the corporation is the agency head under s.

287.057, except for resolution of bid protests for which the board would serve as the agency head.

2.

The corporation must provide notice of a decision or intended decision concerning a solicitation, contract award, or exceptional purchase by electronic posting.

Such notice must contain the following statement:

"Failure to file a protest within the time prescribed in this section constitutes a waiver of proceedings." a.

A person adversely affected by the corporation's decision or intended decision to award a contract pursuant to s.

287.057(1) or (3)(c) who elects to challenge the decision must Page 30 of 33 CODING:

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 file a written notice of protest with the executive director of the corporation within 72 hours after the corporation posts a notice of its decision or intended decision.

For a protest of the terms, conditions, and specifications contained in a solicitation, including provisions governing the methods for ranking bids, proposals, replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest must be filed in writing within 72 hours after posting the solicitation.

Saturdays, Sundays, and state holidays are excluded in the computation of the 72-hour time period.

b.

A formal written protest must be filed within 10 days after the date the notice of protest is filed.

The formal written protest must state with particularity the facts and law upon which the protest is based.

Upon receipt of a formal written protest that has been timely filed, the corporation must stop the solicitation or contract award process until the subject of the protest is resolved by final board action unless the executive director sets forth in writing particular facts and circumstances that require the continuance of the solicitation or contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare.

(I) The corporation must provide an opportunity to resolve the protest by mutual agreement between the parties within 7 Page 31 of 33 CODING:

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 business days after receipt of the formal written protest.

(II) If the subject of a protest is not resolved by mutual agreement within 7 business days, the corporation's board must transmit the protest to the Division of Administrative Hearings and contract with the division to conduct a hearing to determine the merits of the protest and to issue a recommended order.

The contract must provide for the corporation to reimburse the division for any costs incurred by the division for court reporters, transcript preparation, travel, facility rental, and other customary hearing costs in the manner set forth in s.

120.65(9).

The division has jurisdiction to determine the facts and law concerning the protest and to issue a recommended order.

The division's rules and procedures apply to these proceedings;

the division's applicable bond requirements do not apply.

The protest must be heard by the division at a publicly noticed meeting in accordance with procedures established by the division.

c.

In a protest of an invitation-to-bid or request-for- proposals procurement, submissions made after the bid or proposal opening which amend or supplement the bid or proposal may not be considered.

In protesting an invitation-to-negotiate procurement, submissions made after the corporation announces its intent to award a contract, reject all replies, or withdraw the solicitation that amends or supplements the reply may not be considered.

Unless otherwise provided by law, the burden of Page 32 of 33 CODING:

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hb1079-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 1079 2021 proof rests with the party protesting the corporation's action.

In a competitive-procurement protest, other than a rejection of all bids, proposals, or replies, the administrative law judge must conduct a de novo proceeding to determine whether the corporation's proposed action is contrary to the corporation's governing statutes, the corporation's rules or policies, or the solicitation specifications.

The standard of proof for the proceeding is whether the corporation's action was clearly erroneous, contrary to competition, arbitrary, or capricious.

In any bid-protest proceeding contesting an intended corporation action to reject all bids, proposals, or replies, the standard of review by the board is whether the corporation's intended action is illegal, arbitrary, dishonest, or fraudulent.

d.

Failure to file a notice of protest or failure to file a formal written protest constitutes a waiver of proceedings.

3.

The board, acting as agency head, shall consider the recommended order of an administrative law judge in a public meeting and take final action on the protest.

Any further legal remedy lies with the First District Court of Appeal.

Section 17.

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