287.09451 Office of Supplier Diversity; powers, duties, and functions.—
(1) The Legislature finds that there is evidence of a systematic pattern of past and continuing racial discrimination against minority business enterprises and a disparity in the availability and use of minority business enterprises in the state procurement system. It is determined to be a compelling state interest to rectify such discrimination and disparity. Based upon statistical data profiling this discrimination, the Legislature has enacted race-conscious and gender-conscious remedial programs to ensure minority participation in the economic life of the state, in state contracts for the purchase of commodities and services, and in construction contracts. The purpose and intent of this section is to increase participation by minority business enterprises accomplished by encouraging the use of minority business enterprises and the entry of new and diversified minority business enterprises into the marketplace.
(2) The Office of Supplier Diversity is established within the Department of Management Services to assist minority business enterprises in becoming suppliers of commodities, services, and construction to state government.
(3) The secretary shall appoint an executive director for the Office of Supplier Diversity, who shall serve at the pleasure of the secretary.
(4) The Office of Supplier Diversity shall have the following powers, duties, and functions:
(a) To adopt rules to determine what constitutes a “good faith effort” for purposes of state agency compliance with the minority business enterprise procurement goals set forth in s. 287.042. Factors which shall be considered by the Minority Business Enterprise Assistance Office in determining good faith effort shall include, but not be limited to:
1. Whether the agency scheduled presolicitation or prebid meetings for the purpose of informing minority business enterprises of contracting and subcontracting opportunities.
2. Whether the contractor advertised in general circulation, trade association, or minority-focus media concerning the subcontracting opportunities.
3. Whether the agency effectively used services and resources of available minority community organizations; minority contractors’ groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons.
4. Whether the agency provided written notice to a reasonable number of minority business enterprises that their interest in contracting with the agency was being solicited in sufficient time to allow the minority business enterprises to participate effectively.
(b) To adopt rules to determine what constitutes a “good faith effort” for purposes of contractor compliance with contractual requirements relating to the use of services or commodities of a minority business enterprise under s. 287.094(2). Factors which shall be considered by the Office of Supplier Diversity in determining whether a contractor has made good faith efforts shall include, but not be limited to:
1. Whether the contractor attended any presolicitation or prebid meetings that were scheduled by the agency to inform minority business enterprises of contracting and subcontracting opportunities.
2. Whether the contractor advertised in general circulation, trade association, or minority-focus media concerning the subcontracting opportunities.
3. Whether the contractor provided written notice to a reasonable number of specific minority business enterprises that their interest in the contract was being solicited in sufficient time to allow the minority business enterprises to participate effectively.
4. Whether the contractor followed up initial solicitations of interest by contacting minority business enterprises or minority persons to determine with certainty whether the minority business enterprises or minority persons were interested.
5. Whether the contractor selected portions of the work to be performed by minority business enterprises in order to increase the likelihood of meeting the minority business enterprise procurement goals, including, where appropriate, breaking down contracts into economically feasible units to facilitate minority business enterprise participation.
6. Whether the contractor provided interested minority business enterprises or minority persons with adequate information about the plans, specifications, and requirements of the contract or the availability of jobs.
7. Whether the contractor negotiated in good faith with interested minority business enterprises or minority persons, not rejecting minority business enterprises or minority persons as unqualified without sound reasons based on a thorough investigation of their capabilities.
8. Whether the contractor effectively used the services of available minority community organizations; minority contractors’ groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons.
(c) To adopt rules and do all things necessary or convenient to guide all state agencies toward making expenditures for commodities, contractual services, construction, and architectural and engineering services with certified minority business enterprises in accordance with the minority business enterprise procurement goals set forth in s. 287.042.
(d) To monitor the degree to which agencies procure services, commodities, and construction from minority business enterprises in conjunction with the Department of Financial Services as specified in s. 17.11.
(e) To receive and disseminate information relative to procurement opportunities, availability of minority business enterprises, and technical assistance.
(f) To advise agencies on methods and techniques for achieving procurement objectives.
(g) To provide a central minority business enterprise certification process which includes independent verification of status as a minority business enterprise.
(h) To develop procedures to investigate complaints against minority business enterprises or contractors alleged to violate any provision related to this section or s. 287.0943, that may include visits to worksites or business premises, and to refer all information on businesses suspected of misrepresenting minority status to the Department of Management Services for investigation. When an investigation is completed and there is reason to believe that a violation has occurred, the matter shall be referred to the office of the Attorney General, Department of Legal Affairs, for prosecution.
(i) To maintain a directory of all minority business enterprises which have been certified and provide this information to any agency or business requesting it.
(j) To encourage all firms which do more than $1 million in business with the state within a 12-month period to develop, implement, and submit to this office a minority business development plan.
(k) To communicate on a monthly basis with the Small and Minority Business Advisory Council to keep the council informed on issues relating to minority enterprise procurement.
(l) To serve as an advocate for minority business enterprises, and coordinate with the small and minority business ombudsman, as defined in s. 288.703, which duties shall include:
1. Ensuring that agencies supported by state funding effectively target the delivery of services and resources, as related to minority business enterprises.
2. Establishing standards within each industry with which the state government contracts on how agencies and contractors may provide the maximum practicable opportunity for minority business enterprises.
3. Assisting agencies and contractors by providing outreach to minority businesses, by specifying and monitoring technical and managerial competence for minority business enterprises, and by consulting in planning of agency procurement to determine how best to provide opportunities for minority business enterprises.
4. Integrating technical and managerial assistance for minority business enterprises with government contracting opportunities.
(m) To certify minority business enterprises, as defined in s. 288.703, and as specified in ss. 287.0943 and 287.09431, and shall recertify such minority businesses at least once every 2 years. Minority business enterprises must be recertified at least once every 2 years. Such certifications may include an electronic signature.
(n)1. To develop procedures to be used by an agency in identifying commodities, contractual services, architectural and engineering services, and construction contracts, except those architectural, engineering, construction, or other related services or contracts subject to the provisions of chapter 339, that could be provided by minority business enterprises. Each agency is encouraged to spend 21 percent of the moneys actually expended for construction contracts, 25 percent of the moneys actually expended for architectural and engineering contracts, 24 percent of the moneys actually expended for commodities, and 50.5 percent of the moneys actually expended for contractual services during the previous fiscal year, except for the state university construction program which shall be based upon public education capital outlay projections for the subsequent fiscal year, and reported to the Legislature pursuant to s. 216.023, for the purpose of entering into contracts with certified minority business enterprises as defined in s. 288.703, or approved joint ventures. However, in the event of budget reductions pursuant to s. 216.221, the base amounts may be adjusted to reflect such reductions. The overall spending goal for each industry category shall be subdivided as follows:
a. For construction contracts: 4 percent for black Americans, 6 percent for Hispanic-Americans, and 11 percent for American women.
b. For architectural and engineering contracts: 9 percent for Hispanic-Americans, 1 percent for Asian-Americans, and 15 percent for American women.
c. For commodities: 2 percent for black Americans, 4 percent for Hispanic-Americans, 0.5 percent for Asian-Americans, 0.5 percent for Native Americans, and 17 percent for American women.
d. For contractual services: 6 percent for black Americans, 7 percent for Hispanic-Americans, 1 percent for Asian-Americans, 0.5 percent for Native Americans, and 36 percent for American women.
2. For the purposes of commodities contracts for the purchase of equipment to be used in the construction and maintenance of state transportation facilities involving the Department of Transportation, the terms “minority business enterprise” and “minority person” have the same meanings as provided in s. 288.703. In order to ensure that the goals established under this paragraph for contracting with certified minority business enterprises are met, the department, with the assistance of the Office of Supplier Diversity, shall make recommendations to the Legislature on revisions to the goals, based on an updated statistical analysis, at least once every 5 years. Such recommendations shall be based on statistical data indicating the availability of and disparity in the use of minority businesses contracting with the state.
3. In determining the base amounts for assessing compliance with this paragraph, the Office of Supplier Diversity may develop, by rule, guidelines for all agencies to use in establishing such base amounts. These rules must include, but are not limited to, guidelines for calculation of base amounts, a deadline for the agencies to submit base amounts, a deadline for approval of the base amounts by the Office of Supplier Diversity, and procedures for adjusting the base amounts as a result of budget reductions made pursuant to s. 216.221.
4. To determine guidelines for the use of price preferences, weighted preference formulas, or other preferences, as appropriate to the particular industry or trade, to increase the participation of minority businesses in state contracting. These guidelines shall include consideration of:
a. Size and complexity of the project.
b. The concentration of transactions with minority business enterprises for the commodity or contractual services in question in prior agency contracting.
c. The specificity and definition of work allocated to participating minority business enterprises.
d. The capacity of participating minority business enterprises to complete the tasks identified in the project.
e. The available pool of minority business enterprises as prime contractors, either alone or as partners in an approved joint venture that serves as the prime contractor.
5. To determine guidelines for use of joint ventures to meet minority business enterprises spending goals. For purposes of this section, “joint venture” means any association of two or more business concerns to carry out a single business enterprise for profit, for which purpose they combine their property, capital, efforts, skills, and knowledge. The guidelines shall allow transactions with joint ventures to be eligible for credit against the minority business enterprise goals of an agency when the contracting joint venture demonstrates that at least one partner to the joint venture is a certified minority business enterprise as defined in s. 288.703, and that such partner is responsible for a clearly defined portion of the work to be performed, and shares in the ownership, control, management, responsibilities, risks, and profits of the joint venture. Such demonstration shall be by verifiable documents and sworn statements and may be reviewed by the Office of Supplier Diversity at or before the time a contract bid, proposal, or reply is submitted. An agency may count toward its minority business enterprise goals a portion of the total dollar amount of a contract equal to the percentage of the ownership and control held by the qualifying certified minority business partners in the contracting joint venture, so long as the joint venture meets the guidelines adopted by the office.
(o)1. To establish a system to record and measure the use of certified minority business enterprises in state contracting. This system shall maintain information and statistics on certified minority business enterprise participation, awards, dollar volume of expenditures and agency goals, and other appropriate types of information to analyze progress in the access of certified minority business enterprises to state contracts and to monitor agency compliance with this section. Such reporting must include, but is not limited to, the identification of all subcontracts in state contracting by dollar amount and by number of subcontracts and the identification of the utilization of certified minority business enterprises as prime contractors and subcontractors by dollar amounts of contracts and subcontracts, number of contracts and subcontracts, minority status, industry, and any conditions or circumstances that significantly affected the performance of subcontractors. Agencies shall report their compliance with the requirements of this reporting system at least annually and at the request of the office. All agencies shall cooperate with the office in establishing this reporting system. Except in construction contracting, all agencies shall review contracts costing in excess of CATEGORY FOUR as defined in s. 287.017 to determine if such contracts could be divided into smaller contracts to be separately solicited and awarded, and shall, when economical, offer such smaller contracts to encourage minority participation.
2. To report agency compliance with the provisions of subparagraph 1. for the preceding fiscal year to the Governor and Cabinet, the President of the Senate, and the Speaker of the House of Representatives on or before February 1 of each year. The report must contain, at a minimum, the following:
a. Total expenditures of each agency by industry.
b. The dollar amount and percentage of contracts awarded to certified minority business enterprises by each state agency.
c. The dollar amount and percentage of contracts awarded indirectly to certified minority business enterprises as subcontractors by each state agency.
d. The total dollar amount and percentage of contracts awarded to certified minority business enterprises, whether directly or indirectly, as subcontractors.
e. A statement and assessment of good faith efforts taken by each state agency.
f. A status report of agency compliance with subsection (6), as determined by the Minority Business Enterprise Office.
(5)(a) Each agency shall, at the time the specifications or designs are developed or contract sizing is determined for any proposed procurement costing in excess of CATEGORY FOUR, as defined in s. 287.017, forward a notice to the Office of Supplier Diversity of the proposed procurement and any determination on the designs of specifications of the proposed procurement that impose requirements on prospective vendors, no later than 30 days prior to the issuance of a solicitation, except that this provision shall not apply to emergency acquisitions. The 30-day notice period shall not toll the time for any other procedural requirements.
(b) If the Office of Supplier Diversity determines that the proposed procurement will not likely allow opportunities for minority business enterprises, the office may, within 20 days after it receives the information specified in paragraph (a), propose the implementation of minority business enterprise utilization provisions or submit alternative procurement methods that would significantly increase minority business enterprise contracting opportunities.
(c) Whenever the agency and the Office of Supplier Diversity disagree, the matter shall be submitted for determination to the head of the agency or the senior-level official designated pursuant to this section as liaison for minority business enterprise issues.
(d) If the proposed procurement proceeds to competitive solicitation, the office is hereby granted standing to protest, pursuant to this section, in a timely manner, any contract award during competitive solicitation for contractual services and construction contracts that fail to include minority business enterprise participation, if any responsible and responsive vendor has demonstrated the ability to achieve any level of participation, or, any contract award for commodities where, a reasonable and economical opportunity to reserve a contract, statewide or district level, for minority participation was not executed or, an agency failed to adopt an applicable preference for minority participation. The bond requirement shall be waived for the office purposes of this subsection.
(e) An agency may presume that a vendor offering no minority participation has not made a good faith effort when other vendors offer minority participation of firms listed as relevant to the agency’s purchasing needs in the pertinent locality or statewide to complete the project.
(f) Paragraph (a) will not apply when the Office of Supplier Diversity determines that an agency has established a work plan to allow advance consultation and planning with minority business enterprises and where such plan clearly demonstrates:
1. A high level of advance planning by the agency with minority business enterprises.
2. A high level of accessibility, knowledge, and experience by minority business enterprises in the agency’s contract decisionmaking process.
3. A high quality of agency monitoring and enforcement of internal implementation of minority business utilization provisions.
4. A high quality of agency monitoring and enforcement of contractor utilization of minority business enterprises, especially tracking subcontractor data, and ensuring the integrity of subcontractor reporting.
5. A high quality of agency outreach, agency networking of major vendors with minority vendors, and innovation in techniques to improve utilization of minority business enterprises.
6. Substantial commitment, sensitivity, and proactive attitude by the agency head and among the agency minority business staff.
(6) Each state agency shall coordinate its minority business enterprise procurement activities with the Office of Supplier Diversity. At a minimum, each agency shall:
(a) Adopt a minority business enterprise utilization plan for review and approval by the Office of Supplier Diversity which should require meaningful and useful methods to attain the legislative intent in assisting minority business enterprises.
(b) Designate a senior-level employee in the agency as a minority enterprise assistance officer, responsible for overseeing the agency’s minority business utilization activities, and who is not also charged with purchasing responsibility. A senior-level agency employee and agency purchasing officials shall be accountable to the agency head for the agency’s minority business utilization performance. The Office of Supplier Diversity shall advise each agency on compliance performance.
(c) If an agency deviates significantly from its utilization plan in 2 consecutive or 3 out of 5 total fiscal years, the Office of Supplier Diversity may review any and all solicitations and contract awards of the agency as deemed necessary until such time as the agency meets its utilization plan.
...denied. I. BACKGROUND The Plaintiffs', Florida A.G.C. Council, Inc., and the South Florida Chapter of the Associated General Contractors, have brought this cause of action challenging the constitutionality of certain provisions of Florida Statutes, § 287.09451 et seq....
...isted "evidence of a systemic pattern of past and continuing racial discrimination against minority business enterprises and a disparity in the availability and use of minority business enterprises in the state procurement system." Florida Statutes, § 287.09451(1)....
...construction contracts." Id. To this end, the Office of Supplier Diversity was established within the Department of Management Services to assist minority enterprises become "suppliers of commodities, services, and construction to state government." § 287.09451(2). The Office of Supplier Diversity (OSD) has a myriad of responsibilities, including, inter alia, adopting rules meant to assess whether state agencies have made "good faith efforts" to solicit business from minority business enterprises. § 287.09451(4)(a)....
...The OSD is also empowered to monitor whether contractors doing business with the State have similarly made good faith efforts to comply with the Legislature's objective of greater overall minority participation in the purchasing of commodities, services, and construction contracts. See § 287.09451(4)(b). The statute subsequently enumerates targeted measures which contractors should undertake, such as minority-centered recruitment and advertising, as a means of advancing the statute's purposes. See § 287.09451(b)(1)-(8). The Plaintiffs argue that provisions of § 287.09451 impermissibly violate the Equal Protection Clause of the United States Constitution by permitting states agencies to allow the use of race, ethnicity and gender to dictate who receives construction *1312 and other related contracts. For example, § 287.09451(4)(n)(1) provides that, Each [state] agency is encouraged to spend 21 percent of the moneys actually expended for Construction contracts, 25 percent of the moneys actually expended for architectural and engineering contracts, 24 percent...
...for the purpose of entering into contracts with certified minority business enterprises as defined in § 288.703(2), or approved joint ventures. The statute proceeds to list "overall spending goals" for various industry's falling under the authority of § 287.09451. Specifically, state agencies are to allocate 4 percent for black Americans, [4] percent for Hispanic-Americans, [5] and 11 percent for American women [6] of moneys actually expended for construction contracts. § 287.09451(4)(n)(1)(a). For architectural and engineering contracts, state agencies are to allocate 9 percent for Hispanic-Americans, 1 percent for Asian-Americans, [7] and 15 percent for American women. § 287.09451(4)(n)(1)(b). For commodities, the goal is 2 percent for black Americans, 4 percent Hispanic-Americans, 0.5 percent for Asian-Americans, 0.5 percent for Native Americans, [8] and 17 percent for American women. § 287.09451(4)(n)(1)(c)....
...Finally, as it pertains to contractual services, the goals are 6 percent for black Americans, 7 percent for Hispanic-Americans, 1 percent for Asian-Americans, 0.5 percent for Native Americans, and 36 percent for American women of moneys actually expended for contractual services during the previous fiscal year. § 287.09451(4)(n)(1)(d)....
...s chosen to implement the classifications' purposes must be narrowly tailored to achieve the goal). On this basis, the Plaintiffs have moved for summary judgment. The Defendants counter that the Plaintiffs are unable to overcome the presumption that § 287.09451 is constitutionally valid. Additionally, the Defendants assert that the Plaintiffs lack standing to seek prospective relief because the Plaintiffs have failed to demonstrate, notwithstanding *1313 the explicit terms of § 287.09451 et seq., that race, ethnicity or gender have determined who will be the beneficiary of governmental contracts....
...at 2302 (citation and internal quotations omitted). *1314 The Plaintiff's, who are challenging what they consider to be a State authorized "set-aside" program, are not required to prove that they would have received a particular contract `but for" the State's "spending goals" articulated in § 287.09451(4)(n)(1)....
...s for members of another group." Northeastern Florida, 508 U.S. at 666, 113 S.Ct. at 2303. This question will be more fully addressed below. However, for the time being, the Court has determined that the Plaintiffs clearly have standing to challenge § 287.09451 et seq....
...advantaged subcontractors." Adarand, 515 U.S. at 211, 115 S.Ct. at 2105. The Plaintiffs have also clearly satisfied this burden, based on the likelihood that they will bid on State construction contracts in the future, and a plain textual reading of § 287.09451(4)(n)(1)(a)(d). B. Constitutionality of § 287.09451 Fifteen years ago, the Supreme Court struck down a city ordinance requiring prime contractors who were awarded contacts by the city of Richmond to subcontract at least 30 percent of the value of the contracts to Minority Business Enterprises....
...because the challenged classification operates against a group that historically *1315 has not been subject to governmental discrimination.") (citation omitted). Given this background, the Court must determine whether the spending goals outlined in § 287.09451 are narrowly tailored to further a compelling governmental interest. 1. Do § 287.09451 Spending Goals Serve a Compelling Governmental Interest? Remedying past or present discrimination is considered to be a compelling governmental interest....
...The Legislature's articulated reasons for its spending goals, i.e., "a systemic pattern of past and continuing racial discrimination against minority business enterprises and a disparity in the availability and use of minority business enterprises in the state procurement system," § 287.09451(1), would, if true, constitute a compelling governmental interest necessitating race-conscious remedies....
...Metropolitan Dade County, 122 F.3d 895, 927 (11th Cir.1997) (citing Ensley Branch, 31 F.3d at 1569 (citations and internal quotation marks omitted)). There is absolutely no evidence in the record to suggest that the Defendants contemplated race-neutral means to accomplish the objectives set forth in § 287.09451 et seq., such as "`simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races [which] would open the public contracting market to all those who ha...
...d at 928 (quoting Croson, 488 U.S. at 509-10, 109 S.Ct. at 730). The Plaintiffs have affixed to its Motion for Partial Summary Judgment, Interim Project Report 2001-042 (Report), issued by Florida Senate, outlining the legislative history underlying § 287.09451 and an analysis of disparity studies related to the State's utilization of minority business enterprises. The Report concluded that *1316 there was little evidence to support the spending goals outlined in § 287.09451....
...ntal unit involved before allowing limited use of racial classifications in order to remedy such discrimination." Wygant, 476 U.S. at 274, 106 S.Ct. at 1847. The Defendants do not seem to disagree with the Reports findings. Instead, they insist that § 287.09451 is permissive....
...cific contracting decisions, they undoubtedly have a `concrete effect' on whether nonminority business enterprises receive contracts[.]"). It is also apparent that the Defendants apply pressure to state agencies to meet the legislative objectives of § 287.09451(1), extending beyond simple outreach efforts....
...Federal Communications Commission, 236 F.3d 13, 16 (D.C.Cir.2001). State agencies are required to coordinate their minority business enterprise procurement activities with the OSD, which includes adopting; a minority business enterprise utilization plan. § 287.09451(6)(a)....
...If the state agency "deviates significantly from its utilization plan in 2 consecutive or 3 out of 5 total fiscal years, the OSD may review any and all solicitation and contract awards of the agency as deemed necessary until such time as the agency meets its utilization plan." § 287.09451(6)(c). Though alleged to be permissive, textually § 287.09451 et seq. is not. Accordingly, I find that § 287.09451 et seq....
...However, I am bound to follow the precedent established by Croson and its progeny. Accordingly, it is hereby ORDERED AND ADJUDGED: 1. Plaintiffs' Motion for Partial Summary Judgment (doe. 29) is GRANED. 2. Defendants' Motion for Summary Judgment (doc. 55) is DENIED. *1317 3. § 287.09451 et seq....
...in any of the Indian tribes of North America prior to 1835, upon presentation of proper documentation thereof as established by rule of the Department of Management Services." [9] This order has given short shrift to the gender-conscious aspects of § 287.09451 et seq....
...nomic sphere at which the affirmative action program is directed.'" Engineering Contractors Association, 122 F.3d at 910 (quoting Ensley Branch, 31 F.3d at 1581). Even under this more lenient standard, the gender-conscious spending goals outlined in § 287.09451(4)(n)(1) cannot withstand intermediate scrutiny.
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