The purpose of this Rule Chapter is to establish the procedures by which the Corporation shall procure commodities and contractual services.

 

FLORIDA HOUSING FINANCE CORPORATION

RULE NOS.:RULE TITLES:

67-49.001Definitions

67-49.002Procurement of Commodities or Contractual Services

67-49.003 Withdrawal of Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications

67-49.0031Emergency Purchases

67-49.004Modification of Terms of Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications

67-49.005Responsibility of Bidders and Offerors

67-49.007Evaluation of Responses

67-49.008Identical (Tie) Responses

67-49.009Right to Waive Minor Irregularities

67-49.011Nonresponsive Bids

67-49.012Contract Administrator

67-49.013Contracts; Terms, Amendments, Renewals

PURPOSE AND EFFECT: The purpose of this Rule Chapter is to establish the procedures by which the Corporation shall procure commodities and contractual services.

SUMMARY: The proposed rule makes the following changes to Rule Chapter 67-49, F.A.C.: Amend definitions to include “Competitive Solicitations;” change references from the “Florida Administrative Weekly” to the “Florida Administrative Register;” clarifies that rights to protest attach when a solicitation is posted on the Corporation website; includes statutory requirements regarding the public records law and other mandatory terms in all contracts; increases the threshold amount requirement for competitive solicitation from $25,000 to $35,000 and increases the threshold requirement for obtaining at least two quotes from $3,000 to $5,000;

Clarify and increase the requirements for single source purchases; amend the list of exemptions from competitive solicitation; sets forth the responsibilities of the Contracts Manager; and makes technical and conforming changes.

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 rule is not likely to have an adverse impact on economic growth, private sector job creation or employment, or private sector investment in excess of $1 million in the aggregate within 5 years after the implementation of the rule. The rule is not likely to have an adverse impact on business competitiveness, including the ability of persons doing business in the state to compete with persons doing business in other states or domestic markets, productivity, or innovation in excess of $1 million in the aggregate within 5 years after the implementation of the rule. In addition, the rule is not likely to increase regulatory costs, including any transactional costs, in excess of $1 million in the aggregate within 5 years after the implementation of the rule.

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: 420.507(12) FS.

LAW IMPLEMENTED: 420.507(13), (27) 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: January 16, 2014, 10:00 a.m.

PLACE: Florida Housing Finance Corporation, 227 North Bronough Street, 6th Floor Seltzer Room, Tallahassee, Florida 32301

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Della Harrell, Contracts Manager, Florida Housing Finance Corporation, 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32031-1329, [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

67-49.001 Definitions.

As used in this rule, the term:

(1) “Act” means the Florida Housing Finance Corporation Act, Sections 420.501 through 420.517, F.S., as amended.

(2) “Bidder,” or “Offeror,” or “Respondent” means a person who represents that he or she has the capability in all respects to perform fully the requirements contained in a competitive solicitation the Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications.

(3) No change.

(4) No change.

(5) “Competitive Solicitation,” or “Solicitation,” means any Request for Proposals, Request for Qualifications, Invitation to Bid, Invitation to Negotiate, or other process of requesting and receiving two or more sealed bids, proposals, or replies in accordance with the terms of a competitive process, regardless of the method of procurement, including any publication or transmimission by electronic means.

(6)(5) “Contractor” means a person or entity who enters into a written contract to sell commodities or provide contractual services to the Corporation.

(7)(6) “Contractual Service” means the rendering by a contractor of its time, skill and effort rather than the furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent contractors, and such services may include, evaluations; consultations; maintenance; accounting; security; management systems; management consulting; educational training programs; research and development studies or reports on the findings of consultants engaged there under; and professional, technical, and social services.

(8)(7) “Corporation” means the Florida Housing Finance Corporation.

(8) “Corporation Mailing Date” means the date on which the Corporation mails the Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications to prospective Bidders and Offerors as referenced in subsection 67-49.002(3), F.A.C., hereof.

(9) No change.

(10) “FAR FAW” means the Florida Administrative Register Weekly. All references to FAR in this rule chapter shall also be read to include any other written or electronic publication or information delivery system designated by Florida Statute or by rule of the Florida Department of State or Florida Department of Management Services as an acceptable alternative means of publication.

(11) “Good Purchasing Practices” means obtaining at least two (2) written quotations or making a written record of at least two quotes obtained verbally, including the name and address of the company and amount quoted, for contractual services or Commodities that exceed five thousand ($5,000) 3,000 and are not available through a vendor under a contract negotiated by the Florida Department of Management Services. If an employee of the Corporation receives verbal quotations, they will include the name and address of the company and amount quoted in the required written record. If the Corporation does not obtain at least two (2) quotations, the Corporation shall document as to why they were not obtained.

(12) “Invitation to Bid” means a written solicitation, which includes a solicitation published or transmitted by electronic means, requesting competitive sealed bids specifically defining the commodity, service, group of commodities or group of services for which bids are sought. It includes instructions prescribing all conditions for bidding and shall be available to all prospective bidders simultaneously. A written solicitation includes a solicitation published or transmitted by electronic means.

(13)“Invitation to Negotiate” means a written solicitation, which includes a solicitation published or transmitted by electronic means, requesting competitive sealed responses to select one or more persons or business entities with which to commence negotiations for the procurement of commodities or contractual services.

(14) “Minority Business Enterprise” has the same definition as in Section 288.703, F.S.

(15) “Minor Irregularity” means a variation from in a mandatory term or condition of a competitive solicitation an Invitation to Bid, Invitation to Negotiate, Request for Proposal or Request for Qualifications that does not materially affect the price of the commodity or service, or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, and does not adversely impact the interests of the corporation or the public.

(16) “Publication,” means the publishing or posting of notice regarding solicitations, decisions or intended decisions, or other matters relating to procurement under this rule, on the Corporation website section designated for this purpose,

(17)(16) “Publication Date” means the date on which the Corporation publishes the notice of the availability of the Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications competitive solicitation on the Corporation Website and in the FAR. FAW For purposes of Section 120.57(3), F.S., publication occurs at the time and on the date the notice is posted on the Corporation website or by such other means designated by Florida Statute or by rule of the Florida Department of State or Florida Department of Management Services as an acceptable alternative means of publication. All references to the FAW in this rule chapter shall also be read to include any other written or electronic publication or information delivery system designated by Florida Statute or by rule of the Florida Department of State or Florida Department of Management Services as an acceptable alternative means of publication.

(18)(17) “Request for Proposals” means a written solicitation, which includes a solicitation published or transmitted by electronic means, requesting competitive sealed proposals. The Request for Proposals is used when the Corporation is incapable of specifically defining the scope of work for which the commodity, group of commodities or contractual service is required and when the corporation is requesting that a qualified offeror propose a commodity, group of commodities or contractual service to meet the specifications of the solicitation document. The Request for Proposals includes general information, applicable laws and rules, functional or general specifications, statement of work, proposal instructions and evaluation criteria.

(19)(18) “Request for Qualifications” means a written solicitation, which includes a solicitation published or transmitted by electronic means, requesting competitive sealed qualifications. The Request for Qualifications is utilized when the Corporation does not have a specific immediate need for a particular service, but desires to have qualified individuals or firms under contract which can be assigned duties as the need arises over a period of time. The Request for Qualifications includes general information, applicable laws and rules, functional or general specifications, statement of work, instructions and evaluation criteria.

(20)(19) “Response” means the written submission by a bidder or offeror addressing a competitive solicitation to an Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications.

(21)(20) “Valid Emergency” means a circumstance caused by an unexpected turn of events beyond the control of the Corporation involving the security, integrity or the financial status of the Corporation, or involving public health, welfare, safety, injury or loss.

(22)(21) “Website” means the Florida Housing Finance Corporation website, the Universal Resource Locator (URL) of which is www.floridahousing.org.

Rulemaking Specific Authority 420.507(12) FS. Law Implemented 420.507(13), (27) FS. History–New 1-31-99, Amended 3-12-02, 9-14-03,_________.

 

67-49.002 Procurement of Commodities or Contractual Services.

(1)(a) When the purchase price of a commodity or contractual service does not exceed thirty five twenty-five thousand dollars ($35,000 $25,000) in any fiscal year, including all delivery costs and administrative costs, then the Corporation may proceed with the procurement of commodities or contractual services without a competitive solicitation, bid or competitive proposal, but the Corporation must use good purchasing practices.

(b) When the purchase price of commodities or contractual services exceeds or is estimated to exceed twenty-five thirty-five thousand dollars ($35,000 $25,000), in any twelve (12) month period, purchases of these commodities or contractual services, except as otherwise provided in subsections 67-49.002(4) and (5), and (6), F.A.C., must be made pursuant to a competitive solicitation an Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications.

(2) Public notice of any competitive solicitation. an Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications shall be given in advance of the due date of the Responses as provided herein to permit Bidders and Offerors to prepare and submit responses in a timely fashion. Notice shall include, at a minimum, publication in the FAR FAW.

(3)(a) The Corporation shall post any competitive solicitation an Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications on its Website not later than on or prior to the publication of the FAR FAW notice. There will be a minimum of fourteen (14) days between the publication date of the notice in FAR FAW and the due date of the responses. The competitive solicitation Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications shall describe the commodities or services and require prices, fees, or both to be stated and include the contract period(s).

(b) For those contracts that are subject to renewal, the contract award shall include an evaluation of offers or bids for the entire contract period, including the renewal(s).

(4) Commodities or contractual services which exceed or are estimated to exceed twenty-five thousand dollars ($25,000), in any twelve (12) month period, are exempt from competitive solicitation upon a written determination by the Executive Director of the Corporation that such commodities or services are most readily available from a single source or that the best interests of theCorporation or the public are served by obtaining such commodities or services from a single source.

(4)(5) The purchase of commodities or contractual services are exempt from competitive solicitation if the Corporation purchases such services or commodities from a vendor under a contract negotiated and executed by the Florida Department of Management Services.

(5)(6) The following contractual services and commodities are not subject to the competitive sealed bid requirements of paragraph (1)(b):

(a) No change.

(b) No change.

(c) Auditing services, except for annual audit of the Corporation’s financial statements.

(c)(d) Legal services, including attorney, paralegal, expert witness, appraisal, or mediation services.

(d) Printing and binding of Corporation publications.

(e) Services or commodities provided by governmental entities agencies, including, but not limited to, Florida State Universities and State Community Colleges, or by any independent, nonprofit college or university which is accredited by the Southern Association of Colleges and Schools and is located within the state.

(f) Contracts where the contractor is prescribed by state or federal law, or where payment is established during the appropriations process.

(6) This rule does not apply to any competitive solicitation issued through any corporation prgram to allocate or award funding for the construction, rehabilitation, preservation, or purchase of affordable housing.

Rulemaking Specific Authority 420.507(12) FS. Law Implemented 420.507(13), (27) FS. History–New 1-31-99, Amended 3-12-02, 9-14-03,_________.

 

67-49.003 Withdrawal of a Competitive Solicitation an Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications.

(1) The Corporation may withdraw any competitive solicitation an Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications at any time prior to the due date of the Responses when the withdrawal is determined by the Executive Director to be in the best interest of the Corporation or the public. Notice of such determination shall be posted on the Corporation’s website and published in the next available FAR FAW.

(2) Any bidder or offeror may request to withdraw its response, in writing, at any time prior to a vote by the Corporation’s Board of Directors regarding any Responses received.

Rulemaking Specific Authority 420.507(12) FS. Law Implemented 420.507(13), (27) FS. History–New 1-31-99, Amended 3-12-02, 9-14-03,_________.

 

67-49.0031 Emergency Purchases; Single Source.

(1) The Corporation’s Executive Director may waive any requirement of this rule and permit emergency purchases of commodities and contractual services where a Valid Emergency exists and is documented in writing.

(2) The Board may exempt commodities or contractual services from competitive solicitation requirements upon a determination by the executive director that such commodities or services are most readily available from a single source or that the best interests of the Corporation or the public are served by obtaining such commodities or services from a single source. Upon such determination, the Corporation shall electronically post a description of such commodities or services for at least seven (7) business days, including a request that prospective vendors provide information regarding their ability to supply the described commodities or contractual services sought. If the executive director, after reviewing any information received from prospective vendors, determines that the commodities or contractual services are practically available only from a single source, the Corporation shall provide notice of its intended decision to enter a single-source purchase contract in the manner specified in Section 120.57(3), F.S.

Rulemaking Specific Authority 420.507(12) FS. Law Implemented 420.507(13), (27) FS. History–New 3-12-02, Repromulgated 9-14-03, Amended_________.

 

67-49.004 Modification of Terms of a Competitive Solicitation an Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications.

(1) The Corporation may modify the terms of a competitive solicitation an Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications at any point prior to the due date of the responses. A notice of modification will be posted on the Corporation’s website and sent to all bidders and offerors by facsimile or e-mail. Any bidder or offeror shall have at least seven (7) days from the date of the posting of the notice of the modification to submit or modify its response.

(2) Any bidder or offeror may modify its response at any time prior to the response deadline.

Rulemaking Specific Authority 420.507(12) FS. Law Implemented 420.507(13), (27) FS. History–New 1-31-99, Amended 3-12-02, 9-14-03,_________..

 

67-49.005 Responsibility of Bidders and Offerors.

The failure of a bidder or offeror to supply required information in connection with a competitive solicitation an Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications shall be grounds for a determination of nonresponsiveness with respect to its response. If a determination of nonresponsiveness is made by the Corporation, the response will not be considered.

Rulemaking Specific Authority 420.507(12) FS. Law Implemented 420.507(13), (27) FS. History–New 1-31-99, Amended 3-12-02, Repromulgated 9-14-03, Amended_________.

 

67-49.007 Evaluation of Responses.

The Corporation shall establish a review committee composed only of employees of the Corporation to evaluate responses to a competitive solicitation, and shall an Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications which committee shall provide findings, recommendations, or both to the Board of Directors of the Corporation.

Rulemaking Specific Authority 420.507(12) FS. Law Implemented 420.507(13), (27) FS. History–New 1-31-99, Amended 3-12-02, Repromulgated 9-14-03, Amended_________.

 

67-49.011 Nonresponsive Bids.

If not more than one responsive bid, proposal, or response to any competitive solicitation Invitation to Negotiate, and Request for Qualifications is received, the Corporation shall negotiate for the commodities or services sought, on the best terms and conditions. The Corporation shall document the reasons that such action is in the best interest of the Corporation state in lieu of resoliciting. Invitation to Bid, Invitation to Negotiate, Request for Proposals or Request for Qualifications.

Rulemaking Specific Authority 420.507(12) FS. Law Implemented 420.507(13), (27) FS. History–New 9-14-03, Amended_________.

 

67-49.012 Contract Manager Administrator.

The For each contract, the Corporation shall designate an employee to function as contract manager administrator who shall be responsible for preparing solicitations for publication, for publishing notice of solicitations, review committee meetings, and board awards, preparing drafts of contracts, maintaining contract files, financial information, and tracking system on all contractual services contracts, posting notice of maintaining a file system to track containing all financial information concerning the contract, and enforcing performance of the contract terms and conditions, and servinge as liaison with the contractor for solicitations and contracts under this rule.

Rulemaking Specific Authority 420.507(12) FS. Law Implemented 420.507(13), (27) FS. History–New 9-14-03, Amended_________.

 

67-49.013 Contracts; Terms, Amendments, Renewals.

(1) Each contract shall embody all provisions and conditions of the procurement including at a minimum:

(a) Requirements that bills or fees for services or expenses be submitted in detail sufficient for audit;

(b) Requirements that travel expense bills or reimbursements not exceed the maximums provided in Section 112.061, F.S.;

(c) A clear statement of the scope of services and deliverables required by the contractor;

(d) Criteria for, and schedules of, payments owed by the Corporation; and

(e) Provision for termination, including termination by the Corporation for failure to comply with Section 119.0701, F.S.

(2) Each contract may provide for amendment agreed in writing by the parties.

(3) Each contract may provide for renewal periods not to exceed three years or the original term of the contract, whichever is longer.

(a) Fees may be renegotiated as part of the renewal.

(b) Renewals shall be contingent upon satisfactory performance evaluation by the Corporation and subject to the availibility of funds.

(4) Contracts shall be executed by the executive director or a designee.

Rulemaking Authority 420.507(12) FS. Law Implemented 420.507(13), (27) FS. History–New_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Wellington H. Meffert II, General Counsel, Florida Housing Finance Corporation, 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32031-1329, [phone]

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Bernard E. Smith, Chair of the Board, Florida Housing Finance Corporation, 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32031-1329, [phone]

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 13, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: November 13, 2013