60A-9.003. State Agency Compliance and Advocacy

(1) For the purpose of determining whether a state agency has met the Minority Business Enterprise goals set forth in Section 287.09451, Florida Statutes, the agency shall receive credit only for funds expended within a certified Minority Business Enterprise’s specialty area.

(2) For the purpose of determining whether a state agency has made a “good faith effort” to comply with the Minority Business Enterprise goals set forth in Section 287.09451, F.S., the Office shall consider the following factors:

(a) Those factors set forth in Section 287.09451, F.S.

(b) The extent to which the agency implemented its Minority Business Enterprise Utilization Plan.

(c) Whether the agency established a list of commodities, construction, architectural and engineering contracts, and services that could be provided by MBEs.

(d) Whether the agency divided bid invitations by dollar amounts, units of production, or duration of contract to facilitate meeting MBE procurement goals set forth in Section 287.09451, F.S.

(e) Whether the agency implemented specific initiatives to encourage MBE participation in its contracting program.

(f) Whether the agency implemented procedures for participation by MBEs on purchases that do not exceed the threshold amount provided in Section 287.017, F.S., for Category Two.

(g) Whether the agency implemented procedures for waiver of bonds for construction contracts under Chapter 255, F.S., for those construction contracts reserved for competitive bidding only amount certified MBEs.

(h) Whether the agency implemented procedures to determine MBE responsiveness to procurement solicitations.

(i) Whether a senior level employee (who is not charged with purchasing responsibility) with appropriate background and experience was designated in the agency as a Minority Business Enterprise assistance officer, and is made responsible for overseeing the agency’s Minority Business Enterprise utilization activities.

(j) Whether the agency negotiated in good faith with interested Minority Business Enterprises or minority persons, not rejecting Minority Business Enterprises or minority persons as unqualified without sound reasons based on a thorough investigation of their capabilities.

(k) Whether the agency utilized certified Minority Business Enterprises in the specialty areas of which they are certified.

(l) Whether the agency attended or participated in trade fairs, conferences, matchmakers and workshops related to MBEs.

(m) Whether the agencies attended training sessions presented by the OSD, where the sessions were designed to improve agency compliance and MBE outreach.

(n) Whether the agency implemented procedures to monitor procurements over category four and to send such procurements to the Office.

(o) Whether the agency has integrated the MBE utilization within the agency’s philosophy as evidenced by the inclusion of the MBE utilization in the performance plan of responsible personnel throughout the agency.

(3) All projects bid and awarded as General Construction projects may require 21% MBE participation even if an MBE is the prime contractor. When bidding project packages by divisions, the MBE must perform at least 51% of the work in order for the agency to receive credit.

(4) Bid language and/or preferences: All bids shall include the following language: The Office of Supplier Diversity has standing to protest, pursuant to Section 287.09451, F.S., in a timely manner, any proposed contract award in competitive bidding for contractual services and construction contracts that fail to include minority business enterprise participation, if any responding bidder has demonstrated the ability to achieve any level of participation, or any contract award for commodities where, a reasonable and economical opportunity to reserve a contract statewide or district level, for minority participation was not executed or, an agency failed to adopt applicable preference for minority participation. Any low bidder with no participation may be deemed not in “good faith.”

(5) 10% Price Preference: A 10% Price Preference may be included on all bids not utilizing the full industry goal available by law, and on those bids that do not have enough certified minorities in that industry class to warrant reservation. The 10% price preference means that if a certified minority business comes within 10% of the lowest responsive bidder, and that bidder is not an MBE, the agency has the authority to award the contract to the MBE.

(6) Weighted Preference Formula: The weighted preference formula may be used on all bids with the industry goal. The formula is not to be altered or changed. The bid specifications must include the language that the weighted formula will be utilized in adjusting bid prices based on MBE participation.

(7) Contract Reservation for MBE participation only: Contracts of less than $500,000.00 may be reserved for MBE participation only, when there are at least two (2) or more qualified and capable MBEs to bid. Contracts of $500,000.00 to $3 million may be reserved for MBE participation only, when there are three (3) or more qualified and capable MBEs to bid. Contracts over $3 million to $10 million may be reserved for MBE participation only, when there are five (5) or more qualified and capable MBEs to bid. Contracts of $10 million or more may be reserved for MBE participation if the OSD and the Agency have determined there is enough competition among certified minority businesses, and that the reservation will enhance the agency’s opportunity for greater MBE participation.

(8) Dividing Contracts: All agencies shall review contracts costing in excess of Category Four and, for the State University System, Category Five, as defined in Section 287.017, F.S., to determine if such contracts could be divided into smaller contracts to be separately bid and awarded, and may, when economical, offer such smaller contracts to encourage minority participation.

(9) Good Faith Effort: In determining whether an agency has made a good faith effort to include minority firms in its purchasing, the office shall follow the factors set out in Section 287.09451, F.S.

(10) Except in emergency acquisition, each agency, thirty (30) calendar days prior to the issuance of a solicitation for proposed procurement exceeding Category Four, and for the Board of Regents and University System, Category Five, shall forward notice of the proposed procurement to the Office after receipt of which the Office shall have twenty (20) calendar days for review.

Rulemaking Authority 120.53, 287.09451 FS. Law Implemented 255.102, 287.057(6)(c), 287.09451 FS. History–New 9-11-96, Formerly 38A-20.003.