Senate Bill 1188 (2023) — Contract liability
SB 1188
Florida Bills
Florida Senate - 2023 SB 1188 By Senator Boyd 20-01811A-23 20231188__ Page 1 of 6 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1
An act relating to contract liability; amending s. 2 287.058, F.S.; requiring that certain procurement 3 contracts contain a provision specifying a finite 4 maximum limit of liability for a contractor; requiring 5 maximum liability terms for such contract or purchase 6 order to be specified as a defined monetary threshold 7 or formula; providing applicability; reenacting ss. 8 287.0571(5) and 1002.84(13), F.S., relating to 9 contract requirements for proposed outsourcing and 10 procurement contract requirements for early learning 11 coalitions, respectively, to incorporate the amendment 12 made to s. 287.058, F.S., in references thereto; 13 providing an effective date. 14 15 Be It Enacted by the Legislature of the State of Florida: 16 17
Section 1. Present paragraph (
i) of subsection (1) of 18
section 287.058, Florida Statutes, is redesignated as paragraph 19 (j), and a new paragraph (
i) is added to that subsection, to 20 read: 21 287.058 Contract document.— 22
(1) Every procurement of contractual services in excess of 23 the threshold amount provided in s. 287.017 for CATEGORY TWO, 24 except for the providing of health and mental health services or 25 drugs in the examination, diagnosis, or treatment of sick or 26 injured state employees or the providing of other benefits as 27 required by
chapter 440, shall be evidenced by a written 28 agreement embodying all provisions and conditions of the 29
Florida Senate - 2023 SB 1188 20-01811A-23 20231188__ Page 2 of 6 CODING: Words stricken are deletions; words underlined are additions. procurement of such services, which shall, where applicable, 30 include, but not be limited to, a provision: 31 (
i) Specifying a finite maximum limit of liability for the 32 contractor by a defined monetary threshold or monetary formula. 33 1. Liability terms as enumerated under any contract or 34 purchase order of a governmental entity must specify a defined 35 monetary threshold or monetary formula that establishes the 36 maximum liability of the contractor for the contract or purchase 37 order. 38 2.
The monetary threshold or monetary formula may not apply 39 to claims arising under separate contractual provisions specific 40 to indemnification. 41 42 In lieu of a written agreement, the agency may authorize the use 43 of a purchase order for classes of contractual services if the 44 provisions of paragraphs (a)-(j) (a)-(
i) are included in the 45 purchase order or solicitation. The purchase order must include, 46 but need not be limited to, an adequate description of the 47 services, the contract period, and the method of payment. In 48 lieu of printing the provisions of paragraphs (a)-(
c) and (
g) in 49 the contract document or purchase order, agencies may 50 incorporate the requirements of paragraphs (a)-(
c) and (
g) by 51 reference. 52
Section 2. For the purpose of incorporating the amendment 53 made by this act to
section 287.058, Florida Statutes, in a 54 reference thereto, subsection (5) of
section 287.0571, Florida 55 Statutes, is reenacted to read: 56 287.0571 Business case to outsource; applicability.— 57
(5) In addition to the contract requirements provided in s. 58
Florida Senate - 2023 SB 1188 20-01811A-23 20231188__ Page 3 of 6 CODING: Words stricken are deletions; words underlined are additions. 287.058, each contract for a proposed outsourcing, pursuant to 59 this section, must include, but need not be limited to, the 60 following contractual provisions: 61 (
a) A scope-of-work provision that clearly specifies each 62 service or deliverable to be provided, including a description 63 of each deliverable or activity that is quantifiable, 64 measurable, and verifiable. This provision must include a clause 65 that states if a particular service or deliverable is 66 inadvertently omitted or not clearly specified but determined to 67 be operationally necessary and verified to have been performed 68 by the agency within the 12 months before the execution of the 69 contract, such service or deliverable will be provided by the 70 contractor through the identified contract-amendment process. 71 (
b) A service-level-agreement provision describing all 72 services to be provided under the terms of the agreement, the 73 state agency’s service requirements and performance objectives, 74 specific responsibilities of the state agency and the 75 contractor, and the process for amending any portion of the 76 service-level agreement. Each service-level agreement must 77 contain an exclusivity clause that allows the state agency to 78 retain the right to perform the service or activity, directly or 79 with another contractor, if service levels are not being 80 achieved. 81 (
c) A provision that identifies all associated costs, 82 specific payment terms, and payment schedules, including 83 provisions governing incentives and financial disincentives and 84 criteria governing payment. 85 (
d) A provision that identifies a clear and specific 86 transition plan that will be implemented in order to complete 87
Florida Senate - 2023 SB 1188 20-01811A-23 20231188__ Page 4 of 6 CODING: Words stricken are deletions; words underlined are additions. all required activities needed to transfer the service or 88 activity from the state agency to the contractor and operate the 89 service or activity successfully. 90 (
e) A performance-standards provision that identifies all 91 required performance standards, which must include, at a 92 minimum: 93 1. Detailed and measurable acceptance criteria for each 94 deliverable and service to be provided to the state agency under 95 the terms of the contract which document the required 96 performance level. 97 2. A method for monitoring and reporting progress in 98 achieving specified performance standards and levels. 99 3. The sanctions or disincentives that shall be imposed for 100 nonperformance by the contractor or state agency. 101 (
f) A provision that requires the contractor and its 102 subcontractors to maintain adequate accounting records that 103 comply with all applicable federal and state laws and generally 104 accepted accounting principles. 105 (
g) A provision that authorizes the state agency to have 106 access to and to audit all records related to the contract and 107 subcontracts, or any responsibilities or functions under the 108 contract and subcontracts, for purposes of legislative 109 oversight, and a requirement for audits by a service 110 organization in accordance with professional auditing standards, 111 if appropriate. 112 (
h) A provision that requires the contractor to interview 113 and consider for employment with the contractor each displaced 114 state employee who is interested in such employment. 115 (
i) A contingency-plan provision that describes the 116
Florida Senate - 2023 SB 1188 20-01811A-23 20231188__ Page 5 of 6 CODING: Words stricken are deletions; words underlined are additions. mechanism for continuing the operation of the service or 117 activity, including transferring the service or activity back to 118 the state agency or successor contractor if the contractor fails 119 to perform and comply with the performance standards and levels 120 of the contract and the contract is terminated. 121 (
j) A provision that requires the contractor and its 122 subcontractors to comply with public records laws, specifically 123 to: 124 1. Keep and maintain the public records that ordinarily and 125 necessarily would be required by the state agency in order to 126 perform the service or activity. 127 2. Provide the public with access to such public records on 128 the same terms and conditions that the state agency would 129 provide the records and at a cost that does not exceed that 130 provided in
chapter 119 or as otherwise provided by law. 131 3. Ensure that records that are exempt or records that are 132 confidential and exempt are not disclosed except as authorized 133 by law. 134 4. Meet all requirements for retaining records and transfer 135 to the state agency, at no cost, all public records in 136 possession of the contractor upon termination of the contract 137 and destroy any duplicate public records that are exempt or 138 confidential and exempt.
All records stored electronically must 139 be provided to the state agency in a format that is compatible 140 with the information technology systems of the state agency. 141 (k)1. A provision that provides that any copyrightable or 142 patentable intellectual property produced as a result of work or 143 services performed under the contract, or in any way connected 144 with the contract, shall be the property of the state, with only 145
Florida Senate - 2023 SB 1188 20-01811A-23 20231188__ Page 6 of 6 CODING: Words stricken are deletions; words underlined are additions. such exceptions as are clearly expressed and reasonably valued 146 in the contract. 147 2. A provision that provides that, if the primary purpose 148 of the contract is the creation of intellectual property, the 149 state shall retain an unencumbered right to use such property. 150 (
l) If applicable, a provision that allows the agency to 151 purchase from the contractor, at its depreciated value, assets 152 used by the contractor in the performance of the contract. If 153 assets have not depreciated, the agency shall retain the right 154 to negotiate to purchase at an agreed-upon cost. 155
Section 3. For the purpose of incorporating the amendment 156 made by this act to
section 287.058, Florida Statutes, in a 157 reference thereto, subsection (13) of
section 1002.84, Florida 158 Statutes, is reenacted to read: 159 1002.84 Early learning coalitions; school readiness powers 160 and duties.—Each early learning coalition shall: 161
(13) Comply with federal procurement requirements and the 162 procurement requirements of ss. 215.971, 287.057, and 287.058, 163 except that an early learning coalition is not required to 164 competitively procure direct services for school readiness 165 program and Voluntary Prekindergarten Education Program 166 providers. 167