August 11, 2020
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Senate Bill 1146

Senate Bill sb1146e3

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    CS for CS for SB 1146                          Third Engrossed



  1                      A bill to be entitled

  2         An act relating to procurement of contractual

  3         services by an agency; amending s. 20.22, F.S.;

  4         placing the Center for Efficient Government in

  5         the Department of Management Services; creating

  6         s. 287.0571, F.S.; providing a popular name;

  7         providing legislative intent; providing that

  8         procurements of specified commodities and

  9         services are not subject to the act; providing

10         specified applicability; creating s. 287.0573,

11         F.S.; providing definitions; creating s.

12         287.0574, F.S.; providing criteria for the

13         procurement of contractual services by an

14         agency; requiring an agency to include with its

15         final legislative budget request the business

16         cases for specified procurements; creating s.

17         287.0575, F.S.; creating the Commission on

18         Efficient Government within the Department of

19         Management Services; providing for purpose,

20         membership, and organization of the commission;

21         providing duties and responsibilities of the

22         commission; creating the Center for Efficient

23         Government; providing purpose and organization

24         of the center; providing duties and

25         responsibilities of the center; requiring the

26         center to recommend and implement a centralized

27         gate process for reviewing, evaluating, and

28         approving agency procurements; requiring state

29         agencies to submit specified information,

30         documents, and other materials required under

31         commission rules; creating s. 287.0576, F.S.;


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    CS for CS for SB 1146                          Third Engrossed



 1         specifying procurements which must be reviewed

 2         and evaluated under the centralized gate

 3         process; providing minimum requirements for the

 4         centralized gate process; providing for

 5         specified determinations by the commission at

 6         each gate; providing procedure with respect to

 7         an unfavorable finding by the commission with

 8         respect to a procurement required by law;

 9         providing that agencies under the individual

10         control of the Attorney General, Chief

11         Financial Officer, or Commissioner of

12         Agriculture are subject to the act, with

13         specified exceptions; providing authority of

14         the agency head with respect to procurements by

15         such agencies; establishing the gates within

16         the centralized gate process; requiring

17         agencies to submit specified documents for

18         commission review at each gate; providing for

19         nullification of executed contracts for

20         procurement under specified circumstances;

21         requiring the commission to take action at each

22         gate within a specified time period; providing

23         procedure if the commission does not take

24         action within such time period; requiring the

25         submission of annual status reports; creating

26         s. 287.0577, F.S.; providing requirements for

27         procurement of certain contractual services;

28         requiring an agency to develop a business case

29         which describes and analyzes a contractual

30         services procurement under consideration;

31         providing that the business case is not subject


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    CS for CS for SB 1146                          Third Engrossed



 1         to challenge or protest under the

 2         Administrative Procedure Act; providing

 3         required components of a business case;

 4         defining "cost" and "savings"; providing

 5         requirements with respect to the solicitation

 6         for a contractual services procurement;

 7         providing contract requirements for a

 8         contractual services procurement; providing

 9         requirements with respect to contract

10         amendments; providing that specified contract

11         amendments must be submitted to the Executive

12         Office of the Governor for approval; requiring

13         notification of such submission to the chairs

14         of the legislative appropriations committees;

15         prohibiting the division of a contract

16         amendment to avoid specified requirements;

17         requiring documentation of contractor

18         performance prior to renewal or extension of a

19         contract; creating s. 287.0578, F.S.; providing

20         for conditional supersession of the act;

21         amending s. 287.057, F.S.; providing a

22         requirement with respect to the composition of

23         persons chosen to conduct negotiations during a

24         specified competitive sealed reply procurement;

25         creating s. 215.4211, F.S.; authorizing the

26         Chief Financial Officer to review contracts for

27         state agencies; creating s. 216.1817, F.S.;

28         requiring the placement of full-time equivalent

29         positions in reserve under certain conditions;

30         providing for the reestablishment of full-time

31         equivalent positions upon termination of a


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    CS for CS for SB 1146                          Third Engrossed



 1         contract and reversion of functions and

 2         responsibilities to the agency; providing

 3         nonapplicability of the act with respect to the

 4         privatization of boards, commissions, or

 5         councils created within the Department of

 6         Business and Professional Regulation; creating

 7         s. 287.074, F.S.; providing that only public

 8         officers or employees must perform certain

 9         functions; providing restrictions on contractor

10         involvement in the procurement of contractual

11         services; providing for future termination of

12         the Center for Efficient Government and the

13         Commission on Efficient Government; providing

14         legislative intent with respect to the

15         performance of review functions and assistance

16         to agencies for procurements of contractual

17         services by state agencies after a specified

18         date; providing that positions authorized under

19         the act shall remain with the Department of

20         Management Services after a specified date;

21         repealing s. 14.203, F.S., which creates the

22         State Council on Competitive Government and

23         provides duties and authority of the council;

24         providing an appropriation; providing full-time

25         equivalent positions; amending s. 119.0721,

26         F.S.; removing a cross reference; clarifying

27         the meaning of "commercial activity" to conform

28         to the removal of the reference; providing an

29         effective date.

30  

31  


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    CS for CS for SB 1146                          Third Engrossed



 1  WHEREAS, the private sector can often perform services

 2  with greater efficiency and effectiveness at a lower

 3  cost than the state, and

 4         WHEREAS, the state has long been a leader in innovative

 5  practices, in part because of its partnerships with the

 6  private sector, and

 7         WHEREAS, the state desires to reap the benefits of

 8  lower costs, high quality, and innovation by working closely

 9  with the private sector, and

10         WHEREAS, the state still maintains responsibility for

11  ensuring that the services performed by the private sector on

12  behalf of the state are of high quality, cost-effective, and

13  appropriate functions for the private sector, and

14         WHEREAS, leading businesses have developed best

15  practices to determine what to obtain from the market and how

16  to ensure that such services are provided at the desired

17  quality and at the appropriate cost, and

18         WHEREAS, the executive branch has made great progress

19  in promoting the use of such best practices, and the citizens

20  of the state could benefit by the increased adoption across

21  state government of such best practices, NOW, THEREFORE,

22  

23  Be It Enacted by the Legislature of the State of Florida:

24  

25         Section 1.  Paragraph (i) is added to subsection (2) of

26  section 20.22, Florida Statutes, to read:

27         20.22  Department of Management Services.--There is

28  created a Department of Management Services.

29         (2)  The following divisions and programs within the

30  Department of Management Services are established:

31         (i)  Center for Efficient Government.


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    CS for CS for SB 1146                          Third Engrossed



 1         Section 2.  Section 287.0571, Florida Statutes, is

 2  created to read:

 3         287.0571  Applicability of ss. 287.0571-287.0578.--

 4         (1)  Sections 287.0571-287.0578 shall be known as the

 5  "Center for Efficient Government Act".

 6         (2)  It is the intent of the Legislature that state

 7  agencies focus on their core missions and deliver services

 8  effectively and efficiently by leveraging resources and

 9  contracting with the private sector for services that can be

10  more effectively provided by the private sector and that

11  reduce the cost of government for all citizens of the state.

12         (3)  The provisions of this act shall not be required

13  to apply to procurements of commodities and contractual

14  services listed in s. 287.057(5)(e), (f), and (g) and (22).

15         (4)  The provisions of this act shall not apply to:

16         (a)  Procurements of commodities and contractual

17  services subject to s. 287.055.

18         (b)  Contracts in support of the planning, development,

19  implementation, operation, or maintenance of the road, bridge,

20  and public transportation construction program of the

21  Department of Transportation.

22         Section 3.  Section 287.0573, Florida Statutes, is

23  created to read:

24         287.0573  Definitions.--For the purposes of this act:

25         (1)  "Center" means the Center for Efficient

26  Government.

27         (2)  "Centralized gate process" means the system of

28  review phases for a proposed procurement of contractual

29  services, the conclusion of each phase being a "gate" or

30  decision point at which the commission determines whether the

31  procurement under consideration may proceed to the next phase.


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    CS for CS for SB 1146                          Third Engrossed



 1         (3)  "Commission" means the Commission on Efficient

 2  Government.

 3         Section 4.  Section 287.0574, Florida Statutes, is

 4  created to read:

 5         287.0574  Criteria for procurement of contractual

 6  services.--

 7         (1)  The agency must include with its final legislative

 8  budget request the business cases for procurements for

 9  contractual services that the agency proposes in the fiscal

10  year for which the final legislative budget request is

11  submitted, in the manner and form prescribed in the

12  legislative budget request instructions pursuant to s.

13  216.023.

14         (2)  When compared to the cost and quality of service

15  performed by state employees, an agency may procure a

16  contractual service currently or previously provided by state

17  employees only if, upon full implementation of a procurement,

18  it:

19         (a)  Results in reasonable cost savings while

20  maintaining at least the same quality of service;

21         (b)  Reasonably increases the quality of service while

22  not exceeding the same level of cost; or

23         (c)  Significantly increases measurable outputs and

24  quality while minimally increasing costs, at levels and

25  percentages proposed by the procuring agency and approved in

26  writing in advance of the procurement by the commission. Only

27  projects with an annual cost below $10 million in each fiscal

28  year may meet this criterion.

29         Section 5.  Section 287.0575, Florida Statutes, is

30  created to read:

31  


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    CS for CS for SB 1146                          Third Engrossed



 1         287.0575  Commission on Efficient Government;

 2  membership; duties; Center for Efficient Government; duties.--

 3         (1)  The Commission on Efficient Government is created

 4  within the Department of Management Services to oversee the

 5  Center for Efficient Government and carry out the

 6  responsibilities specified in this section.

 7         (a)  The commission shall consist of seven members

 8  appointed by the Governor:

 9         1.  Four members shall be heads of executive branch

10  agencies.

11         2.  Three members shall be from the private sector and,

12  collectively, shall have experience with procurement,

13  successfully increasing operational efficiency, and

14  implementing complex projects in the private sector business

15  environment. No private sector member of the commission may at

16  any time during his or her appointment to the commission be

17  registered to lobby the executive or legislative branch.

18         (b)  By August 1, 2005, the Governor shall appoint two

19  private sector members and two agency heads for terms of 3

20  years and one private sector member and two agency heads for

21  terms of 4 years. Thereafter, each member shall serve for a

22  term of 4 years. The private sector members shall serve

23  without compensation but shall be entitled to reimbursement

24  for per diem and travel expenses pursuant to s. 112.061.

25         (c)  No member of the commission shall participate in

26  commission review of a procurement when his or her agency

27  is  conducting the procurement or, in the case of a private

28  sector member, he or she has a business relationship with an

29  entity that is involved or could potentially be involved in

30  the procurement.

31  


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    CS for CS for SB 1146                          Third Engrossed



 1         (d)  The members of the commission may not delegate

 2  their membership to a designee.

 3         (e)  A quorum shall consist of at least four members,

 4  including at least two private-sector members. At least one

 5  private-sector member must vote on the prevailing side for

 6  commission action to take effect.

 7         (f)  Any vacancy on the commission shall be filled in

 8  the same manner as the original appointment, and any member

 9  appointed to fill a vacancy occurring for a reason other than

10  the expiration of a term shall serve only for the unexpired

11  term of the member's predecessor.

12         (g)  At the first meeting of the commission after

13  August 1, 2005, the members of the commission shall elect, by

14  majority vote of those in attendance, a member to serve as

15  chair of the commission. No later than September 1 of each

16  succeeding year, the commission shall elect a new chair.

17         (h)  The commission shall:

18         1.  Oversee the Center for Efficient Government.

19         2.  Adopt the centralized gate process.

20         3.  Review, evaluate, and grant approval of, withhold

21  approval of, or deny approval of a proposed procurement at

22  each gate established within the centralized gate process. The

23  commission shall adopt rules regarding the procurements that

24  must pass through the centralized gate process. Such

25  procurements shall include, at a minimum, those subject to the

26  requirements of s. 287.0576(1).

27         4.  Approve templates and guidelines and adopt rules

28  prescribing standards and procedures for use by agencies

29  during the procurement process which shall, at a minimum,

30  include the requirements under ss. 287.0576-287.0577 for

31  procurements of contractual services.


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    CS for CS for SB 1146                          Third Engrossed



 1         5.  Implement a plan for providing information and

 2  documentation to the Legislature and the Governor on behalf of

 3  agencies and in compliance with the provisions of this

 4  chapter. The plan shall include, at a minimum, providing

 5  copies of documents to be reviewed by the commission to the

 6  President of the Senate, the Speaker of the House of

 7  Representatives, the Governor, and the chairs of the relevant

 8  appropriations and substantive legislative committees at least

 9  14 days prior to the meeting of the commission at which the

10  proposed procurement will be discussed.

11         6.  Review the performance of procurements which have

12  advanced through the full centralized gate process.

13         (2)  The Center for Efficient Government is created in

14  the department to establish and promote best business

15  practices so that the delivery of services to citizens of the

16  state are provided in the most effective and cost-efficient

17  manner possible. The secretary of the department shall appoint

18  a director of the center. The duties and responsibilities of

19  the center are:

20         (a)  Recommending and implementing a centralized gate

21  process for reviewing and evaluating, and granting,

22  withholding, or denying approval of, agency procurements

23  which, at a minimum, shall include the requirements contained

24  in s. 287.0576(1) and (2) for contractual services

25  procurements.

26         (b)  Providing support and assistance to the

27  commission, including, but not limited to, reviewing and

28  validating agency business cases, recommending standards,

29  processes, templates, and guidelines for use by agencies

30  during the procurement process and providing information and

31  documentation as requested or required by law.


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    CS for CS for SB 1146                          Third Engrossed



 1         (c)  Assisting agencies directly in the procurement

 2  process as needed to ensure a high-quality procurement,

 3  including, but not limited to, developing and updating

 4  business cases, drafting solicitation and contract documents,

 5  participating in contract negotiations, identifying

 6  performance measures, and advising agencies on performance

 7  measurement, contract management, and change management. The

 8  center shall also provide information, training, and technical

 9  assistance to agencies on the use of the standards, processes,

10  templates, and guidelines developed for use by agencies during

11  the procurement process.

12         (d)  Collecting data and information from agencies on

13  an ongoing basis with regard to the status and results of

14  procurements that have advanced completely through the

15  centralized gate process, recommending incorporation of any

16  lessons learned from such projects into commission standards,

17  procedures, templates, and guidelines, as appropriate, and

18  identifying and disseminating to agencies information

19  regarding best practices in procurement, particularly

20  contractual services procurements.

21         (e)  Developing and implementing, in consultation with

22  the Agency for Workforce Innovation, guidelines for assisting

23  employees whose jobs are eliminated as a result of

24  procurements.

25         (3)  The department shall employ an adequate number of

26  highly skilled, credentialed staff who collectively possess

27  significant expertise and experience as required to carry out

28  the responsibilities of this act.

29         (4)  Agencies shall submit to the center all

30  information, documents, or other materials required by

31  commission rule or this chapter.


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    CS for CS for SB 1146                          Third Engrossed



 1         Section 6.  Section 287.0576, Florida Statutes, is

 2  created to read:

 3         287.0576  Review and analysis of proposed procurement

 4  of contractual services; centralized gate process.--

 5         (1)  At a minimum, procurements required to undergo

 6  review and analysis through the centralized gate process

 7  adopted by the commission are:

 8         (a)  Contractual services procurements that have an

 9  estimated total cost of $10 million or more in any fiscal

10  year.

11         (b)  New contractual services procurements that will

12  require adjustments to the agency's budget, in accordance with

13  chapter 216, totaling $1 million or more. Amendments to

14  existing contracts are excluded.

15         (c)  Contractual services procurements that do not

16  involve an outlay of state funds estimated to total $10

17  million or more in any fiscal year because of the provision of

18  services by the contractor at a rate significantly below

19  market rate, the significant investment of other resources by

20  the agency, or other reason, but in which the total value of

21  the services performed by the agency and contractor under the

22  contract is estimated to total $10 million or more in any

23  fiscal year. Examples of such procurements include, but are

24  not limited to, free, no-cost, or codevelopment contracts.

25         (d)  Contractual services procurements for which the

26  sum of gross revenues or shared savings to be generated for

27  the state and contractor over the term of the contract plus

28  the sum of any payments to the contractor by the agency over

29  the term of the contract, if any, is estimated to total $10

30  million or more in any fiscal year.

31  


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    CS for CS for SB 1146                          Third Engrossed



 1         (e)  Contractual services procurements that do not meet

 2  the criteria in paragraphs (a)-(d) that the Legislature has

 3  directed to be subject to the centralized gate process.

 4         (2)  Extensions and renewals of contracts resulting

 5  from procurements in subsection (1) and extensions and

 6  renewals of contracts meeting the criteria identified in

 7  paragraphs (1)(a), (c), and (d) which did not pass through the

 8  center shall undergo review and analysis through the

 9  centralized gate process implemented by the center, though,

10  notwithstanding any law to the contrary, such contracts shall

11  pass only through such gates as the commission determines are

12  appropriate based on the legislative intent of this act.

13  

14  For purposes of determining whether a procurement meets the

15  requirements of this section, multiple contractual services

16  procurements for substantially similar or related functions or

17  responsibilities occurring in a coordinated fashion or in

18  close time proximity to one another are considered a single

19  contractual services procurement for purposes of meeting the

20  thresholds set forth in this section.

21         (3)  The centralized gate process shall require, at a

22  minimum, review of the procurement by the commission at each

23  gate. At each gate, the commission shall determine by majority

24  vote to:

25         (a)  Approve the procurement, if the agency has

26  sufficiently met the requirements of the current gate, and

27  advance the procurement to the next phase;

28         (b)  Withhold approval of the procurement, if

29  additional work must be completed in order to satisfy the

30  requirements of the current gate, and retain the procurement

31  in that phase; or


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    CS for CS for SB 1146                          Third Engrossed



 1         (c)  Deny the procurement, if the procurement is not a

 2  good business decision, and remove the procurement from

 3  consideration.

 4  

 5  Notwithstanding the provisions of this section, the commission

 6  may not deny procurements which are required by law. If the

 7  commission determines that a procurement required by law is

 8  not a good business decision, the commission shall withhold

 9  approval and transmit to the President of the Senate, the

10  Speaker of the House of Representatives, and the Governor the

11  reasons why the procurement should not be completed and any

12  recommendation for legislative action. If the President of the

13  Senate or the Speaker of the House of Representatives has not

14  responded within 14 business days of receipt of the

15  communication, the commission shall proceed at its discretion

16  consistent with the Legislative intent of this act.

17  

18  Notwithstanding any law to the contrary, agencies under the

19  individual control of the Attorney General, the Chief

20  Financial Officer, or the Commissioner of Agriculture are

21  subject to the provisions of this act, except that the

22  commission shall not grant, withhold, or deny approval of a

23  procurement by such agency but instead may only provide

24  recommendations to the agency. The respective agency head

25  shall have sole authority to grant, withhold, or deny approval

26  of such procurement.

27         (4)  The gates and required documentation comprising

28  the centralized gate process shall, at a minimum, consist of:

29         (a)  The proposal identification gate, which shall

30  include the business case.

31  


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    CS for CS for SB 1146                          Third Engrossed



 1         (b)  The procurement preparation gate, which shall

 2  include the updated business case and the solicitation

 3  documents prior to the issuance of such documents. An agency

 4  may not release solicitation documents without the

 5  commission's approval at this gate. The commission must review

 6  and approve the written determination of the agency required

 7  pursuant to s. 287.057(3)(a) before granting approval for the

 8  use of an invitation to negotiate, or withhold approval

 9  pending submission by the agency of an acceptable alternative

10  solicitation method.

11         (c)  The contract development gate, which shall include

12  the final business case and the proposed unexecuted contract.

13  An agency may not execute the contract without the

14  commission's approval at this gate.

15         (d)  The transition management gate, which shall

16  include updates to the final business case and, for a

17  procurement of contractual services, an analysis of the

18  agency's and contractor's readiness for the contractor to

19  perform the proposed responsibility or function. An agency may

20  not transition to contractor performance without the

21  commission's approval at this gate.

22         (e)  The post-implementation gate, which shall include

23  updates to the final business case and a report on the

24  adequacy of contractor performance.

25         (5)(a)  Any executed contract for a procurement passing

26  through the centralized gate process pursuant to this section

27  shall be null and void if an agency fails to comply with the

28  commission decision at the proposal identification,

29  procurement preparation, or contract development gate.

30         (b)  Failure to comply with any other requirements of

31  this act or implementing rules shall not affect the validity


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    CS for CS for SB 1146                          Third Engrossed



 1  of the competitive solicitation and award process or any

 2  contract.

 3         (6)  The commission shall take action at each gate

 4  within 60 days of the submission of a procurement by an

 5  agency.  If the commission does not take action within this

 6  timeframe, the agency head shall determine whether to grant,

 7  withhold, or deny approval of the procurement at that gate

 8  based on the rules and guidelines of the commission for that

 9  gate and shall notify the Governor, the President of the

10  Senate, the Speaker of the House of Representatives, and the

11  commission of such action and the circumstances thereof.

12         (7)  During the terms of the contracts, the agency

13  shall annually submit with its legislative budget request a

14  status report for each procurement that has passed through at

15  least the first three gates of the centralized gate process

16  describing the progress made to date, actual completion dates

17  in comparison to planned completion dates, actual costs

18  incurred in comparison to projected costs incurred, current

19  issues requiring resolution, planned project milestones,

20  deliverables, and expenditures for the next reporting period,

21  and any other information relating to the contractual services

22  that may be requested.

23         Section 7.  Section 287.0577, Florida Statutes, is

24  created to read:

25         287.0577  Requirements for procurement of certain

26  contractual services.--In addition to the other applicable

27  requirements of this chapter, an agency shall comply with the

28  following requirements for, at a minimum, procurements of

29  contractual services estimated to total $1 million or more in

30  any fiscal year and those subject to review under s.

31  287.0576(1)(b), (c), (d), and (e) and (2):


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    CS for CS for SB 1146                          Third Engrossed



 1         (1)  BUSINESS CASE.--The agency shall develop a

 2  business case which describes and analyzes the procurement.

 3  The business case is not subject to challenge or protest

 4  pursuant to chapter 120. The business case shall include, but

 5  not be limited to, the information in paragraphs (a)-(l).  For

 6  procurements not subject to commission review, the agency

 7  shall provide a copy of the business case to the President of

 8  the Senate and the Speaker of the House at least 14 days prior

 9  to releasing a solicitation.  For procurements subject to

10  commission review, the business case shall be in such detail

11  as is appropriate given the current phase of the procurement

12  but shall contain sufficient information to enable the

13  commission to determine at that gate whether the procurement

14  may proceed to the next procurement phase:

15         (a)1.  A detailed description of the function or

16  responsibility for which the procurement is proposed;

17         2.  If the agency is currently performing the function

18  or responsibility, a description and analysis of the agency's

19  current performance, including, but not limited to, baseline

20  costs and performance metrics;

21         3.  The goals desired to be achieved through the

22  procurement and the rationale for such goals; and

23         4.  A citation of the existing or proposed legal

24  authority for contracting for the function or responsibility.

25         (b)1.  A description of available options for achieving

26  the goals. If state employees are currently performing the

27  function or responsibility, at least one option involving

28  maintaining state provision of the function or responsibility

29  shall be included.

30  

31  


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    CS for CS for SB 1146                          Third Engrossed



 1         2.  A description of the current market for the

 2  contractual services which are under consideration for

 3  procurement.

 4         3.  An analysis of the advantages and disadvantages of

 5  each option, including, at a minimum, potential performance

 6  improvements and risks.

 7         (c)  A cost-benefit analysis documenting the direct and

 8  indirect specific baseline costs, savings, and qualitative and

 9  quantitative benefits involved in or resulting from the

10  implementation of the recommended option or options. Such

11  analysis shall specify the schedule that, at a minimum, must

12  be adhered to in order to achieve the estimated savings. All

13  elements of cost shall be clearly identified in the

14  cost-benefit analysis, described in the business case, and

15  supported by applicable records and reports. The agency head

16  shall attest that, based on the data and information

17  underlying the business case, to the best of his or her

18  knowledge, all projected costs, savings, and benefits are

19  valid and achievable. "Cost" means the reasonable, relevant,

20  and verifiable cost which may include, but not be limited to,

21  elements such as personnel costs, materials and supplies,

22  services, equipment, capital depreciation costs, rent,

23  maintenance and repairs, utilities, insurance, personnel

24  travel, overhead, and interim and final payments. The

25  appropriate elements shall depend on the nature of the

26  specific initiative. "Savings" means the difference between

27  the direct and indirect actual annual baseline costs compared

28  to the projected annual cost for the contracted functions or

29  responsibilities in any succeeding state fiscal year during

30  the term of the contract.

31  


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    CS for CS for SB 1146                          Third Engrossed



 1         (d)  A description of variance among agency policies

 2  and processes and, as appropriate, a discussion of options for

 3  or a plan to standardize, consolidate, or revise current

 4  policies and processes, if any, to reduce the customization of

 5  any proposed solution that would otherwise be required.

 6         (e)  A description of the specific performance

 7  standards that must, at a minimum, be met to ensure adequate

 8  performance.

 9         (f)  A statement of the potential impact on federal,

10  state, and local revenues and expenditures. The statement

11  shall specifically describe the effect on general revenue,

12  trust funds, general revenue service charges, and interest on

13  trust funds together with the potential direct or indirect

14  effect on federal funding and cost allocations.

15         (g)  The projected timeframe for key events, from the

16  beginning of the procurement process through the expiration of

17  a contract.

18         (h)  A plan to ensure compliance with public records

19  law which must include components that:

20         1.  Provide public access to public records at a cost

21  that does not exceed that provided in chapter 119.

22         2.  Ensure the confidentiality of records that are

23  exempt or confidential under law.

24         3.  Meet all legal requirements for record retention

25  provided by law.

26         4.  Require transfer to the state, at no cost, of all

27  public records in possession of the contractor upon

28  termination of the contract.

29         (i)  A specific and feasible contingency plan

30  addressing contractor nonperformance and a description of the

31  tasks involved in and costs required for its implementation.


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    CS for CS for SB 1146                          Third Engrossed



 1         (j)  An agency transition plan for addressing changes

 2  in the number of agency personnel, affected business

 3  processes, employee transition issues, and communication with

 4  affected stakeholders, such as agency clients and the public.

 5  The transition plan shall contain a reemployment and

 6  retraining assistance plan for employees who are not retained

 7  by the agency or employed by the contractor.

 8         (k)  A listing of any assets proposed for surplus or

 9  use by a contractor. For those assets proposed to be used by a

10  contractor, the business case shall include a description of

11  the proposed requirements for maintaining those assets by the

12  contractor or the agency in accordance with chapter 273, a

13  plan for the transitioning of the assets upon termination of

14  the contract, and a description of how the planned use by a

15  contractor is in the best interest of the agency and state.

16         (l)  A plan for ensuring access by persons with

17  disabilities in compliance with applicable state and federal

18  law.

19  

20  If a contractual services procurement meets the criteria for

21  submission of feasibility study documentation as required by

22  the legislative budget request instructions established

23  pursuant to s. 216.023, the agency shall submit such

24  documentation.

25         (2)  SOLICITATION REQUIREMENTS.--The solicitation for a

26  contractual services procurement shall include, at a minimum:

27         (a)  A detailed description of the function or

28  responsibility under consideration for contracting and, if the

29  function or responsibility is currently being performed by an

30  agency, a description and analysis of the agency's current

31  performance.


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    CS for CS for SB 1146                          Third Engrossed



 1         (b)  Requirements that are achievable, unambiguous,

 2  measurable, meaningful, and complete.

 3         (c)  The criteria that after contract execution will be

 4  used to assess contractor performance and the minimum

 5  acceptable contractor performance levels.

 6         (3)  CONTRACT.--Each contract must include, but need

 7  not be limited to:

 8         (a)  A detailed scope of work that clearly specifies

 9  each service or deliverable to be provided, including a

10  description of each deliverable or activity that is

11  quantifiable, measurable, and verifiable.

12         (b)  All service-level agreements describing all

13  services to be provided under the terms of the agreement, the

14  agency's service requirements and performance objectives, and

15  specific responsibilities of the agency and the contractor.

16         (c)  Associated costs and savings, specific payment

17  terms and payment schedule, including incentive and

18  disincentive provisions, criteria governing payment, and a

19  clear and specific implementation schedule that will be

20  implemented in order to complete all required activities

21  needed to transfer the service from the agency to the

22  contractor and operate the service successfully.

23         (d)  Clear and specific identification of all required

24  performance standards, which must include, at a minimum:

25         1.  Detailed measurable acceptance criteria for each

26  deliverable and service to be provided to the agency under the

27  terms of the contract which document the required performance

28  level.

29         2.  A method for monitoring and reporting progress in

30  achieving specified performance standards and levels.

31  


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    CS for CS for SB 1146                          Third Engrossed



 1         3.  The sanctions or disincentives that shall be

 2  assessed for nonperformance by the contractor or agency.

 3         (e)  A requirement that the contractor maintain

 4  adequate accounting records that comply with all applicable

 5  federal and state laws and generally accepted accounting

 6  principles.

 7         (f)  A requirement authorizing state access to and

 8  audit of all records related to the contract or any

 9  responsibilities or functions under the contract for state

10  audit and legislative oversight purposes and a requirement for

11  service organization audits in accordance with professional

12  auditing standards, if appropriate.

13         (g)  A requirement describing the timing and substance

14  of all plans and status or progress reports that are to be

15  provided. All plans and status or progress reports must comply

16  with any relevant state and federal standards.

17         (h)  A requirement that the contractor comply with

18  public records laws. The contractor must:

19         1.  Keep and maintain the public records that

20  ordinarily and necessarily would be required by the state

21  agency in order to perform the function or service.

22         2.  Provide the public with access to such public

23  records on the same terms and conditions that the state agency

24  would and at a cost that does not exceed that provided in

25  chapter 119.

26         3.  Ensure the confidentiality of records that are

27  exempt from public disclosure or made confidential under law.

28         4.  Meet all requirements for retaining records and

29  transfer to the state, at no cost, all public records in

30  possession of the contractor upon termination of the contract

31  and destroy any duplicate public records which are exempt and


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    CS for CS for SB 1146                          Third Engrossed



 1  confidential. All records stored electronically must be

 2  provided to the state in a format that is compatible with

 3  information technology systems of the state.

 4         (i)  A requirement that any state funds provided for

 5  the purchase of or improvements to real property be made

 6  contingent upon the contractor granting to the state a

 7  security interest in the property which is at least equal to

 8  the amount of the state funds provided for the most recent

 9  years following the date of purchase or the completion of

10  improvements, or as otherwise required by law. The contract

11  must include a provision that, if the contractor disposes of

12  the property before the agency's interest is vacated, the

13  contractor will refund the proportionate share of the state's

14  initial investment, as adjusted by depreciation.

15         (j)  If a contract involves the development or creation

16  of intellectual property, the contract must specify the

17  ownership of such intellectual property and any rights of the

18  state to use, modify, reproduce, or disseminate the

19  intellectual property.

20         (k)  A provision that the contractor annually submit

21  and verify, pursuant to s. 92.525, all required financial

22  statements.

23         (l)  A requirement that the contractor shall interview

24  and consider for employment with the contractor each displaced

25  state employee who is interested in such employment.

26         (m)  Provisions requiring that venue for any action

27  regarding the contract shall be in Leon County and that the

28  contract shall be interpreted according to the laws of this

29  state.

30         (4)  AMENDMENTS.--An agency may not amend a contract

31  without first submitting the proposed contract amendment to


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    CS for CS for SB 1146                          Third Engrossed



 1  the Executive Office of the Governor for approval and

 2  notifying the chairs of the legislative appropriations

 3  committees of such submission if the effect of the amendment

 4  would be to:

 5         (a)  Increase the value of the contract by $1 million

 6  or more for those contracts with a total value of at least $1

 7  million but less than $10 million; or

 8         (b)  Increase the value of the contract by 10 percent

 9  or more for those contracts with a total value of $10 million

10  or more.

11  

12  An agency shall not divide a contract amendment so as to avoid

13  the requirements of this section.

14         (5)  In addition to the requirements of subsections

15  287.057(13) and (14), prior to the renewal or extension of a

16  contract, an agency shall document whether all specific direct

17  and indirect costs, savings, performance standards, and

18  qualitative and quantitative benefits identified in the

19  contract have been met by the contractor and the agency. If

20  the actual performance of the contractor does not meet the

21  required performance as identified in the contract, the agency

22  shall explain the reasons why and provide justification for

23  the extensions or renewal of the contract. This documentation

24  shall be included in the official contract file.

25         Section 8.  Section 287.0578, Florida Statutes, is

26  created to read:

27         287.0578  Subsequent inconsistent laws.--Subsequent

28  inconsistent laws shall supersede this act only to the extent

29  they do so by express reference to this section.

30         Section 9.  Paragraph (b) of subsection (17) of section

31  287.057, Florida Statutes, is amended to read:


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    CS for CS for SB 1146                          Third Engrossed



 1         287.057  Procurement of commodities or contractual

 2  services.--

 3         (17)  For a contract in excess of the threshold amount

 4  provided in s. 287.017 for CATEGORY FOUR, the agency head

 5  shall appoint:

 6         (b)  At least three persons to conduct negotiations

 7  during a competitive sealed reply procurement who collectively

 8  have experience and knowledge in negotiating contracts,

 9  contract procurement, and the program areas and service

10  requirements for which commodities or contractual services are

11  sought. When the annual value of a contract is in excess of $1

12  million, at least one of the persons conducting negotiations

13  must be certified as a contract negotiator based upon rules

14  adopted by the Department of Management Services.

15         Section 10.  Section 215.4211, Florida Statutes, is

16  created to read:

17         215.4211  Review of contracts for state agencies.--The

18  Chief Financial Officer may request, as he or she deems

19  necessary, the option to review and provide comments prior to

20  the execution of any contract that is required to be in

21  compliance with the provisions of s. 287.0577(3).

22         Section 11.  Section 216.1817, Florida Statutes, is

23  created to read:

24         216.1817  Placement of positions in reserve;

25  reestablishment of positions.--If a procurement of contractual

26  services involves the performance of functions or

27  responsibilities that are being shifted from state employees

28  to a contractor, the agency shall identify within the business

29  case prepared pursuant to s. 287.0577 all resources which are

30  affected, including full-time equivalent positions. All

31  full-time equivalent positions identified in the business case


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    CS for CS for SB 1146                          Third Engrossed



 1  shall be placed in reserve by the Executive Office of the

 2  Governor until the end of the second year of the

 3  contract.  However, in the business case, the agency may

 4  account for any savings from the full-time equivalent

 5  positions identified and held in reserve.  Notwithstanding the

 6  provisions of s. 216.262, the Executive Office of the Governor

 7  shall request authority from the Legislative Budget Commission

 8  to reestablish full-time equivalent positions above the number

 9  fixed by the Legislature if a contract is terminated and the

10  performance of the functions or responsibilities must be

11  returned to the agency.

12         Section 12.  This act shall not apply to

13  administrative, examination, licensing, investigative, and

14  prosecutorial services for any board, commission, or council

15  created within the Department of Business and Professional

16  Regulation pursuant to chapter 20, Florida Statutes, as the

17  privatization of such services is governed by sections 455.32

18  and 471.038, Florida Statutes.

19         Section 13.  Section 287.074, Florida Statutes, is

20  created to read:

21         287.074  Actions reserved to public officers or

22  employees.--

23         (1)  Only a public officer or a public employee upon

24  whom the public officer has delegated authority shall,

25  consistent with law, take actions including, but not limited

26  to:

27         (a)  Selecting state employees;

28         (b)  Approving position descriptions, performance

29  standards, or salary adjustments for state employees; and

30         (c)  Hiring, promoting, disciplining, demoting, and

31  dismissing a state employee.


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    CS for CS for SB 1146                          Third Engrossed



 1         (2)  Only a public officer shall, consistent with law,

 2  commission and appoint state officers.

 3         Section 14.  A contractor, as defined in chapter 287,

 4  Florida Statutes, or its employees, agents, or subcontractors,

 5  may not knowingly participate, through decision, approval,

 6  disapproval, preparation of any part of a purchase request,

 7  investigation, or auditing, in the procurement of contractual

 8  services by an agency from an entity in which the contractor,

 9  or its employees, agents, or subcontractors has a material

10  interest.

11         Section 15.  The Center for Efficient Government and

12  the Commission on Efficient Government shall terminate on July

13  1, 2010, unless reenacted by the Legislature prior to that

14  date. It is the intent of the Legislature that, beginning July

15  1, 2010, the various state agencies shall perform the review

16  functions required under this act for procurements of

17  contractual services under their jurisdiction. It is also the

18  intent of the Legislature that beginning July 1, 2010, the

19  positions authorized by this act shall remain with the

20  Department of Management Services, which shall continue

21  providing technical assistance as required in this act.

22         Section 16.  Section 287.0572, Florida Statutes, is

23  renumbered as section 287.0579, Florida Statutes:

24         287.0579 287.0572  Present-value methodology.--

25         (1)  The cost of bids, proposals, or replies for state

26  contracts that include provisions for unequal payment streams

27  or unequal time payment periods shall be evaluated using

28  present-value methodology. Each agency, as defined in s.

29  287.012(1), shall perform the evaluation using the

30  present-value discount rate supplied by the department. The

31  present-value discount rate shall be the rate for United


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    CS for CS for SB 1146                          Third Engrossed



 1  States Treasury notes and bonds published in the Interest

 2  Rates: Money and Capital Markets section of the most recent

 3  copy of the Federal Reserve Bulletin published at the time of

 4  issuance of the request for proposals, the invitation to

 5  negotiate, or the invitation to bid.

 6         (2)  The department may adopt rules to administer

 7  subsection (1).

 8         Section 17.  Subsection (3) of section 119.0721,

 9  Florida Statutes, is amended to read:

10         119.0721  Social security number exemption.--

11         (3)  An agency shall not deny a commercial entity

12  engaged in the performance of a commercial activity, which,

13  for purposes of this subsection, means an activity that

14  provides a product or service that is available from a private

15  source as defined in s. 14.203 or its agents, employees, or

16  contractors access to social security numbers, provided the

17  social security numbers will be used only in the normal course

18  of business for legitimate business purposes, and provided the

19  commercial entity makes a written request for social security

20  numbers, verified as provided in s. 92.525, legibly signed by

21  an authorized officer, employee, or agent of the commercial

22  entity. The verified written request must contain the

23  commercial entity's name, business mailing and location

24  addresses, business telephone number, and a statement of the

25  specific purposes for which it needs the social security

26  numbers and how the social security numbers will be used in

27  the normal course of business for legitimate business

28  purposes. The aggregate of these requests shall serve as the

29  basis for the agency report required in subsection (7). An

30  agency may request any other information as may be reasonably

31  necessary to verify the identity of the entity requesting the


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    CS for CS for SB 1146                          Third Engrossed



 1  social security numbers and the specific purposes for which

 2  such numbers will be used; however, an agency has no duty to

 3  inquire beyond the information contained in the verified

 4  written request. A legitimate business purpose includes

 5  verification of the accuracy of personal information received

 6  by a commercial entity in the normal course of its business;

 7  use in a civil, criminal, or administrative proceeding; use

 8  for insurance purposes; use in law enforcement and

 9  investigation of crimes; use in identifying and preventing

10  fraud; use in matching, verifying, or retrieving information;

11  and use in research activities. A legitimate business purpose

12  does not include the display or bulk sale of social security

13  numbers to the general public or the distribution of such

14  numbers to any customer that is not identifiable by the

15  distributor.

16         Section 18.  Section 14.203, Florida Statutes, is

17  repealed.

18         Section 19.  There is hereby appropriated $1,023,554

19  recurring budget authority to the Department of Management

20  Services from the General Revenue Fund, and nine full-time

21  equivalent positions are authorized, to carry out the

22  activities of the Center for Efficient Government and the

23  Commission on Efficient Government as provided in this act.

24         Section 20.  This act shall take effect July 1, 2005.

25  

26  

27  

28  

29  

30  

31  


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