Loading...
HomeMy WebLinkAbout2006 02 13 Informational 504 Capital Projects Coordinator Professional Services COMMISSION AGENDA ITEM 504 Informational X February 13.2006 Regular Meeting Mgr. /Dept. Authorization REQUEST: Capital Projects Coordinator Providing the City Commission with Information on Procurement of Professional Services PURPOSE: To address questions by members ofthe Commission on the Statutory requirements for the procurement of Professional Services under the Consultants Competitive Negotiation Act (CCNA). CONSIDERATIONS: Staff previously provided the City Commission information relative to the City bidding process and requirements. The Commission requested additional information in a similar format regarding consultant selection. This agenda item is an attempt to provide a synopsis of that information. Florida Statute 287.055 Acquisition of professional architectural, engineering, landscape architectural, surveying and mapping services: definitions; contingent fees prohibited: penalties, also known as the Consultants Competitive Negotiation Act provides the requirements for selection the above listed services. This statute addresses a continuing contract for those professional services listed. Current continuing contracts for professional services are: . Conklin, Porter & Holmes - Agreement for General Consulting Engineering Services - Approved 11/27/1984 February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 2 OF 21 . Conklin, Porter & Holmes - Agreement for Reuse System Engineering Services - Commission selected from Request for Proposal's (RFP's) - approved 10/14/1991 . Conklin, Porter & Holmes - Agreement for Stormwater Management Plan Engineering Services - Commission selected from RFP's- approved 3/8/1993 . Starmer Ranaldi, Inc - Architectural and Landscape Architectural Consulting Services -Commission selected from RFP's - approved 3/22/1999 Florida Statue 218.391 Auditor selection procedures establishes requirements for hiring auditors to conduct the annual financial audit of the City's records. The City is in the 2nd year of a three year term with McDirmit, Davis, Puckett & Company, P.A. that was Commission approved from RFP's in 2004. Florida Statute 287.057 Procurement of Commodities or Contractual Services governs State agencies and is used by Public Works and Utilities Departments as a guide for contracting such services. A summary of each statute is attached along with the actual statute. FUNDING: N/ A RECOMMENDATIONS: N/ A ATTACHMENTS: 1. Summary ofF.S. 287.055 and 218.391 2. Florida Statute 287.055 3. Florida Statute 218.391 4. Florida Statute 287.057 COMMISSION ACTION: February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 3 OF 21 ATTACHMENT No.1 F.S. STATUTE 287.055 ACQUISITION OF PROFESSIONAL ARCHITECTURAL, ENGINEERING, LANDSCAPE ARCHITECTURAL, OR SURVEYING AND MAPPING SERVICES (CONSULTANTS COMPETITIVE NEGOTIATION ACT) . Definitions o Professional Services - means those services within the scope of the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping. o Project - means that fixed capital outlay, study or planning activity described in the public notice o Continuing Contract - is a contract for professional service for projects in which construction cost do not exceed $1 million, for study activity when the fee does not exceed $50,000 or for work of a specified nature as outlined in the contract. o Purchasing categories: · Category One: $15,000. · Category Two: $25,000. · Category Three: $50,000. · Category Four: $150,000. · Category Five: $250,000 . Public Announcement and Qualification Procedures o Public announcement required when professional services are required for a project where the estimated construction cost exceed $250,000 or the planning / study activity fee exceeds $25,000. o Announcement must include general description of project and how interested consultants may apply. o City must certify the consultant is qualified. o Such qualifications may include adequacy of personnel, past record, and experience of the firm/individual. o The public must not be excluded from the evaluation process. . Competitive Selection o Select in order of preference no less than three qualified firms . Competitive Negotiation o Negotiation with the most qualified firm based on analysis of the cost based on the scope and complexity. o Firm selected required to execute a truth-in-negotiation certificate for the wage rates and unit cost. o Adjustments to wage rates and unit cost must be made within one year following the end of the contract. February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 4 OF 21 F.S. STATUE 218.391 AUDITOR SELECTION PROCEDURES . The governing body of a municipality shall establish an audit committee. The primary purpose of the audit committee is to assist the governing body in selecting an auditor to conduct the annual financial audit required in s. 218.39; however, the audit committee may serve other audit oversight purposes as determined by the entity's governing body. The public shall not be excluded from the proceedings under this section. . The committee determines evaluation criteria, publicly announces RFP's, evaluates RFP's, rank and recommends in order no fewer than three qualified firms. . The governing body shall select one of the firms based on qualifications and negotiate a contract. . A provision of the contract can be for an extension of the contract on an annual basis. F.S. STATUTE 287.057 PROCUREMENT OF COMMODITIES OR CONTRACTUAL SERVICES . Unless otherwise authorized by law all contracts for the purchase of commodities or contractual services in excess of$25,000 shall be awarded by competitive bid by means of an invitation to bid. If the contract is contemplated to be renewed, that fact must be stated in the in the invitation to bid. . In the city states in writing that an invitation to bid is not practicable, competitive sealed proposals can be requested. If the contract is contemplated to be renewed, that fact must be stated in the in the request for proposal. . If the city determines in writing that an invitation to bid or a request for proposal will not result in the best value, an invitation to negotiate can be used. If the contract is contemplated to be renewed, that fact must be stated in the in the invitation to negotiate. . If the price ofthe commodities or services exceeds $25,000, no contract may be made without an invitation to bid, request for proposal or invitation to negotiate unless: o An immediate danger to the public health, safety or welfare or other substantial loss requires emergency action. o The purchase is made from a term contract procured by another agency o Commodities or contractual services are available only from a sole source. . Auditing and legal services are not subject to competitive means. . Ifless than two responsive bids, proposals or replies are received, the city may negotiate on the best terms and conditions. The reasons must be documents for such action as in the best interest in lieu of re-soliciting sealed bids, proposals or replies. . Procurement of commodities or contractual service must not be divided so as to avoid these requirements. . Extension of a contract for services shall be in writing and for a [period not to exceed 6 months or the term of the original contract. There shall only be one extension. . Contracts may be renewed for a period that may not exceed 3 years or the term of the original contract, whichever period is longer. February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 5 OF 21 . For each contract, an employee is to be designated to function as contract manager. . One employee is to be designated as contract administrator to serve as liaison with the contract managers. . Any person, who is contracted to prepare a study, drafts a solicitation or develops a program for future implementation outside this statue subsections 1 to 5, is not eligible to contract for that specific subject matter. This does not apply to a vendor responding to a request for information. . A review and approval process is to be established for contracts exceeding $50,000. Such reviews must be completed before the contract is executed. . This section does not apply to contracts in existence on October 1, 1990. February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE6 0F21 ATTACHMENT No.2 287.055 Acquisition of professional architectural, engineering, landscape architectural, or surveying and mapping services; definitions; procedures; contingent fees prohibited; penalties.-- (1) SHORT TITLE.--This section shall be known as the "Consultants' Competitive Negotiation Act." (2) DEFINITIONS.--For purposes of this section: (a) "Professional services" means those services within the scope of the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping, as defined by the laws of the state, or those performed by any architect, professional engineer, landscape architect, or registered surveyor and mapper in connection with his or her professional employment or practice. (b) "Agency" means the state, a state agency, a municipality, a political subdivision, a school district, or a school board. The term "agency" does not extend to a nongovernmental developer that contributes public facilities to a political subdivision under s. 380.06 or ss. 163.3220-163.3243. (c) "Firm" means any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice architecture, engineering, or surveying and mapping in the state. (d) "Compensation" means the amount paid by the agency for professional services regardless of whether stated as compensation or stated as hourly rates, overhead rates, or other figures or formulas from which compensation can be calculated. (e) "Agency official" means any elected or appointed officeholder, employee, consultant, person in the category of other personal service or any other person receiving compensation from the state, a state agency, municipality, or political subdivision, a school district or a school board. (f) "Project" means that fixed capital outlay study or planning activity described in the public notice of the state or a state agency under paragraph (3)(a). A project may include: 1. A grouping of minor construction, rehabilitation, or renovation activities. 2. A grouping of substantially similar construction, rehabilitation, or renovation activities. (g) A "continuing contract" is a contract for professional services entered into in accordance with all the procedures of this act between an agency and a firm whereby the firm provides professional services to the agency for projects in which construction costs do not exceed $1 million, for study activity when the fee for such professional service does not exceed $50,000, or for work of a specified nature as outlined in the contract required by the agency, with no time limitation except that the contract must provide a termination clause. Firms providing professional services under continuing contracts shall not be required to bid against one another. (h) A "design-build firm" means a partnership, corporation, or other legal entity that: 1. Is certified under s. 489.119 to engage in contracting through a certified or registered general contractor or a certified or registered building contractor as the qualifying agent; or February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 7 OF 21 2. Is certified under s. 471.023 to practice or to offer to practice engineering; certified under s. 481.219 to practice or to offer to practice architecture; or certified under s. 481.319 to practice or to offer to practice landscape architecture. (i) A "design-build contract" means a single contract with a design-build firm for the design and construction of a public construction project. (j) A "design criteria package" means concise, performance-oriented drawings or specifications of the public construction project. The purpose of the design criteria package is to furnish sufficient information to permit design-build firms to prepare a bid or a response to an agency's request for proposal, or to permit an agency to enter into a negotiated design- build contract. The design criteria package must specify performance-based criteria for the public construction project, including the legal description of the site, survey information concerning the site, interior space requirements, material quality standards, schematic layouts and conceptual design criteria of the project, cost or budget estimates, design and construction schedules, site development requirements, provisions for utilities, stormwater retention and disposal, and parking requirements applicable to the project. (k) A "design criteria professional" means a firm who holds a current certificate of registration under chapter 481 to practice architecture or landscape architecture or a firm who holds a current certificate as a registered engineer under chapter 471 to practice engineering and who is employed by or under contract to the agency for the providing of professional architect services, landscape architect services, or engineering services in connection with the preparation of the design criteria package. (I) "Negotiate" or any form of that word means to conduct legitimate, arms length discussions and conferences to reach an agreement on a term or price. For purposes of this section, the term does not include presentation of flat-fee schedules with no alternatives or discussion. (3) PUBLIC ANNOUNCEMENT AND QUALIFICATION PROCEDURES.-- (a)1. Each agency shall publicly announce, in a uniform and consistent mannerl each occasion when professional services must be purchased for a project the basic construction cost of which is estimated by the agency to exceed the threshold amount provided in s. 287.017 for CATEGORY FIVE or for a planning or study activity when the fee for professional services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, except in cases of valid public emergencies certified by the agency head. The public notice must include a general description of the project and must indicate how interested consultants may apply for consideration. 2. Each agency shall provide a good faith estimate in determining whether the proposed activity meets the threshold amounts referred to in this paragraph. (b) Each agency shall encourage firms engaged in the lawful practice of their professions that desire to provide professional services to the agency to submit annually statements of qualifications and performance data. (c) Any firm or individual desiring to provide professional services to the agency must first be certified by the agency as qualified pursuant to law and the regulations of the agency. The agency must find that the firm or individual to be employed is fully qualified to render the required service. Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record, and experience of the firm or individual. February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 8 OF21 (d) Each agency shall evaluate professional services, including capabilities, adequacy of personnel, past record, experience, whether the firm is a certified minority business enterprise as defined by the Florida Small and Minority Business Assistance Act of 1985, and other factors determined by the agency to be applicable to its particular requirements. When securing professional services, an agency must endeavor to meet the minority business enterprise procurement goals under s. 287.09451. (e) The public must not be excluded from the proceedings under this section. (4) COMPETITIVE SELECTION.-- (a) For each proposed project, the agency shall evaluate current statements of qualifications and performance data on file with the agency, together with those that may be submitted by other firms regarding the proposed project, and shall conduct discussions with, and may require public presentations by, no fewer than three firms regarding their qualifications, approach to the project, and ability to furnish the required services. (b) The agency shall select in order of preference no fewer than three firms deemed to be the most highly qualified to perform the required services. In determining whether a firm is qualified, the agency shall consider such factors as the ability of professional personnel; whether a firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads of the firms; and the volume of work previously awarded to each firm by the agency, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most highly qualified firms. The agency may request, accept, and consider proposals for the compensation to be paid under the contract only during competitive negotiations under subsection (5). (c) This subsection does not apply to a professional service contract for a project the basic construction cost of which is estimated by the agency to be not in excess of the threshold amount provided in s. 287.017 for CATEGORY FIVE or for a planning or study activity when the fee for professional services is not in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO. However, if, in using another procurement process, the majority of the compensation proposed by firms is in excess of the appropriate threshold amount, the agency shall reject all proposals and reinitiate the procurement pursuant to this subsection. (d) Nothing in this act shall be construed to prohibit a continuing contract between a firm and an agency. (5) COMPETITIVE NEGOTIATION.-- (a) The agency shall negotiate a contract with the most qualified firm for professional services at compensation which the agency determines is fair, competitive, and reasonable. In making such determination, the agency shall conduct a detailed analysis of the cost of the professional services required in addition to considering their scope and complexity. For any lump-sum or cost-plus-a-fixed-fee professional service contract over the threshold amount provided in s. 287.017 for CATEGORY FOUR, the agency shall require the firm receiving the award to execute a truth-in-negotiation certificate stating that wage rates and other factual unit costs supporting the compensation are accurate, complete, and current at the time of contracting. Any professional service contract under which such a certificate is required must contain a provision that the original contract price and any additions thereto will be adjusted to exclude any significant sums by which the agency determines the contract price was increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 9 0F21 costs. All such contract adjustments must be made within 1 year following the end of the contract. (b) Should the agency be unable to negotiate a satisfactory contract with the firm considered to be the most qualified at a price the agency determines to be fair, competitive, and reasonable, negotiations with that firm must be formally terminated. The agency shall then undertake negotiations with the second most qualified firm. Failing accord with the second most qualified firm, the agency must terminate negotiations. The agency shall then undertake negotiations with the third most qualified firm. (c) Should the agency be unable to negotiate a satisfactory contract with any of the selected firms, the agency shall select additional firms in the order of their competence and qualification and continue negotiations in accordance with this subsection until an agreement is reached. (6) PROHIBITION AGAINST CONTINGENT FEES.-- (a) Each contract entered into by the agency for professional services must contain a prohibition against contingent fees as follows: "The architect (or registered surveyor and mapper or professional engineer, as applicable) warrants that he or she has not employed or retained any company or person, other than a bona fide employee working solely for the architect (or registered surveyor and mapper, or professional engineer, as applicable) to solicit or secure this agreement and that he or she has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the architect (or registered surveyor and mapper or professional engineer, as applicable) any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this agreement." For the breach or violation of this provision, the agency shall have the right to terminate the agreement without liability and, at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. (b) Any individual, corporation, partnership, firm, or company, other than a bona fide employee working solely for an architect, professional engineer, or registered land surveyor and mapper, who offers, agrees, or contracts to solicit or secure agency contracts for professional services for any other individual, company, corporation, partnership, or firm and to be paid, or is paid, any fee, commission, percentage, gift, or other consideration contingent upon, or resulting from, the award or the making of a contract for professional services shall, upon conviction in a competent court of this state, be found guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083. (c) Any architect, professional engineer, or registered surveyor and mapper, or any group, association, company, corporation, firm, or partnership thereof, who offers to pay, or pays, any fee, commission, percentage, gift, or other consideration contingent upon, or resulting from, the award or making of any agency contract for professional services shall, upon conviction in a state court of competent authority, be found gUilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083. (d) Any agency official who offers to solicit or secure, or solicits or secures, a contract for professional services and to be paid, or is paid, any fee, commission, percentage, gift, or other consideration contingent upon the award or making of such a contract for professional services between the agency and any individual person, company, firm, partnership, or corporation shall, upon conviction by a court of competent authority, be found guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083. February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE l0 OF 21 (7) AUTHORITY OF DEPARTMENT OF MANAGEMENT SERVICES.--Notwithstanding any other provision of this section, the Department of Management Services shall be the agency of state government which is solely and exclusively authorized and empowered to administer and perform the functions described in subsections (3), (4), and (5) respecting all projects for which the funds necessary to complete same are appropriated to the Department of Management Services, irrespective of whether such projects are intended for the use and benefit of the Department of Management Services or any other agency of government. However, nothing herein shall be construed to be in derogation of any authority conferred on the Department of Management Services by other express provisions of law. Additionally, any agency of government may, with the approval of the Department of Management Services, delegate to the Department of Management Services authority to administer and perform the functions described in subsections (3), (4), and (5). Under the terms of the delegation, the agency may reserve its right to accept or reject a proposed contract. (8) STATE ASSISTANCE TO LOCAL AGENCIES.--On any professional service contract for which the fee is over $25,000, the Department of Transportation or the Department of Management Services shall provide, upon request by a municipality, political subdivision, school board, or school district, and upon reimbursement of the costs involved, assistance in selecting consultants and in negotiating consultant contracts. (9) APPLICABILITY TO DESIGN-BUILD CONTRACTS.-- (a) Except as provided in this subsection, this section is not applicable to the procurement of design-build contracts by any agency, and the agency must award design-build contracts in accordance with the procurement laws, rules, and ordinances applicable to the agency. (b) The design criteria package must be prepared and sealed by a design criteria professional employed by or retained by the agency. If the agency elects to enter into a professional services contract for the preparation of the design criteria package, then the design criteria professional must be selected and contracted with under the requirements of subsections (4) and (5). A design criteria professional who has been selected to prepare the design criteria package is not eligible to render services under a design-build contract executed pursuant to the design criteria package. (c) Except as otherwise provided in s. 337.11 (7), the Department of Management Services shall adopt rules for the award of design-build contracts to be followed by state agencies. Each other agency must adopt rules or ordinances for the award of design-build contracts. Municipalities, political subdivisions, school districts, and school boards shall award design- build contracts by the use of a competitive proposal selection process as described in this subsection, or by the use of a qualifications-based selection process pursuant to subsections (3), (4), and (5) for entering into a contract whereby the selected firm will subsequently establish a guaranteed maximum price and guaranteed completion date. If the procuring agency elects the option of qualifications-based selection, during the selection of the design- build firm the procuring agency shall employ or retain a licensed design professional appropriate to the project to serve as the agency's representative. Procedures for the use of a competitive proposal selection process must include as a minimum the following: 1. The preparation of a design criteria paCkage for the design and construction of the public construction project. 2. The qualification and selection of no fewer than three design-build firms as the most qualified, based on the qualifications, availability, and past work of the firms, including the partners or members thereof. February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 11 OF 21 3. The criteria, procedures, and standards for the evaluation of design-build contract proposals or bids, based on price, technical, and design aspects of the public construction project, weighted for the project. 4. The solicitation of competitive proposals, pursuant to a design criteria package, from those qualified design-build firms and the evaluation of the responses or bids submitted by those firms based on the evaluation criteria and procedures established prior to the solicitation of competitive proposals. 5. For consultation with the employed or retained design criteria professional concerning the evaluation of the responses or bids submitted by the design-build firms, the supervision or approval by the agency of the detailed working drawings of the project; and for evaluation of the compliance of the project construction with the design criteria package by the design criteria professional. 6. In the case of public emergencies, for the agency head to declare an emergency and authorize negotiations with the best qualified design-build firm available at that time. (10) REUSE OF EXISTING PLANS.--Notwithstanding any other provision of this section, there shall be no publiC notice requirement or utilization of the selection process as provided in this section for projects in which the agency is able to reuse existing plans from a prior project of the agency, or, in the case of a board as defined in s. 1013.01, a prior project of that or any other board. Except for plans of a board as defined in s. 1013.01, publiC notice for any plans that are intended to be reused at some future time must contain a statement that provides that the plans are subject to reuse in accordance with the provisions of this subsection. (11) CONSTRUCTION OF LAW.--Nothing in the amendment of this section by chapter 75- 281, Laws of Florida, is intended to supersede the provisions of ss. 1013.45 and 1013.46. History.--55. 1,2, 3,4, 5,6,7,8, ch. 73-19; 55. 1, 2, 3, ch. 75-281; 5. 1, ch. 77-174; 5. 1, ch. 77-199; 5. 10, ch. 84-321; 55. 23, 32, ch. 85-104; 5. 57, ch. 85-349; 5. 6, ch. 86-204; 5. 1, ch. 88-108; 5. 1, ch. 89-158; 5. 16, ch. 90-268; 5. 15, ch. 91- 137; 5.7, ch. 91-162; 5. 250, ch. 92-279; 5. 55, ch. 92-326; 5. 1, ch. 93-95; 5. 114, ch. 94-119; 5. 10, ch. 94-322; 5.868, ch. 95-148; 5. 2, ch. 95-410; 5. 45, ch. 96-399; 5. 38, ch. 97-100; 5. 1, ch. 97-296; 5. 80, ch. 98-279; 5. 55, ch. 2001-61; 5. 63, ch.2002-20; 5. 944, ch.2002-387; 5. 1, ch. 2005-224. February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 12 OF 21 ATTACHMENT No.3 218.391 Auditor selection procedures.-- (1) Each local governmental entity, district school board, charter school, or charter technical career center, prior to entering into a written contract pursuant to subsection (7), except as provided in subsection (8), shall use auditor selection procedures when selecting an auditor to conduct the annual financial audit required in s. 218.39. (2) The governing body of a charter county, municipality, special district, district school board, charter school, or charter technical career center shall establish an audit committee. Each noncharter county shall establish an audit committee that, at a minimum, shall consist of each of the county officers elected pursuant to s. 1 (d), Art. VIII of the State Constitution, or a designee, and one member of the board of county commissioners or its designee. The primary purpose of the audit committee is to assist the governing body in selecting an auditor to conduct the annual financial audit required in s. 218.39; however, the audit committee may serve other audit oversight purposes as determined by the entity's governing body. The public shall not be excluded from the proceedings under this section. (3) The audit committee shall: (a) Establish factors to use for the evaluation of audit services to be provided by a certified public accounting firm duly licensed under chapter 473 and qualified to conduct audits in accordance with government auditing standards as adopted by the Florida Board of Accountancy. Such factors shall include, but are not limited to, ability of personnel, experience, ability to furnish the required services, and such other factors as may be determined by the committee to be applicable to its particular requirements. (b) Publicly announce requests for proposals. Public announcements must include, at a minimum, a brief description of the audit and indicate how interested firms can apply for consideration. ( c) Provide interested firms with a request for proposal. The request for proposal shall include information on how proposals are to be evaluated and such other information the committee determines is necessary for the firm to prepare a proposal. (d) Evaluate proposals provided by qualified firms. If compensation is one of the factors established pursuant to paragraph (a), it shall not be the sole or predominant factor used to evaluate proposals. ( e) Rank and recommend in order of preference no fewer than three firms deemed to be the most highly qualified to perform the required services after considering the factors established pursuant to paragraph (a). If fewer than three firms respond to the request for proposal, the committee shall recommend such firms as it deems to be the most highly qualified. (4) The governing body shall inquire of qualified firms as to the basis of compensation, select one of the firms recommended by the audit committee, and negotiate a contract, using one of the following methods: (a) If compensation is not one of the factors established pursuant to paragraph (3)(a) and not used to evaluate firms pursuant to paragraph (3)(e), the governing body shall negotiate a contract with the February 13,2006 INFORMATIONAL AGENDA ITEM 504 PAGE 13 OF 21 firm ranked first. If the governing body is unable to negotiate a satisfactory contract with that firm, negotiations with that firm shall be formally terminated, and the governing body shall then undertake negotiations with the second-ranked firm. Failing accord with the second-ranked firm, negotiations shall then be terminated with that firm and undertaken with the third-ranked firm. Negotiations with the other ranked firms shall be undertaken in the same manner. The governing body, in negotiating with firms, may reopen formal negotiations with anyone of the three top-ranked firms, but it may not negotiate with more than one firm at a time. (b) If compensation is one of the factors established pursuant to paragraph (3 )( a) and used in the evaluation of proposals pursuant to paragraph (3)(d), the governing body shall select the highest- ranked qualified firm or must document in its public records the reason for not selecting the highest- ranked qualified firm. ( c) The governing body may select a firm recommended by the audit committee and negotiate a contract with one of the recommended firms using an appropriate alternative negotiation method for which compensation is not the sole or predominant factor used to select the firm. (d) In negotiations with firms under this section, the governing body may allow a designee to conduct negotiations on its behalf. (5) The method used by the governing body to select a firm recommended by the audit committee and negotiate a contract with such firm must ensure that the agreed-upon compensation is reasonable to satisfy the requirements ofs. 218.39 and the needs of the governing body. (6) If the governing body is unable to negotiate a satisfactory contract with any of the recommended firms, the committee shall recommend additional firms, and negotiations shall continue in accordance with this section until an agreement is reached. (7) Every procurement of audit services shall be evidenced by a written contract embodying all provisions and conditions of the procurement of such services. For purposes of this section, an engagement letter signed and executed by both parties shall constitute a written contract. The written contract shall, at a minimum, include the following: (a) A provision specifying the services to be provided and fees or other compensation for such services. (b) A provision requiring that invoices for fees or other compensation be submitted in sufficient detail to demonstrate compliance with the terms of the contract. (c) A provision specifying the contract period, including renewals, and conditions under which the contract may be terminated or renewed. (8) Written contracts entered into pursuant to subsection (7) may be renewed. Such renewals may be done without the use of the auditor selection procedures provided in this section. Renewal of a contract shall be in writing. Bistory.--s. 65, ch. 2001-266; s. 1, ch. 2005-32. February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 14 OF 21 ATTACHMENT No.4 287.057 Procurement of commodities or contractual services.-- (l)(a) Unless otherwise authorized by law, all contracts for the purchase of commodities or contractual services in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO shall be awarded by competitive sealed bidding. An invitation to bid shall be made available simultaneously to all vendors and must include a detailed description of the commodities or contractual services sought; the time and date for the receipt of bids and of the public opening; and all contractual terms and conditions applicable to the procurement, including the criteria to be used in determining acceptability of the bid. If the agency contemplates renewal of the contract, that fact must be stated in the invitation to bid. The bid shall include the price for each year for which the contract may be renewed. Evaluation of bids shall include consideration of the total cost for each year as submitted by the vendor. Criteria that were not set forth in the invitation to bid may not be used in determining acceptability of the bid. (b) The contract shall be awarded with reasonable promptness by written notice to the responsible and responsive vendor that submits the lowest responsive bid. This bid must be determined in writing to meet the requirements and criteria set forth in the invitation to bid. (2)(a) If an agency determines in writing that the use of an invitation to bid is not practicable, commodities or contractual services shall be procured by competitive sealed proposals. A request for proposals shall be made available simultaneously to all vendors, and must include a statement of the commodities or contractual services sought; the time and date for the receipt of proposals and of the publiC opening; and all contractual terms and conditions applicable to the procurement, including the criteria, which shall include, but need not be limited to, price, to be used in determining acceptability of the proposal. The relative importance of price and other evaluation criteria shall be indicated. If the agency contemplates renewal of the commodities or contractual services contract, that fact must be stated in the request for proposals. The proposal shall include the price for each year for which the contract may be renewed. Evaluation of proposals shall include consideration of the total cost for each year as submitted by the vendor. (b) The contract shall be awarded to the responsible and responsive vendor whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. The contract file shall contain documentation supporting the basis on which the award is made. (3)(a) If the agency determines in writing that the use of an invitation to bid or a request for proposals will not result in the best value to the state, the agency may procure commodities and contractual services by competitive sealed replies. The agency's written determination must specify reasons that explain why negotiation may be necessary in order for the state to achieve the best value and must be approved in writing by the agency head or his or her designee prior to the advertisement of an invitation to negotiate. An invitation to negotiate shall be made available to all vendors simultaneously and must include a statement of the commodities or contractual services sought; the time and date for the receipt of replies and of the public opening; and all terms and conditions applicable to the procurement, including the criteria to be used in determining the acceptability of the reply. If the agency contemplates renewal of the contract, that fact must be stated in the invitation to negotiate. The reply shall include the price for each year for which the contract may be renewed. February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 15 OF 21 (b) The agency shall evaluate and rank responsive replies against all evaluation criteria set forth in the invitation to negotiate and shall select, based on the ranking, one or more vendors with which to commence negotiations. After negotiations are conducted, the agency shall award the contract to the responsible and responsive vendor that the agency determines will provide the best value to the state. The contract file must contain a short plain statement that explains the basis for vendor selection and that sets forth the vendor's deliverables and price, pursuant to the contract, with an explanation of how these deliverables and price provide the best value to the state. (4) Prior to the time for receipt of bids, proposals, or replies, an agency may conduct a conference or written question and answer period for purposes of assuring the vendor's full understanding of the solicitation requirements. The vendors shall be accorded fair and equal treatment. (5) When the purchase price of commodities or contractual services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, no purchase of commodities or contractual services may be made without receiving competitive sealed bids, competitive sealed proposals, or competitive sealed replies unless: (a) The agency head determines in writing that an immediate danger to the public health, safety, or welfare or other substantial loss to the state requires emergency action. After the agency head makes such a written determination, the agency may proceed with the procurement of commodities or contractual services necessitated by the immediate danger, without receiving competitive sealed bids, competitive sealed proposals, or competitive sealed replies. However, such emergency procurement shall be made by obtaining pricing information from at least two prospective vendors, which must be retained in the contract file, unless the agency determines in writing that the time required to obtain pricing information will increase the immediate danger to the public health, safety, or welfare or other substantial loss to the state. The agency shall furnish copies of all written determinations certified under oath and any other documents relating to the emergency action to the department. A copy of the statement shall be furnished to the Chief Financial Officer with the voucher authorizing payment. The individual purchase of personal clothing, shelter, or supplies which are needed on an emergency basis to avoid institutionalization or placement in a more restrictive setting is an emergency for the purposes of this paragraph, and the filing with the department of such statement is not required in such circumstances. In the case of the emergency purchase of insurance, the period of coverage of such insurance shall not exceed a period of 30 days, and all such emergency purchases shall be reported to the department. (b) The purchase is made by an agency from a state term contract procured, pursuant to this section, by the department or by an agency, after receiving approval from the department, from a contract procured, pursuant to subsection (1), subsection (2), or subsection (3), by another agency. (c) Commodities or contractual services available only from a single source may be excepted from the competitive-solicitation requirements. When an agency believes that commodities or contractual services are available only from a single source, the agency shall electronically post a description of the commodities or contractual services sought for a period of at least 7 business days. The description must include a request that prospective vendors provide information regarding their ability to supply the commodities or contractual services described. If it is determined in writing by the agency, after reviewing any information received from prospective vendors, that the commodities or contractual services are available only from a single source, the agency shall: February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 16 OF 21 1. Provide notice of its intended decision to enter a single-source purchase contract in the manner specified in s. 120.57(3), if the amount of the contract does not exceed the threshold amount provided in s. 287.017 for CATEGORY FOUR. 2. Request approval from the department for the single-source purchase, if the amount of the contract exceeds the threshold amount provided in s. 287.017 for CATEGORY FOUR. The agency shall initiate its request for approval in a form prescribed by the department, which request may be electronically transmitted. The failure of the department to approve or disapprove the agency's request for approval within 21 days after receiving such request shall constitute prior approval of the department. If the department approves the agency's request, the agency shall provide notice of its intended decision to enter a single-source contract in the manner specified in s. 120.57(3). (d) When it is in the best interest of the state, the secretary of the department or his or her designee may authorize the Support Program to purchase insurance by negotiation, but such purchase shall be made only under conditions most favorable to the public interest. (e) Prescriptive assistive devices for the purpose of medical, developmental, or vocational rehabilitation of clients are excepted from competitive-solicitation requirements and shall be procured pursuant to an established fee schedule or by any other method which ensures the best price for the state, taking into consideration the needs of the client. Prescriptive assistive devices include, but are not limited to, prosthetics, orthotics, and wheelchairs. For purchases made pursuant to this paragraph, state agencies shall annually file with the department a description of the purchases and methods of procurement. (f) The following contractual services and commodities are not subject to the competitive- solicitation requirements of this section: 1. Artistic services. 2. Academic program reviews. 3. Lectures by individuals. 4. Auditing services. 5. Legal services, including attorney, paralegal, expert witness, appraisal, or mediator services. 6. Health services involving examination, diagnosis, treatment, prevention, medical consultation, or administration. 7. Services provided to persons with mental or physical disabilities by not-for-profit corporations which have obtained exemptions under the provisions of s. 501(c)(3) of the United States Internal Revenue Code or when such services are governed by the provisions of Office of Management and Budget Circular A-122. However, in acquiring such services, the agency shall consider the ability of the vendor, past performance, willingness to meet time requirements, and price. 8. Medicaid services delivered to an eligible Medicaid recipient by a health care provider who has not previously applied for and received a Medicaid provider number from the Agency for Health Care Administration. However, this exception shall be valid for a period not to exceed 90 days after the date of delivery to the Medicaid recipient and shall not be renewed by the agency. February 13,2006 INFORMATIONAL AGENDA ITEM 504 PAGE 17 0F 21 9. Family placement services. 10. Prevention services related to mental health, including drug abuse prevention programs, child abuse prevention programs, and shelters for runaways, operated by not-for-profit corporations. However, in acquiring such services, the agency shall consider the ability of the vendor, past performance, willingness to meet time requirements, and price. 11. Training and education services provided to injured employees pursuant to s. 440.491(6). 12. Contracts entered into pursuant to s. 337.11. 13. Services or commodities provided by governmental agencies. 14. Voter education activities of the Department of State or the supervisors of elections funded by Specific Appropriation 2871H of the 2004-2005 General Appropriations Act, either individually or in the aggregate or with their respective professional associations. This subparagraph expires July 1, 2005. (g) Continuing education events or programs that are offered to the general public and for which fees have been collected that pay all expenses associated with the event or program are exempt from requirements for competitive solicitation. (6) If less than two responsive bids, proposals, or replies for commodity or contractual services purchases are received, the department or other agency may negotiate on the best terms and conditions. The department or other agency shall document the reasons that such action is in the best interest of the state in lieu of resoliciting competitive sealed bids, proposals, or replies. Each agency shall report all such actions to the department on a quarterly basis, in a manner and form prescribed by the department. (7) Upon issuance of any solicitation, an agency shall, upon request by the department, forward to the department one copy of each solicitation for all commodity and contractual services purchases in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO. An agency shall also, upon request, furnish a copy of all competitive-solicitation tabulations. The Office of Supplier Diversity may also request from the agencies any information submitted to the department pursuant to this subsection. (8)(a) In order to strive to meet the minority business enterprise procurement goals set forth in s. 287.09451, an agency may reserve any contract for competitive solicitation only among certified minority business enterprises. Agencies shall review all their contracts each fiscal year and shall determine which contracts may be reserved for solicitation only among certified minority business enterprises. This reservation may only be used when it is determined, by reasonable and objective means, before the solicitation that there are capable, qualified certified minority business enterprises available to submit a bid, proposal, or reply on a contract to provide for effective competition. The Office of Supplier Diversity shall consult with any agency in reaching such determination when deemed appropriate. (b) Before a contract may be reserved for solicitation only among certified minority business enterprises, the agency head must find that such a reservation is in the best interests of the state. All determinations shall be subject to s. 287.09451(5). Once a decision has been made to reserve a contract, but before sealed bids, proposals, or replies are requested, the agency shall estimate what it expects the amount of the contract to be, based on the nature of the services or commodities involved and their value under prevailing market conditions. If all the sealed bids, proposals, or replies received are over this estimate, the agency may reject the bids, proposals, or replies and request new ones from certified minority business enterprises, February 13,2006 INFORMATIONAL AGENDA ITEM 504 PAGE 18 OF 21 or the agency may reject the bids, proposals, or replies and reopen the bidding to all eligible vendors. (c) All agencies shall consider the use of price preferences of up to 10 percent, weighted preference formulas, or other preferences for vendors as determined appropriate pursuant to guidelines established in accordance with s. 287.09451(4) to increase the participation of minority business enterprises. (d) All agencies shall avoid any undue concentration of contracts or purchases in categories of commodities or contractual services in order to meet the minority business enterprise purchasing goals in s. 287.09451. (9) An agency may reserve any contract for competitive solicitation only among vendors who agree to use certified minority business enterprises as subcontractors or subvendors. The percentage of funds, in terms of gross contract amount and revenues, which must be expended with the certified minority business enterprise subcontractors and subvendors shall be determined by the agency before such contracts may be reserved. In order to bid on a contract so reserved, the vendor shall identify those certified minority business enterprises which will be utilized as subcontractors or subvendors by sworn statement. At the time of performance or project completion, the contractor shall report by sworn statement the payments and completion of work for all certified minority business enterprises used in the contract. (10) An agency shall not divide the procurement of commodities or contractual services so as to avoid the requirements of subsections (1) through (5). (11) A contract for commodities or contractual services may be awarded without competition if state or federal law prescribes with whom the agency must contract or if the rate of payment is established during the appropriations process. (12) If two equal responses to a solicitation or a request for quote are received and one response is from a certified minority business enterprise, the agency shall enter into a contract with the certified minority business enterprise. (13) Extension of a contract for contractual services shall be in writing for a period not to exceed 6 months and shall be subject to the same terms and conditions set forth in the initial contract. There shall be only one extension of a contract unless the failure to meet the criteria set forth in the contract for completion of the contract is due to events beyond the control of the contractor. 1(14)(a) Contracts for commodities or contractual services may be renewed for a period that may not exceed 3 years or the term of the original contract, whichever period is longer. Renewal of a contract for commodities or contractual services shall be in writing and shall be subject to the same terms and conditions set forth in the initial contract. If the commodity or contractual service is purchased as a result of the solicitation of bids, proposals, or replies, the price of the commodity or contractual service to be renewed shall be specified in the bid, proposal, or reply. A renewal contract may not include any compensation for costs associated with the renewal. Renewals shall be contingent upon satisfactory performance evaluations by the agency and subject to the availability of funds. Exceptional purchase contracts pursuant to paragraphs (5)(a) and (c) may not be renewed. (b) Notwithstanding paragraph (a), the Department of Children and Family Services may enter into agreements, not to exceed 20 years, with a private provider to finance, design, and construct a forensic treatment facility, as defined in s. 916.106(8), of at least 200 beds and to February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 19 OF 21 operate all aspects of daily operations within the forensic treatment facility. The selected contractor is authorized to sponsor the issuance of tax-exempt certificates of participation or other securities to finance the project, and the state is authorized to enter into a lease- purchase agreement for the forensic treatment facility. This paragraph expires July 1, 2006. (15) For each contractual services contract, the agency shall designate an employee to function as contract manager who shall be responsible for enforcing performance of the contract terms and conditions and serve as a liaison with the contractor. The agency shall establish procedures to ensure that contractual services have been rendered in accordance with the contract terms prior to processing the invoice for payment. (16) Each agency shall designate at least one employee who shall serve as a contract administrator responsible for maintaining a contract file and financial information on all contractual services contracts and who shall serve as a liaison with the contract managers and the department. (17) For a contract in excess of the threshold amount provided in s. 287.017 for CATEGORY FOUR, the agency head shall appoint: (a) At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought. (b) At least three persons to conduct negotiations during a competitive sealed reply procurement who collectively have experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought. (18) A person who receives a contract that has not been procured pursuant to subsections (1) through (5) to perform a feasibility study of the potential implementation of a subsequent contract, who participates in the drafting of a solicitation or who develops a program for future implementation, is not eligible to contract with the agency for any other contracts dealing with that specific subject matter, and any firm in which such person has any interest is not eligible to receive such contract. However, this prohibition does not prevent a vendor who responds to a request for information from being eligible to contract with an agency. (19) Each agency shall establish a review and approval process for all contractual services contracts costing more than the threshold amount provided for in s. 287.017 for CATEGORY THREE which shall include, but not be limited to, program, financial, and legal review and approval. Such reviews and approvals shall be obtained before the contract is executed. (20) In any procurement that costs more than the threshold amount provided for in s. 287.017 for CATEGORY TWO and is accomplished without competition, the individuals taking part in the development or selection of criteria for evaluation, the evaluation process, and the award process shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected. (21) Nothing in this section shall affect the validity or effect of any contract in existence on October 1, 1990. (22) An agency may contract for services with any independent, nonprofit college or university which is located within the state and is accredited by the Southern Association of Colleges and Schools, on the same basis as it may contract with any state university and college. February 13,2006 INFORMATIONAL AGENDA ITEM 504 PAGE 20 OF 21 (23)(a) The department, in consultation with the State Technology Office and the Comptroller, shall develop a program for on-line procurement of commodities and contractual services. To enable the state to promote open competition and to leverage its buying power, agencies shall participate in the on-line procurement program, and eligible users may participate in the program. Only vendors prequalified as meeting mandatory requirements and qualifications criteria shall be permitted to participate in on-line procurement. The department, in consultation with the State Technology Office, may contract for equipment and services necessary to develop and implement on-line procurement. (b) The department, in consultation with the State Technology Office, shall adopt rules, pursuant to ss. 120.536(1) and 120.54, to administer the program for on-line procurement. The rules shall include, but not be limited to: 1. Determining the requirements and qualification criteria for prequalifying vendors. 2. Establishing the procedures for conducting on-line procurement. 3. Establishing the criteria for eligible commodities and contractual services. 4. Establishing the procedures for providing access to on-line procurement. 5. Determining the criteria warranting any exceptions to participation in the on-line procurement program. (c)1. The department may impose and shall collect all fees for the use of the on-line procurement systems. Such fees may be imposed on an individual transaction basis or as a fixed percentage of the cost savings generated. At a minimum, the fees must be set in an amount sufficient to cover the projected costs of such services, including administrative and project service costs in accordance with the policies of the department. All fees and surcharges collected under this paragraph shall be deposited in the Grants and Donations Trust Fund as provided by law. 2. If the department contracts with a provider for on-line procurement, the department, pursuant to appropriation, shall compensate the provider from such fees after the department has satisfied all ongoing costs. The provider shall report transaction data to the department each month so that the department may determine the amount due and payable to the department from each vendor. 3. All fees that are due and payable to the state on a transactional basis or as a fixed percentage of the cost savings generated are subject to s. 215.31 and must be remitted within 40 days after receipt of payment for which such fees are due. For any fees that are not remitted within 40 days, the vendor shall pay interest at the rate established under s. 55.03(1) on the unpaid balance from the expiration of the 40-day period until the fees are remitted. (24)(a) The State Technology Office shall establish, in consultation with the department, state strategic information technology alliances for the acquisition and use of information technology and related material with prequalified contractors or partners to provide the state with efficient, cost-effective, and advanced information technology. (b) In consultation with and under contract to the State Technology Office, the state strategic information technology alliances shall design, develop, and deploy projects providing the information technology needed to collect, store, and process the state's data and information, provide connectivity, and integrate and standardize computer networks and information systems of the state. February 13, 2006 INFORMATIONAL AGENDA ITEM 504 PAGE 21 OF 21 (c) The partners in the state strategic information technology alliances shall be industry leaders with demonstrated experience in the public and private sectors. (d) The State TeChnology Office, in consultation with the department, shall adopt rules, pursuant to ss. 120.536(1) and 120.54, to administer the state strategic information teChnology alliances. 2(25) For the 2005-2006 fiscal year only, notwithstanding any specific provision of this chapter or chapter 255 to the contrary, the Department of Management Services is authorized to issue an invitation to negotiate to contract for 384 additional beds for expansion at the Gadsden Correctional Facility to house medium-custody female inmates and for 235 additional beds for expansion at the Bay Correctional Facility and 235 additional beds at Moore Haven Correctional Facility to house medium-custody and Close-custody inmates. Any such invitation to negotiate shall be limited to modifications of existing contracts between the Department of Management Services and firms currently operating private correctional facilities and shall be for design, financing, acquisition, leasing, construction, and operation of the additional beds. By October 1, 2005, and quarterly thereafter, the department shall report to the President of the Senate and the Speaker of the House of Representatives on the specific activities completed and remaining to be completed, along with timeframes for each activity, to add the additional beds. Procurement should be completed in a manner that allows sufficient time for the new beds to become operational by July 2007. This subsection expires July 1, 2006. History.--s. 1, ch. 78-4; s. 2, ch. 80-206; s. 4, ch. 80-374; s. 1, ch. 82-121; s. 9, ch. 82-196; s. 3, ch. 83-99; s. 3, ch. 83- 192; 5.7, ch. 86-204; 5.9, ch. 88-384; s. 1, ch. 89-377; s. 17, ch. 90-268; s. 8, ch. 91-162; s. 251, ch. 92-279; s. 55, ch. 92-326; 5.7, ch. 93-161; s. 11, ch. 94-322; s. 869, ch. 95-148; 5.6, ch. 96-236; s. 30, ch. 97-153; s. 82, ch. 98-279; s. 11, ch. 99-4; s. 50, ch. 99-8; s. 45, ch. 99-399; s. 33, ch. 2000-164; s. 11, ch. 2000-286; s. 56, ch. 2001-61; s. 4, ch. 2001-278; s. 37, ch. 2002-1; s. 15, ch. 2002-207; s. 331, ch. 2003-261; 5.20, ch. 2004-5; 55. 9, 58, ch. 2004-269; s. 1, ch. 2005-59; 55.6, 15, ch. 2005-71. lNote.-- A. Section 6, ch. 2005-71, amended subsection (14) "[i]n order to implement Specific Appropriations 395-404 of the 2005- 2006 General Appropriations Act." Some proviso language relating to these appropriations was vetoed. See ch. 2005-70, the 2005-2006 General Appropriations Act. B. Section 54, ch. 2005-71, provides that "[a] section of this act that implements a specific appropriation or specifically identified proviso language in the 2005-2006 General Appropriations Act is void if the specific appropriation or specifically identified proviso language is vetoed. A section of this act that implements more than one specific appropriation or more than one portion of specifically identified proviso language in the 2005-2006 General Appropriations Act is void if all the specific appropriations or portions of specifically identified proviso language are vetoed.. Not all portions of specifically identified proviso language relating to the amendment of s. 287.057(14) were vetoed. 2Note.--Section 15, ch. 2005-71, added subsection (25) "[i]n order to implement Specific Appropriations 676 and 688 of the 2005-2006 General Appropriations Act."