November 21, 2019
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_h5611__
HB 5611

1
A bill to be entitled
2An act relating to the Department of Management Services;
3amending ss. 17.11, 255.102, and 287.012, F.S.; conforming
4provisions to the elimination of the Office of Supplier
5Diversity and the transfer of its duties to the Division
6of State Purchasing; amending s. 287.042, F.S.; providing
7that fees collected by the department for the use of its
8electronic information services in excess of the
9obligations and encumbrances to cover the department's
10costs of providing the services shall be calculated
11annually and transferred to the General Revenue Fund;
12conforming provisions to the elimination of the Office of
13Supplier Diversity and the transfer of its duties to the
14Division of State Purchasing; amending s. 287.057, F.S.;
15conforming provisions to the elimination of the Office of
16Supplier Diversity and the transfer of its duties to the
17Division of State Purchasing; conforming cross-references;
18providing that fees collected by the department for the
19use of the services of its online procurement systems in
20excess of the obligations and encumbrances to cover the
21department's costs of providing the services shall be
22calculated annually and transferred to the General Revenue
23Fund; amending s. 287.094, F.S.; conforming provisions to
24the elimination of the Office of Supplier Diversity and
25the transfer of its duties to the Division of State
26Purchasing; providing that certain complaints formerly
27filed with the office may be filed with agency inspectors
28general; providing that a business certified by the office
29as a minority business enterprise under s. 287.0943, F.S.,
30as of a specified date shall continue to be recognized as
31a certified minority business enterprise for purposes of
32doing business with state government for a specified
33period; amending s. 287.0943, F.S.; providing for
34certification of minority businesses by other specified
35governments if certification criteria meet, at a minimum,
36the state's criteria; providing duties of the Division of
37State Purchasing; eliminating provisions relating to the
38certification of minority business enterprises by the
39Office of Supplier Diversity; deleting provisions relating
40to the Minority Business Certification Task Force;
41deleting provisions relating to review and evaluation of
42certification programs and procedures of statewide and
43interlocal minority business certification agreements;
44amending s. 287.09431, F.S.; conforming provisions to the
45elimination of the Office of Supplier Diversity and the
46transfer of its duties to the Division of State
47Purchasing; conforming cross-references; amending s.
48287.09451, F.S.; deleting provisions creating the Office
49of Supplier Diversity within the department; providing for
50assumption of specified powers and duties by the Division
51of State Purchasing; eliminating provisions relating to
52the certification of minority business enterprises by the
53office; deleting provisions relating to specified
54communication and advocacy duties of the office; deleting
55obsolete provisions; amending ss. 288.703, 288.712, and
56288.955, F.S.; conforming provisions to the elimination of
57the Office of Supplier Diversity and the transfer of its
58duties to the Division of State Purchasing; amending s.
59287.05721, F.S.; repealing the definition of "council" as
60it relates to the Council on Efficient Government;
61repealing s. 287.0573, F.S., creating the Council on
62Efficient Government within the department; amending s.
63287.0574, F.S.; conforming provisions to the elimination
64of the Council on Efficient Government; requiring that a
65business case be submitted in the form and manner required
66by the budget instructions; providing an effective date.
67
68Be It Enacted by the Legislature of the State of Florida:
69
70     Section 1.  Subsection (2) of section 17.11, Florida
71Statutes, is amended to read:
72     17.11  To report disbursements made.-
73     (2)  The Chief Financial Officer shall also cause to have
74reported from the Florida Accounting Information Resource
75Subsystem no less than quarterly the disbursements which
76agencies made to small businesses, as defined in the Florida
77Small and Minority Business Assistance Act; to certified
78minority business enterprises in the aggregate; and to certified
79minority business enterprises broken down into categories of
80minority persons, as well as gender and nationality subgroups.
81This information shall be made available to the agencies, the
82Division of State Purchasing Office of Supplier Diversity, the
83Governor, the President of the Senate, and the Speaker of the
84House of Representatives. Each agency shall be responsible for
85the accuracy of information entered into the Florida Accounting
86Information Resource Subsystem for use in this reporting.
87     Section 2.  Section 255.102, Florida Statutes, is amended
88to read:
89     255.102  Contractor utilization of minority business
90enterprises.-
91     (1)  Agencies shall consider the use of price preferences,
92weighted preference formulas, or other preferences for
93construction contracts, as determined appropriate by the
94Division of State Purchasing Office of Supplier Diversity to
95increase minority participation.
96     (2)  The Division of State Purchasing Office of Supplier
97Diversity, in collaboration with the Board of Governors of the
98State University System, shall adopt rules to determine what is
99a "good faith effort" for purposes of contractor compliance with
100minority participation goals established for competitively
101awarded building and construction projects. Pro forma efforts
102shall not be considered good faith. Factors which shall be
103considered by the state agency in determining whether a
104contractor has made good faith efforts shall include, but not be
105limited to:
106     (a)  Whether the contractor attended any presolicitation or
107prebid meetings that were scheduled by the agency to inform
108minority business enterprises of contracting and subcontracting
109opportunities.
110     (b)  Whether the contractor advertised in general
111circulation, trade association, or minority-focus media
112concerning the subcontracting opportunities.
113     (c)  Whether the contractor provided written notice to all
114relevant subcontractors listed on the minority vendor list for
115that locality and statewide as provided by the agency as of the
116date of issuance of the invitation to bid, that their interest
117in the contract was being solicited in sufficient time to allow
118the minority business enterprises to participate effectively.
119     (d)  Whether the contractor followed up initial
120solicitations of interest by contacting minority business
121enterprises, the Division of State Purchasing Office of Supplier
122Diversity, or minority persons who responded and provided
123detailed information about prebid meetings, access to plans,
124specifications, contractor's project manager, subcontractor
125bonding, if any, payment schedule, bid addenda, and other
126assistance provided by the contractor to enhance minority
127business enterprise participation.
128     (e)  Whether the contractor selected portions of the work
129to be performed by minority business enterprises in order to
130increase the likelihood of meeting the minority business
131enterprise procurement goals, including, where appropriate,
132breaking down contracts into economically feasible units to
133facilitate minority business enterprise participation under
134reasonable and economical conditions of performance.
135     (f)  Whether the contractor provided the Division of State
136Purchasing Office of Supplier Diversity as well as interested
137minority business enterprises or minority persons with adequate
138information about the plans, specifications, and requirements of
139the contract or the availability of jobs at a time no later than
140when such information was provided to other subcontractors.
141     (g)  Whether the contractor negotiated in good faith with
142interested minority business enterprises or minority persons,
143not rejecting minority business enterprises or minority persons
144as unqualified without sound reasons based on a thorough
145investigation of their capabilities or imposing implausible
146conditions of performance on the contract.
147     (h)  Whether the contractor diligently seeks to replace a
148minority business enterprise subcontractor that is unable to
149perform successfully with another minority business enterprise.
150     (i)  Whether the contractor effectively used the services
151of available minority community organizations; minority
152contractors' groups; local, state, and federal minority business
153assistance offices; and other organizations that provide
154assistance in the recruitment and placement of minority business
155enterprises or minority persons.
156     (3)  If an agency considers any other criteria in
157determining whether a contractor has made a good faith effort,
158the agency shall adopt such criteria in accordance with s.
159120.54, and, where required by that section, by rule, after May
16031, 1994. In adopting such criteria, the agency shall identify
161the specific factors in as objective a manner as possible to be
162used to assess a contractor's performance against said criteria.
163     (4)  Notwithstanding the provisions of s. 287.09451 to the
164contrary, agencies shall monitor good faith efforts of
165contractors in competitively awarded building and construction
166projects, in accordance with rules established pursuant to this
167section. It is the responsibility of the contractor to exercise
168good faith efforts in accordance with rules established pursuant
169to this section, and to provide documentation necessary to
170assess efforts to include minority business participation.
171     Section 3.  Subsections (11) through (18) of section
172287.012, Florida Statutes, are redesignated as subsections (12)
173through (19), respectively, and present subsection (19) of that
174section is amended to read:
175     287.012  Definitions.-As used in this part, the term:
176     (11)(19)  "Division" "Office" means the Division of State
177Purchasing Office of Supplier Diversity of the Department of
178Management Services.
179     Section 4.  Paragraph (h) of subsection (1), paragraphs (a)
180and (c) of subsection (2), paragraphs (b) and (c) of subsection
181(3), and subsection (10) of section 287.042, Florida Statutes,
182are amended to read:
183     287.042  Powers, duties, and functions.-The department
184shall have the following powers, duties, and functions:
185     (1)
186     (h)1.  The department may collect fees for the use of its
187electronic information services. The fees may be imposed on an
188individual transaction basis or as a fixed subscription for a
189designated period of time. At a minimum, the fees shall be
190determined in an amount sufficient to cover the department's
191projected costs of the services, including overhead in
192accordance with the policies of the Department of Management
193Services for computing its administrative assessment. All fees
194collected under this paragraph shall be deposited in the
195Operating Trust Fund for disbursement as provided by law.
196     2.  Effective July 1, 2010, any fees collected pursuant to
197subparagraph 1. and remaining in the Operating Trust Fund in
198excess of the obligations and encumbrances to cover the
199department's costs of providing services pursuant to
200subparagraph 1. shall be calculated as of June 5 each year and
201transferred to the General Revenue Fund before June 30 of each
202year.
203     (2)(a)  To establish purchasing agreements and procure
204state term contracts for commodities and contractual services,
205pursuant to s. 287.057, under which state agencies shall, and
206eligible users may, make purchases pursuant to s. 287.056. The
207department may restrict purchases from some term contracts to
208state agencies only for those term contracts where the inclusion
209of other governmental entities will have an adverse effect on
210competition or to those federal facilities located in this
211state. In such planning or purchasing the department Office of
212Supplier Diversity may monitor to ensure that opportunities are
213afforded for contracting with minority business enterprises. The
214department, for state term contracts, and all agencies, for
215multiyear contractual services or term contracts, shall explore
216reasonable and economical means to utilize certified minority
217business enterprises. Purchases by any county, municipality,
218private nonprofit community transportation coordinator
219designated pursuant to chapter 427, while conducting business
220related solely to the Commission for the Transportation
221Disadvantaged, or other local public agency under the provisions
222in the state purchasing contracts, and purchases, from the
223corporation operating the correctional work programs, of
224products or services that are subject to paragraph (1)(f), are
225exempt from the competitive solicitation requirements otherwise
226applying to their purchases.
227     (c)  Any person who files an action protesting a decision
228or intended decision pertaining to contracts administered by the
229department, a water management district, or an agency pursuant
230to s. 120.57(3)(b) shall post with the department, the water
231management district, or the agency at the time of filing the
232formal written protest a bond payable to the department, the
233water management district, or agency in an amount equal to 1
234percent of the estimated contract amount. For protests of
235decisions or intended decisions pertaining to exceptional
236purchases, the bond shall be in an amount equal to 1 percent of
237the estimated contract amount for the exceptional purchase. The
238estimated contract amount shall be based upon the contract price
239submitted by the protestor or, if no contract price was
240submitted, the department, water management district, or agency
241shall estimate the contract amount based on factors including,
242but not limited to, the price of previous or existing contracts
243for similar commodities or contractual services, the amount
244appropriated by the Legislature for the contract, or the fair
245market value of similar commodities or contractual services. The
246agency shall provide the estimated contract amount to the vendor
247within 72 hours, excluding Saturdays, Sundays, and state
248holidays, after the filing of the notice of protest by the
249vendor. The estimated contract amount is not subject to protest
250pursuant to s. 120.57(3). The bond shall be conditioned upon the
251payment of all costs and charges that are adjudged against the
252protestor in the administrative hearing in which the action is
253brought and in any subsequent appellate court proceeding. In
254lieu of a bond, the department, the water management district,
255or agency may, in either case, accept a cashier's check,
256official bank check, or money order in the amount of the bond.
257If, after completion of the administrative hearing process and
258any appellate court proceedings, the department, water
259management district, or agency prevails, it shall recover all
260costs and charges which shall be included in the final order or
261judgment, excluding attorney's fees. This section shall not
262apply to protests filed by the Office of Supplier Diversity.
263Upon payment of such costs and charges by the protestor, the
264bond, cashier's check, official bank check, or money order shall
265be returned to the protestor. If, after the completion of the
266administrative hearing process and any appellate court
267proceedings, the protestor prevails, the protestor shall recover
268from the department, water management district, or agency all
269costs and charges which shall be included in the final order or
270judgment, excluding attorney's fees.
271     (3)  To establish a system of coordinated, uniform
272procurement policies, procedures, and practices to be used by
273agencies in acquiring commodities and contractual services,
274which shall include, but not be limited to:
275     (b)1.  Development of procedures for advertising
276solicitations. These procedures must provide for electronic
277posting of solicitations for at least 10 days before the date
278set for receipt of bids, proposals, or replies, unless the
279department or other agency determines in writing that a shorter
280period of time is necessary to avoid harming the interests of
281the state. The Office of Supplier Diversity may consult with the
282department may develop regarding the development of solicitation
283distribution procedures to ensure that maximum distribution is
284afforded to certified minority business enterprises as defined
285in s. 288.703.
286     2.  Development of procedures for electronic posting. The
287department shall designate a centralized website on the Internet
288for the department and other agencies to electronically post
289solicitations, decisions or intended decisions, and other
290matters relating to procurement.
291     (c)  Development of procedures for the receipt and opening
292of bids, proposals, or replies by an agency. Such procedures
293shall provide the department Office of Supplier Diversity an
294opportunity to monitor and ensure that the contract award is
295consistent with the requirements of s. 287.09451.
296     (10)  To prepare statistical data concerning the method of
297procurement, terms, usage, and disposition of commodities and
298contractual services by agencies. All agencies shall furnish
299such information for this purpose to the division office and to
300the department, as the department or division office may call
301for, but no less frequently than annually, on such forms or in
302such manner as the department may prescribe.
303     Section 5.  Subsection (7), paragraphs (a), (b), and (c) of
304subsection (8), and paragraph (c) of subsection (23) of section
305287.057, Florida Statutes, are amended to read:
306     287.057  Procurement of commodities or contractual
307services.-
308     (7)  Upon issuance of any solicitation, an agency shall,
309upon request by the department, forward to the department one
310copy of each solicitation for all commodity and contractual
311services purchases in excess of the threshold amount provided in
312s. 287.017 for CATEGORY TWO. An agency shall also, upon request,
313furnish a copy of all competitive-solicitation tabulations. The
314Office of Supplier Diversity may also request from the agencies
315any information submitted to the department pursuant to this
316subsection.
317     (8)(a)  In order to strive to meet the minority business
318enterprise procurement goals set forth in s. 287.09451, an
319agency may reserve any contract for competitive solicitation
320only among certified minority business enterprises. Agencies
321shall review all their contracts each fiscal year and shall
322determine which contracts may be reserved for solicitation only
323among certified minority business enterprises. This reservation
324may only be used when it is determined, by reasonable and
325objective means, before the solicitation that there are capable,
326qualified certified minority business enterprises available to
327submit a bid, proposal, or reply on a contract to provide for
328effective competition. The department may Office of Supplier
329Diversity shall consult with any agency in reaching such
330determination when deemed appropriate.
331     (b)  Before a contract may be reserved for solicitation
332only among certified minority business enterprises, the agency
333head must find that such a reservation is in the best interests
334of the state. All determinations shall be subject to s.
335287.09451(3)(5). Once a decision has been made to reserve a
336contract, but before sealed bids, proposals, or replies are
337requested, the agency shall estimate what it expects the amount
338of the contract to be, based on the nature of the services or
339commodities involved and their value under prevailing market
340conditions. If all the sealed bids, proposals, or replies
341received are over this estimate, the agency may reject the bids,
342proposals, or replies and request new ones from certified
343minority business enterprises, or the agency may reject the
344bids, proposals, or replies and reopen the bidding to all
345eligible vendors.
346     (c)  All agencies shall consider the use of price
347preferences of up to 10 percent, weighted preference formulas,
348or other preferences for vendors as determined appropriate
349pursuant to guidelines established in accordance with s.
350287.09451(2)(4) to increase the participation of minority
351business enterprises.
352     (23)  The department, in consultation with the Agency for
353Enterprise Information Technology and the Comptroller, shall
354develop a program for online procurement of commodities and
355contractual services. To enable the state to promote open
356competition and to leverage its buying power, agencies shall
357participate in the online procurement program, and eligible
358users may participate in the program. Only vendors prequalified
359as meeting mandatory requirements and qualifications criteria
360may participate in online procurement.
361     (c)  The department may impose and shall collect all fees
362for the use of the online procurement systems.
363     1.  The fees may be imposed on an individual transaction
364basis or as a fixed percentage of the cost savings generated. At
365a minimum, the fees must be set in an amount sufficient to cover
366the projected costs of the services, including administrative
367and project service costs in accordance with the policies of the
368department.
369     2.  If the department contracts with a provider for online
370procurement, the department, pursuant to appropriation, shall
371compensate the provider from the fees after the department has
372satisfied all ongoing costs. The provider shall report
373transaction data to the department each month so that the
374department may determine the amount due and payable to the
375department from each vendor.
376     3.  All fees that are due and payable to the state on a
377transactional basis or as a fixed percentage of the cost savings
378generated are subject to s. 215.31 and must be remitted within
37940 days after receipt of payment for which the fees are due. For
380fees that are not remitted within 40 days, the vendor shall pay
381interest at the rate established under s. 55.03(1) on the unpaid
382balance from the expiration of the 40-day period until the fees
383are remitted.
384     4.  All fees and surcharges collected under this paragraph
385shall be deposited in the Operating Trust Fund for disbursement
386as provided by law.
387     5.  Effective July 1, 2010, any fees collected pursuant to
388subparagraph 1. and remaining in the Operating Trust Fund in
389excess of the obligations and encumbrances to cover the
390department's costs of providing services pursuant to
391subparagraph 1. shall be calculated as of June 5 each year and
392transferred to the General Revenue Fund before June 30 of each
393year.
394     Section 6.  Subsections (3) and (4) of section 287.094,
395Florida Statutes, are amended to read:
396     287.094  Minority business enterprise programs; penalty for
397discrimination and false representation.-
398     (3)  Any contractor, firm, or individual shall be barred
399from doing business with state government for a period of 36
400months, and shall be permanently disqualified from doing
401business with state government as a certified minority business
402enterprise, if the division office has determined that the
403contractor, firm, or individual has not acted in good faith to
404fulfill the terms of a contract calling for it to use the
405services or commodities of a certified minority business
406enterprise. If the Department of Legal Affairs, agency final
407order, or a court of law determines that a person was involved
408in a violation of this section, knew about such violation, or
409collaborated with a contractor or firm in such violation, the
410person, or any contractor or firm the person is employed by or
411affiliated with, shall be barred from doing business with state
412government for a period of at least 36 months.
413     (4)  No agency shall deny any contractor, firm, or
414individual a fair opportunity to compete in the public
415procurement of commodities and services based on race, national
416origin, gender, religion, or physical disability, which for
417purposes of this subsection constitutes prohibited
418discrimination. Complaints alleging prohibited discrimination by
419an agency in its public procurement may be filed with the
420Inspector General for the agency that is the subject of the
421complaint Office of Supplier Diversity within 60 days after the
422facts giving rise to the complaint are known or reasonably
423should have been discovered. Any complaint shall be filed in
424writing and must set forth the specific facts giving rise to the
425claim of prohibited discrimination. The Office of Supplier
426Diversity shall, within 10 days, refer the complaint to the
427Inspector General for the agency that is the subject of the
428complaint, who shall coordinate a prompt investigation and issue
429written findings of fact. These findings shall be reviewed by
430the Chief Inspector General or his or her designee, who is
431authorized to conduct any further investigation deemed necessary
432or appropriate. Upon a final determination that an agency has
433abused its discretion by engaging in prohibited discrimination,
434the Chief Inspector General shall refer any state employee
435determined to have participated in the prohibited discrimination
436for disciplinary action in accordance with chapter 60K(9),
437Florida Administrative Code, and subsequently enacted rules, up
438to and including termination.
439     Section 7.  A business certified by the Office of Supplier
440Diversity as a minority business enterprise under s. 287.0943,
441Florida Statutes, as of June 30, 2010, shall continue to be
442recognized as a certified minority business enterprise for
443purposes of doing business with state government for 2 years
444from the effective date of certification, but not later than
445June 30, 2012.
446     Section 8.  Section 287.0943, Florida Statutes, is amended
447to read:
448     287.0943  Certification of minority business enterprises.-
449     (1)  A business certified by a department of the Federal
450Government or any local governmental jurisdiction or
451organization shall be accepted by the Department of Management
452Services, Office of Supplier Diversity, as a certified minority
453business enterprise for purposes of doing business with state
454government when the minority business enterprise has obtained
455certification or recertification within the past 2 years and the
456Office of Supplier Diversity determines that the state's
457minority business enterprise certification criteria used in the
458certification process met, at a minimum, the criteria adopted by
459the Department of Management Services are applied in the local
460certification process.
461     (2)(a)  The office is hereby directed to convene a
462"Minority Business Certification Task Force." The task force
463shall meet as often as necessary, but no less frequently than
464annually.
465     (b)  The task force shall be regionally balanced and
466comprised of officials representing the department, counties,
467municipalities, school boards, special districts, and other
468political subdivisions of the state who administer programs to
469assist minority businesses in procurement or development in
470government-sponsored programs. The following organizations may
471appoint two members each of the task force who fit the
472description above:
473     1.  The Florida League of Cities, Inc.
474     2.  The Florida Association of Counties.
475     3.  The Florida School Boards Association, Inc.
476     4.  The Association of Special Districts.
477     5.  The Florida Association of Minority Business Enterprise
478Officials.
479     6.  The Florida Association of Government Purchasing
480Officials.
481
482In addition, the Office of Supplier Diversity shall appoint
483seven members consisting of three representatives of minority
484business enterprises, one of whom should be a woman business
485owner, two officials of the office, and two at-large members to
486ensure balance. The chairperson of the Legislative Committee on
487Intergovernmental Relations or a designee shall be a member of
488the task force, ex officio. A quorum shall consist of one-third
489of the current members, and the task force may take action by
490majority vote. Any vacancy may only be filled by the
491organization or agency originally authorized to appoint the
492position.
493     (c)  The purpose of the task force will be to propose
494uniform criteria and procedures by which participating entities
495and organizations can qualify businesses to participate in
496procurement or contracting programs as certified minority
497business enterprises in accordance with the certification
498criteria established by law.
499     (d)  A final list of the criteria and procedures proposed
500by the task force shall be considered by the secretary. The task
501force may seek technical assistance from qualified providers of
502technical, business, and managerial expertise to ensure the
503reliability of the certification criteria developed.
504     (a)(e)  In assessing the status of ownership and control,
505certification criteria shall, at a minimum:
506     1.  Link ownership by a minority person, as defined in s.
507288.703(3), or as dictated by the legal obligations of a
508certifying organization, to day-to-day control and financial
509risk by the qualifying minority owner, and to demonstrated
510expertise or licensure of a minority owner in any trade or
511profession that the minority business enterprise will offer to
512the state when certified. Businesses must comply with all state
513licensing requirements prior to becoming certified as a minority
514business enterprise.
515     2.  If present ownership was obtained by transfer, require
516the minority person on whom eligibility is based to have owned
517at least 51 percent of the applicant firm for a minimum of 2
518years, when any previous majority ownership interest in the firm
519was by a nonminority who is or was a relative, former employer,
520or current employer of the minority person on whom eligibility
521is based. This requirement shall not apply to minority persons
522who are otherwise eligible who take a 51-percent-or-greater
523interest in a firm that requires professional licensure to
524operate and who will be the qualifying licenseholder for the
525firm when certified. A transfer made within a related immediate
526family group from a nonminority person to a minority person in
527order to establish ownership by a minority person shall be
528deemed to have been made solely for purposes of satisfying
529certification criteria and shall render such ownership invalid
530for purposes of qualifying for such certification if the
531combined total net asset value of all members of such family
532group exceeds $1 million. For purposes of this subparagraph, the
533term "related immediate family group" means one or more children
534under 16 years of age and a parent of such children or the
535spouse of such parent residing in the same house or living unit.
536     3.  Require that prospective certified minority business
537enterprises be currently performing or seeking to perform a
538useful business function. A "useful business function" is
539defined as a business function which results in the provision of
540materials, supplies, equipment, or services to customers. Acting
541as a conduit to transfer funds to a nonminority business does
542not constitute a useful business function unless it is done so
543in a normal industry practice. As used in this section, the term
544"acting as a conduit" means, in part, not acting as a regular
545dealer by making sales of material, goods, or supplies from
546items bought, kept in stock, and regularly sold to the public in
547the usual course of business. Brokers, manufacturer's
548representatives, sales representatives, and nonstocking
549distributors are considered as conduits that do not perform a
550useful business function, unless normal industry practice
551dictates.
552     (b)(f)  When a business receives payments or awards
553exceeding $100,000 in one fiscal year, a review of its
554certification status or an audit will be conducted within 2
555years. In addition, random reviews or audits will be conducted
556as deemed appropriate by the Office of Supplier Diversity.
557     (c)(g)  The certification criteria approved by the task
558force and adopted by the Department of Management Services shall
559be included in a statewide and interlocal agreement as defined
560in s. 287.09431 and, in accordance with s. 163.01, shall be
561executed according to the terms included therein.
562     (d)(h)  The certification procedures should allow an
563applicant seeking certification to designate on the application
564form the information the applicant considers to be proprietary,
565confidential business information. As used in this paragraph,
566"proprietary, confidential business information" includes, but
567is not limited to, any information that would be exempt from
568public inspection pursuant to the provisions of chapter 119;
569trade secrets; internal auditing controls and reports; contract
570costs; or other information the disclosure of which would injure
571the affected party in the marketplace or otherwise violate s.
572286.041. The executor in receipt of the application shall issue
573written and final notice of any information for which
574noninspection is requested but not provided for by law.
575     (e)(i)  A business that is certified under the provisions
576of the statewide and interlocal agreement shall be deemed a
577certified minority enterprise in all jurisdictions or
578organizations where the agreement is in effect, and that
579business is deemed available to do business as such within any
580such jurisdiction or with any such organization statewide. All
581state agencies must accept minority business enterprises
582certified in accordance with the statewide and interlocal
583agreement of s. 287.09431, and that business shall also be
584deemed a "certified minority business enterprise" as defined in
585s. 288.703. However, any governmental jurisdiction or
586organization that administers a minority business purchasing
587program may reserve the right to establish further certification
588procedures necessary to comply with federal law.
589     (j)  The statewide and interlocal agreement shall be guided
590by the terms and conditions found therein and may be amended at
591any meeting of the task force and subsequently adopted by the
592secretary of the Department of Management Services. The amended
593agreement must be enacted, initialed, and legally executed by at
594least two-thirds of the certifying entities party to the
595existing agreement and adopted by the state as originally
596executed in order to bind the certifying entity.
597     (k)  The task force shall meet for the first time no later
598than 45 days after the effective date of this act.
599     (3)(a)  The office shall review and evaluate the
600certification programs and procedures of all prospective
601executors of the statewide and interlocal agreement to determine
602if their programs exhibit the capacity to meet the standards of
603the agreement.
604     (b)  The evaluations shall, at a minimum, consider: the
605certifying entity's capacity to conduct investigations of
606applicants seeking certification under the designated criteria;
607the ability of the certifying entity to collect the requisite
608data and to establish adequate protocol to store and exchange
609said information among the executors of the agreement and to
610provide adequate security to prevent unauthorized access to
611information gathered during the certification process; and the
612degree to which any legal obligations or supplemental
613requirements unique to the certifying entity exceed the capacity
614of that entity to conduct certifications.
615     (3)(c)  Any firms certified by organizations or
616governmental entities determined not to meet the state
617certification criteria shall not be eligible to participate as
618certified minority business enterprises in the minority business
619assistance programs of the state. For a period of 1 year from
620the effective date of this legislation, the executor of the
621statewide and interlocal agreement may elect to accept only
622minority business enterprises certified pursuant to criteria in
623place at the time the agreement was signed. After the 1-year
624period, Either party to the statewide and interlocal agreement
625may elect to withdraw from the agreement without further notice.
626     (d)  Any organizations or governmental entities determined
627by the office not to meet the standards of the agreement shall
628not be eligible to execute the statewide and interlocal
629agreement as a participating organization until approved by the
630office.
631     (e)  Any participating program receiving three or more
632challenges to its certification decisions pursuant to subsection
633(4) from other organizations that are executors to the statewide
634and interlocal agreement, shall be subject to a review by the
635office, as provided in paragraphs (a) and (b), of the
636organization's capacity to perform under such agreement and in
637accordance with the core criteria established by the task force.
638The office shall submit a report to the secretary of the
639Department of Management Services regarding the results of the
640review.
641     (f)  The office shall maintain a directory of all executors
642of the statewide and interlocal agreement. The directory should
643be communicated to the general public.
644     (4)  A certification may be challenged by any executor to
645the statewide and interlocal agreement upon the grounds of
646failure by the certifying organization to adhere to the adopted
647criteria or to the certifying organization's rules and
648procedures, or on the grounds of a misrepresentation or fraud by
649the certified minority business enterprise. The challenge shall
650proceed according to procedures specified in the agreement.
651     (5)(a)  The secretary of the Department of Management
652Services shall execute the statewide and interlocal agreement
653established under s. 287.09431 on behalf of the state. The
654office shall certify minority business enterprises in accordance
655with the laws of this state and, by affidavit, shall recertify
656such minority business enterprises not less than once each year.
657     (b)  The office shall contract with parties to the
658statewide and interlocal agreement to perform onsite visits
659associated with state certifications.
660     (6)(a)  The office shall maintain up-to-date records of all
661certified minority business enterprises, as defined in s.
662288.703, and of applications for certification that were denied
663and shall make this list available to all agencies. The division
664office shall, for statistical purposes, collect and track
665subgroupings of gender and nationality status for each certified
666minority business enterprise. Agency spending shall also be
667tracked for these subgroups. The records may include information
668about minority business enterprises that provide legal services,
669auditing services, and health services. Agencies shall use this
670list in efforts to meet the minority business enterprise
671procurement goals set forth in s. 287.09451.
672     (b)  The office shall establish and administer a
673computerized data bank to carry out the requirements of
674paragraph (a), to be available to all executors of the statewide
675and interlocal agreement. Data maintained in the data bank shall
676be sufficient to allow each executor to reasonably monitor
677certifications it has issued.
678     (7)  The office shall identify minority business
679enterprises eligible for certification in all areas of state
680services and commodities purchasing. The office may contract
681with a private firm or other agency, if necessary, in seeking to
682identify minority business enterprises for certification.
683Agencies may request the office to identify certifiable minority
684business enterprises that are in the business of providing a
685given service or commodity; the office shall respond to such
686requests and seek out such certifiable minority business
687enterprises.
688     (8)  The office shall adopt rules necessary to implement
689this section.
690     (7)(9)  State agencies shall comply with this act except to
691the extent that the requirements of this act are in conflict
692with federal law.
693     (8)(10)  Any transfer of ownership or permanent change in
694the management and daily operations of a certified minority
695business enterprise which may affect certification must be
696reported to the original certifying jurisdiction or entity and
697to the office within 14 days of the transfer or change taking
698place. In the event of a transfer of ownership, the transferee
699seeking to do business with the state as a certified minority
700business enterprise is responsible for such reporting. In the
701event of a permanent change in the management and daily
702operations, owners seeking to do business with the state as a
703certified minority business enterprise are responsible for
704reporting such change to the office. Any person violating the
705provisions of this subsection commits shall be guilty of a
706misdemeanor of the first degree, punishable as provided in s.
707775.082 or s. 775.083.
708     (9)(11)  To deter fraud in the program, the Auditor General
709may review the criteria by which a business became certified as
710a certified minority business enterprise.
711     (10)(12)  Any executor of the statewide and interlocal
712agreement may revoke the certification or recertification of a
713firm doing business as a certified minority business enterprise
714if the minority business enterprise does not meet the
715requirements of the jurisdiction or certifying entity that
716certified or recertified the firm as a certified minority
717business enterprise, or the requirements of subsection (2), s.
718288.703, and any rule of the division office or the Department
719of Management Services or if the business acquired certification
720or recertification by means of falsely representing any entity
721as a minority business enterprise for purposes of qualifying for
722certification or recertification.
723     (11)(13)  Unless permanently revoked, a certified minority
724business enterprise for which certification or recertification
725has been revoked may not apply or reapply for certification or
726recertification for a minimum of 36 months after the date of the
727notice of revocation.
728     (12)(14)(a)  Except for certification decisions issued by
729the Office of Supplier Diversity, An executor to the statewide
730and interlocal agreement shall, in accordance with its rules and
731procedures:
732     1.  Give reasonable notice to affected persons or parties
733of its decision to deny certification based on failure to meet
734eligibility requirements of the statewide and interlocal
735agreement of s. 287.09431, together with a summary of the
736grounds therefor.
737     2.  Give affected persons or parties an opportunity, at a
738convenient time and place, to present to the agency written or
739oral evidence in opposition to the action or of the executor's
740refusal to act.
741     3.  Give a written explanation of any subsequent decision
742of the executor overruling the objections.
743     (b)  An applicant that is denied minority business
744enterprise certification based on failure to meet eligibility
745requirements of the statewide and interlocal agreement pursuant
746to s. 287.09431 may not reapply for certification or
747recertification until at least 6 months after the date of the
748notice of the denial of certification or recertification.
749     (13)(15)  The division office shall adopt rules in
750compliance with this part.
751     Section 9.  Section 287.09431, Florida Statutes, is amended
752to read:
753     287.09431  Statewide and interlocal agreement on
754certification of business concerns for the status of minority
755business enterprise.-The statewide and interlocal agreement on
756certification of business concerns for the status of minority
757business enterprise is hereby enacted and entered into with all
758jurisdictions or organizations legally joining therein. If,
759within 2 years from the date that the certification core
760criteria are approved by the Department of Labor and Employment
761Security, the agreement included herein is not executed by a
762majority of county and municipal governing bodies that
763administer a minority business assistance program on the
764effective date of this act, then the Legislature shall review
765this agreement. It is the intent of the Legislature that if the
766agreement is not executed by a majority of the requisite
767governing bodies, then a statewide uniform certification process
768should be adopted, and that said agreement should be repealed
769and replaced by a mandatory state government certification
770process.
771
ARTICLE I
772     PURPOSE, FINDINGS, AND POLICY.-
773     (1)  The parties to this agreement, desiring by common
774action to establish a uniform certification process in order to
775reduce the multiplicity of applications by business concerns to
776state and local governmental programs for minority business
777assistance, declare that it is the policy of each of them, on
778the basis of cooperation with one another, to remedy social and
779economic disadvantage suffered by certain groups, resulting in
780their being historically underutilized in ownership and control
781of commercial enterprises. Thus, the parties seek to address
782this history by increasing the participation of the identified
783groups in opportunities afforded by government procurement.
784     (2)  The parties find that the State of Florida presently
785certifies firms for participation in the minority business
786assistance programs of the state. The parties find further that
787some counties, municipalities, school boards, special districts,
788and other divisions of local government require a separate, yet
789similar, and in most cases redundant certification in order for
790businesses to participate in the programs sponsored by each
791government entity.
792     (3)  The parties find further that this redundant
793certification has proven to be unduly burdensome to the
794minority-owned firms intended to benefit from the underlying
795purchasing incentives.
796     (4)  The parties agree that:
797     (a)  They will facilitate integrity, stability, and
798cooperation in the statewide and interlocal certification
799process, and in other elements of programs established to assist
800minority-owned businesses.
801     (b)  They shall cooperate with agencies, organizations, and
802associations interested in certification and other elements of
803minority business assistance.
804     (c)  It is the purpose of this agreement to provide for a
805uniform process whereby the status of a business concern may be
806determined in a singular review of the business information for
807these purposes, in order to eliminate any undue expense, delay,
808or confusion to the minority-owned businesses in seeking to
809participate in the minority business assistance programs of
810state and local jurisdictions.
811
ARTICLE II
812     DEFINITIONS.-As used in this agreement and contracts made
813pursuant to it, unless the context clearly requires otherwise:
814     (1)  "Awarding organization" means any political
815subdivision or organization authorized by law, ordinance, or
816agreement to enter into contracts and for which the governing
817body has entered into this agreement.
818     (2)  "Department" means the Department of Labor and
819Employment Security.
820     (3)  "Minority" means a person who is a lawful, permanent
821resident of the state, having origins in one of the minority
822groups as described and adopted by the Department of Labor and
823Employment Security, hereby incorporated by reference.
824     (4)  "Minority business enterprise" means any small
825business concern as defined in subsection (6) that meets all of
826the criteria described and adopted by the Department of Labor
827and Employment Security, hereby incorporated by reference.
828     (5)  "Participating state or local organization" means any
829political subdivision of the state or organization designated by
830such that elects to participate in the certification process
831pursuant to this agreement, which has been approved according to
832s. 287.0943(3) and has legally entered into this agreement.
833     (6)  "Small business concern" means an independently owned
834and operated business concern which is of a size and type as
835described and adopted by vote related to this agreement of the
836commission, hereby incorporated by reference.
837
ARTICLE III
838     STATEWIDE AND INTERLOCAL CERTIFICATIONS.-
839     (1)  All awarding organizations shall accept a
840certification granted by any participating organization which
841has been approved according to s. 287.0943(3) and has entered
842into this agreement, as valid status of minority business
843enterprise.
844     (2)  A participating organization shall certify a business
845concern that meets the definition of minority business
846enterprise in this agreement, in accordance with the duly
847adopted eligibility criteria.
848     (3)  All participating organizations shall issue notice of
849certification decisions granting or denying certification to all
850other participating organizations within 14 days of the
851decision. Such notice may be made through electronic media.
852     (4)  No certification will be granted without an onsite
853visit to verify ownership and control of the prospective
854minority business enterprise, unless verification can be
855accomplished by other methods of adequate verification or
856assessment of ownership and control.
857     (5)  The certification of a minority business enterprise
858pursuant to the terms of this agreement shall not be suspended,
859revoked, or otherwise impaired except on any grounds which would
860be sufficient for revocation or suspension of a certification in
861the jurisdiction of the participating organization.
862     (6)  The certification determination of a party may be
863challenged by any other participating organization by the
864issuance of a timely written notice by the challenging
865organization to the certifying organization's determination
866within 10 days of receiving notice of the certification
867decision, stating the grounds therefor.
868     (7)  The sole accepted grounds for challenge shall be the
869failure of the certifying organization to adhere to the adopted
870criteria or the certifying organization's rules or procedures,
871or the perpetuation of a misrepresentation or fraud by the firm.
872     (8)  The certifying organization shall reexamine its
873certification determination and submit written notice to the
874applicant and the challenging organization of its findings
875within 30 days after the receipt of the notice of challenge.
876     (9)  If the certification determination is affirmed, the
877challenging agency may subsequently submit timely written notice
878to the firm of its intent to revoke certification of the firm.
879
ARTICLE IV
880     APPROVED AND ACCEPTED PROGRAMS.-Nothing in this agreement
881shall be construed to repeal or otherwise modify any ordinance,
882law, or regulation of a party relating to the existing minority
883business assistance provisions and procedures by which minority
884business enterprises participate therein.
885
ARTICLE V
886     TERM.-The term of the agreement shall be 5 years, after
887which it may be reexecuted by the parties.
888
ARTICLE VI
889     AGREEMENT EVALUATION.-The designated state and local
890officials may meet from time to time as a group to evaluate
891progress under the agreement, to formulate recommendations for
892changes, or to propose a new agreement.
893
ARTICLE VII
894     OTHER ARRANGEMENTS.-Nothing in this agreement shall be
895construed to prevent or inhibit other arrangements or practices
896of any party in order to comply with federal law.
897
ARTICLE VIII
898     EFFECT AND WITHDRAWAL.-
899     (1)  This agreement shall become effective when properly
900executed by a legal representative of the participating
901organization, when enacted into the law of the state and after
902an ordinance or other legislation is enacted into law by the
903governing body of each participating organization. Thereafter it
904shall become effective as to any participating organization upon
905the enactment of this agreement by the governing body of that
906organization.
907     (2)  Any party may withdraw from this agreement by enacting
908legislation repealing the same, but no such withdrawal shall
909take effect until one year after the governing body of the
910withdrawing party has given notice in writing of the withdrawal
911to the other parties.
912     (3)  No withdrawal shall relieve the withdrawing party of
913any obligations imposed upon it by law.
914
ARTICLE IX
915     FINANCIAL RESPONSIBILITY.-
916     (1)  A participating organization shall not be financially
917responsible or liable for the obligations of any other
918participating organization related to this agreement.
919     (2)  The provisions of this agreement shall constitute
920neither a waiver of any governmental immunity under Florida law
921nor a waiver of any defenses of the parties under Florida law.
922The provisions of this agreement are solely for the benefit of
923its executors and not intended to create or grant any rights,
924contractual or otherwise, to any person or entity.
925
ARTICLE X
926     VENUE AND GOVERNING LAW.-The obligations of the parties to
927this agreement are performable only within the county where the
928participating organization is located, and statewide for the
929Office of Supplier Diversity, and venue for any legal action in
930connection with this agreement shall lie, for any participating
931organization except the Office of Supplier Diversity,
932exclusively in the county where the participating organization
933is located. This agreement shall be governed by and construed in
934accordance with the laws and court decisions of the state.
935
ARTICLE XI
936     CONSTRUCTION AND SEVERABILITY.-This agreement shall be
937liberally construed so as to effectuate the purposes thereof.
938The provisions of this agreement shall be severable and if any
939phrase, clause, sentence, or provision of this agreement is
940declared to be contrary to the State Constitution or the United
941States Constitution, or the application thereof to any
942government, agency, person, or circumstance is held invalid, the
943validity of the remainder of this agreement and the
944applicability thereof to any government, agency, person, or
945circumstance shall not be affected thereby. If this agreement
946shall be held contrary to the State Constitution, the agreement
947shall remain in full force and effect as to all severable
948matters.
949     Section 10.  Section 287.09451, Florida Statutes, is
950amended to read:
951     287.09451  Division Office of Supplier Diversity; powers,
952duties, and functions.-
953     (1)  The Legislature finds that there is evidence of a
954systematic pattern of past and continuing racial discrimination
955against minority business enterprises and a disparity in the
956availability and use of minority business enterprises in the
957state procurement system. It is determined to be a compelling
958state interest to rectify such discrimination and disparity.
959Based upon statistical data profiling this discrimination, the
960Legislature has enacted race-conscious and gender-conscious
961remedial programs to ensure minority participation in the
962economic life of the state, in state contracts for the purchase
963of commodities and services, and in construction contracts. The
964purpose and intent of this section is to increase participation
965by minority business enterprises accomplished by encouraging the
966use of minority business enterprises and the entry of new and
967diversified minority business enterprises into the marketplace.
968     (2)  The Office of Supplier Diversity is established within
969the Department of Management Services to assist minority
970business enterprises in becoming suppliers of commodities,
971services, and construction to state government.
972     (3)  The secretary shall appoint an executive director for
973the Office of Supplier Diversity, who shall serve at the
974pleasure of the secretary.
975     (2)(4)  The division Office of Supplier Diversity shall
976have the following powers, duties, and functions:
977     (a)  To adopt rules to determine what constitutes a "good
978faith effort" for purposes of state agency compliance with the
979minority business enterprise procurement goals set forth in s.
980287.042. Factors which shall be considered by the Minority
981Business Enterprise Assistance Office in determining good faith
982effort shall include, but not be limited to:
983     1.  Whether the agency scheduled presolicitation or prebid
984meetings for the purpose of informing minority business
985enterprises of contracting and subcontracting opportunities.
986     2.  Whether the contractor advertised in general
987circulation, trade association, or minority-focus media
988concerning the subcontracting opportunities.
989     3.  Whether the agency effectively used services and
990resources of available minority community organizations;
991minority contractors' groups; local, state, and federal minority
992business assistance offices; and other organizations that
993provide assistance in the recruitment and placement of minority
994business enterprises or minority persons.
995     4.  Whether the agency provided written notice to a
996reasonable number of minority business enterprises that their
997interest in contracting with the agency was being solicited in
998sufficient time to allow the minority business enterprises to
999participate effectively.
1000     (b)  To adopt rules to determine what constitutes a "good
1001faith effort" for purposes of contractor compliance with
1002contractual requirements relating to the use of services or
1003commodities of a minority business enterprise under s.
1004287.094(2). Factors which shall be considered by the division
1005Office of Supplier Diversity in determining whether a contractor
1006has made good faith efforts shall include, but not be limited
1007to:
1008     1.  Whether the contractor attended any presolicitation or
1009prebid meetings that were scheduled by the agency to inform
1010minority business enterprises of contracting and subcontracting
1011opportunities.
1012     2.  Whether the contractor advertised in general
1013circulation, trade association, or minority-focus media
1014concerning the subcontracting opportunities.
1015     3.  Whether the contractor provided written notice to a
1016reasonable number of specific minority business enterprises that
1017their interest in the contract was being solicited in sufficient
1018time to allow the minority business enterprises to participate
1019effectively.
1020     4.  Whether the contractor followed up initial
1021solicitations of interest by contacting minority business
1022enterprises or minority persons to determine with certainty
1023whether the minority business enterprises or minority persons
1024were interested.
1025     5.  Whether the contractor selected portions of the work to
1026be performed by minority business enterprises in order to
1027increase the likelihood of meeting the minority business
1028enterprise procurement goals, including, where appropriate,
1029breaking down contracts into economically feasible units to
1030facilitate minority business enterprise participation.
1031     6.  Whether the contractor provided interested minority
1032business enterprises or minority persons with adequate
1033information about the plans, specifications, and requirements of
1034the contract or the availability of jobs.
1035     7.  Whether the contractor negotiated in good faith with
1036interested minority business enterprises or minority persons,
1037not rejecting minority business enterprises or minority persons
1038as unqualified without sound reasons based on a thorough
1039investigation of their capabilities.
1040     8.  Whether the contractor effectively used the services of
1041available minority community organizations; minority
1042contractors' groups; local, state, and federal minority business
1043assistance offices; and other organizations that provide
1044assistance in the recruitment and placement of minority business
1045enterprises or minority persons.
1046     (c)  To adopt rules and do all things necessary or
1047convenient to guide all state agencies toward making
1048expenditures for commodities, contractual services,
1049construction, and architectural and engineering services with
1050certified minority business enterprises in accordance with the
1051minority business enterprise procurement goals set forth in s.
1052287.042.
1053     (d)  To monitor the degree to which agencies procure
1054services, commodities, and construction from minority business
1055enterprises in conjunction with the Department of Financial
1056Services as specified in s. 17.11.
1057     (e)  To receive and disseminate information relative to
1058procurement opportunities, availability of minority business
1059enterprises, and technical assistance.
1060     (f)  To advise agencies on methods and techniques for
1061achieving procurement objectives.
1062     (g)  To provide a central minority business enterprise
1063certification process which includes independent verification of
1064status as a minority business enterprise.
1065     (h)  To develop procedures to investigate complaints
1066against minority business enterprises or contractors alleged to
1067violate any provision related to this section or s. 287.0943,
1068that may include visits to worksites or business premises, and
1069to refer all information on businesses suspected of
1070misrepresenting minority status to the Department of Management
1071Services for investigation. When an investigation is completed
1072and there is reason to believe that a violation has occurred,
1073the Department of Labor and Employment Security shall refer the
1074matter to the office of the Attorney General, Department of
1075Legal Affairs, for prosecution.
1076     (i)  To maintain a directory of all minority business
1077enterprises which have been certified and provide this
1078information to any agency or business requesting it.
1079     (j)  To encourage all firms which do more than $1 million
1080in business with the state within a 12-month period to develop,
1081implement, and submit to this office a minority business
1082development plan.
1083     (k)  To communicate on a monthly basis with the Small and
1084Minority Business Advisory Council to keep the council informed
1085on issues relating to minority enterprise procurement.
1086     (l)  To serve as an advocate for minority business
1087enterprises, and coordinate with the small and minority business
1088ombudsman, as defined in s. 288.703, which duties shall include:
1089     1.  Ensuring that agencies supported by state funding
1090effectively target the delivery of services and resources, as
1091related to minority business enterprises.
1092     2.  Establishing standards within each industry with which
1093the state government contracts on how agencies and contractors
1094may provide the maximum practicable opportunity for minority
1095business enterprises.
1096     3.  Assisting agencies and contractors by providing
1097outreach to minority businesses, by specifying and monitoring
1098technical and managerial competence for minority business
1099enterprises, and by consulting in planning of agency procurement
1100to determine how best to provide opportunities for minority
1101business enterprises.
1102     4.  Integrating technical and managerial assistance for
1103minority business enterprises with government contracting
1104opportunities.
1105     (m)  To certify minority business enterprises, as defined
1106in s. 288.703, and as specified in ss. 287.0943 and 287.09431,
1107and shall recertify such minority businesses at least once every
11082 years. Minority business enterprises must be recertified at
1109least once every 2 years by affidavit.
1110     (g)(n)1.  To develop procedures to be used by an agency in
1111identifying commodities, contractual services, architectural and
1112engineering services, and construction contracts, except those
1113architectural, engineering, construction, or other related
1114services or contracts subject to the provisions of chapter 339,
1115that could be provided by minority business enterprises. Each
1116agency is encouraged to spend 21 percent of the moneys actually
1117expended for construction contracts, 25 percent of the moneys
1118actually expended for architectural and engineering contracts,
111924 percent of the moneys actually expended for commodities, and
112050.5 percent of the moneys actually expended for contractual
1121services during the previous fiscal year, except for the state
1122university construction program which shall be based upon public
1123education capital outlay projections for the subsequent fiscal
1124year, and reported to the Legislature pursuant to s. 216.023,
1125for the purpose of entering into contracts with certified
1126minority business enterprises as defined in s. 288.703(2), or
1127approved joint ventures. However, in the event of budget
1128reductions pursuant to s. 216.221, the base amounts may be
1129adjusted to reflect such reductions. The overall spending goal
1130for each industry category shall be subdivided as follows:
1131     a.  For construction contracts: 4 percent for black
1132Americans, 6 percent for Hispanic-Americans, and 11 percent for
1133American women.
1134     b.  For architectural and engineering contracts: 9 percent
1135for Hispanic-Americans, 1 percent for Asian-Americans, and 15
1136percent for American women.
1137     c.  For commodities: 2 percent for black Americans, 4
1138percent for Hispanic-Americans, 0.5 percent for Asian-Americans,
11390.5 percent for Native Americans, and 17 percent for American
1140women.
1141     d.  For contractual services: 6 percent for black
1142Americans, 7 percent for Hispanic-Americans, 1 percent for
1143Asian-Americans, 0.5 percent for Native Americans, and 36
1144percent for American women.
1145     2.  For the purposes of commodities contracts for the
1146purchase of equipment to be used in the construction and
1147maintenance of state transportation facilities involving the
1148Department of Transportation, "minority business enterprise" has
1149the same meaning as provided in s. 288.703. "Minority person"
1150has the same meaning as in s. 288.703(3). In order to ensure
1151that the goals established under this paragraph for contracting
1152with certified minority business enterprises are met, the
1153department, with the assistance of the Office of Supplier
1154Diversity, shall make recommendations to the Legislature on
1155revisions to the goals, based on an updated statistical
1156analysis, at least once every 5 years. Such recommendations
1157shall be based on statistical data indicating the availability
1158of and disparity in the use of minority businesses contracting
1159with the state. The results of the first updated disparity study
1160must be presented to the Legislature no later than December 1,
11611996.
1162     3.  In determining the base amounts for assessing
1163compliance with this paragraph, the division Office of Supplier
1164Diversity may develop, by rule, guidelines for all agencies to
1165use in establishing such base amounts. These rules must include,
1166but are not limited to, guidelines for calculation of base
1167amounts, a deadline for the agencies to submit base amounts, a
1168deadline for approval of the base amounts by the division Office
1169of Supplier Diversity, and procedures for adjusting the base
1170amounts as a result of budget reductions made pursuant to s.
1171216.221.
1172     4.  To determine guidelines for the use of price
1173preferences, weighted preference formulas, or other preferences,
1174as appropriate to the particular industry or trade, to increase
1175the participation of minority businesses in state contracting.
1176These guidelines shall include consideration of:
1177     a.  Size and complexity of the project.
1178     b.  The concentration of transactions with minority
1179business enterprises for the commodity or contractual services
1180in question in prior agency contracting.
1181     c.  The specificity and definition of work allocated to
1182participating minority business enterprises.
1183     d.  The capacity of participating minority business
1184enterprises to complete the tasks identified in the project.
1185     e.  The available pool of minority business enterprises as
1186prime contractors, either alone or as partners in an approved
1187joint venture that serves as the prime contractor.
1188     5.  To determine guidelines for use of joint ventures to
1189meet minority business enterprises spending goals. For purposes
1190of this section, "joint venture" means any association of two or
1191more business concerns to carry out a single business enterprise
1192for profit, for which purpose they combine their property,
1193capital, efforts, skills, and knowledge. The guidelines shall
1194allow transactions with joint ventures to be eligible for credit
1195against the minority business enterprise goals of an agency when
1196the contracting joint venture demonstrates that at least one
1197partner to the joint venture is a certified minority business
1198enterprise as defined in s. 288.703, and that such partner is
1199responsible for a clearly defined portion of the work to be
1200performed, and shares in the ownership, control, management,
1201responsibilities, risks, and profits of the joint venture. Such
1202demonstration shall be by verifiable documents and sworn
1203statements and may be reviewed by the division Office of
1204Supplier Diversity at or before the time a contract
1205proposal, or reply is submitted. An agency may count toward its
1206minority business enterprise goals a portion of the total dollar
1207amount of a contract equal to the percentage of the ownership
1208and control held by the qualifying certified minority business
1209partners in the contracting joint venture, so long as the joint
1210venture meets the guidelines adopted by the division office.
1211     (h)(o)1.  To establish a system to record and measure the
1212use of certified minority business enterprises in state
1213contracting. This system shall maintain information and
1214statistics on certified minority business enterprise
1215participation, awards, dollar volume of expenditures and agency
1216goals, and other appropriate types of information to analyze
1217progress in the access of certified minority business
1218enterprises to state contracts and to monitor agency compliance
1219with this section. Such reporting must include, but is not
1220limited to, the identification of all subcontracts in state
1221contracting by dollar amount and by number of subcontracts and
1222the identification of the utilization of certified minority
1223business enterprises as prime contractors and subcontractors by
1224dollar amounts of contracts and subcontracts, number of
1225contracts and subcontracts, minority status, industry, and any
1226conditions or circumstances that significantly affected the
1227performance of subcontractors. Agencies shall report their
1228compliance with the requirements of this reporting system at
1229least annually and at the request of the division office. All
1230agencies shall cooperate with the division office in
1231establishing this reporting system. Except in construction
1232contracting, all agencies shall review contracts costing in
1233excess of CATEGORY FOUR as defined in s. 287.017 to determine if
1234such contracts could be divided into smaller contracts to be
1235separately solicited and awarded, and shall, when economical,
1236offer such smaller contracts to encourage minority
1237participation.
1238     2.  To report agency compliance with the provisions of
1239subparagraph 1. for the preceding fiscal year to the Governor
1240and Cabinet, the President of the Senate, and the Speaker of the
1241House of Representatives, and the secretary of the Department of
1242Labor and Employment Security on or before February 1 of each
1243year. The report must contain, at a minimum, the following:
1244     a.  Total expenditures of each agency by industry.
1245     b.  The dollar amount and percentage of contracts awarded
1246to certified minority business enterprises by each state agency.
1247     c.  The dollar amount and percentage of contracts awarded
1248indirectly to certified minority business enterprises as
1249subcontractors by each state agency.
1250     d.  The total dollar amount and percentage of contracts
1251awarded to certified minority business enterprises, whether
1252directly or indirectly, as subcontractors.
1253     e.  A statement and assessment of good faith efforts taken
1254by each state agency.
1255     f.  A status report of agency compliance with subsection
1256(4)(6), as determined by the Minority Business Enterprise
1257Office.
1258     (3)(5)(a)  Each agency shall, at the time the
1259specifications or designs are developed or contract sizing is
1260determined for any proposed procurement costing in excess of
1261CATEGORY FOUR, as defined in s. 287.017, forward a notice to the
1262division Office of Supplier Diversity of the proposed
1263procurement and any determination on the designs of
1264specifications of the proposed procurement that impose
1265requirements on prospective vendors, no later than 30 days prior
1266to the issuance of a solicitation, except that this provision
1267shall not apply to emergency acquisitions. The 30-day notice
1268period shall not toll the time for any other procedural
1269requirements.
1270     (b)  If the division Office of Supplier Diversity
1271determines that the proposed procurement will not likely allow
1272opportunities for minority business enterprises, the division
1273office may, within 20 days after it receives the information
1274specified in paragraph (a), propose the implementation of
1275minority business enterprise utilization provisions or submit
1276alternative procurement methods that would significantly
1277increase minority business enterprise contracting opportunities.
1278     (c)  Whenever the agency and the division Office of
1279Supplier Diversity disagree, the matter shall be submitted for
1280determination to the head of the agency or the senior-level
1281official designated pursuant to this section as liaison for
1282minority business enterprise issues.
1283     (d)  If the proposed procurement proceeds to competitive
1284solicitation, the division office is hereby granted standing to
1285protest, pursuant to this section, in a timely manner, any
1286contract award during competitive solicitation for contractual
1287services and construction contracts that fail to include
1288minority business enterprise participation, if any responsible
1289and responsive vendor has demonstrated the ability to achieve
1290any level of participation, or, any contract award for
1291commodities where, a reasonable and economical opportunity to
1292reserve a contract, statewide or district level, for minority
1293participation was not executed or, an agency failed to adopt an
1294applicable preference for minority participation. The bond
1295requirement shall be waived for the division office purposes of
1296this subsection.
1297     (e)  An agency may presume that a vendor offering no
1298minority participation has not made a good faith effort when
1299other vendors offer minority participation of firms listed as
1300relevant to the agency's purchasing needs in the pertinent
1301locality or statewide to complete the project.
1302     (f)  Paragraph (a) will not apply when the division Office
1303of Supplier Diversity determines that an agency has established
1304a work plan to allow advance consultation and planning with
1305minority business enterprises and where such plan clearly
1306demonstrates:
1307     1.  A high level of advance planning by the agency with
1308minority business enterprises.
1309     2.  A high level of accessibility, knowledge, and
1310experience by minority business enterprises in the agency's
1311contract decisionmaking process.
1312     3.  A high quality of agency monitoring and enforcement of
1313internal implementation of minority business utilization
1314provisions.
1315     4.  A high quality of agency monitoring and enforcement of
1316contractor utilization of minority business enterprises,
1317especially tracking subcontractor data, and ensuring the
1318integrity of subcontractor reporting.
1319     5.  A high quality of agency outreach, agency networking of
1320major vendors with minority vendors, and innovation in
1321techniques to improve utilization of minority business
1322enterprises.
1323     6.  Substantial commitment, sensitivity, and proactive
1324attitude by the agency head and among the agency minority
1325business staff.
1326     (4)(6)  Each state agency shall coordinate its minority
1327business enterprise procurement activities with the division
1328Office of Supplier Diversity. At a minimum, each agency shall:
1329     (a)  Adopt a minority business enterprise utilization plan
1330for review and approval by the division Office of Supplier
1331Diversity which should require meaningful and useful methods to
1332attain the legislative intent in assisting minority business
1333enterprises.
1334     (b)  Designate a senior-level employee in the agency as a
1335minority enterprise assistance officer, responsible for
1336overseeing the agency's minority business utilization
1337activities, and who is not also charged with purchasing
1338responsibility. A senior-level agency employee and agency
1339purchasing officials shall be accountable to the agency head for
1340the agency's minority business utilization performance. The
1341division Office of Supplier Diversity shall advise each agency
1342on compliance performance.
1343     (c)  If an agency deviates significantly from its
1344utilization plan in 2 consecutive or 3 out of 5 total fiscal
1345years, the division Office of Supplier Diversity may review any
1346and all solicitations and contract awards of the agency as
1347deemed necessary until such time as the agency meets its
1348utilization plan.
1349     Section 11.  Subsections (4) and (6) of section 288.703,
1350Florida Statutes, are amended to read:
1351     288.703  Definitions.-As used in this act, the following
1352words and terms shall have the following meanings unless the
1353content shall indicate another meaning or intent:
1354     (4)  "Certified minority business enterprise" means a
1355business which has been certified by the certifying organization
1356or jurisdiction in accordance with s. 287.0943(1) and (2).
1357     (6)  "Ombudsman" means an office or individual whose
1358responsibilities include coordinating with the Division of State
1359Purchasing Office of Supplier Diversity for the interests of and
1360providing assistance to small and minority business enterprises
1361in dealing with governmental agencies and in developing
1362proposals for changes in state agency rules.
1363     Section 12.  Subsection (5) of section 288.712, Florida
1364Statutes, is amended to read:
1365     288.712  Guarantor funds.-
1366     (5)  The board shall do all of the following to implement
1367the black contractors bonding program:
1368     (a)  Conduct outreach, marketing, and recruitment of black
1369contractors.
1370     (b)  Provide assistance to the Office of Supplier Diversity
1371within the Department of Management Services, as needed, to
1372certify new black business enterprises and to train appropriate
1373department staff.
1374     (b)(c)  Provide business development services to black
1375business enterprises in the developmental and transitional
1376stages of the program, including financing and bonding
1377assistance and management and technical assistance.
1378     (c)(d)  Develop a mentor program to bring businesses into a
1379working relationship with black contractors in a way that
1380commercially benefits both entities and serves the purpose of
1381the program.
1382     (d)(e)  No later than December 31, 2007, prepare and submit
1383to the Governor a detailed report outlining and evaluating the
1384progress made in implementing the black contractors bonding
1385program.
1386     (e)(f)  Establish a process by which black contractors may
1387apply for contract assistance, financial and bonding assistance,
1388management and technical assistance, and mentoring
1389opportunities.
1390     Section 13.  Paragraphs (k), (l), and (m) of subsection (9)
1391of section 288.955, Florida Statutes, are amended to read:
1392     288.955  Scripps Florida Funding Corporation.-
1393     (9)  PERFORMANCE EXPECTATIONS.-In addition to the
1394provisions prescribed in subsection (8), the contract between
1395the corporation and the grantee shall include a provision that
1396the grantee, in cooperation with the Office of Tourism, Trade,
1397and Economic Development, shall report to the corporation on
1398performance expectations that reflect the aspirations of the
1399Governor and the Legislature for the benefits accruing to this
1400state as a result of the funds appropriated pursuant to this
1401section. These shall include, but are not limited to,
1402performance expectations addressing:
1403     (k)  The establishment and implementation of policies to
1404promote supplier diversity by complying using the guidelines
1405developed by the Office of Supplier Diversity under s. 287.09451
1406and to comply with the ordinances, including any small business
1407ordinances, enacted by the county and which are applicable to
1408the biomedical research institution and campus located in this
1409state.
1410     (l)  The designation by the grantee of a representative to
1411coordinate with the Office of Supplier Diversity.
1412     (l)(m)  The establishment and implementation of a program
1413to conduct workforce recruitment activities at public and
1414private colleges and universities and community colleges in this
1415state which request the participation of the grantee.
1416
1417The contract shall require the grantee to provide information to
1418the corporation on the progress in meeting these performance
1419expectations on an annual basis. It is the intent of the
1420Legislature that, in fulfilling its obligation to work with
1421Florida's public and private colleges and universities, Scripps
1422Florida work with such colleges and universities regardless of
1423size.
1424     Section 14.  Section 287.05721, Florida Statutes, is
1425amended to read:
1426     287.05721  Definitions.-As used in ss. 287.0571-287.0574,
1427the term:
1428     (1)  "Council" means the Council on Efficient Government.
1429     (2)  "outsource" means the process of contracting with a
1430vendor to provide a service as defined in s. 216.011(1)(f), in
1431whole or in part, or an activity as defined in s.
1432216.011(1)(rr), while a state agency retains the responsibility
1433and accountability for the service or activity and there is a
1434transfer of management responsibility for the delivery of
1435resources and the performance of those resources.
1436     Section 15.  Section 287.0573, Florida Statutes, is
1437repealed.
1438     Section 16.  Subsections (1) through (4) of section
1439287.0574, Florida Statutes, are amended to read:
1440     287.0574  Business cases to outsource; review and analysis;
1441requirements.-
1442     (1)  A business case to outsource having a projected cost
1443exceeding $10 million in any fiscal year shall require:
1444     (a)  An initial business case analysis conducted by the
1445state agency and submitted to the council, the Governor, the
1446President of the Senate, and the Speaker of the House of
1447Representatives at least 60 days before a solicitation is
1448issued. The council shall evaluate the business case analysis
1449and submit an advisory report to the state agency, the Governor,
1450the President of the Senate, and the Speaker of the House of
1451Representatives when the advisory report is completed, but at
1452least 30 days before the agency issues the solicitation.
1453     (b)  A final business case analysis conducted by the state
1454agency and submitted after the conclusion of any negotiations,
1455at least 30 days before execution of a contract, to the council,
1456the Governor, the President of the Senate, and the Speaker of
1457the House of Representatives.
1458     (2)  A proposal to outsource having a projected cost that
1459ranges from $1 million to $10 million in any fiscal year shall
1460require:
1461     (a)  An initial business case analysis conducted by the
1462state agency and submission of the business case, at least 30
1463days before issuing a solicitation, to the council, the
1464Governor, the President of the Senate, and the Speaker of the
1465House of Representatives.
1466     (b)  A final business case analysis conducted by the state
1467agency and submitted after the conclusion of any negotiations,
1468at least 30 days before execution of a contract, to the council,
1469the Governor, the President of the Senate, and the Speaker of
1470the House of Representatives.
1471     (3)  A business case to outsource having a projected cost
1472that is less than $1 million in any fiscal year shall require a
1473final business case analysis conducted by the state agency after
1474the conclusion of any negotiations and provided at least 30 days
1475before execution of a contract to the council. The council shall
1476provide such business cases in its annual report to the
1477Legislature.
1478     (4)  For any proposed outsourcing, the state agency shall
1479develop a business case that justifies the proposal to
1480outsource. In order to reduce any administrative burden, the
1481council may allow a state agency shall to submit the business
1482case in the form and manner required by the budget instructions
1483issued pursuant to s. 216.023(1), (2), and (4)(a)7., augmented
1484with additional information if necessary, to ensure that the
1485requirements of this section are met. The business case is not
1486subject to challenge or protest pursuant to chapter 120. The
1487business case must include, but need not be limited to:
1488     (a)  A detailed description of the service or activity for
1489which the outsourcing is proposed.
1490     (b)  A description and analysis of the state agency's
1491current performance, based on existing performance metrics if
1492the state agency is currently performing the service or
1493activity.
1494     (c)  The goals desired to be achieved through the proposed
1495outsourcing and the rationale for such goals.
1496     (d)  A citation to the existing or proposed legal authority
1497for outsourcing the service or activity.
1498     (e)  A description of available options for achieving the
1499goals. If state employees are currently performing the service
1500or activity, at least one option involving maintaining state
1501provision of the service or activity shall be included.
1502     (f)  An analysis of the advantages and disadvantages of
1503each option, including, at a minimum, potential performance
1504improvements and risks.
1505     (g)  A description of the current market for the
1506contractual services that are under consideration for
1507outsourcing.
1508     (h)  A cost-benefit analysis documenting the direct and
1509indirect specific baseline costs, savings, and qualitative and
1510quantitative benefits involved in or resulting from the
1511implementation of the recommended option or options. Such
1512analysis must specify the schedule that, at a minimum, must be
1513adhered to in order to achieve the estimated savings. All
1514elements of cost must be clearly identified in the cost-benefit
1515analysis, described in the business case, and supported by
1516applicable records and reports. The state agency head shall
1517attest that, based on the data and information underlying the
1518business case, to the best of his or her knowledge, all
1519projected costs, savings, and benefits are valid and achievable.
1520As used in this section, the term "cost" means the reasonable,
1521relevant, and verifiable cost, which may include, but is not
1522limited to, elements such as personnel, materials and supplies,
1523services, equipment, capital depreciation, rent, maintenance and
1524repairs, utilities, insurance, personnel travel, overhead, and
1525interim and final payments. The appropriate elements shall
1526depend on the nature of the specific initiative. As used in this
1527section, the term "savings" means the difference between the
1528direct and indirect actual annual baseline costs compared to the
1529projected annual cost for the contracted functions or
1530responsibilities in any succeeding state fiscal year during the
1531term of the contract.
1532     (i)  A description of differences among current state
1533agency policies and processes and, as appropriate, a discussion
1534of options for or a plan to standardize, consolidate, or revise
1535current policies and processes, if any, to reduce the
1536customization of any proposed solution that would otherwise be
1537required.
1538     (j)  A description of the specific performance standards
1539that must, at a minimum, be met to ensure adequate performance.
1540     (k)  The projected timeframe for key events from the
1541beginning of the procurement process through the expiration of a
1542contract.
1543     (l)  A plan to ensure compliance with the public records
1544law.
1545     (m)  A specific and feasible contingency plan addressing
1546contractor nonperformance and a description of the tasks
1547involved in and costs required for its implementation.
1548     (n)  A state agency's transition plan for addressing
1549changes in the number of agency personnel, affected business
1550processes, employee transition issues, and communication with
1551affected stakeholders, such as agency clients and the public.
1552The transition plan must contain a reemployment and retraining
1553assistance plan for employees who are not retained by the state
1554agency or employed by the contractor.
1555     (o)  A plan for ensuring access by persons with
1556disabilities in compliance with applicable state and federal
1557law.
1558     (p)  A description of legislative and budgetary actions
1559necessary to accomplish the proposed outsourcing.
1560     Section 17.  This act shall take effect July 1, 2010.


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