To update Chapter 60A-1, Florida Administrative Code with needed changes, and to incorporate changes from Chapter 2010-151, Laws of Florida, and to clarify these rules and incorporate additional information regarding current practices and procedures ...

DEPARTMENT OF MANAGEMENT SERVICES
Division of Purchasing

Rule No.: RULE TITLE
60A-1.002: Purchase of Commodities or Contractual Services
60A-1.016: Contract and Purchase Order Requirements
60A-1.025: State Purchasing Agreements
60A-1.041: Solicitation Requirements
PURPOSE AND EFFECT: To update Chapter 60A-1, Florida Administrative Code with needed changes, and to incorporate changes from Chapter 2010-151, Laws of Florida, and to clarify these rules and incorporate additional information regarding current practices and procedures related to purchases made by state offices.
SUMMARY: Incorporating changes regarding purchases made by state offices into Chapter 60A-1, Florida Administrative Code. Corresponding forms, PUR 1000, 1001, 7722, 7721, will also be updated with changes in law and practices. A new form PUR 2020 is also proposed.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 287.042(3), 287.042(12) FS.
LAW IMPLEMENTED: 287.057, 287.058 FS., Chapter 2010-151, Laws of Florida.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: November 16, 2010, 2:00 p.m. – 4:00 p.m.
PLACE: 4050 Esplanade Way, Suite 360, Tallahassee, Florida 32399-0950
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 2 days before the workshop/meeting by contacting: Karen Armstrong, Department of Management Services, 4050 Esplanade Way, Suite 360, Tallahassee, Florida 32399-0950, [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Karen Armstrong, Department of Management Services, 4050 Esplanade Way, Suite 360, Tallahassee, Florida 32399-0950, [phone], [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

60A-1.002 Purchase of Commodities or Contractual Services.

(1) Agencies are delegated the conditional authority to purchase commodities or contractual services (except insurance, unless permitted pursuant to Section 287.022, F.S.). The conditions of this delegation are (i) that the agencies comply with the requirements of subsection 287.042(12), F.S.; (ii) that State Purchasing retains the full supervisory authority provided by that subsection; and (iii) that State Purchasing reserves the right to rescind the authority delegated to all agencies by amendment to this rule and reserves the right to rescind the authority delegated to an agency for failure to comply with that subsection.

(2) Purchases with value below $32,500 shall be carried out using good purchasing practices. Such practices include but are not limited to the receipt of written quotations or written records of telephone quotations.

(3) Purchases which meet or exceed $32,500, but are less than or equal to the threshold for Category Two may be made using written quotations, written records of telephone quotations, or informal bids to be opened upon receipt, whenever practical. If the agency receives verbal quotations, the name and address of each respondent and the amount quoted shall be a part of the written documentation. If the agency receives less than two quotations, it must include a statement as to why additional quotes were not received. If the agency determines that commodities or contractual services are available only from a single source, or that conditions warrant negotiation on the best terms and conditions, the agency may proceed with the procurement. The agency shall document the conditions and circumstances used to determine the procurement method.

(4) In accordance with Chapter 287, F.S., all purchases for which the total contract value is in excess of the threshold amount for Category Two for a commodity or group of commodities or contractual service shall be made by first securing formal competitive solicitations, unless an exemption applies. The following purchases are not subject to competitive solicitation requirements:

(a) Regulated Utilities and government franchised services.

(b) Regulated Public communications, except long distance telecommunications services or facilities.

(a)(c) Artistic services, which include any artistic work performed by an artist, as defined in Section 287.012(3), F.S., including cases in which the acquisition requires that the artist furnish a commodity created through the artistic work.

(b)(d) An academic program review, defined as a structured evaluation of the relative merits of an established university or secondary educational program or program component conducted by recognized experts in the field of study and resulting in a written report with specific recommendations, as long as the fee does not exceed $50,000.

(c)(e) Lectures by individuals. A lecture is a formal or methodical reading or presentation on any subject, but it is not intended to be used for the purpose of, or in connection with, training of personnel.

(f) Auditing services, which are services provided by a licensee under Chapter 473, F.S., in which the licensee attests as an expert in accountancy to the reliability or fairness of presentation of financial information or utilizes any form of disclaimer of opinion which is intended or conventionally understood to convey an assurance of reliability as to matters not specifically disclaimed.

(d)(g) Promotional services and events purchased from donated funds by the Secretary of State for purposes provided in Section 15.18(7), F.S.

(e)(h) Payments for membership dues pursuant to Section 216.345, F.S.

(f)(i) Examinations approved in accordance with Section 455.217(1)(c), F.S.

(g)(j) Adoption placement services licensed by the Department of Children and Family Services.

(h)(k) Other purchases identified in Section 287.057(4)(5)(f), F.S.

(i)(l) Purchases from alternate contract sources, pursuant to Section 287.042(16), F.S.

(j)(m) Purchases made by agencies pursuant to Section 287.056(1), F.S., from state term contracts competitively procured by the Department.

(k) Single Source purchases made pursuant to Section 287.057(3)(c), F.S.

(l) Emergency purchases made pursuant to Section 287.057(a), F.S.

(5) When determining the amount or amounts of purchases for the purpose of applying the threshold categories, agencies shall follow the definitions and classes and groups of commodities or contractual services established by the Department. Acquisitions shall be reviewed and considered on an agency-wide basis, except that acquisitions by agencies with decentralized purchasing functions shall be considered and reviewed on the basis of each purchasing office that maintains full-time purchasing staff. A purchasing office shall not divide its purchases or its purchasing operations to circumvent these requirements. Determination of the threshold amount for Category Two for lease or rental is based on a twelve (12) month period of time. Extension of a contract for an additional period of time is not subject to this provision.

(6) In any procurement which exceeds the threshold amount for Category Two and is accomplished without competition, the individuals taking part in the development or selection criteria for evaluation, the evaluation process, or the award process shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected. The attestation shall be placed in the agency file.

(7) All competitive formal solicitations issued by an agency shall include the standard “General Contract Conditions” Form PUR 1000 (XX/10)(11/04), and the standard “General Instructions to Respondents” Form PUR 1001 (XX/10)(11/04), each of which is hereby incorporated by reference. The forms are available on the internet at http://dms.myflorida.com/purchasing. Except as modified by an agency pursuant to the following subsections, these instructions shall apply to all competitive formal solicitations and these conditions shall be part of all resulting contracts.

(a) PUR 1001 contains instructions explaining the solicitation process and the actions necessary to respond. The agency shall attach additional materials specific to each particular solicitation, including but not limited to contact information, a solicitation timeline, a location for the public opening, evaluation criteria, required information regarding renewal of the contract, and any other necessary information. These additional instructions are commonly referred to as “Special Instructions to Respondents.” In the event of any conflict between Form PUR 1001 and the additional instructions attached by the agency, the additional instructions shall take precedence over the Form PUR 1001 unless the conflicting term is required by any section of the Florida Statutes, in which case the term contained in PUR 1001 shall take precedence.

(b) PUR 1000 contains standard terms and conditions that will apply to the contract which results from the solicitation event. The agency shall attach additional contract terms and conditions specific to each particular solicitation. These additional terms are commonly referred to as “Special Conditions.” In the event of any conflict between the PUR 1000 form and any Special Conditions attached by the agency, the Special Conditions shall take precedence over the PUR 1000 form unless the conflicting term in the PUR form is required by any section of the Florida Statutes, in which case the term contained in PUR 1000 shall take precedence.

(8) In addition to including the PUR 1001 and PUR 1000, all competitive formal solicitations issued by an agency shall include, in a form most advantageous to the agency, an Introductory Section, a Special Conditions Section and a Technical Specifications or Statement of Work Section. The Introductory Section shall include an overview of the solicitation and a timeline or calendar of events relevant to the solicitation. As provided in paragraph (7)(b) above, the Special Conditions Section shall be used by agencies to supplement or supersede(d) the General Contract Conditions contained in PUR 1000. The Technical Instructions or Statement of Work Section shall be used by agencies to provide detail regarding the scope of contractual services sought or commodities to be procured by the agency through the competitive formal solicitation.

(9) All contracts entered into as a result of a formal solicitation issued by an agency shall include a contractual condition requiring the vendor to comply with all laws and rules applicable to the vendor providing the commodities or services to the agency.

Rulemaking Specific Authority 287.042 FS. Law Implemented 287.042, 287.057 FS. History–New 5-20-64, Amended 4-4-67, Revised 2-6-68, Amended 2-8-69, Revised 5-20-71, Amended 7-31-75, 10-1-78, Revised 11-14-79, Amended 8-18-80, 8-6-81, 10-13-83, 3-1-84, 3-14-84, 11-12-84, 2-28-85, 12-17-85, Formerly 13A-1.02, Amended 6-5-86, 2-9-87, 11-3-88, 1-18-90, 4-10-91, 9-1-92, Formerly 13A-1.002, Amended 4-24-94, 1-9-95, 1-1-96, 3-21-96, 9-23-96, 7-6-98, 1-2-00, 10-3-04, 12-22-04, 10-15-06,________.

 

60A-1.016 Contract and Purchase Order Requirements.

(1)(a) Prior to making a purchase, an agency shall review current surplus property to ensure that the commodity sought is not already owned by the agency certifications.

(b) All purchases shall be in writing or through the State’s Purchasing Card Program.

(2)(a) A written agreement in excess of the threshold amount of Category Two shall be signed by the agency head and the vendor prior to the rendering of the contractual services or the delivery of the commodity, except in the case of a valid emergency as certified by the agency head. If the agency chooses to procure commodities or contractual services by purchase order in lieu of a written agreement, the purchase order shall be signed by the authorized purchasing or contracting personnel. When there is no emergency and the agency fails to have the written agreement signed as required, the agency head, no later than 30 days after the vendor begins rendering the service or delivering the commodity, shall certify the conditions and circumstances as well as action taken to prevent reoccurrence, to State Purchasing using the “Notice of Non-Compliance,” Form PUR 1010 (03/04), which is hereby incorporated by reference. This form is available on the internet at http://dms.myflorida.com/purchasing. Pursuant to Section 287.058(2), F.S., the agency shall also send a copy of this form to the chief Financial Officer with the voucher authorizing payment.

(b) All agency contracts and purchase orders may be electronically signed by the authorized individual as provided in Section 668.004, F.S.

(c) Any contract which binds the state or its executive agencies for purchases for a period continuing beyond the fiscal year shall include the following statement: “The State of Florida’s performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature.”

(d) All contracts that limit the liability of a contractor shall be consistent with Section 672.719, F.S.

(3) Purchase Order Requirements. To the extent that these requirements are not superceded by an electronic procurement system, the chief procurement officer of each agency is responsible for:

(a) Securing all unused purchase orders in a safe place and restricting access to these documents.

(b) Maintaining a file and accounting system for all consecutive purchase orders issued or voided.

(c) Maintaining a record of persons authorized to issue and sign each type of purchase order.

(d) Monitoring and reviewing processes for the use of purchase orders and field purchase orders.

(e) Ensuring that all purchase orders contain the solicitation number, statements regarding the quantity, description, and price of goods or services ordered; applicable terms as to payment, discount, date of performance, and transportation; and liquidated damages.

Rulemaking Specific Authority 287.032, 287.042 FS. Law Implemented 287.017, 287.042, 287.057, 287.058, 287.133, 668.004 FS. History–New 8-6-81, Amended 11-4-82, 2-13-83, 5-26-83, 10-13-83, 5-10-84, 11-12-84, 12-17-85, Formerly 13A-1.16, Amended 6-5-86, 2-9-87, 11-3-88, 1-18-90, 4-10-91, Formerly 13A-1.016, Amended 4-24-94, 1-9-95, 1-1-96, 3-24-96, 7-6-98, 1-2-00, 7-11-04, 10-15-06,_________.

 

60A-1.025 State Purchasing Agreements.

(1) Requesting a State Purchasing Agreement. State Purchasing Agreements are driven by eligible users’ requirements, and eligible users shall request that the Department establish such agreements by submitting to the Department PUR 7721 (XX/10)(02/04), “Request for State Purchasing Agreement,” which is hereby incorporated by reference. This form is available on the internet at http://dms.myflorida.com/purchasing. The commodity or service the eligible user wishes to acquire must be valued at less than Category Two in order to comply with the competitive solicitation requirement of Section 287.057, F.S.

(2) Establishing a State Purchasing Agreement. After receiving PUR 7721 for an eligible user, the Department will attempt to establish a State Purchasing Agreement with a supplier offering the best value for the requested commodity or service. The supplier must agree to the terms contained in PUR 7722 (XX/10)(02/04), “State Purchasing Agreement,” which is hereby incorporated by reference. This form is available on the internet at http://dms.myflorida.com/purchasing.

Rulemaking Specific Authority 287.042(12) FS. Law Implemented 287.042(2)(a) FS. History–New 7-11-04, Amended_________.

 

60A-1.041 Solicitation Requirements.

When preparing a solicitation, an agency shall consider which form of competitive solicitation will result in the best value for the State.

(1) Pursuant to Section 287.057(1)(b)(2)(a), F.S., if the agency determines that the Invitation to Bid method is not practicable, the agency shall document the reason for its use of the Request for Proposal.

(2) Pursuant to Section 287.057(1)(c)(3)(a), F.S., if the agency determines that neither the Invitation to Bid method nor the Request for Proposal are practicable, the agency shall document the reason for its use of the Invitation to Negotiate method. This written determination must be approved in writing by the agency head or his or her designee, prior to advertising the solicitation.

(3) Appointment of Contract Negotiators – Pursuant to Section 287.057(16)(17)(b), F.S., if an agency elects to employ the Invitation to Negotiate (ITN) method to solicit competitive sealed replies, the following requirements shall govern the agency head’s appointment of the negotiation team.

(a) Regardless of the value of the contract, the negotiation team members shall collectively have knowledge and experience in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought.

(b) If the value of the prospective contract will exceed $1 million in any fiscal year, at least one member of the negotiation team must be a Department-certified contract negotiator. To the extent practicable, the agency shall involve the certified negotiator in the development of the ITN, taking into account the certified negotiator’s familiarity with the subject matter and the complexity and value of the contract.

(4) Certification of Contract Negotiators – Persons seeking certification as a contract negotiator shall complete and submit to the Department Form PUR 2011 (0#2/07), “Application for Certification as Contract Negotiator.” Applicants shall either scan the completed form and submit it electronically to [e-mail], fax the form to the Department of Management Services as provided in the PUR 2011 or mail the completed form to State Purchasing, Department of Management Services, 4050 Esplanade Way, Suite 360, Tallahassee, FL 32399-0950. The Department shall certify as a contract negotiator any state or political subdivision employee who satisfies the following criteria:

(a) Any person certified by the Department as a Florida Certified Negotiator prior to the effective date of this administrative rule shall retain their contract negotiator status. The Department will issue to each prior-certified negotiator a new certificate reflecting his or her status as a Certified Contract Negotiator. Submission of Form PUR 2011 will not be required;

(b) Any person who has: (1) completed either the National Institute of Governmental Purchasing (“NIGP”) General Public Procurement seminar or the NIGP Sourcing in the Public Sector seminar or Department-approved equivalent; (2) completed the Negotiation Strategies seminar offered by the Department or Department approved equivalent; (3) completed the Department’s Negotiation in Florida seminar or Department-approved equivalent training by another agency of the State of Florida; (4) worked a minimum of twelve (12) months as either a purchasing agent, contract manager or contract administrator for the State of Florida or one of its political subdivisions where the job description for the position required that at least half of the individual’s designated duties included: procuring commodities or services; their participating in contract negotiation, contract management or contract administration; or working as a state or political subdivision agency attorney whose duties included providing legal counsel to an agency’s purchasing or contracting staff; and (5) led at least one federal, state or local government negotiation team through a negotiated procurement or served on at least three federal, state or local government negotiation teams for a negotiated procurement or any other contract negotiation with a value that is in excess of $1 million in any fiscal year.

(c) Any person holding a Masters in Business Administration or other graduate level business degree from a state accredited college or university who has: (1) completed either the NIGP General Public Procurement seminar, the NIGP Sourcing in the Public Sector seminar or Department-approved equivalent; (2) completed a semester-long business school or graduate level class on negotiation, the Negotiation Strategies seminar offered by the Department, or Department-approved equivalent; (3) completed the Department’s Negotiation in Florida seminar or Department-approved equivalent training by another agency of the State of Florida; (4) worked a minimum of twelve (12) months as either a purchasing agent, contract manager, or contract administrator for the State of Florida or one of its political subdivisions where the job description for the position required that at least half of the individual’s designated duties included: procuring commodities or services; their participating in contract negotiations, contract management or contract administration; or working as a state or political subdivision agency attorney whose duties included providing legal counsel to an agency’s purchasing or contracting staff; and (5) led at least one federal, state or local government negotiation team through a negotiated procurement or served on at least three federal, state or local government negotiation teams for a negotiated procurement or any other contract negotiation with a value that is in excess of $1 million in any fiscal year.

(d) Any state or political subdivision agency attorney currently licensed by the Florida Bar who has: (1) completed either the NIGP General Public Procurement seminar, the NIGP Sourcing in the Public Sector seminar or Department-approved equivalent; (2) completed a semester-long business school or graduate level class on negotiation, the Negotiation Strategies seminar offered by the Department, or Department-approved equivalent; (3) completed the Department’s Negotiations in Florida seminar or Department-approved equivalent training by another agency of the State of Florida; (4) worked a minimum of twelve (12) months as a state or political subdivision agency attorney whose duties included providing legal counsel to an agency’s purchasing or contracting staff; and (5) led at least one federal, state or local government negotiation team through a negotiated procurement or served on at least three federal, state or local government negotiation teams for a negotiated procurement or any other contract negotiation with a value that is in excess of $1 million in any fiscal year.

(5) Department – Approved Negotiation Training Equivalent is training in the form of classes or seminars taken to ensure that certified contract negotiators are: trained in effective negotiation strategies; capable of successfully implementing those strategies during contract negotiations; and familiar with what is required of them in their role in the procurement process as a contract negotiator. In satisfying the equivalent training requirement, employees seeking certification or recertification may either select training classes from the state term contract or other Department listing that identifies pre-approved negotiation training courses or may, on a case-by-case basis, request that the Department separately approve a course or courses not listed on the state term contract or elsewhere by the Department, by completing and submitting to the Department Form PUR 2012 (0#2/07), “Request for Approval of Department Approved Equivalent Certified Negotiator Training Course.”

(a) Approval of the PUR 2012 shall be granted by the Department only if the course(s) identified on the form offers training that meets or exceeds the training standards established in subsection (5).

(b) Approval of the PUR 2012 may be granted by the Department either before or after the employee takes the class, so long as the course(s) meets or exceeds the training standards established in subsection (5).

(6) Certification of Contract Negotiators – Certification of contract negotiators by the Department shall be effective for a period of 5 years from the date of issuance of the certification, unless the certification is extended in writing by the Department. Such request must be made using PUR Form 2020 (XX/10).

(7) Recertification of Contract Negotiators – Persons seeking recertification as a contract negotiator shall complete and submit to the Department PUR 2013 (0#2/07), “Application for Recertification as Contract Negotiator.” Applicants shall either scan the completed form and submit it electronically to [e-mail], fax the form to the Department as provided in the PUR 2013 or mail the completed form to State Purchasing, Department of Management Services, 4050 Esplanade Way, Ste. 360, Tallahassee, FL 32399-0950. Recertification of contract negotiators by the Department shall be effective for five (5) years from the date the employee is recertified. The date of recertification shall be reflected on the certified contract negotiator certificate issued by the Department to the employee. If the certified contract negotiator fails to recertify before the end of the 5 year certification time period, their certification will expire until they are recertified by the Department.

(a) To become recertified as a contract negotiator, the person seeking recertification must have originally been certified by the Department as provided in this rule and shall be required to complete 16 hours of recertification courses offered through the Department, or, on a case-by-case basis, may request that the Department approve a course or courses not offered by the Department by completing and submitting to the Department Form PUR 2012. The person seeking recertification shall indicate on the form that the course or courses are presented for purposes of recertification. Further, recertification applicants must have led or participated in three or more federal, state or local government negotiated procurements during their preceding five (5) year certification period and must be currently employed in a state or local government position in which the job description for the position includes contract negotiation as part of the job description. Any person who has worked as a purchasing supervisor for a minimum of twelve (12) months and during that time supervised persons participating in negotiated procurements may use that experience to satisfy the requirement to have led one negotiation team or to have participated in three or more negotiated procurements;

(b) Approval of the PUR 2012 submitted for recertification shall be granted by the Department only if the course(s) identified on the form offers training that meets or exceeds the training standards established in subsection (5).

(c) Approval of the PUR 2012 may be granted by the Department either before or after the employee takes the recertification class or classes, as long as the course(s) meets or exceeds the training standards established in subsection (5).

(8) Appointment of Project Management Professional (“PMP”) – If the value of the prospective contract will exceed $10 million in any fiscal year, at least one member of the negotiation team shall be a PMP, as certified by the Project Management Institute. The Department shall maintain a list of agency personnel certified as PMPs, assist agencies in determining their PMP needs and assist agencies with preparing and training state agency employees for PMP certification.

Rulemaking Specific Authority 287.042(12), 287.057(17)(b) FS. Law Implemented 287.032, 287.042, 287.057, 287.058 FS. History–New 8-19-04, Amended 3-28-07,_________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Karen Armstrong
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Secretary Linda H. South
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 4, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: July 22, 2010