287.057 Procurement of commodities or contractual services.—
(1) The competitive solicitation processes authorized in this section shall be used for procurement of commodities or contractual services in excess of the threshold amount provided for CATEGORY TWO in s. 287.017. Any competitive solicitation shall be made available simultaneously to all vendors, must include the time and date for the receipt of bids, proposals, or replies and of the public opening, and must include all contractual terms and conditions applicable to the procurement, including the criteria to be used in determining acceptability and relative merit of the bid, proposal, or reply.
(a) Invitation to bid.—The invitation to bid shall be 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.
1. All invitations to bid must include:
a. A detailed description of the commodities or contractual services sought; and
b. If the agency contemplates renewal of the contract, a statement to that effect.
2. Bids submitted in response to an invitation to bid in which the agency contemplates renewal of the contract must include the price for each year for which the contract may be renewed.
3. Evaluation of bids must include consideration of the total cost for each year of the contract, including renewal years, as submitted by the vendor.
4. The contract shall be awarded to the responsible and responsive vendor who submits the lowest responsive bid.
(b) Request for proposals.—An agency shall use a request for proposals when the purposes and uses for which the commodity, group of commodities, or contractual service being sought can be specifically defined and the agency is capable of identifying necessary deliverables. Various combinations or versions of commodities or contractual services may be proposed by a responsive vendor to meet the specifications of the solicitation document.
1. Before issuing a request for proposals, the agency must determine and specify in writing the reasons that procurement by invitation to bid is not practicable.
2. All requests for proposals must include:
a. A statement describing the commodities or contractual services sought;
b. The relative importance of price and other evaluation criteria; and
c. If the agency contemplates renewal of the contract, a statement to that effect.
3. Criteria that will be used for evaluation of proposals must include, but are not limited to:
a. Price, which must be specified in the proposal;
b. If the agency contemplates renewal of the contract, the price for each year for which the contract may be renewed;
c. Consideration of the total cost for each year of the contract, including renewal years, as submitted by the vendor; and
d. Consideration of prior relevant experience of the vendor.
4. The contract shall be awarded by written notice 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 other criteria set forth in the request for proposals. The contract file shall contain documentation supporting the basis on which the award is made.
(c) Invitation to negotiate.—The invitation to negotiate is a solicitation used by an agency which is intended to determine the best method for achieving a specific goal or solving a particular problem and identifies one or more responsive vendors with which the agency may negotiate in order to receive the best value.
1. Before issuing an invitation to negotiate, the head of an agency must determine and specify in writing the reasons that procurement by an invitation to bid or a request for proposal is not practicable.
2. The invitation to negotiate must describe the questions being explored, the facts being sought, and the specific goals or problems that are the subject of the solicitation.
3. The criteria that will be used for determining the acceptability of the reply and guiding the selection of the vendors with which the agency will negotiate must be specified. The evaluation criteria must include consideration of prior relevant experience of the vendor.
4. The agency shall evaluate replies against all evaluation criteria set forth in the invitation to negotiate in order to establish a competitive range of replies reasonably susceptible of award. The agency may select one or more vendors within the competitive range 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, based on the selection criteria.
5. The contract file for a vendor selected through an invitation to negotiate must contain a short plain statement that explains the basis for the selection of the vendor and that sets forth the vendor’s deliverables and price, pursuant to the contract, along with an explanation of how these deliverables and price provide the best value to the state.
(2) 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.
(3) If the purchase price of commodities or contractual services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, purchase of commodities or contractual services may not 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 signs 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, the 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 and any other documents relating to the emergency action to the department. A copy of the written 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 may not exceed 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), by another agency.
(c) Commodities or contractual services available only from a single source may be excepted from the competitive-solicitation requirements. If 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 at least 15 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 provide notice of its intended decision to enter a single-source purchase contract in the manner specified in s. 120.57(3). Each agency shall report all such actions to the department on a quarterly basis in a manner and form prescribed by the department, and the department shall report such information to the Governor, the President of the Senate, and the Speaker of the House of Representatives no later than each January 1.
(d) 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 that 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.
(e) The following contractual services and commodities are not subject to the competitive-solicitation requirements of this section:
1. Artistic services. As used in this subsection, the term “artistic services” does not include advertising or typesetting. As used in this subparagraph, the term “advertising” means the making of a representation in any form in connection with a trade, business, craft, or profession in order to promote the supply of commodities or services by the person promoting the commodities or contractual services.
2. Academic program reviews if the fee for such services does not exceed $50,000.
3. Lectures by individuals.
4. Legal services, including attorney, paralegal, expert witness, appraisal, or mediator services.
5. Health services involving examination, diagnosis, treatment, prevention, medical consultation, or administration. The term also includes, but is not limited to, substance abuse and mental health services involving examination, diagnosis, treatment, prevention, or medical consultation if such services are offered to eligible individuals participating in a specific program that qualifies multiple providers and uses a standard payment methodology. Reimbursement of administrative costs for providers of services purchased in this manner are also exempt. For purposes of this subparagraph, the term “providers” means health professionals and health facilities, or organizations that deliver or arrange for the delivery of health services.
6. Services provided to persons with mental or physical disabilities by not-for-profit corporations that have obtained exemptions under s. 501(c)(3) of the United States Internal Revenue Code or when such services are governed by 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.
7. Medicaid services delivered to an eligible Medicaid recipient unless the agency is directed otherwise in law.
8. Family placement services.
9. 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.
10. Training and education services provided to injured employees pursuant to s. 440.491(6).
12. Services or commodities provided by governmental entities.
13. Statewide public service announcement programs provided by a Florida statewide nonprofit corporation under s. 501(c)(6) of the Internal Revenue Code which have a guaranteed documented match of at least $3 to $1.
(f) Continuing education events or programs that are offered to the general public and for which fees have been collected which pay all expenses associated with the event or program are exempt from requirements for competitive solicitation.
(4)(a) An agency may not initiate a competitive solicitation for a product or service if the completion of such competitive solicitation would:
1. Require a change in law; or
2. Require a change to the agency’s original approved budget, as defined in s. 216.011, other than a transfer authorized in s. 216.292(2) or (3), unless the initiation of such competitive solicitation is specifically authorized in law, in the General Appropriations Act, or by the Legislative Budget Commission.
(b) This subsection does not apply to a competitive solicitation for which the agency head certifies that a valid emergency exists.
(5) An agency must document its compliance with s. 216.3475 if the purchase of contractual services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO and such services are not competitively procured.
(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 solicitation of commodities or contractual services so as to avoid the requirements of subsections (1)-(3).
(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 or the recipient of the funds 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 commodities or contractual services must be in writing for a period not to exceed 6 months and is subject to the same terms and conditions set forth in the initial contract and any written amendments signed by the parties. There may 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.
(14) 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 is longer. Renewal of a contract for commodities or contractual services must be in writing and is subject to the same terms and conditions set forth in the initial contract and any written amendments signed by the parties. 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 must be specified in the bid, proposal, or reply, except that an agency may negotiate lower pricing. A renewal contract may not include any compensation for costs associated with the renewal. Renewals are contingent upon satisfactory performance evaluations by the agency and subject to the availability of funds. Exceptional purchase contracts pursuant to paragraphs (3)(a) and (c) may not be renewed. With the exception of subsection (11), if a contract amendment results in a longer contract term or increased payments, a state agency may not renew or amend a contract for the outsourcing of a service or activity that has an original term value exceeding $5 million before submitting a written report concerning contract performance to the Governor, the President of the Senate, and the Speaker of the House of Representatives at least 90 days before execution of the renewal or amendment.
(15)(a) For each contractual services contract, the agency shall designate an employee to function as contract manager who is responsible for enforcing performance of the contract terms and conditions and serves as a liaison between the contractor and the agency. The contract manager may not be an individual who has been employed, within the previous 5 years, by the vendor awarded the contractual services contract. The primary responsibilities of a contract manager include:
1. Participating in the solicitation development and review of contract documents.
2. Monitoring the contractor’s progress and performance to ensure procured products and services conform to the contract requirements and keep timely records of findings.
3. Managing and documenting any changes to the contract through the amendment process authorized by the terms of the contract.
4. Monitoring the contract budget to ensure sufficient funds are available throughout the term of the contract.
5. Exercising applicable remedies, as appropriate, when a contractor’s performance is deficient.
(b) Each contract manager who is responsible for contracts in excess of the threshold amount for CATEGORY TWO must, at a minimum, complete training conducted by the Chief Financial Officer for accountability in contracts and grant management. The Chief Financial Officer shall evaluate such training every 5 years to assess its effectiveness and update the training curriculum. The Chief Financial Officer shall establish and disseminate uniform procedures pursuant to s. 17.03(3) to ensure that contractual services have been rendered in accordance with the contract terms before the agency processes the invoice for payment. 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 agency’s receipt of goods and services.
(c) 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. The department is responsible for establishing and disseminating the training and certification requirements for certified contract managers. Training must promote best practices and procedures related to negotiating, managing, and ensuring accountability in agency contracts and grant agreements, which must include the use of case studies based upon previous audits, contracts, and grant agreements. A certified contract manager must complete training every 5 years for certification renewal. Training and certification must be coordinated by the department, and the training must be conducted jointly by the department and the Department of Financial Services. The department shall evaluate such training every 5 years to assess its effectiveness and update the training curriculum.
(d) Each contract manager who is responsible for contracts in excess of $10 million annually must, in addition to the training required in paragraph (b) and the training and certification required in paragraph (c), possess at least 5 years of experience managing contracts in excess of $5 million annually.
(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. For a contract of $500,000 or less annually, the contract administrator may also serve as the contract manager if he or she has completed the required training. For a contract in excess of $500,000 annually, the contract administrator may not serve as both the contract administrator and the contract manager.
(17)(a) For a contract in excess of the threshold amount provided in s. 287.017 for CATEGORY FOUR, the agency head shall appoint:
1. At least three persons to independently evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for the commodity or contractual services sought.
2. At least three persons to a negotiation team to conduct negotiations during a competitive sealed reply procurement. The negotiation team members must collectively have experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for the commodity or contractual services sought.
(b)1. If the value of a contract is in excess of $1 million in any fiscal year, at least one of the persons conducting negotiations must be a certified contract negotiator.
2. If the value of a contract is in excess of $10 million in any fiscal year, at least one of the persons conducting negotiations must be a Project Management Professional, as certified by the Project Management Institute. The Project Management Professional shall provide guidance based on his or her experience, education, 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. Training must ensure that certified contract negotiators are knowledgeable about effective negotiation strategies, capable of successfully implementing those strategies, and involved appropriately in the procurement process. The department shall evaluate such training every 5 years in order to assess its effectiveness and update the training curriculum. A certified contract negotiator is required to complete training every 5 years for certification renewal. Qualification requirements for certification must include:
a. 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.
b. 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 procurements.
(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. The department is responsible for establishing and disseminating the training course content required for supervisors.
(19)(a)1. Each agency must avoid, neutralize, or mitigate significant potential organizational conflicts of interest before a contract is awarded. If the agency elects to mitigate the significant potential organizational conflict or conflicts of interest, an adequate mitigation plan, including organizational, physical, and electronic barriers, shall be developed.
2. If a conflict cannot be avoided or mitigated, an agency may proceed with the contract award if the agency head certifies that the award is in the best interests of the state. The agency head must specify in writing the basis for the certification.
(b)1. An agency head may not proceed with a contract award under subparagraph (a)2. if a conflict of interest is based upon the vendor gaining an unfair competitive advantage.
2. An unfair competitive advantage exists when the vendor competing for the award of a contract obtained:
a. Access to information that is not available to the public and would assist the vendor in obtaining the contract; or
b. Source selection information that is relevant to the contract but is not available to all competitors and that would assist the vendor in obtaining the contract.
(c) A person who receives a contract that has not been procured pursuant to subsections (1)-(3) 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.
(20) 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.
(21) 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.
(22) Nothing in this section shall affect the validity or effect of any contract in existence on October 1, 1990.
(23) An agency may contract for services with any independent, nonprofit college or university which is located within the state on the same basis as it may contract with any state university or college if the independent, nonprofit college or university:
(a) Is accredited by the Southern Association of Colleges and Schools; or
(b) Is authorized to operate within this state pursuant to chapter 1005, offers a professional degree, and is accredited by the Middle States Commission on Higher Education.
(24) The department, in consultation with the Chief Financial Officer and the state chief information officer, shall maintain a program for online procurement of commodities and contractual services. To enable the state to promote open competition and leverage its buying power, agencies shall participate in the online procurement program, and eligible users may participate in the program. Only vendors prequalified as meeting mandatory requirements and qualifications criteria may participate in online procurement.
(a) The department may contract for equipment and services necessary to develop and implement online procurement.
(b) The department shall adopt rules to administer the program for online procurement. The rules must include, but not be limited to:
1. Determining the requirements and qualification criteria for prequalifying vendors.
2. Establishing the procedures for conducting online procurement.
3. Establishing the criteria for eligible commodities and contractual services.
4. Establishing the procedures for providing access to online procurement.
5. Determining the criteria warranting any exceptions to participation in the online procurement program.
(c) The department may impose and shall collect all fees for the use of the online procurement systems.
1. The 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 the services, including administrative and project service costs in accordance with the policies of the department.
2. If the department contracts with a provider for online procurement, the department, pursuant to appropriation, shall compensate the provider from the 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 the fees are due. For 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.
4. All fees and surcharges collected under this paragraph shall be deposited in the Operating Trust Fund as provided by law.
(25) Each solicitation for the procurement of commodities or contractual services shall include the following provision: “Respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72-hour period following the agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents. Violation of this provision may be grounds for rejecting a response.”
(26)(a) For each contractual services contract of $5 million or greater, the agency head shall establish a continuing oversight team after the contract has been awarded. The agency head shall appoint at least four persons, one of whom must be the certified contract manager, to the continuing oversight team. If the value of the contractual services contract is $10 million or greater, 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 $20 million or greater, 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 an agency other than the agency or agencies participating in the contract. Members of the continuing oversight team must be agency employees and must collectively have experience and knowledge in contract management, contract administration, contract enforcement, and the program 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.
2. For contracts of $10 million or greater, each continuing oversight team must meet at least monthly. A representative of the contractor must be made available to members of the continuing oversight team for at least one meeting every calendar quarter to respond to any questions or requests for information from the continuing oversight team concerning contractor performance.
(c)1. Within 30 days after 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.
2. The continuing oversight team must meet to discuss the status of the contract, the pace of deliverables, the quality of deliverables, contractor responsiveness, and contractor performance. The contract administrator must be present at each meeting with the contract file and all applicable financial information. 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. The questions and responses must be included in the contract file.
(d) The continuing oversight team must notify, in writing:
1. The agency head and the department of any deficiency in a contractor’s performance which substantially affects the pace of deliverables or the likelihood of the successful completion of the contract.
2. The agency head, the department, and the Office of Policy and Budget in the Executive Office of the Governor of any significant change in contract scope or any increase in the cost of the contract that is 5 percent of the planned contract cost or greater within the fiscal year for contractual service contracts of at least $5 million.
3. The agency head, the department, the Office of Policy and Budget in the Executive Office of the Governor, and the legislative appropriations committees of any significant change in contract scope or any increase in the cost of the contract that is 5 percent of the planned contract cost or greater within the fiscal year for contractual service contracts of $10 million or greater.
(27)(a) In determining whether a vendor is a responsible vendor, an agency may establish financial stability criteria and require a vendor to demonstrate its financial stability. If an agency requires a vendor to demonstrate its financial stability during the competitive solicitation process, the agency must accept any of the following as evidence of the vendor’s financial stability:
1. Audited financial statements that demonstrate the vendor’s satisfaction of financial stability criteria.
2. Documentation of an investment grade rating from a credit rating agency designated as a nationally recognized statistical rating organization by the Securities and Exchange Commission.
3.a. For a vendor with annual revenues exceeding $1 billion, a letter containing a written declaration, pursuant to s. 92.525, issued by the chief financial officer or controller attesting that the vendor is financially stable and meets the definition of financial stability in paragraph (b).
b. For a vendor with annual revenues of $1 billion or less, documentation, based on criteria established by the agency, evidencing that the vendor is financially stable and meets the definition of financial stability in paragraph (b). The criteria established by the agency shall be reasonably related to the value of the contract and may not include audited financial statements.
(b) For purposes of this subsection, the term “financial stability” means, at a minimum, having adequate income and capital and the capacity to efficiently allocate resources, assess and manage financial risks, and maintain financial soundness through the term of the contract.
(c) This subsection does not preclude an agency from requiring a performance bond for the duration of the contract, when appropriate.
(28) An agency may substitute verifiable, related work experience in lieu of postsecondary education requirements for contractual services pursuant to s. 112.219 if the person seeking the contract for services is otherwise qualified for such contract.
Cited 12 times | Published | Florida 1st District Court of Appeal | 2008 WL 2951675
...The Secretary was dissatisfied with the Department's previous contract, which was nearing its end at the time, as he found it to be "particularly unfair" to the friends and families of inmates. As a result, the Department issued an invitation to negotiate ("ITN"), pursuant to section 287.057(3), Florida Statutes (2006), seeking responses from qualified vendors....
Cited 10 times | Published | Florida 1st District Court of Appeal | 2006 WL 354267
...[10] Rule 6A-1.012(6) of the Florida Administrative Code (2001) states: "Except as authorized by law or rule, bids shall be requested from three (3) or more sources for any authorized purchase or contract for services exceeding the amount established in Section 287.017, F.S., for purchasing category two." See also § 287.057(1), Fla....
Cited 9 times | Published | Florida 1st District Court of Appeal
...give EDS any unfair competitive advantage over other offerors. We affirm. Pertinent to this appeal is an understanding of the nature of the RFP procedure. The statutory provision governing the procurement of contractual services in this instance is Section 287.057(3), Florida Statutes (1981), as amended by Chapter 82-196, Laws of Florida....
...Under that provision, where, as here, an agency determines that the use of competitive sealed bidding, i.e., an Invitation for Bids (IFB), is not practicable and it is incapable of specifically defining the scope of the work required, contractual services shall be procured by an RFP. Section 287.057(3), as amended, states: A request for proposals which includes a statement of the services sought and all contractual terms and conditions applicable to the procurement of contractual services, including the criteria, which shall incl...
...FP and an IFB. Typically, an IFB is rigid and identifies the solution to the problem. By definition, the invitation specifically defines the scope of the work required by soliciting bids responsive to the detailed plans and specifications set forth. Section 287.057(1)(a) and (2), as amended....
...o negotiate for and enter into construction contracts. As the Department correctly points out, contracts entered into pursuant to section 337.11 are exempt from the "competitive sealed bidding" requirements generally applicable to state procurement. Section 287.057(3)(f)12., Fla....
Cited 2 times | Published | Florida 2nd District Court of Appeal
...ontract to furnish gynecological services in Hillsborough County's public health clinics. The Department of Health denied USF's demand for a hearing. We affirm. Proceeding under a health care exemption to statutory competitive sealed bid procedures, section 287.057(3)(f)(6), Florida Statutes (1999), the Department solicited three providers to submit quotes for performing the mentioned services....
...The contract was governed by competitive procurement provisions in section 337.11, Florida Statutes (1991), relating to the department's *575 purchasing and contracting authority, and for that reason was exempt from the requirements of the general state procurement statutes. § 287.057(3)(f)(12)....
...that the legislature has specifically exempted from competitive requirements. On appeal, USF has expanded its position to include an assertion that the procurement involved in this case was exempt only from the competitive sealed bid requirements of section 287.057(1), but not from statutes governing other forms of competitive procurement, such as competitive sealed proposals....
...ing and procuring commodities and con *855 tractual services” to protect the public by promoting “fair and open competition,” thereby reducing the appearance and opportunity for favoritism and misconduct. § 287.001, Fla. Stat. (2014). . Under section 287.057, Florida Statutes (2014), an agency seeking to procure commodities or contractual services exceeding $35,000 may elect to use either an Invitation to Bid (ITB), a Request for Proposal (RFP) or, as here, an ITN....
...ves an agency the means “to - determine the best method for achieving a specific goal or solving a particular problem” and. to identify “one or more responsive vendors with which the agency may' negotiate in order to receive the best value.” § 287.057(l)(c), Fla. Stat. (2014). Relevant to ITNs, section 287.057(l)(c) provides, in part, 2....
..., The agency may select one or more vendors within the competitive range with which to commence negotiations. After negotiations are conducted, the agency shall award the contract to the responsible and responsiye vendor that the agency determines will provide the best value to the state, based on the selection criteria. § 287.057(l)(c)2.-4., Fla....
...Section 287.012(26), Florida Statutes (2014), defines “Responsive bid” to mean, “[A] bid, or proposal, or reply submitted by a responsive and responsible vendor whieh conforms in all material respects to the solicitation.” MFN-2 ITN The Department elected to utilize the ITN process and, pursuant to section 287.057(l)(c)2., listed specific goals in the ITN, which included the goal, among others, of “[-s]eek[ing] to maintain or reduce the current total cost for each customer.” The questions being explored in the ITN included how to obtain services in a cost-effective manner....
...Servs., 423 So.2d 433, 434 (Fla. 1st DCA 1982): An ITB is a fairly rigid document to' be used when the agency is “capable of specifically defining the scope of work” or “establishing precise specifications defining the actual or group of commodities required.” § 287.057(l)(a), Fla....
...e flexible process and, as its name suggests, relies upon negotiations “with one or more vendors” to “determine the best method for achieving a specific goal or solving a particular problem” and to achieve the “best value” for the State. § 287.057(1)(c), Fla....
...& T had a point of entry to challenge CR MSA/Harris’s responsiveness at the Notice of Intent to Negotiate stage, we agree with the ALJ in Global Tel Link Corporation v. Department of Corrections that regardless of other points of entry, under section 287.057(l)(c)4....
Cited 1 times | Published | Florida 1st District Court of Appeal | 1999 WL 516154
...(1997). III. GTECH contends that the Department violated its governing statutes and rules by referring the proposals back to the same evaluation committee. The principal argument on this point is that the amounts of the proposals were sealed according to section 287.057, Florida Statutes, and were not to be opened until after the committee members had completed their evaluation. GTECH maintains that the Department could not properly refer the proposals back to the same evaluation committee after the first hearing, because, *620 by that time, the committee members knew the amount of each proposal. Although section 287.057, Florida Statutes requires certain competitive bids to be sealed, it does not establish relative time periods for opening the bids....
...and that the procurement process used did not comply with those requirements. AHCA's legal department responded with a motion to dismiss contending that the contract was exempt from the competitive procurement requirements of chapter 287 pursuant to section 287.057(5)(f)6, Florida Statutes, and that, therefore, Keystone lacked standing to protest the process used to award the contract, citing University of South Florida College of Nursing v....
...r into a contract with [Louisiana Health Care Review]." Keystone now appeals, arguing, among other things, that we should reverse because a factual dispute exists as to whether the contract is exempt from the competitive bidding process by virtue of section 287.057(5)(f)6, Florida Statutes (2008), and the record contains no competent substantial evidence demonstrating that the contract is exempt pursuant to that provision. We agree. Section 287.057(5)(f)6 exempts from the competitive bidding process set out in other parts of that section "[h]ealth services involving examination, diagnosis, treatment, prevention, medical consultation, or administration." In the only reported decision addressing the issue, the Second District Court of Appeal has held that, if a *654 contract is exempt from the competitive bidding process by virtue of section 287.057(5)(f)6, a party that unsuccessfully attempted to secure the contract is not entitled to a formal administrative hearing, even if the contracting agency "elects to employ a competitive mechanism for sorting out its choices." Univ....
...Administrative Hearings for a formal hearing. Should the administrative law judge conclude following an evidentiary hearing that the contract is exempt from the competitive bidding process outlined in chapter 287, Florida Statutes, by virtue of the section 287.057(5)(f)6 exemption, she shall dismiss the protest and petition on the authority of University of South Florida College of Nursing v....
...nnection with preparing input for the RFB. The trial court determined that the Authority did not act in an arbitrary, unreasonable or capricious manner in rejecting all bids submitted because it followed the public policy of this state, expressed in section 287.057(10), Florida Statutes....
...1st DCA 1991); City of Cape Coral v. Water Services of America, Inc., 567 So.2d 510 (Fla. 2d DCA 1990); Capeletti Brothers v. State Dept. of *933 General Services, 432 So.2d 1359 (Fla. 1st DCA 1983). This is a very high bar for Sutron, in this case. Although section 287.057(18), is not binding on the Authority because it applies only to state-wide agencies in the executive branch of the state government, not to county-wide special taxing districts such as the Authority, [3] it is declarative of the publi...
...in the best interests of the state — rights it had under the terms of the ITN. . See Rose v. Steigleman, 32 So.3d 644, 645 (Fla. 1st DCA 2010). . We note that the parties’ contract resulted from a competitive solicitation conducted according to section 287.057, whether or not the Department was required to do so....
...of its subject-matter jurisdiction and therefore prohibition will not lie. English v. McCrary, 848 So.2d 293 (Fla.1977). With regard to mandamus, petitioner argues that the agency should be required to follow the emergency procurement provisions of section 287.057(5)(a) or 120.569(2)(n), Florida Statutes....
...287 , Florida Statutes, when it procures or selects a community transportation coordinator which it will then fund to purchase transportation services at the local level? 3. If the answer to Question Two is yes, is a governmental unit, by virtue of section 287.057 (3)(f), Florida Statutes (1996 Supplement) automatically exempt from competitive bidding if it expresses an interest in becoming a community transportation coordinator for transportation disadvantaged services? 4. If a governmental unit, by virtue of section 287.057 (3)(f), Florida Statutes (1996 Supplement), is exempt from competitive bidding, must the commission nevertheless conduct competitive bidding if a not-for-profit or for-profit organization also expresses an interest in becoming a commu...
Published | Florida 1st District Court of Appeal | 2016 WL 1077308
...(SMI) and dismissing a bid
protest by Xerox State & Local Solution, Inc. (Xerox). Xerox raises a number of
arguments, only one of which merits discussion. Xerox contends that the
Department improperly awarded the contract to SMI because SMI’s reply did not
contain a “renewal price” as required by section 287.057(13), Florida Statutes.
Because we conclude that Florida law imposes no such requirement in this
circumstance, we affirm the final order.
The Department issued an invitation to negotiate (ITN) seeking a contractor
to operate...
...The
administrative law judge recommended dismissal of the protest, the Department
dismissed it, and this appeal follows.
Xerox contends that the Department should have rejected SMI’s reply as
unresponsive because it did not include a “renewal price” as required by section
287.057(13), Florida Statutes....
...We conclude that the plain language of the statutory
provision in question imposes no requirement on vendors to include a renewal
price in a response. Instead the language in question simply makes the inclusion of
a renewal price a condition of contract renewal.
Section 287.057(13) provides as follows:
2
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 is longer....
...(Emphasis added.) Appellant interprets the italicized portion of this subsection to
require vendors to include “the price of the commodity or contractual service to be
renewed” in their responses to a procurement solicitation. To the contrary, section
287.057(13) merely describes the conditions necessary for the state to renew a
contract....
...solicitation, then any resulting contract cannot be renewed. In other words, this
provision creates a precondition to contract renewal, not a precondition to the
contract itself.
3
This interpretation is consistent with other parts of section 287.057. Before
2010, section 287.057 clearly provided that in all three types of procurement,
whether by invitation to bid, request for proposal, or invitation to negotiate,
vendors were required to include a renewal price in their responses if renewal was
contemplated by the procuring agency....
...But in 2010, the legislature removed
renewal requirements from the invitation to negotiate process. * In doing so, the
Legislature evinced its intent to dispense with the requirement that replies to an
invitation to negotiate include a contract renewal price.
To summarize, section 287.057(13) does not require vendors to include
renewal pricing in their responses to procurement solicitations. Rather, it describes
the requirements that must be met before an agency may renew a contract.
Accordingly, any failure on the part of SMI to provide a renewal price did not
render its reply unresponsive under section 287.057(13).
We conclude that the Department did not violate the applicable law. We
have carefully considered all of the other arguments in the briefs, and find no basis
*
Sections 287.057(1)(a), (2)(a), and (3)(a), Florida Statutes (2009),
described the three processes of procurement. Each section contained
requirements regarding renewal pricing. Section 287.057(3)(a), which governed
invitations to negotiate, provided in pertinent part: “If the agency contemplates
renewal of the contract, that fact must be stated in the invitation to negotiate....
...es of the statute "clearly indicate that compensation will be negotiated prior to the selected firm beginning work under the contract." 15 It appears that Collier County has attempted to adopt a procurement procedure similar to that authorized under section 287.057 , Florida Statutes....
...ransponders or “tags” on
passing vehicles from any state, in order to assess a toll. 1
Kapsch filed suit in the trial court claiming the license
agreement was illegal because FDOT failed to follow the
competitive bidding process dictated by section 287.057, Florida
Statutes. That section applies when a state agency seeks to
procure “commodities” or “contractual services” costing more than
$35,000. § 287.057(1), Fla....
..., for
example, a license for the use of intellectual property; hence, a
patent license. The trial court rejected both contentions. It
observed that “[t]he definitions and comments in Article IX of the
UCC [] serve a different purpose than those in section 287.057.” It
further explained that “[i]f such a broad, sweeping interpretation
were given to the term ‘personal property’ urged by [Kapsch], there
would be no reason to list the several examples in [section
287.012(5)]....
...No amount of competitive
bidding can change that.” 2
Lastly, the trial court addressed Kapsch’s claim that
paragraph 2.8 of the Agreement, which gave FDOT a credit equal
to $7 million—the amount of the license fee—against future
purchases of products from Neology, brings the agreement within
the purview of section 287.057....
...FDOT’s agreement
“was a good or bad deal.” Instead, it properly parsed the various
arguments and distilled the issues to the single, relevant legal
inquiry: Whether the license agreement “is one for commodities or
services as contemplated by section 287.057, [Florida Statutes].” It
concluded, “it is not,” and we agree.
4
determined, that issue is moot due to the fact that FDOT and
Neology voluntarily amended the license agreement prior to the
instant suit being filed to remove paragraph 2.8 from the
Agreement....
...offered by the vendors. The first part extends immunity or
indemnity from suit for potential violations of the intellectual
property rights of the vendors, for which a colorable claim exists
that no “commodity” has been procured and compliance with
section 287.057, Florida Statutes, was unnecessary.
But the second part of the agreement, which states as follows,
presents a problem:
2.8 In addition to the license of Patent Rights under
this Agreement, the [FDOT] shall have a cred...
...(5)(d)3., Florida Statutes. It must provide a business plan that includes a contract with a school readiness agent if the coalition is not a legally established corporate entity. 11 Coalitions must follow the competitive procurement requirements of section 287.057 , Florida Statutes, for school readiness programs....
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. For legal consultation, call 904-383-7448.
