To update and clarify the rules, along with incorporated forms, and to implement Chapters 2021-076, 2021-225, and 2021-227 L.O.F.

 

DEPARTMENT OF MANAGEMENT SERVICES

Division of Purchasing

RULE NOS.:RULE TITLES:

60A-1.031MyFloridaMarketPlace Transaction Fee and Exceptions

60A-1.033MyFloridaMarketPlace Vendor Requirements

60A-1.041Contract Manager and Negotiator Certifications

60A-1.043Request for Quotes

60A-1.045Alternative Purchasing Methods

PURPOSE AND EFFECT: To update and clarify the rules, along with incorporated forms, and to implement Chapters 2021-076, 2021-225, and 2021-227 L.O.F.

SUMMARY: The proposed amendments update MyFloridaMarketPlace requirements, certification requirements and application procedures, procedures for requesting quotes, and approval procedures for use of alternative purchasing methods.

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 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: 286.101(9)(a), 287.032(2), 287.042(12), 287.057(15), (17), (18), (24), (24)(b), F.S.

LAW IMPLEMENTED: 286.101, 287.017, 287.032, 287.042(1)(h), (3), (3)(g), (4), (8), (9), (12), (16), 287.056(2), 287.057(3), (14), (24), 287.0591(5), F.S.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: 286.101, 287.017, 287.032, 287.042(1)(h), (3), (3)(g), (4), (8), (9), (12), (16), 287.056(2), 287.057(3), (14), (24), 287.0591(5), F.S.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

Substantial rewording of Rule 60A-1.031, F.A.C., follows. See Florida Administrative Code for present text.

60A-1.031 MyFloridaMarketPlace Transaction Fee and Exceptions.

(1) The State of Florida, through the Department of Management Services, has instituted MyFloridaMarketPlace (MFMP), a statewide eProcurement system pursuant to section 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 a State Term Contract or Alternate Contract Source shall be assessed the Transaction Fee, unless exempt.

(2) Vendors shall pay the Transaction Fee and are subject to automatic deduction of the Transaction Fee when automatic deduction becomes available.

(3) Each Agency shall include the following statement in all Contracts and Purchase Orders, including the solicitation thereof, for purchases of Commodities or Contractual Services 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 section 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 payments as follows:

(a) Vendors on an active State Term Contract or Alternate Contract Source shall report monthly at https://vendor.myfloridamarketplace.com, the total amount of payments received from 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 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) If the total Transaction Fee amounts outstanding are less than $50, a vendor may carry over payment of the

balance to the next monthly reporting period.

(d) A vendor is not required to report payments exempt from the Transaction Fee set forth under this rule.

(e) Failure to comply with the payment of the Transaction Fee or reporting of payments may subject the vendor to being suspended from business with the State.

(5) The following purchases are excluded from payment of the Transaction Fee and the reporting requirements set forth herein:

(a) Purchases where payments are made utilizing the State’s Purchasing Card program.

(b) Purchases where payments are made utilizing the State’s Fuel Card program.

(c) Purchases of Commodites or Contractual Services under section 287.055, F.S.

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

(a) Transactions with an entity designated as non-profit under the Internal Revenue Code and registered with the Secretary of the State of Florida pursuant to applicable Florida Statutes, unless such entity is awarded a contract following a competitive solicitation involving for-profit entities and the contract, if it had been awarded to a for-profit entity, would have been subject to the Transaction Fee.

(b) Transactions with 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 contract following a competitive solicitation involving for-profit entities and the contract, if it had been awarded to a for-profit entity, would have been subject to the Transaction Fee.

(c) Transactions in which law or government regulation requires that the commodity or service be provided by a sole provider (e.g., regulated utilities, legislatively mandated transactions, etc.).

(d) Transactions established by an agreement, pursuant to law, implementing a state or federal program or grant.

(e) Payments to unregistered vendors under Rule subsection 60A-1.033(2), F.A.C.

(f) Payments to a vendor in exchange for providing health care services at or below Medicaid rates.

(g) Disbursements of State financial assistance to a recipient as defined in the Florida Single Audit Act, section 215.97, F.S.; disbursements of federal awards to sub-recipients as defined in 2 C.F.R. 200; payments of State dollars to satisfy federal maintenance of efforts requirements; and payments of State dollars for matching federal awards.

(h) Transactions associated with a gubernatorial suspension of purchasing regulations due to an emergency.

(i) Transactions associated with an Agency Head’s declaration of an emergency under section 287.057(3)(a), F.S.

(j) Transactions associated with the purchase of insurance pursuant to section 287.022, F.S.

(7) An Agency, or an Eligible User of 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 Agency or Eligible User shall submit Form PUR 3778, Request for Transaction Fee Exemption, effective xx/2022, hereby incorporated by reference, and available at [FAR link] or on the Department’s website at http://www.dms.myflorida.com/mfmp_forms. Form PUR 3778 shall be completed by the 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 Agency or Eligible User need not request exemption of subsequent related transactions (e.g., individual payments under the same contract).

(8) Vendors must register pursuant to Rule 60A-1.033, F.A.C., regardless of a particular transaction being exempt from the Transaction Fee.

Rulemaking Authority 287.032(2), 287.042(12), 287.057(24) 287.057(23) FS. Law Implemented 287.032, 287.042(1)(h) 287.042, 287.057(24) 287.057 FS. History–New 7-1-03, Amended 2-11-04, 11-7-04, 3-2-17, ________.

Substantial rewording of Rule 60A-1.033, F.A.C., follows. See Florida Administrative Code for present text.

 

60A-1.033 MyFloridaMarketPlace Vendor Registration and Agency Requirements.

(1)    To qualify to provide Commodities and Contractual Services to the State of Florida, a vendor shall:

(a)  Register with MyFloridaMarketPlace (MFMP). 

1. Registration can be completed at www.vendor.myfloridamarketplace.com by providing the following information: company name, tax ID type, tax ID, username, password, contact information, 1099 name, business designation (e.g. corporation, non-profit, sole-proprietorship), primary place of business, woman-, minority-, or veteran-owned business status, at least one business location, either at least one commodity code or confirm it does not intend to choose a commodity code, solicitation notification preference.

(b)  Accept the MFMP Terms of Use.

1. The MFMP Terms of Use, effective XX/2022, are hereby incorporated by reference and available on the Department’s website at http://www.dms.myflorida.com/vip_terms_of_use and [FAR link]. Vendors shall indicate acceptance of the MFMP Terms of Use by clicking the “I Accept the Terms of Use” button within the MFMP system (Form PUR 3775, Accept Terms of Use), effective XX/2022, hereby incorporated by reference, and available within the MFMP system and at [FAR link].

(2)    An Agency shall:

(a)  Enter into agreements for Commodities or Contractual Services only with registered vendors unless the transaction is being consummated utilizing a State Purchasing Card or the Fuel Card programs, or portions of the transaction are exempt from disclosure under Chapter 119, F.S.

(b)  Appoint at least one MFMP Agency Administrator responsible for creating and managing user accounts, assigning the appropriate permissions within the Agency, and ensuring proper access to the MFMP system.

(c)  Prior to entering any data or uploading attachments into MFMP, review and redact all protected health information as defined in the Health Insurance Portability and Accountability Act of 1996, as well as any information that is exempt or confidential and exempt pursuant to Chapter 119, F.S., or other Florida or Federal law (“Confidential Information”).

(d)  If any protected health information or Confidential Information has been entered into MFMP, and an Agency can no longer redact the information in MFMP, the Agency shall complete the PUR 3785, MFMP Confidential Information Removal Request Form, effective XX/2022, which is hereby incorporated by reference and available on the Department’s website at http://www.dms.myflorida.com/mfmp_forms and [FAR link].  A completed Form PUR 3785 shall be submitted by email to [e-mail].

(3)  Vendors and Agencies shall utilize the United Nations Standard Product and Services Code (UNSPSC®) for all purchases of Commodities or Contractual Services.  The UNSPSC® is available at http://www.dms.myflorida.com/commodity_codes.

(4)  At least once every five years, the Department shall conduct a screening of all vendors registered in MFMP having the capacity to fill an order of $100,000 or more, as self-reported by the vendor in MFMP, to locate those persons and organizations identified by a federal agency as being subject to a trade sanction, embargo, or other restriction under federal law. Such screening will include a review of any trade sanction or embargo list published by the United States Department of Treasury, the United States Federal Trade Commission, the United States Department of Commerce, the United States Department of State, the United States Department of Defense, and the United States Department of Energy, as well as any federal agency list which identifies a vendor as being subject to a federal restriction which impacts a vendor’s capability to provide commodities or services in the United States.

(5) Vendors will receive a general notification of the disclosure requirements contained in section 286.101, F.S., within the MFMP system. Additionally, upon completion of the screening required by section 286.101(4), F.S., the Department will issue a written notification via the vendor’s email of record in MFMP to each vendor identified as being subject to a trade sanction, embargo, or other restriction under federal law regarding the applicability of the disclosure requirements in section 286.101(3), F.S. It is the responsibility of every vendor registered in MFMP to maintain a current email address of record in MFMP where the Department may provide its written notice of disclosure requirements when applicable.

(6) The Department will provide a link in MFMP for purchasers to access all vendor disclosures required by section 286.101, F.S.

Rulemaking Authority 286.101(9)(a), 287.032(2), 287.042(12), 287.057(24)(b) 287.057(23)(b) FS. Law Implemented 286.101, 287.042(3), (4), (8), (12), 287.057(24) 287.057(23)(b) FS. History–New 10-15-06, Amended 3-2-17,             .

 

Substantial rewording of Rule 60A-1.041, F.A.C., follows. See Florida Administrative Code for present text.

60A-1.041 Contract Manager and Negotiator Certifications.

(1) Florida Certified Contract Manager (FCCM) and Florida Certified Contract Negotiator (FCCN) certifications shall be offered only to employees of Florida Governmental Entities.

(2) FCCN Certification.

(a) Employees seeking FCCN Certification must complete and submit Form PUR 2011, “Florida Certified Contract Negotiator Application,” revised xx/2022, incorporated herein by reference and available at [FAR link] or on the Department’s website at dms.myflorida.com, along with supporting documentation, to [e-mail].

(b) Employees must provide documentation to show compliance with the experience and participation requirements when submitting Form PUR 2011. The Department’s decision on an employee’s compliance with the experience and participation requirements is final.

(3) FCCN Recertification.

(a) Employees seeking FCCN recertification must complete and submit Form PUR 2011, along with supporting documentation, to [e-mail].

(b) Employees must provide documentation to show compliance with the experience and participation requirements when submitting Form PUR 2011. The Department’s decision on an employee’s compliance with the experience and participation requirements is final.

Rulemaking Authority 287.032(2), 287.042(12), 287.057(15), (17), (18),(24) 287.057(16)(b) FS. Law Implemented 287.057(14), 287.042(11), 287.057(15), (17), (18) 287.057(16) FS. History–New 8-19-04, Amended 3-28-07, 4-25-17,                .

 

60A-1.043 Request for Quotes from State Term Contracts.

(1) Agencies shall request at least two (2) quotes from state term contracts with multiple vendors, unless (i) the purchase is less than Category One, or (ii) the state term contract requires otherwise. Agencies shall document the justification for a selection based on receipt of less than two quotes.

(2) Agencies shall document Requests for Quotes with, at a minimum, the name of each responding vendor, the price, and the Ccommodities or Ccontractual Sservices to be provided.

(2) (3) Agencies shall base any purchase from Requests for Quotes on a determination of best value.

(3) Agencies shall document the justification for any selection based on receipt of fewer than two quotes.

(4) For the purchase of Contractual Services and information technology (IT) Commodities, Agencies shall follow the purchasing practices prescribed in sections 287.056 and 287.0591, F.S.

(5) For the purchase of non-IT Commodities, Agencies shall request at least 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,      .

 

60A-1.045 Alternative Purchasing Methods.

(1) Agencies intending to purchase Ccommodities or Ccontractual Sservices in excess of CATEGORY TWO from a single source shall electronically post Form PUR 7776 “Description of Intended Single Source Purchase,” revised xx/2022 effective January 2016, which is incorporated herein by reference and available at [FAR link] https://www.flrules.org/Gateway/reference.asp?No=Ref-06473, or on the Department’s website at http://dms.myflorida.com/purforms http://www.dms.myflorida.com/business_operations/state_purchasing/documents_forms_references_resources/purchasing_forms. Form PUR 7776 requests that prospective vendors provide information regarding their ability to supply the Ccommodities or Ccontractual Sservices described.

(2) Agencies shall provide notice of  their determination that the Ccommodities or Ccontractual Sservices are available only from a single source by electronically posting Form PUR 7778 “Notice of Intended Decision to Enter Into a Single Source Contract,” revised xx/2022 effective January 2016, which is incorporated herein by reference and available at [FAR link] https://www.flrules.org/Gateway/reference.asp?No=Ref-06474, or on the Department’s website at http://dms.myflorida.com/purforms http://www.dms.myflorida.com/business_operations/state_purchasing/documents_forms_references_resources/purchasing_forms.

(3) Agencies shall report all single source action(s) quarterly by submitting Form PUR 7779, “Single Source Action Agency Report Form,” effective xx/2022, which is hereby incorporated by reference and available at [FAR link] or on the Department’s website at http:dms.myflorida.com/purforms. All single source actions must be reported to the Department no later than ten (10) calendar days after the end of the quarter in which the action was completed, with the first quarter beginning on July 1 of each state fiscal year.

(4) (3) For emergency purchases of Ccommodities or Ccontractual Sservices, Aagencies must complete and furnish to the Department, Form PUR 7800 “Notice of Emergency Purchase,” revised xx/2022 effective January 2017, which is hereby incorporated by reference and available at [FAR link] https://www.flrules.org/Gateway/reference.asp?No=Ref-07874, or on the Department’s website at http://dms.myflorida.com/purforms http://www.dms.myflorida.com/business_operations/state_purchasing/documents_forms_references_resources/purchasing_forms.

(5) (4) No change.

(6) (5) An Aagency must request approval from the Department to purchase Ccommodities or Ccontractual Sservices from contracts competitively established by another Aagency, 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/2022 effective January 2017, which is hereby incorporated by reference and available at [FAR link] https://www.flrules.org/Gateway/reference.asp?No=Ref-07873, or on the Department’s website at http://dms.myflorida.com/purforms http://www.dms.myflorida.com/business_operations/state_purchasing/documents_forms_references_resources/purchasing_forms. The ACS contract must contain specific language authorizing third parties to make purchases from the contract with the vendor’s consent.

(7) (6) In addition, a list of current ACS contracts for use by all Aagencies is available at http://dms.myflorida.com/contracts http://dms.myflorida.com.

Rulemaking Authority 287.032(2), 287.042(12) FS. Law Implemented 287.017, 287.042 (9), (16), 287.057(3), (14) (13) 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,               .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Gerard Steele, Governance and Training Manager, Department of Management Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: J. Todd Inman, Secretary, Department of Management Services

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 13, 2022

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 11/01/2021