DEPARTMENT OF ENVIRONMENTAL PROTECTION
RULE NO.: RULE TITLE:
62-772.300 Contractor Qualifications and Performance Reviews
62-772.401 Alternative Contractor Selection
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 41 No. 150, August 4, 2015 issue of the Florida Administrative Register.
The following changes were made in response to comments from the Joint Administrative Procedures Committee.
62-772.401 Alternative Contractor Selection and Assignment.
(1) No change.
(2) The selection of the contractor Ffor sites in Advanced Cleanup under Section 376.30713, F.S., the Petroleum Cleanup Participation Program under Section 376.3071(13), F.S., or and Site Rehabilitation Funding Allocation Agreements under Section 376.30714, F.S., will be negotiated between the Department and the participant or applicant will negotiate 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, or the site will reach a funding cap under Section 376.3072(2)(a)3., or (2)(d)2.c., or d., F.S., then the participant or applicant may provide a recommendation to the Department regarding the assignment of an existing select any agency term contractor procured and retained pursuant to Rule 62-772.400. If a participant or applicant has recommended an agency term contractor and the Department plans to reject the recommendation, the Department shall provide its reasons in writing to the participant or applicant. Such rejection can be based upon the agency term contractor’s performance review pursuant to subsection 62-772.300(6), the status of the contractor’s qualifications pursuant to Rule 62‑772.300, F.A.C., or whether the contractor is in compliance with the terms of its agency term contract. 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 assignment selection.
(3) Conditional Closure Voluntary Cost Share Agreements. For sites eligible for the Early Detection Incentive Program under Section 376.3071(10), F.S., Petroleum Liability and Restoration Insurance Program under Section 376.3072. F.S., Abandoned Tank Restoration Program under Section 376.305(6), F.S., or Innocent Victim Petroleum Storage System Restoration Program under Section 376.30715, F.S., the participant, where the Department and its contractors have been granted site access, may request to enter into a conditional closure agreement with the Department. Such an agreement shall provide a commitment by the participant, and by the current real property owner(s) of the subject property if different from the participant, to a conditional closure in accordance with Rule 62-780.680(2) or 62-780.680(3), F.A.C., based on site specific information. As a part of this agreement, the participant may make a recommendation to the Department regarding the assignment of an existing select any agency term contractor procured and retained pursuant to Rule 62-772.400 for petroleum contaminated site response actions. If a participant recommends an agency term contractor and the Department plans to reject the recommendation, the Department shall provide its reasons in writing to the participant, at such time the participant may recommend another agency term contractor or withdraw its request to participate in a conditional closure agreement. The Department’s rejection can be based upon the agency term contractor’s performance review pursuant to subsection 62-772.300(6), the status of the contractor’s qualifications pursuant to Rule 62‑772.300, F.A.C., or whether the contractor is in compliance with the terms of its agency term contract. at sites where the Department and its agents have been granted site access, and where the participant enters into and complies with a voluntary cost share agreement. that:
(a) Provides for the participant to pay 25% or more of the cleanup cost, or
(b) Iincorporates a committment agreement by the participant, and by the current real property owner(s) of the subject property if different from the participant, with a conditional closure in accordance with Rule 62-780.680(2) or 62-780.680(3), F.A.C., for which a cost savings of 25% or more was demonstrated based on site specific information compared to an unconditional closure using current agency term contractor rates, or
(c) Would result in any combination of options (a) and (b) above with a total cost savings of 25% or more of the expected cleanup costs.
(4) Voluntary Cost Share Agreements for Advanced Cleanup Sites. For sites eligible for consideration for advanced cleanup pursuant to Section 376.30713, F.S., and where the Department and its agents have been granted site access, a qualified applicant under Section 376.30713(2), F.S., may enter into a Voluntary Cost Share Agreement that identifies those sites which the applicant commits to include in future advanced cleanup applications to be submitted in accordance with Section 376.30713(2), F.S., The voluntary cost share agreement shall include a commitment for the qualified applicant to pay a cost share amount equal or greater than the amount specified under Section 376.30713(2)(a), F.S., The cost share agreement shall specify that the Department may terminate the voluntary cost-share agreement where the qualified applicant fails to submit an application to bundle any listed sites, not already covered by an advance cleanup contract, within a subsequent open application period in which the qualified applicant is eligible to participate.
(4)(5) Sites for which a participant or a qualified applicant have submitted a written request to enter into a conditional closure voluntary cost share agreement and are negotiating with the Department in accordance with this subsection, shall not be subject to contractor assignment pursuant to subsections 62-772.400(3), (4) and (5), F.A.C., during the review and negotiation period, and while the participant or qualified applicant complies with the agreement once effective. The Department reserves the right to terminate negotiations if the participant or qualified applicant does not respond to requests for additional supporting documentation within 30 days of that person’s receipt of such a written request, or if a conditional closure voluntary cost share agreement is not effective within 60 days of the date such a written agreement is sent to the participant or qualified applicant for execution. This provision does not change the requirement for cleanup funding based on the site priority ranking established pursuant to Section 376.3071(5)(a), F.S., except as otherwise provided for advanced cleanup sites under Section 376.30713, F.S.
(5)(6) Sites submitted for a conditional closure voluntary cost share agreement under subsections (3) or (4), and already subject to assignment to another qualified contractor for state-funded petroleum site rehabilitation under this chapter, shall continue under such assignment until the period of performance therein expires.
Rulemaking Authority 287.0595, 376.303, 376.3071 FS. Law Implemented 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.3071(12)(b), 376.3071(13)(c), 376.30713, 376.30713(3)(a), 376.30714, 376.30714(4), 376.30715, 376.30716, 376.3072 FS. History–New 1-16-14, Amended,_________.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS:
Rebecca Robinette, Senior Assistant General Counsel, Florida Department of Environmental Protection, Office of General Counsel, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000, (850)245-2278, rebecca.robinette@dep.state.fl.us.
