The Department proposes to create a new rule Chapter 62-772, F.A.C, to establish a competitive procurement process for petroleum contaminated site cleanup services in order to improve the effectiveness and efficiency of the Department's Petroleum ...

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NOS.:RULE TITLES:

62-772.100Applicability and Purpose

62-772.200Definitions

62-772.300Contractor Qualifications and Assessment

62-772.400Procedures for the Competitive Procurement of Contractors and Assignment of Work

62-772.401Procedures for Other Competitive Procurement Methods

62-772.402Exceptions to Competitive Procurement Requirements

62-772.600Payment Procedures for State-Funded Response Action Activities

PURPOSE AND EFFECT: The Department proposes to create a new rule Chapter 62-772, F.A.C, to establish a competitive procurement process for petroleum contaminated site cleanup services in order to improve the effectiveness and efficiency of the Department's Petroleum Restoration Program.

SUMMARY: Rule 62-772.100 provides the purpose and applicability of Chapter 62-772. Rule 62-772.200 defines the terms used in Chapter 62-772. Rule 62-772.300 establishes the minimum qualifications necessary for contractors to perform state funded petroleum contaminated site rehabilitation activities, such as the capacity to perform or directly supervise the work performed, and the maintenance of professional liability insurance. Rule 62-772.400 establishes procedures for the procurement of petroleum contaminated site rehabilitation services for state funded cleanup, including procedures to procure multiple agency term contractors, the assignment of work to agency term contractors and receiving input from the responsible party. Rule 62-772.401 establishes procedures for contractor selection associated with negotiating cost share cleanup agreements with the Department. Rule 62-772.402 established exceptions to the competitive procurement requirements. Rule 62-772.600 establishes contract terms and conditions.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has been prepared by the agency.

The Department prepared a SERC for Rule 62-772.300 due to the regulatory cost of compliance with the minimum contractor qualifications and for Rule 62-772.400 due to the regulatory cost of the submission of bids, responses, replies or quotes to the Department in response to solicitations to be considered for petroleum rehabilitation contracts. The Department also evaluated the cost associated with the 1% transaction fee imposed by the MyFloridaMarketPlace (MFMP) system. The Department estimates that there are approximately 225 petroleum site rehabilitation contractors currently in the state. The Department’s cost estimates for these SERCs are based on information provided from entities currently under contract with the Department to perform petroleum contamination rehabilitation services. Based on the above the Department estimates that compliance with proposed Rule 62-772.300 (contractor qualifications) is approximately $68,333/annually per contractor. Therefore, the estimated annual cost of complying with the minimum contractor qualifications for all contractors would be approximately $15 million. The Department estimates that compliance with proposed Rule 62-772.400 (the submission of bids, response, replies and quotes to be considered for petroleum site rehabilitation activities and the fee associated with MFMP) is a range of approximately $1,300 to $42,000 per response depending on the type of solicitation and the size of the project. In addition, the Department estimates that the 1% will result in an estimated cost of $1.25 million annually. Based on the above the Department estimates that the cost of compliance with Rule 62-772.400 would be approximately $41 million annually.

The Agency has determined that the proposed rule is expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein:

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.

RULEMAKING AUTHORITY: 287.0595, 376.303, 376.3071 FS.

LAW IMPLEMENTED: 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: October 28, 2013, 10:00 a.m.

PLACE: Carr Building, Room 170, 3800 Commonwealth Boulevard, Tallahassee, FL

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 5 days before the workshop/meeting by contacting: Robert Cowdery, DEP Division of Waste Management, 2600 Blairstone Rd., Tallahassee, FL 32399; [phone]; [e-mail]. 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: Robert Cowdery, DEP Division of Waste Management, 2600 Blairstone Rd., Tallahassee, FL 32399; [phone]; [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

PROCUREMENT PROCEDURES FOR PETROLEUM CLEANUP

 

62-772.100 Applicability and Purpose. 

(1) Purpose.  This chapter establishes a competitive procurement process for petroleum cleanup as directed by Section 287.0595, F.S.  Further, pursuant to Section 376.3071(2)(b), F.S., the Department is directed to implement rules and procedures to improve the efficiency of the Petroleum Restoration Program.

(2) Applicability.  Site rehabilitation work on sites eligible for state funding from the Inland Protection Trust Fund shall be subject to this chapter.  This chapter applies to solicitations issued by the Department on or after [effective date of the rule].

Rulemaking Authority 287.0595, 376.303, 376.3071 FS. Law Implemented 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS. History–New [effective date].

 

62-772.200 Definitions.

All words and phrases defined in Sections 287.012, F.S. and 376.301, F.S., shall have the same meaning when used in this chapter unless the context clearly indicates otherwise.

(1) “Assignment” means direction by the Department to a Contractor to proceed with response action through a formal contract, task assignment, or Department issued purchase order.  The Department will utilize any one of the assignment options identified in this chapter singularly or in concert with another.

(2) “Closure” means completion of site rehabilitation activities and issuance of a Site Rehabilitation Completion Order based on a No Further Action determination with or without controls, which includes the risk-based corrective action procedures specified in Chapter 62-780, F.A.C.

(3) “Competitive Procurement” means contracting with a qualified response action contractor using one or more of the procedures specified in Rule 62-772.400 or 62-772.401, F.A.C. and consistent with Section 287.057, F.S.

(4) “Contract” shall refer to the following as defined by subsection 60A-1.001(1), F.A.C.:

(a) A “Definite Quantity Contract” is an agreement between the Department and a vendor whereby the vendor agrees to furnish a specific quantity of an item or items or specific contractual services, at a specified price, to a specified location.

(b) A “Term Contract” is an agreement between the Department and a vendor whereby the vendor agrees to provide an indefinite quantity of commodities or contractual services, on an indefinite delivery schedule, over a specified period of time. Term contracts issued by the Department may also be referred to as an Agency Term Contract.

(5) “Contractor” means “response action contractor” as defined in Section 376.301, F.S.

(6) “Contract Period” means the period of the contract from execution to expiration. 

(7) “Contract Regions” means the distinct geographical areas identified in a competitive solicitation for agency term contractors for the sole purpose of contracting under this Chapter.

(8) “Department” means the Department of Environmental Protection.

(9) “Professional Engineer” means a person licensed under Florida Statute Chapter 471. 

(10) “Professional Geologist” means a person licensed under Florida Statute Chapter 492.

(11) “MyFloridaMarketPlace or MFMP” means the electronic registration and procurement system managed by the Department of Management Services as identified within Chapters 60A-1.030, 60A-1.031, and 60A-1.032, F.A.C.

(12) “Owner” means any person owning a facility.

(13) “Phase of Site Rehabilitation” means a distinct stage of petroleum contaminated site cleanup such as: site assessment (as defined in Rule 62-780.200, F.A.C.); interim source removal (as defined in Rule 62-780.200, F.A.C.); source removal (as defined in Rule 62-780.200, F.A.C.); creation of the remedial action plan (as described in Rule 62-780.700, F.A.C.) including bid specs and construction drawings; implementation of the remedial action plan including construction and operation and maintenance; post active remediation monitoring (as described in 62-780.750, F.A.C.); and natural attenuation monitoring (as described in Rule 62-780.690, F.A.C.)

(14) “Purchase Order” means a written agreement formalizing a transaction between the Department and a vendor through MFMP.  The purchase order shall represent (a) a contract  with a vendor, or (b) a transaction issued pursuant to an agency term contract.  In either event, the purchase order shall contain statements regarding the quantity, description, and price of the commodity or contractual service; applicable terms regarding payment, discount, date of performance, and transportation; and other pertinent information (e.g., a solicitation or contract number).

(15) “Responsible party” means the real property owner, the facility owner, the facility operator, or the discharger, and/or other person or entity responsible for site rehabilitation, unless that entity is the Department.

(16) “Site” means any contiguous land or inland surface water, and groundwater areas upon or into which a discharge of petroleum or petroleum products has occurred.

(17) “Site assessment” means the performance of any of the tasks or activities as described in Rules 62-780.500 and 62-780.600, F.A.C.

(18) “Task Assignment” means written authorization to use contracted services to conduct a defined set of activities related to site assessment and/or remediation activities at petroleum contamination sites.  Task assignments identify the specific work to be performed, the schedule for completion, the deliverables, and authorized costs. Response action contractors invoice against the task assignments. A task assignment may also be used as an attachment in conjunction with a Department issued purchase order. In this case, the response action contractor shall invoice against the purchase order.

Rulemaking Authority 287.0595, 376.303, 376.3071 FS. Law Implemented 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS. History–New [effective date].

 

62-772.300 Contractor Qualifications and Performance Reviews.

(1) Minimum Qualifications. All contractors performing site assessment and remediation activities for state-funded sites under this Chapter must meet the following minimum qualifications:

(a) Demonstrate that the contractor meets all certification and license requirements imposed by law.  The contractor shall possess and maintain or contract with firms which possess and maintain: a valid certificate of authorization (firm) to practice Professional Geology from the Florida Department of Business and Professional Regulation (DBPR) pursuant to Section 492.111, F.S.; and a valid certificate of authorization (firm) to practice Professional Engineering from the Florida Board of Professional Engineers (FBPE) pursuant to Sections 471.023, F.S., or demonstrate that they are doing business under their own given name and are not subject to the certificate of authorization requirement.

(b) Each contractor shall certify to the Department that the contractor:

1. Complies with applicable OSHA regulations.

2. Maintains workers’ compensation insurance for all employees as required by the Florida Workers’ Compensation Law.

3. Maintains comprehensive general liability and comprehensive automobile liability insurance with minimum limits of at least $1 million per occurrence and $1 million annual aggregate, as shall protect it from claims for damage for personal injury, including accidental death, as well as claims for property damage which may arise from performance of work under the program, designating the state as an additional insured party. The Department will specify in solicitations when higher limits on liability insurance are necessary. 

4. Maintains professional liability insurance of at least $1 million per occurrence and $1 million annual aggregate.

5. Has completed and submitted a sworn statement under Section 287.133(3)(a), F.S., on public entity crimes, which may result in revocation of the right to transact business with public entities. 

6. Has the capacity to perform or directly supervise the majority of the work at a site in accordance with Section 489.113(9), F.S.

(2) Procedures for Determining Qualified Vendors to Participate in Procurement Opportunities.  Only qualified vendors can submit responses on a competitive solicitation for work. The following procedures apply to the competitive procurement of contracts under this Chapter in order to qualify potential vendors to respond to a competitive solicitation for work. 

(a) Interested vendors shall submit documentation to the Department verifying that the vendor meets the minimum qualifications specified in subsection (1).  The Department will review the qualification documentation and notify each vendor of its determination regarding their qualification status.  Only vendors that meet the minimum qualifications on the date of opening a response to a competitive solicitation for work shall be considered in the procurement process. 

(b) The Department shall maintain a list of all qualified vendors on its website.

(c) All qualified vendors are responsible for maintaining the minimum qualifications in subsection (1).  Vendors that are recommended for contract award, but that do not maintain minimum qualifications after the opening of responses to a competitive solicitation must satisfy all minimum qualification requirements in subsection (1) prior to execution of a contract.

(3) Pursuant to Rule 60A-1.030, F.A.C., each vendor selected through competitive procurement shall be registered in “MyFloridaMarketplace” prior to execution of a contract or purchase order for State-funded petroleum site rehabilitation services.

(4) After execution of a contract, any contractor that cannot demonstrate that it meets the minimum qualifications in paragraph (1) is not eligible to perform services under this Chapter and is subject to contract termination if not corrected.

(5) Disqualification.

(a) It is unlawful for a site owner or operator, or his or her designee, to receive any remuneration, in cash or in kind, directly or indirectly, from a contractor performing petroleum site rehabilitation services pursuant to this section.  A contractor offering or providing such remuneration shall be immediately removed from all active state-funded sites and all contract(s) terminated.  In addition, the specific individual(s) involved in making the offer or providing remuneration (or their associated companies), shall be disqualified from participating in all state-funded cleanup activities as well as competitive solicitations for at least three years subject to the procedures in Section 287.133, F.S.

(b) All contracts are subject to the default procedures in Rule 60A-1.006, F.A.C.

(6) Contractor Performance Review. The Department shall evaluate, with input from the responsible party and/or site owner, contractor performance at least after completion of each task assignment under a term contract or completion of other non-term contracts using the Interim Contractor Performance Evaluation form number 01, dated (effective date of rule), (link) hereby adopted and incorporated by reference. Annually, the Department shall complete a review of each contractor on the work performed under a term contract during the state fiscal year using the Annual Contractor Performance Evaluation form, number 02, dated (effective date of rule), (link) hereby adopted and incorporated by reference. A copy of these forms can be obtained from the Division of Waste Management at its web site at www.dep.state.fl.us/waste or at 2600 Blairstone Rd., Tallahassee, Fl 32399. Contractor performance shall be considered prior to assignment of rehabilitation tasks, authorizing any contract renewals and determining retainage (and its release) pursuant to Section 376.30711(5)(c), F.S.

Rulemaking Authority 287.0595, 376.303, 376.3071 FS. Law Implemented 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS. History–New [effective date]

 

62-772.400 Procedures for the Competitive Procurement of Contractors and Assignment of Work.

(1) The Department will use the procedures specified in Section 287.057, F.S., and in this Chapter to competitively procure  services for petroleum contaminated site response actions for the Early Detection Incentive Program (EDI) pursuant to Section 376.3071(9), F.S., the Petroleum Liability and Restoration Insurance Program (PLRIP) pursuant to Section 376.3072(2), F.S., the Abandoned Tank Restoration Program (ATRP) pursuant to Section 376.305(6), F.S., the Innocent Victim Petroleum Storage System Restoration Program (IVPSSRP) pursuant to Section 376.30715, F.S., and for petroleum contamination sites under a consent order (also known as hardship or indigent sites) defined in Section 376.3071(7)(c), F.S.

(2) Agency Term Contracts. The Department will use an invitation to bid, request for proposal, or invitation to negotiate, as described in Section 287.057, F.S., to enter into multiple agency term contracts to retain Contractors to conduct an indefinite quantity of petroleum site rehabilitation services on a task assignment basis over the contract period. The Department will specify, in the solicitation, whether the solicitation for agency term contractors is limited to specific regions of the state or is statewide. 

(3) Assignment of Work to Agency Term Contractors.  As a site comes up in priority order as established in Rule 62-771.300, F.A.C., the Department will assign the next phase of the site rehabilitation in the following manner:

(a) Direct assignment by the Department to agency term contractors.

1. If the estimated cost of the next phase of site rehabilitation to be assigned for a given site is $25,000 or less, the Department will directly assign the phase of site rehabilitation to an agency term contractor.

2. The Department will directly assign all site assessments to an agency term contractor.

3. All direct assignments to agency term contractors shall be based on contractor logistics, geographical considerations, including contract regions, contractor availability, and contractor performance. For good cause such as contractor availability, contractor performance, and workloads, the Department may assign work to an agency term contractor outside its contract region.

(b) Request for quotes from agency term contractors. Other than site assessments, if the estimated cost of the next phase of site rehabilitation to be assigned for a given site is more than $25,000, the Department will request quotes from all agency term contractors with contracts to work in that region and assign that phase of site rehabilitation to the agency term contractor providing the lowest quote.

(4) When the Department determines that direct assignment or requesting quotes from agency term contractors under subsection 62-772.400(3), F.A.C., will not provide the best value to the state, the Department will use an invitation to bid, request for proposal or invitation to negotiate as described in Section 287.057, F.S., to enter into a definite quantity contract to perform services at a petroleum contaminated site.

(5) Responsible Party Input. The Department will notify the responsible party in writing when its site comes up in the priority order for site rehabilitation.  Within 30 days of receipt of notification, the responsible party shall respond to the Department indicating whether they desire to provide input to the Department in the rehabilitation process for their site.

(a) If the responsible party does not respond within 30 days or indicates that they do not wish to provide input into the rehabilitation of their site, then the Department will conduct the rehabilitation in accordance with the procedures of this Chapter and Chapter 62-780, F.A.C.

(b) A responsible party indicating a desire to provide input into the rehabilitation process will be provided the following:

1. Prior to direct assignment of an agency term contractor, or initiating a contractor selection process under paragraph 62-772.400(3)(b) or (4), F.A.C., the Department will consult with the responsible party on drafting the scope of work to be performed at the site for each phase of rehabilitation, taking into consideration site logistics such as structures on the property, conditions necessary to limit the interruption of business ongoing at the site and the responsible party’s documented requirements for safety or liability insurance.

2. The Department and the responsible party will discuss closure options available for the site under Rule 62-780.680, F.A.C.

3. For good cause, the responsible party will have the option to reject one of the agency term contractors prior to the assignment of work under subsection 62-772.400(3), F.A.C.  Good cause shall mean poor performance or unsafe practices by the agency term contractor on the responsible party’s site, documented by the responsible party at the time of the work being performed; or agency term contractor fails to meet the responsible party’s documented requirements for safety or liability insurance.

(6) The initial contract period entered under this chapter will be for no more than 5 years and is renewable for a period that will not exceed 3 years or the term of the original contract, whichever is longer. The solicitation used to procure the contract will address renewal, if this option is contemplated by the Department. The renewal shall be subject to the same terms and conditions set forth in the initial contract and any amendments signed by the parties. The Department shall maintain the exclusive right to determine when to open or close contracting windows.

(7) Contract extensions shall be in writing for a period not to exceed 6 months.  The extended contract shall be subject to the same terms and conditions set forth in the initial contract and any amendments signed by the parties.  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.  A contract extension is different than a contract renewal.

Rulemaking Authority 287.0595, 376.303, 376.3071 FS. Law Implemented 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS. History–New [effective date].

 

62.772.401 Procedures for Other Procurement Methods.

(1) Low Scored Site Initiative (LSSI).  For a site participating in the Low Scored Site Initiative (LSSI) program under Section 376.3071(11)(b), F.S., an applicant will:

(a) Select an agency term contractor;

(b) Select a qualified contractor not under contract with the Department provided that pricing levels and conditions can be negotiated on the best terms to the Department; or

(c) Agree to an informal quote process (using a request for written or electronic quote) administered by the Department in accordance with Rule 60A-1.002, F.A.C., using contractors that meet the minimum qualifications specified in Rule 62-772.300, F.A.C. 

For the purpose of LSSI work, one contractor working on several site assessments shall not be considered circumvention as described in s. 287.057(9), F.S. since each site assessment is a single project, which is capped at $30,000 in accordance with s. 376.3071(11)(b), F.S.

(2) The selection of the contractor for Preapproved Advanced Cleanup (PAC) under s. 376.30713, F.S., Petroleum Cleanup Participation Program under s. 376.3071(13), F.S., Site Rehabilitation Funding Allocation Agreements under Section 376.30714, F.S., will be negotiated along with the terms and conditions of the contract or agreement.  If the participant or applicant is providing 25% or more of the cleanup cost then the participant or applicant may select any agency term contractor.  If the participant or applicant is providing less than 25% of the cleanup cost, the Department will follow subsections 62-772.400(3) through (5), F.A.C., for contractor selection. 

Rulemaking Authority 287.0595, 376.303, 376.3071 FS. Law Implemented 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS. History–New [effective date].

 

62-772.402 Exceptions to Competitive Procurement Requirements.

(1) For emergencies, the Department shall follow the procedures in s. 287.057(3)(a), F.S. to mitigate immediate danger to the public health, safety, or welfare or other substantial loss to the state.

(2) For single source purchases, the Department shall follow the procedures in s. 287.057(3)(c), F.S.

Rulemaking Authority 287.0595, 376.303, 376.3071 FS. Law Implemented 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS. History–New [effective date].

 

62-772.600 Contract Terms and Conditions.

(1) Terms and Conditions.  Department contracts under this Chapter shall contain terms and conditions specified in Section 287.058, F.S.

(2) Payments, purchases, warrants, and invoices are subject to the provisions in Sections 215.42, F.S., 215.422, F.S., and 112.061, F.S.

(3) The Department will include contingency statements as appropriate in contracts which require annual appropriation in accordance with Section 287.0582, F.S.

(4) The Department will include the provisions in Section 287.0585, F.S. for late payments by contractors to subcontractors and suppliers and penalties, as deemed appropriate.

(5) If federal funds are used, contracts, task assignments, and/or purchase orders will include any necessary terms and conditions required by the federal agency.

Rulemaking Authority 287.0595, 376.303, 376.3071 FS. Law Implemented 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS. History–New [effective date].

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Jorge Caspary

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Herschel T. Vinyard Jr.

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 27, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: May 30, 2013