53ER07-55. Procurement of Commodities and Contractual Services

(1) The secretary or a designee is authorized to execute contracts for commodities and contractual services which are to be used in the normal operation of the Lottery provided that such contracts are made in accordance with the provisions of these rules. The Lottery specifically finds that, due to the unique nature of its business, strict compliance with Chapter 287, F.S., and the rules adopted thereunder, would impair or impede the effective and efficient operation of the Lottery. Therefore, the Lottery is adopting this rule to provide the following alternative procedures for purchasing commodities and contractual services in an open and competitive manner. Chapter 287, F.S., and the rules (excluding the forms) adopted thereunder shall govern in all areas not specifically addressed.

(2) A formal competitive process is required for the purchase of commodities or contractual services that have a total contract value in excess of the threshold for Category Three of the purchasing categories established in Section 287.017, F.S., unless the purchase is a single source, emergency, state term contract or purchasing agreement, or is a purchase of the commodities or services specified in Section 287.057(5)(f), F.S., or paragraph 60A-1.002(3)(c), F.A.C.

(3) Purchases that have a total contract value less than or equal to the threshold for Category Three will be made using an informal competitive process unless there are exigencies that prevent the use of such process or unless the purchase is a single source, emergency or state term contract or purchasing agreement purchase.

(4) Legal Notice. All purchases of commodities or contractual services in excess of the threshold amount for Category Three that are to be acquired by a formal competitive process shall be posted electronically as defined in Section 287.012(11), F.S., at a centralized Internet website designated by the Department of Management Services no less than 10 calendar days prior to the date set for receipt of submissions to the procurement solicitation document (“submissions”).

(5) Procedures Regarding Submissions.

(a) Submissions shall be opened publicly at the time and place designated in the procurement solicitation document. The name of each vendor shall be recorded, and in the case of an invitation to bid, the amount of the bid shall be recorded. Sealed submissions are not public records subject to the provisions of Chapter 119, F.S., until such time as the agency provides notice of a decision or intended decision or within ten days after submission opening, whichever is earlier. When the competitive procurement document requires the submission to be placed in two separately sealed envelopes to be submitted simultaneously and not opened on the same date, the 10-day period begins the day after the opening of the second envelope.

(b) In the event that only one or no responsive submissions are received, the Lottery shall review the situation in order to determine the reasons, if any, why only one or no responsive submissions were received before making a determination of whether or not to issue a second procurement solicitation document. If the Lottery determines that the commodities or contractual services are available only from a single source, or that conditions and circumstances warrant negotiation on the best terms and conditions, the Lottery’s intended decision shall be posted in accordance with Section 120.57(3), F.S., and paragraph (7)(a) below before the Lottery proceeds with procurement. The Lottery shall document the conditions and circumstances used in making the decision to proceed without a second call for submissions.

(6) Evaluation of Submissions. Submissions in response to a procurement solicitation shall be evaluated as specified in the solicitation document.

(7) Notice of Intended Award and Award.

(a) Notice of an award of contract, or of an intended award of contract, as applicable, including rejection of some or all submissions received, shall be given by electronic posting at a centralized Internet website designated by the Department of Management Services. All notices of decision or intended decision shall contain the following statement: “Failure to file a protest within the time prescribed in Section 24.109(2)(a), F.S., shall constitute a waiver of proceedings under Chapter 120, F.S.”

(b) Any contract entered into pursuant to an invitation to bid, request for proposals, or invitation to negotiate shall be evidenced by a purchase order or other written agreement with the vendor selected pursuant to the solicitation document.

(c) If the contract is terminated during the initial or renewal contract period, the award may be made to the next responsive vendor who agrees to hold the prices, terms, and conditions submitted in response to the original solicitation. In making this determination, the Lottery will consider if such action is warranted in light of good business practices, such as the time remaining on the contract term and any changes in technology that have occurred.

(8) Single Source Purchase. Commodities or contractual services available only from a single source costing in excess of the threshold for Category Three may be purchased without a formal competitive procurement process as follows:

(a) For promotional events and sponsorship opportunities, such as community fairs and sports team sponsorships, which offer promotional opportunities unique to the event or sponsorship and in which participation is available only through the organizer of the event or the sponsorship provider, the commodities and contractual services are hereby determined to be available from only a single source and the notice of agency decision shall be given as set forth in paragraph (8)(c) below.

(b) For the purchase of a license to use the trademark or other intellectual property of a person or entity, from the owner of the property or its authorized agent, the license and any associated commodities and contractual services are hereby determined to be available from only a single source and the notice of agency decision to make such purchases shall be given as set forth in paragraph (8)(c) below.

(c) For the single source purchases set forth in paragraphs (8)(a) and (b) above, the Lottery shall provide notice of its agency decision by electronic posting in accordance with paragraph (7)(a) above. Such single source purchases shall be excepted from the posting requirements specified in Section 287.057(5)(c), F.S.

(d) For all other commodities and contractual services that are believed to be available only from a single source, the Lottery shall electronically post a description of the commodities or contractual services sought and the name of the intended single source provider for at least 7 business days and request prospective vendors to provide information regarding their ability to provide the commodities or services sought. If information is received from prospective vendors and the Lottery determines after reviewing the information that the commodities and contractual services are available from only a single source, the Lottery shall provide notice of its agency decision by electronic posting in accordance with paragraph (7)(a) above. If no information is received from prospective vendors, no additional posting will be made.

(9) Emergency Purchases.

(a) The Secretary may waive any requirement of this rule and permit emergency purchases of commodities and contractual services where a valid emergency exists.

(b) A valid emergency is defined as a circumstance caused by an unexpected turn of events beyond the control of the Lottery involving the security, integrity or the financial status of the Lottery; or involving public health, welfare, safety, injury or loss.

(c) An emergency purchase shall be made by:

1. Obtaining pricing information from at least two prospective vendors unless the Lottery determines in writing that the time required to obtain pricing information will increase the immediate danger involving the security, integrity or financial status of the Lottery; or involving the public health, safety, or welfare, or injury or loss. In such case, the pricing requirement shall be excepted; and

2. The responsible executive or senior manager providing a written certification under oath stating the conditions and circumstances of the emergency and the basis for the waiver of the procurement requirements of this rule and the selection of the particular source. This certification shall be submitted to the Secretary for approval.

(10) MyFloridaMarketplace Transaction Fee Exemption. The Lottery specifically finds that compliance in certain types of procurements with the 1% Transaction Fee provisions of Rule 60A-1.031, F.A.C. would impair or impede the effective and efficient operation of the Lottery. Therefore, procurements of commodities and services specific to the lottery industry and for which the Florida Lottery is the sole purchaser in the state of Florida are exempt from the 1% Transaction Fee that would otherwise apply under Rule 60A-1.031, F.A.C. Such procurements would include, for example, a lottery gaming system, instant tickets, and related commodities or services. Acquiring such commodities and services through the state’s on-line procurement system would not further the stated goal of leveraging the state’s purchasing power. Application of the 1% transaction fee would increase the cost of the contract without providing a corresponding benefit to the state and would reduce the amount of funds transferable to the Educational Enhancement Trust Fund at the end of each fiscal year.

(11) The Lottery may participate in, sponsor or conduct cooperative purchasing arrangements with other governmental entities for the purchase of commodities or contractual services, including construction.

(12) The Lottery may acquire any commodity or contractual service that is available on state term contract or purchasing agreement without competitive bidding.

(13) The Lottery may, at reasonable times, inspect a vendor’s place of business to determine the capability of the vendor to perform any contract awarded by the Lottery.

(14) This emergency rule replaces emergency Rule 53ER02-45, F.A.C.

Specific Authority 24.105(13), 24.109(1) FS. Law Implemented 24.105(13), 24.111, 119.071(1)(b)1.a., 120.57(3)(a), (b), 287.017, 287.057(5)(a), (c), (f), 287.0943 FS. History–New 9-7-07, Replaces 53ER02-45, F.A.C.