Florida Statutes Update May

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1 PERSONAL AND PROFESSIONAL EXCELLENCE 50 TH ANNUAL CONFERENCE MAY 24-27, 2017 ORLANDO, FLORIDA FLORIDA STATUTES on Procurement for Local Governments Update 2017 PART-1 Bobbye Marsala, CPPO, CPPB, C.P.M. Chief Procurement Officer FLORIDA STATUTES ON PROCUREMENT FOR LOCAL GOVERNMENTS Content contained in this presentation is provided as a Guide for informational purposes only Please use this information to conduct your own research for more detail on FL Statutes Consult your legal staff for assistance on how these Statutes may or may not apply specifically to your entity Instructor is a local government procurement professional in the State of Florida - not an attorney, and does not practice law HOW DO YOU KNOW WHAT APPLIES? When all else fails F.S. Chapter I Construction of Statutes Definitions for local government: Agency Political Subdivision Eligible User Local Govt. Entity Educational Units or Boards Public Entity Governmental Units Florida Statutes Update May

2 CHAPTER 112 CODE OF ETHICS FOR PUBLIC OFFICERS AND EMPLOYEES Agency definition includes: Regional, county, local or municipal government entity of the state, political subdivisions, any public school, community college, state universities and state agencies (2) Defines Purchasing Agent Public officer or employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods, services, or interest in real property for an agency, as opposed to the authority to request or requisition a contract for purchase by another person (20) Sets forth requirements for standards of conduct in performance of official duties CHAPTER 112 CODE OF ETHICS FOR PUBLIC OFFICERS AND EMPLOYEES Chapter (20) Definitions: Purchasing agent means a public officer or employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods, services, or interest in real property for an agency, as opposed to the authority to request or requisition a contract or purchase by another person. Full & Public Disclosure of Financial Interest Requires the filing of a full and public disclosure of his or her financial interests for any calendar or fiscal year shall file that disclosure with the Florida Commission on Ethics CHAPTER 112 CODE OF ETHICS FOR PUBLIC OFFICERS AND EMPLOYEES Disclosure of financial interests and clients represented before agencies (1)(a)3..or purchasing agent having the authority to make any purchase exceeding the threshold amount provided for in s for CATEGORY ONE, on behalf of any political subdivision of the state or any entity thereof. Disclosure of clients applies to certain political positions file quarterly report naming clients represented for a fee or commission. Florida Statutes Update May

3 CHAPTER 112 CODE OF ETHICS FOR PUBLIC OFFICERS AND EMPLOYEES Reporting and prohibited receipt of gifts by individuals filing full or limited public disclosure of financial interests and by procurement employees Procurement employees prohibited from accepting gifts in excess of $100 Must report to Supervisor of Elections Annual Financial Disclosure May be accepted on behalf of the government entity or charitable organization CHAPTER GROUP INSURANCE Requires local governmental units to provide group insurance for its employees County, municipality, community colleges, school boards, special districts Requires ITB for services Provides for competitive solicitation process if insurance provider becomes financially impaired or refuses to provide services Bids, direct negotiations, consortiums, risk management agreements, third party administration FL STATUTE PUBLIC RECORDS Agency definition includes County, district, authority or municipality Also includes Any public or private agency, person, partnership, corporation or business entity acting on behalf of any public agency General Policy of the State Records are open for personal inspection and copying by any person Providing access to public records is the duty of each agency Florida Statutes Update May

4 FL STATUTE 119 PUBLIC RECORDS Competitive Solicitation means: The process of requesting and receiving sealed bids, proposals, or replies in accordance with the terms of a competitive process, regardless of the method of procurement [ (1)(b)] Sealed bids, proposals, or replies received by an agency pursuant to a competitive solicitation are exempt until such time as the agency provides notice of an intended decision or until 30 days after opening Whichever occurs first, (1)(b)2. FL STATUTE 119 PUBLIC RECORDS Contracts; public records, requests for contractor records; civil action. F.S Contracts must contain the following statement (14 point boldfaced) IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119 FLORIDA STATUTES, TO THE CONTRACTOR S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (telephone number, address, and mailing address). Contracts entered into or amended after July 1, 2016 FL STATUTE 119 PUBLIC RECORDS Contractor required to maintain public records Provide to public agency s custodian of public records with copies upon request or allow inspection or copy within a reasonable time Ensure exemption/confidentiality of records where required by law Provide public agency all records of completed contract, at no cost to the agency Failure to provide contract provisions to be enforced Request for public records inspections are made directly to the agency, not the contractor Florida Statutes Update May

5 FL STATUTES (1)3 PUBLIC RECORDS If an agency rejects all bids, proposals, or replies submitted in response to a competitive solicitation and the agency concurrently provides notice of its intent to reissue the competitive solicitation, the rejected bids, proposals, or replies remain exempt until such time as the agency provides notice of an intended decision concerning the reissued competitive solicitation or until the agency withdraws the reissued competitive solicitation. A bid, proposal, or reply is not exempt for longer than 12 months after the initial agency notice rejecting all bids, proposals, or replies. FL STATUTE 119 PUBLIC RECORDS -EXEMPTIONS Financial statements required as prequalification for Public Works or Road projects are exempt (1)(b)4. Data processing software obtained under a license agreement that prohibits its exposure, or agency produced software that is sensitive is exempt (1)(f) New effective October 1, 2016 Includes Financial Information F.S (1)(c) for all types solicitations FL STATUTE 119 PUBLIC RECORDS -EXEMPTIONS Security System Plans relating directly to the security of a public facility, (3) Public facility building plans, blueprints, schematic drawings, diagrams, drafts, preliminary & final formats ,3(b)1 Also applies to private facility documents that are being held by a public entity Can be disclosed to Another governmental entity to perform their duties Licensed architect, engineer or contractor performing the work Upon a showing of good cause before a court of competent jurisdiction New Effective October 1, (15) provides definition of Utility Exempts information related to security of technology (existing or proposed) Florida Statutes Update May

6 FL STATUTE 119 PUBLIC RECORDS -EXEMPTIONS Trade Secrets, F.S includes: Includes any scientific, technical, or commercial information, including any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof Is secret, of value, provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it Exempt? Determination to be made on a case-by-case basis Based on Chapter 119 exemptions FL STATUTE 119 PUBLIC RECORDS Fee can be charged for copies (4) Up to $.15/page for letter/legal Up to $.05/page for 2 nd side All other copies actual cost May include reasonable charge for labor May charge up to $1.00/copy for certified copies F.S. CHAPTER 120 ADMINISTRATIVE PROCEDURES ACT Agency description includes: Authority including regional water supply authorities Regional planning agency Multi-county special district with majority of board comprised of non-elected persons Educational Units Local school district, community college district, state university, FL school for deaf & blind Each officer and governmental entity in the state having jurisdiction in one county or less than one county, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions. Florida Statutes Update May

7 F.S. CHAPTER (3) DISPUTES/HEARINGS Protest to Contract Solicitation or Award Process Requires Agency Notice of Award to be posted Provides time lines for filing and requirements for submittal Provides opportunities for resolution Protest of ITB or RFP Can not amend or issue supplements after opening Protest to ITN Can not amend or issue supplements after notice of intent to award, reject all replies or withdraw solicitations Burden of Proof on the protesting party Could result in rejection of bids/proposals/replies, or Administrative law judge review Consideration of erroneous action of agency, contrary to competition, arbitrary or capricious, illegal, dishonest or fraudulent FL STATUTE (2) F/Y, APPROPRIATIONS, BUDGETS & BUDGET AMENDMENTS Non-appropriations The adopted budget must regulate expenditures of the municipality, and an officer of a municipal government may not expend or contract for expenditures in any fiscal year except pursuant to the adopted budget. FL STATUTE PROHIBITED INVESTMENTS BY SBA, SCRUTINIZED COMPANIES Florida State Board of Administration (SBA) Established through Chapter 215 for Financial Matters Manages FRS Pension & Investment Plans Scrutinized Company listing updated quarterly and posted to: SPensionPlan/GlobalGovernanceMandates/Quart erlyreports.aspx Florida Statutes Update May

8 FL STATUTE 218 LOCAL FINANCIAL MANAGEMENT & REPORTING Local Government Entity definition (1) & : A county agency, a municipality, some special districts, or housing authorities, district school board, charter schools & technical career centers FL STATUTE AUDITOR SELECTION PROCEDURES Florida State Statute defines the requirements for the selection of Financial Auditing Services Initial evaluation based on issues such as: Ability of Personnel Experience Ability to furnish required services Any other factors that the Committee deems to be applicable to its particular requirements Price is optional as a factor however not the sole factor Can also use Qualification based selection process FL CHAPTER LOCAL GOVERNMENT PROMPT PAYMENT ACT Definition for local governmental entity (5), A county or municipal government, school board, school district, authority, special taxing district, other political subdivision, or any office, board bureau, commission, department, branch, division, or institution thereof Defines the requirement for payment of invoices For non-construction services, & days from Date which invoice is received, or Delivery of property is accepted, or Date services are completed, or Date when rental period begins, or Mutual date agreed upon by both parties Florida Statutes Update May

9 FL CHAPTER LOCAL GOVERNMENT PROMPT PAYMENT ACT For payment of construction services Within 25-business days When payment is stamped as received, or Within 20-business days When agent need not approve payment request Extensive detail is provided in Statute for Rejection of payment Pay request is disputed Contractor payment to subcontractors FL CHAPTER PUBLIC BID DISCLOSURE ACT Requires local government entity to disclose their construction permit fees as a part of their bid/proposal documents All license fees Permit fees Impact fees Inspection fees Document must include the type of permit required and the cost of the permit If agency does not disclose, contractor can not be charged FL STATUTE PREFERENCE TO HOME INDUSTRIES IN BUILDING PUBLIC BUILDINGS Applies to Counties, Municipalities & School Boards Allows for a preference in purchase of materials, letting of construction contracts to material supplies, contractors, architects, laborers who reside in the State of FL ALL THINGS BEING EQUAL Identifies exceptions for sole source in procurement of such preferences Florida Statutes Update May

10 CHAPTER 255 PUBLIC PROPERTY & PUBLICLY OWNED BUILDINGS Definition for Political Subdivision found in Chapter 1 Construction of Statutes 1.01(8) The words "public body," "body politic," or "political subdivision" include counties, cities, towns, villages, special tax school districts, special road and bridge districts, bridge districts, and all other districts in this state. Definition for Public Entity (5) Means the state or any office, board, bureau, commission, department, branch, division, or institution thereof, but does not include a local government entity as defined in FL STATUTE SHELTER IN PUBLIC BUILDINGS Applies to political subdivisions Allows for consideration of a requirement for providing fallout protection in building design that would shelter 100 or more persons Incorporation of a fallout shelter is not mandatory Giving consideration however, is mandatory FL STATUTE PUBLIC CONSTRUCTION BONDS Applies to: Counties, Cities, political subdivisions, public authorities For construction or repair of public buildings, completion or repair of a public work Required at owners discretion for projects valued at $200,000 or less Requires contractor to provide agency with certified copy of recorded bond before commencement of work Agency can not make payment until Contractor complies Additional requirement for bonds & liens are addressed Florida Statutes Update May

11 Provides Form of: FL STATUTE PUBLIC CONSTRUCTION BONDS Notice of Contest of Claim Against Payment Bond (2)(a)1 Waiver of Right to Claim Against the Payment Bond (2)(a); for progress payments- 2(b); for final payment- 2(c) Public Construction Bond (3) Provides for alternate source of security, (7) Cash, money order, certified check, cashier s check, irrevocable letter of credit Good Faith Deposit allows for the acceptance of cashier s checks, treasurer's checks or bank drafts in lieu of certified checks FL STATUTE BID PROTEST BY EDUCATIONAL BOARDS Applies to school boards, community colleges, state universities IF Chapter 120 bid protest procedure is utilized, related to educational facilities or public buildings Allows for the posting of a Protest Bond $25K or 2% of lowest acceptable bid over $500K (whichever is greater) 5% for all other projects OPENING SEALED BIDS FOR P/W PROJECTS State & Local Government Entities must open sealed bids that include the price submitted for public works projects at a public meeting Entities must announce the name of each bidder AND the price submitted and, Make the name and price information available upon request The components of the bids remain exempt for 30- days or notice of award, whichever occurs first Florida Statutes Update May

12 FL STATUTE SUBSTITUTION OF SECURITIES Applies to counties, cities or political subdivisions, public authorities Allows for substitution of securities for amounts retained on public contracts To be deposited with the CFO US Treasury bonds, notes or certificates Other types of bonds, notes, cash or CD s At the owners discretion (of course) as identified in the T s & C s of the contract FL STATUTE ADVERTISING FOR BIDS/PROPOSALS Applies to counties, municipalities and political subdivisions Construction projects in excess of $200K Advertised at least once in newspaper, 21 days prior to project opening 5-days prior to any scheduled pre-bid conference Construction projects in excess of $500K Advertised at least once in newspaper, 30 days prior to project opening 5-days prior to any scheduled pre-bid conference CHAPTER PUBLIC PRIVATE PARTNERSHIPS Previously found under Chapter New effective date July 1, 2016 Applies to: County, municipality, special districts, school districts or other political subdivisions that serve a public purpose Develop means to plan, design, finance, lease, acquire, install, construct, or expand Proposal means a plan for a qualifying project with detail beyond a conceptual level for which terms such as fixing costs, payment schedules, financing, deliverables, and project schedule are defined Qualifying Project means a facility that serves a public purpose, an improvement, including equipment of a building that is used by the public entity or large Florida Statutes Update May

13 CHAPTER PUBLIC PRIVATE PARTNERSHIPS Can be accomplished through competitive solicitation issued by the agency Allows for receipt of unsolicited proposals Provides for a review process Allows agencies to create their own P-3 procedure in accordance with Florida Statute Agency can establish fees for review of Conceptual Proposals Detailed Proposals CHAPTER PUBLIC PRIVATE PARTNERSHIPS, PUBLIC RECORDS & PUBLIC MEETING EXEMPTIONS Section (15)(a) Public Meetings/Public Records An unsolicited proposal received by a responsible public entity is exempt from public records until such time as the responsible public entity provides notice of an intended decision for a qualifying project 90-day exemption after notice to reject submittal 180-day exemption if agency does not issue solicitation Any portion of a meeting of a responsible public entity during which an unsolicited proposal that is exempt 90-day exemption for recordings after notice to reject proposals 180-day exemption for recordings if agency does not issue solicitation PAYMENT OF CONTRACTORS AND SUBCONTRACTORS FL Statute Payment of Subcontractors Applies to construction contracts for counties, cities, political subdivisions, public authorities Payment of undisputed obligations within 30-days Identifies process of payment disputes for Subcontractors, sub-subcontractors, materialmen, and material suppliers on construction contracts Florida Prompt Payment Act, F.S "Public entity" means the state, or any office, board, bureau, commission, department, branch, division, or institution thereof, but does not include a local governmental entity Florida Statutes Update May

14 CONTRACTS FOR CONSTRUCTION, PROHIBITED LOCAL GOVT. PREFERENCE F.S. Chapter effective July 1, 2015 Applies to state colleges, counties, municipalities, school districts or other political subdivisions of the state For competitive solicitations for construction services in which 50% or more of the cost will be paid from state appropriated funds May not use a local ordinance or regulation that provide a preference based on criteria to include contractors office location, hiring of employees/subcontractors, or contractors prior payments of taxes, assessments Agency must disclose in the solicitation that any applicable local ordinance does not include any preference as prohibited by statute FL STATUTE UTILIZATION OF MINORITY BUSINESS ENTERPRISES Applies to counties, school boards, municipalities, special districts For letting of construction contracts Encourages agencies to be sensitive to the effect of job-size barriers on minority businesses Encourages the competitive award of public construction projects in excess of $100K provides for consideration by agencies of preferences for Price or weighted formulas to increase minority participation FL STATUTE LOCAL BIDS/CONTRACTS FOR PUBLIC CONSTRUCTION Applies to counties, municipalities, special districts, or other political subdivisions (1) Must competitively award each construction projects with an estimated value of more than $300K For electrical work more than $75K (1)(a)&(b) Allows for prequalification of contractors For bridges, roads, streets, highways or railroad projects over $250K Florida Statutes Update May

15 FL STATUTE LOCAL BIDS/CONTRACTS FOR PUBLIC CONSTRUCTION (1)(c) identifies exemptions to this subsection 9. Identifies restrictions for projects completed by local government with its own employees & equipment (3) requires specification of lumber, timber and other forest products produced and manufactured in this state whenever such products are available and their prices, fitness and quality are equal (4) Gives standing to contractors who could have been awarded projects if they had been competitively bid FL STATUTE GREEN BUILDING CODE AND FACILITIES FOR PHYSICALLY DISABLED F.S. Chapter Local Bids/contracts for Public Construction Applies to County, municipal, school district, water management district, state university, community college Buildings shall be constructed to meet US Green Building Council (USGBC), or Leadership in Energy and Environmental Design (LEED) Or other nationally recognized high-performance green buildings standard F.S. Chapter Special Facilities for Physically Disabled Applies to municipalities, political subdivisions or special districts Requires compliance with standards and specs established by Part V of Chapter 553 FL Building Code QUESTIONS? For additional information: Bobbye Marsala, CPPO, CPPB, C.P.M., Chief Procurement Officer City of Palm Bay, Florida Procurement Department : Bobbye.Marsala@pbfl.org Florida Statutes Update May

Purchasing and Procurement Policy

Purchasing and Procurement Policy Purpose The purpose of this document is to implement the requirements of state law with regard to procurement and bidding on public contracts for public works, goods,