To clarify and update requirements related to procurement and contracting processes and to update incorporated forms to address statutory changes that have occurred since the last update.

 

DEPARTMENT OF MANAGEMENT SERVICES

Division of Purchasing

RULE NOS.:RULE TITLES:

60A-1.001Definitions

60A-1.002Purchase of Commodities or Contractual Services

60A-1.015Insurance

60A-1.016Contract and Purchase Order Requirements

60A-1.031MyFloridaMarketPlace Transaction Fee

60A-1.043Request for Quotes from State Term Contracts

60A-1.045Alternative Purchasing Methods

PURPOSE AND EFFECT: To clarify and update requirements related to procurement and contracting processes and to update incorporated forms to address statutory changes that have occurred since the last update.

SUMMARY: Updates to procurement and contracting processes.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not 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 not been prepared by the Agency.

The Agency has determined that the proposed rule is not 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: the agency, utilizing the expertise of division personnel, determined no SERC was required after completing the SERC checklist analysis.

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: 287.012(11), 287.032(2), 287.042, 287.042(12), 287.057(24), 287.0823 F.S.

LAW IMPLEMENTED: 287.012(11), 287.017, 287.022, 287.032, 287.042, 287.042(l)(h), 287.042(3)(g), 287.042(6)(b), 287.042(9), (16), 287.056(2), 287.057, 287.057(3), (14), (24), 287.058, 287.058(2), 287.0591(5), 287.0823, F.S.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: Thursday, May 9, 2024, from 2:00 p.m. until 4:00 p.m., or until adjourned

PLACE: Betty Easley Conference Center. 4075 Esplanade Way, Room 171, Tallahassee, FL 32399

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: Ashley Palelis, telephone: [phone], email: [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: Ashley Palelis, Governance and Training Manager, 4050 Esplanade Way, Tallahassee, Florida 32399; [phone], email: [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

60A-1.001 Definitions.

This rule defines terms used in Rrule Chapter 60A-1, F.A.C. Other terms used in Rrule Chapter 60A-1, F.A.C., shall be construed in accordance with definitions contained in Chapter 287, F.S. Terms not defined by statute or rule shall be construed according to their plain meaning, and in all cases with the objective of advancing the purpose of the rule in which they appear.

(1) “Agency Alternate Contract Source” means a Contract that is authorized pursuant to Rule 60A-1.045(6), F.A.C.

(2) “Contract” means a Written Agreement or Purchase Order between a Customer and a Contractor mutually binding legal relationship evidenced by a written agreement obligating a Contractor to furnish commodities or contractual services to the Department, an agency, an eligible user, or another state. A Contract requires signatures of all parties.

(3) “Customer” means an Agency or an Eligible User.

(4) (2) “Eligible User” means:

(a) - (g) No change.

(h) For purposes of insurance contracts procured pursuant to sSection 287.022, F.S., only non-Agency state entities with a Department of Financial Services State Risk Management Trust Fund Certificate state universities, as described by Section 1000.21, F.S., are eligible users.

(5) “Enterprise Alternate Contract Source” means a contract authorized pursuant to section 287.042(16), F.S., or approved pursuant to section 287.057(3)(b), F.S., for statewide use.

(6) “Enterprise Wide Agreement” means a State Term Contract or an Enterprise Alternate Contract Source.

(7) (3) “Purchase Order” means a mutually binding and enforceable legal relationship obligating a Contractor to furnish Commodities or Contractual Services to a Customer, which is evidenced by an order electronically transmitted from the Customer to the Contractor written agreement formalizing the terms and conditions under which a Vendor furnishes commodities or contractual services to the Department or an agency.

(8) “Request for Quote” has the same definition as provided in section 287.012(24), F.S. Additionally, “Request for Quote” may refer to a quote obtained from an Enterprise Alternate Contract Source.

(9) (4) “Vendor” means a person or entity that may provide or is providing Ccommodities or Ccontractual Sservices under a Purchase Order or Contract.

(10) “Written Agreement” means a mutually binding and enforceable legal relationship obligating a Contractor to furnish Commodities or Contractual Services to a Customer, which is evidenced by a document executed by both the Customer and the Contractor.

Rulemaking Authority 287.012(11), 287.032(2), 287.042(12) FS. Law Implemented 287.012(11), 287.042, 287.057, 287.058 FS. History–New 5-20-64, Amended 2-6-68, 5-20-71, 5-19-72, 7-31-75, 10-1-78, 11-14-79, 8-6-81, 10-11-81, 4-29-82, 8-26-82, 11-4-82, 10-13-83, 3-1-84, 11-12-84, 2-28-85, 12-17-85, Formerly 13A-1.01, Amended 2-9-87, 11-3-88, 1-18-90, 4-10-91, 9-1-92, Formerly 13A-1.001, Amended 8-24-93, 4-24-94, 1-9-95, 1-1-96, 9-23-96, 7-6-98, 1-2-00, 8-22-04, 1-29-17, XX-XX-24.

 

60A-1.002 Purchase of Commodities or Contractual Services.

(1) – (3) No change.

(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 Ccommodity or group of Ccommodities or Ccontractual Services service shall be made by first issuing a securing formal Ccompetitive Solicitation solicitations, unless an exemption applies. The following purchases are not subject to Ccompetitive Ssolicitation requirements.

(a) - (k) No change.

(l) Purchases from Enterprise and Agency Aalternate Ccontract Ssources, pursuant to Section 287.042(16), F.S.

(m) No change.

(5) No change.

(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. If applicable, tThe attestation required by section 287.057(21), F.S., shall be placed in the Aagency file.

(7) When an Agency issues a Competitive Solicitation, the All formal solicitations issued by an Aagency shall include the standard “General Contract Conditions” Form PUR 1000 (XX/24 11/04), [FAR link]; the PUR 1000’s Form PUR 7801, Vendor Certification Form (XX/24), [FAR link]; and the standard “General Instructions to Respondents” Form PUR 1001 (10/06);, each of which is hereby incorporated by reference. The forms are available on the Department’s website internet at https://www.dms.myflorida.com/purforms http://dms.myflorida.com/purchasing. Except as modified by an Aagency pursuant to the following subsections, these instructions shall apply to all Competitive formal Ssolicitations and these conditions shall be part of all resulting Ccontracts.

(a) No change.

(b) The PUR 1000 contains standard terms and conditions that will apply to the Ccontract which results from the Competitive Ssolicitation event. The PUR 1000’s attached PUR 7801 contains certifications regarding statutorily required vendor crtiteria. For Competitive Solicitations seeking to establish a State Term Contract the PUR 1000 and its attached PUR 7801 will be applicable to Customer purchases made off the State Term Contract. The Aagency may shall attach additional contract terms and conditions specific to its each particular Competitive Ssolicitation or purchase made off a State Term Contract. These additional terms shall be are commonly referred to as “Special Conditions.” In the event of any conflict between the PUR 1000 or 7801 form and any Special Conditions attached by the Aagency, the Special Conditions will shall take precedence over the PUR 1000 or 7801 form unless the conflicting term in the PUR form is required by law any section of the Florida Statutes, in which case the term contained in the PUR 1000 or 7801 will shall take precedence. To the extent the Special Conditions supersede the limit of liability in the PUR 1000, the Special Conditions must address such topic. For purchases made off a State Term Contract, to the extent a Customer attaches Special Conditions to its purchase and such Special Conditions reduce an obligation of the Contractor under the PUR 1000, the Customer shall seek a corresponding equitable reduction in price or equitable increase in other Contractor obligations. This offset may include reducing liability limits in exchange for a reduction in price or an increase in insurance.

(8) In addition to including the PUR 1000, 1001, and 7801 PUR 1000, all Competitive formal Ssolicitations issued by an Aagency shall include any other statutorily required terms, including those set forth in section 287.057, F.S. an Introductory Section, a Special Conditions Section, and a Technical Specifications or Scope 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 may shall be used by Aagencies to supplement or supersede supersede(d) the General Contract Conditions contained in the PUR 1000. The Technical Specifications Instructions or Scope Statement of Work Section shall be used by Aagencies to provide detail regarding the scope of Ccontractual Sservices sought or Ccommodities to be procured by the Aagency through the Competitive formal Ssolicitation.

(9) Agencies, state universities, and Florida College System institutions, or any contracted food service providers thereof, shall report the total expenditures and quantity of Food Commodities which were grown or produced according to the requirements pursuant to section 287.0823(4), F.S., by submitting Forms PUR 1279, “Food Commodities Grown or Produced in Florida,” and 1279A, “Spreadsheet Template,” both effective XX/24 and hereby incorporated by reference and available at [FAR LINK] and [FAR LINK], respectively, or on the Department’s website at https://www.dms.myflorida.com/purforms. All Food Commodities expenditures and quantities purchased must be reported to the Department no later than August 1, 2024, and each August 1 biennially thereafter. This section applies to expenditures made by an Agency, state university, or Florida College System institution pursuant to its purchase of Food Commodities.

(a) For purposes of this subsection, “Food Commodities” means either raw agricultural commodities or processed commodities, provided that they are the forms that are sold or distributed for human consumption, including farm products as defined in section 823.14, F.S., of any class, variety, or use thereof in their natural state or as processed by a farm operation or processor for the purpose of marketing such product. 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 Authority 287.032(2), 287.042, 287.0823 FS. Law Implemented 287.042, 287.057, 287.0823 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, XX-XX-24.

 

Substantial rewording of Rule 60A-1.015 follows. See Florida Administrative Code for present text.

 

60A-1.015 Insurance.

(1) Upon request, the Department will procure insurance for Agencies when coverage is not available under the State Risk Management Trust Fund and is not excepted by law, and when any part of the premium is paid by the state. The Department will not procure insurance directly for Eligible Users; however, Eligible Users may utilize existing coverages that have been procured by the Department.

(2) Agencies requesting the Department procure insurance, and Eligible Users requesting to be added to existing policies, shall submit Form PUR 1015, Agreement for State Purchasing Insurance Program Participation, effective XX/24, which is hereby incorporated by reference and available at [DOS link]  or https://www.dms.myflorida.com/purforms. The Department shall notify the requestor of the status of the final approval.

(3) No Agency or Eligible User shall contact the agent of record representing the insurance carrier with the exception of reporting a claim.

Rulemaking Authority 287.032(2), 287.042(12) FS. Law Implemented 287.022, 287.042(6)(b) FS. History–New 8-6-81, Amended 11-4-82, Formerly 13A-1.15, Amended 11-3-88, 1-18-90, 4-10-91, 9-1-92, Formerly 13A-1.015, Amended 8-24-93, 1-9-95, 7-6-98, 1-2-00, 6-21-04, 11-7-04, 1-29-17, XX-XX-24.

 

60A-1.016 Contract and Purchase Order Requirements.

An Agency that fails to have a signed Ccontract in place by an agency head or designee and the contractor before a Contractor provides Commodities or renders rendering Ccontractual Sservices in excess of CATEGORY TWO, except in the case of a valid emergency as certified by the agency head, shall submit to the Department a completed Form PUR 1010, “Notice of Non-Compliance,” effective December 2016, which is hereby incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref-07674 or https://www.dms.myflorida.com/purforms http://dms.myflorida.com/purchasing.

Rulemaking Authority 287.032(2), 287.042(12) FS. Law Implemented 287.058(2) 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, 1-29-17, XX-XX-24.

 

60A-1.031 MyFloridaMarketPlace Transaction Fee.

(1) The State of Florida, through the Department of Management Services, has instituted MyFloridaMarketPlace (MFMP), a statewide eProcurement system pursuant to sSection 287.057(24), F.S. The Transaction Fee is one percent (1.0%), or as may otherwise be established by law. All payments issued by Agencies to registered vendors for purchases of Commodities or Contractual Services shall be assessed the Transaction Fee under Chapter 287, F.S., unless exempt. All payments issued to registered vendors that are associated with an Enterprise Wide Agreement a State Term Contract or Alternate Contract Source shall be assessed the Transaction Fee, unless exempt.

(2) No change.

(3) Each Agency shall include the following statement in all Contracts and Purchase Orders, including the solicitation thereof, for purchases of Commodities or Contractual Servics under Chapter 287, F.S., unless the transaction is exempt from the Transaction Fee:

MyFloridaMarketPlace Transaction Fee

The State of Florida, through the Department of Management Services, has instituted MyFloridaMarketPlace, a statewide eProcurement system pursuant to sSection 287.057(24), Florida Statutes (F.S.). All payments issued by Agencies to registered vendors for purchases of Commodities or Contractual Services under Chapter 287, F.S., shall be assessed the Transaction Fee of one percent (1.0%) of the total amount of the payments received from the State or Eligible Users, as prescribed by Rule 60A-1.031, Florida Administrative Code (F.A.C.), or as may otherwise be established by law. Vendors shall pay the Transaction Fee and are subject to automatic deduction of the Transaction Fee, when automatic deduction becomes available. Vendors shall submit any monthly reports required pursuant to Rule 60A-1.031, F.A.C. All such reports and payments are subject to audit. The Agency will have grounds for declaring the vendor in default if the vendor fails to comply with the payment of the Transaction Fee or reporting of payments, which may subject the vendor to being suspended from business with the State of Florida.

(4) A vendor shall report received payment as follows:

(a) Vendors on an active Enterprise Wide Agreement State Term Contract or Alternate Contract Source shall report monthly at https://vendor.myfloridamarketplace.com, the total amount of payments received from Customers Agencies or Eligible Users for Commodities or Contractual Services under Chapter 287, F.S. If such vendor does not receive any payment for Commodities or Contractual Services under Chapter 287, F.S., the vendor shall report zero dollars for the total monthly amount of payments received.

(b) Each month vendors not on an active Enterprise Wide Agreement State Term Contract or Alternate Contract Source shall review their consolidated billing invoice, reconcile all payments received for Commodites or Contractual Services under Chapter 287, F.S., and report any payments missing from the consolidated billing invoice in the Vendor Information Portal.

(c) - (e) No change.

(5) No change.

(6) The following are exempt from the Transaction Fee:

(a) No change.

(b) Transactions with Customers Agencies, Eligible Users, a private university in Florida, an agency of another state, or another sovereign nation, as vendors, unless such entity is awarded a Ccontract following a Ccompetitive Ssolicitation involving for-profit entities and the Ccontract, if it had been awarded to a for-profit entity, would have been subject to the Transaction Fee.

(c) - (j) No change.

(7) A Customer An Agency, or an Eligible User of an Enterprise Wide Agreement a State Term Contract or Alternate Contract Source, may request Department approval to exempt a particular transaction from the Transaction Fee. In order for the exemption to be approved by the Department, the transaction must be critical to public health, safety, or welfare and the imposition of the fee would violate state or federal law.

(a) The requesting Customer Agency or Eligible User shall submit Form PUR 3778, Request for Transaction Fee Exemption, effective 07/2022, hereby incorporated by reference, and available at http://www.flrules.org/Gateway/reference.asp?No=Ref-14514 or on the Department’s website at http://www.dms.myflorida.com/mfmp_forms. Form PUR 3778 shall be completed by the Customer’s agency head (or designee), or an Eligible User’s authorized representative, providing all information supporting the request, and submitted to [e-mail]. Within 14 days from receipt of Form PUR 3778, the Department will approve the request, deny the request, or request additional information. Requests outstanding for more than 14 days from receipt by the Department will be deemed approved unless additional information is requested, which will reset the timeframe for response.

(b) Once an exemption to the Transaction Fee for a transaction under this section has been approved or is deemed approved, the Customer Agency or Eligible User need not request exemption of subsequent related transactions (e.g., individual payments under the same Ccontract).

(8) No change.

Rulemaking Authority 287.032(2), 287.042(12), 287.057(24) FS. Law Implemented 287.032, 287.042(1)(h), 287.057(24) FS. History–New 7-1-03, Amended 2-11-04, 11-7-04, 3-2-17, 7-31-22, XX-XX-24.

 

60A-1.043 Requests for Quotes from Enterprise Wide Agreements State Term Contracts.

(1) Agencies shall document all Requests for Quotes from Enterprise Wide Agreements with, at a minimum, the name of each responding vendor, the price, and the Commodities or Contractual Services to be provided.

(2) - (3) No change.

(4) For the purchase of Contractual Services and information technology (“IT”) Commodities from Enterprise Wide Agreements, Agencies shall follow the Request for Quote purchasing practices prescribed in sSections 287.056 and 287.0591, F.S.

(5) For the purchase of non-IT Commodities, Agencies shall request at least two (2) quotes from Enterprise Wide Agreements with multiple vendors unless (i) the total purchase cost is less than Category Two, or (ii) the Enterprise Wide Agreement requires a specific number of quotes to be requested or obtained. Agencies shall document the justification for any selection based on receipt of fewer than two quotes the number of quotes required by the state term contract. If the state term contract does not impose a minimum number of quotes, the Agency shall request at least two quotes if there are multiple vendors.

Rulemaking Authority 287.032(2), 287.042(12) FS. Law Implemented 287.042(3)(g), 287.056(2), 287.0591(5) FS. History–New 6-21-04, Amended 4-14-16, 7-31-22, XX-XX-24.

 

60A-1.045 Alternative Purchasing Methods.

(1) - (3) No change.

(4) For emergency purchases of Commodities or Contractual Services made pursuant to section 287.057(3)(a), F.S., Agencies must complete and furnish to the Department, Form PUR 7800 “Notice of Emergency Purchase,” revised 07/2022, which is hereby incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref-14520, or on the Department’s website at https://www.dms.myflorida.com/purforms.

(5) No change.

(6) Agencies seeking approval to make purchases in excess of the threshold for Category Two pursuant to sections 287.042(16) and 287.057(3)(b), F.S., must submit An Agency must request approval from the Department to purchase Commodities or Contractual Services from contracts competitively established by another Agency, or let by the federal government, another state or a political subdivision, by submitting Form PUR 7102, “Agency Request for Approval of Alternate Contract Source (ACS),” revised XX/24 07/2022, which is hereby incorporated by reference and available at [FAR link] http://www.flrules.org/Gateway/reference.asp?No=Ref-14516, or on the Department’s website at https://www.dms.myflorida.com/purforms. This requirement does not apply to purchases off an Enterprise Alternate Contract Source. The ACS contract must contain specific language authorizing third parties to make purchases from the contract with the vendor’s consent.

(7) In addition, a list of current Enterprise Alternate Contract Sources ACS contracts for use by all Agencies is available at https://dms.myflorida.com/contracts.

(8) Agencies shall report all Agency actions to the Department pursuant to section 287.057(6), F.S., by submitting Form PUR 7200, “Negotiation of Best Terms and Conditions Report Form,” XX/24, which is hereby incorporated by reference and available at [FAR LINK] or on the Department’s website at https://www.dms.myflorida.com/purforms.

Rulemaking Authority 287.032(2), 287.042(12) FS. Law Implemented 287.017, 287.042(9), (16), 287.057(3), (14) FS. History–New 2-6-68, Revised 5-20-71, Amended 8-6-81, 2-28-85, 12-17-85, Formerly 13A-1.10, Amended 11-3-88, 1-18-90, 4-10-91, Formerly 13A-1.010, Amended 1-9-95, 1-1-96, 9-23-96, 7-6-98, 1-2-00, 7-26-04, Formerly 60A-1.010, Amended 4-14-16, 3-2-17, 7-31-22, XX-XX-24.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Ashley Palelis, Governance and Training Manager

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Pedro Allende, Secretary, Department of Management Services

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 30, 2024

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 23, 2023; April 17, 2024