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PUBLIC PURCHASING IN FLORIDA. ELEMENTS IN THE PURCHASING PROCESSES (REV. 05/27/08). ELEMENTS IN THE PURCHASING PROCESSES. TEAM/INDIVIDUAL ROLES & RESPONSIBILITIES VENDOR QUESTIONS AND PURCHASING ANSWERS CONDUCTING PRE-BID/PROPOSAL CONFERENCES AMENDING A SOLICITATION.

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PUBLIC PURCHASING IN FLORIDA

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PUBLIC PURCHASINGIN FLORIDA

ELEMENTS IN THE PURCHASING PROCESSES

(REV. 05/27/08)


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ELEMENTS IN THE PURCHASING PROCESSES

  • TEAM/INDIVIDUAL ROLES & RESPONSIBILITIES

  • VENDOR QUESTIONS AND PURCHASING ANSWERS

  • CONDUCTING PRE-BID/PROPOSAL CONFERENCES

  • AMENDING A SOLICITATION


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ELEMENTS IN THE PURCHASING PROCESSES

  • REVISING A DUE DATE

  • RECEIVING BIDS AND PROPOSALS

  • HANDLING LATE BIDS

  • OPENING BIDS AND PROPOSALS

  • DEBRIEFING VENDORS

  • CONDUCTING DISCUSSIONS/NEGOTIATIONS


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ELEMENTS IN THE PURCHASING PROCESSES

  • RESOLVING TIE BIDS

  • BEST AND FINAL OFFERS

  • DETERMINING RESPONSIVENESS & RESPONSIBILITY

  • MISTAKES IN BIDS AND PROPOSALS

  • POSTING INTENDED DECISIONS

  • HANDLING PROTESTS, INCLUDING FLORIDA CASES


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ELEMENTS IN THE PURCHASING PROCESSES

  • MAINTAINING A PROCUREMENT FILE

  • PUBLIC RECORDS REQUESTS

  • DEFERRED PAYMENT CONTRACTS

  • BLANKET PURCHASE ORDERS

  • EMERGENCY MANAGEMENT


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ELEMENTS IN THE PURCHASING PROCESSES

TEAM/INDIVIDUAL ROLES & RESPONSIBILITIES


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TEAM/INDIVIDUAL ROLES & RESPONSIBILITIES

  • Every purchase order or contract is the result of teamwork to some extent, if only in the sense that several folks play roles

  • Some teams are based on more or less permanent roles, and meet haphazardly if at all

  • Some teams are formally organized, for a special purpose, and are temporary in nature


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TEAM/INDIVIDUAL ROLES & RESPONSIBILITIES

Typical participants in purchasing processes are

  • The end user, or customer,

  • Customer management,

  • Budget,

  • Purchasing,

  • Oftentimes technical support

  • And legal counsel.


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END USER REPRESENTATIVE

  • Primary responsibility for understanding program operations & requirements

  • Primary responsibility for determining what is needed, when & where

  • Primary responsibility for planning ahead

  • Responsible for some knowledge of budget & purchasing process impacts

  • Responsible for initiating the requisition & program management approval


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CUSTOMER MANAGEMENT

  • Responsible for managing program personnel, requirements and competing priorities

  • Responsible for some knowledge of budget & purchasing process impacts

  • Responsible for the go/no go decision


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BUDGET

Responsible for assuring availability of funds, and setting those funds aside for the intended purchase


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PURCHASING

  • Primarily responsible for understanding purchasing statutes, rules, policies and procedures.

  • Primarily responsible for understanding good purchasing theory & practice, and the mission of the purchasing office.

  • Primarily responsible for using the formerto accomplish the latter!


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PURCHASING

  • Capable of working with all levels of the organization to advise and assist in planning, execution, presentation and defense.

  • Able to determine, advise and implement the best resolution for procurement problems, before, during and after the purchasing process.


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PURCHASING

Rule 60A-1.016(3), Fla. Admin. Code

Responsibility of the Chief Procurement Officer of each agency:

  • Secure all unused purchase orders

  • Maintain & account for file of all POs issued or voided

  • Maintain a record of those authorized to sign POs

  • Monitor and review use of Purchase Orders & Field POs


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PURCHASING

  • Rule 60A-1.016(3) (continued)

    • Ensure that all POs contain the solicitation number, quantity, description and price, and applicable terms as to payment, discounts, date of performance, transportation, and liquidated damages.


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TECHNICAL SUPPORT

  • Many purchases today are technically complex, and require differing levels of participation by technology experts before, during and after the purchase.

  • This can range from simple advice on which off-the-shelf product to purchase, to playing the primary role in developing specifications for technology to meet business needs of the organization, and participating on or leading a negotiating team.


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TECHNICAL SUPPORT: AEITS

Ch. 282.0055, FS,  Assignment of information technology.--In order to ensure the most effective and efficient use of the state's information technology and information technology resources and notwithstanding other provisions of law to the contrary, policies for the design, planning, project management, and implementation of the enterprise information technology services defined in s. 282.0041(8) shall be the responsibility of the Agency for Enterprise InformationTechnology for executive branch agencies created or authorized in statute to perform legislatively delegated functions. The supervision, design, delivery, and management of agency information technology defined in s. 282.0041(5) shall remain within the responsibility and control of the individual state agency.


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CHAPTER 282 FLORIDA STATUTES (SB 1892, pending)

  • SB 1892 is pending signature from the Governor to be placed into law. In essence, guidance on information technology procurement previously administered by the STO is the responsibility of the new AEITS. Communications (SUNCOM) is administered by the Department of Management Services, Communications & Information Technology Services (CITS) Division, such as the CSA process.


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LEGAL COUNSEL

  • A review & approval process for all contractual services contracts over category three ($50,000) shall include, but is not limited to, program, financial and legal review and approval [287.057(19)FS].

  • In addition, counsel is routinely consulted for advice on solicitation and contract terms, and the handling of disputes, including representation before the Division of Administrative Hearings.


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ELEMENTS IN THE PURCHASING PROCESSES

VENDOR QUESTIONS AND PURCHASING ANSWERS


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VENDOR QUESTIONS AND PURCHASING ANSWERS

  • PROACTIVE:

    • PUT PUBLIC INFORMATION ON YOUR WEB SITE

    • PUBLISH A VENDOR GUIDE. DHSMV HAS A GOOD EXAMPLE AT http://www.hsmv.state.fl.us/purchasing/html/vg.html

    • COMPOSE A STANDARD LETTER/EMAIL RESPONSE TO VENDOR INQUIRIES ON HOW TO DO BUSINESS WITH YOUR AGENCY


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VENDOR QUESTIONS AND PURCHASING ANSWERS

  • PROACTIVE (cont.):

    • Provide a formal procedure for questions during competitive solicitations, with the purchasing officer as the sole point of contact.

    • Require that questions be written, and provide due dates and suggested content.


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VENDOR QUESTIONS AND PURCHASING ANSWERS

  • PROACTIVE (cont.): 287.057(4) FS:

    • Prior to the time for receipt of bids, proposals, or replies, an agency may conduct a conference or written question and answer period for purposes of assuring the vendors’ full understanding of the requirements.

    • The vendors shall be accorded fair and equal treatment.


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VENDOR QUESTIONS AND PURCHASING ANSWERS

Recommendation:

  • Distribute questions at the pre-bid/proposal conference, but not answers. Discuss prepared tentative answers, and take notes for review before final answers. Indicate that answers discussed are not final, official nor binding.


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VENDOR QUESTIONS AND PURCHASING ANSWERS

  • Collect all questions, then answer all by written addendum made available to all vendors simultaneously. Include the questions and the answers in the addendum, and provide a point of entry. If appropriate, include revised solicitation pages.


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VENDOR QUESTIONS AND PURCHASING ANSWERS

  • REACTIVE:

    • Respond promptly, fully and courteously to general inquiries.

    • In competitive situations, assure fair and equal treatment, i.e. no early revelations of a competitor’s position, and no information not provided to all participants.

    • Provide information electronically where possible: email, web posting.


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ELEMENTS IN THE PURCHASING PROCESSES

CONDUCTING PRE-BID/PROPOSAL CONFERENCES


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CONDUCTING PRE-BID/PROPOSAL CONFERENCES

Again, reference 287.057(4), FS.

The goal of the meeting is to learn from the potential bidders, and improve the solicitation by resolving ambiguities and contradictions, and improving terms & conditions, specifications, statements of work and performance requirements. Sounds obvious, but…


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CONDUCTING PRE-BID/PROPOSAL CONFERENCES

Recommendations:

  • Provide a calendar of events in the solicitation, with a deadline for questions, 10-15 calendar days after issuance.

  • Provide for a pre-bid/proposal conference 5-7 calendar days after deadline for receipt of questions.


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CONDUCTING PRE-BID/PROPOSAL CONFERENCES

  • Provide for issuance of a written addendum 2-7 calendar days after the pre-proposal conference.

  • Pre-arrange a solicitation team to review questions and prepare answers. Include end user (customer) representative(s), and, as needed, technical and legal members. Usually same team as prepared the solicitation, and to be involved in evaluation.


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CONDUCTING PRE-BID/PROPOSAL CONFERENCES

  • Schedule a team meeting for the day after the question deadline.

  • Distribute questions to the team as they come in.

  • At the team meeting, confirm who will develop answers to which questions, or answer on the fly. Provide deadline for answers no later than day prior to the meeting with vendors.


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CONDUCTING PRE-BID/PROPOSAL CONFERENCES

  • Assign roles for the pre-proposal conference: Lead for the process (purchasing), business process lead, technical lead, etc., and support roles

  • Prepare copies of all questions for distribution to the attendees.

  • At the pre-bid/proposal conference, introduce team members and their roles.


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CONDUCTING PRE-BID/PROPOSAL CONFERENCES

  • Circulate a sign-up sheet collecting names of attendees, firms represented, telephones and emails.

  • Indicate the goal of the meeting.


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CONDUCTING PRE-BID/PROPOSAL CONFERENCES

  • Indicate that the discussion will cover the questions submitted and distributed, without final or binding answers, and advise the anticipated date those will be issued.

  • Indicate that other questions that arise will be addressed to the extent that time and lack of fore-knowledge allow, and request that they be written down and turned in by or at the end of the meeting.


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CONDUCTING PRE-BID/PROPOSAL CONFERENCES

  • Have team members orally present answers to the questions. Remember to pause and invite discussion, and be open. If a participant gives an opinion, remember to ask others for their opinions. Everybody’s got one…


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CONDUCTING PRE-BID/PROPOSAL CONFERENCES

  • On closing, be sure to collect any new questions in writing from the questioner.

  • Remind the participants that the written solicitation has NOT been amended by the discussion, and that any amendment (addendum) will be issued in writing, and electronically posted, and give the estimated date.


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CONDUCTING PRE-BID/PROPOSAL CONFERENCES

  • Prepare draft-final answers, and circulate draft addendum to team for comment prior to issuance. Addendum to include cover letter with point-of-entry language [Chapter 120, FS], copy of meeting sign-in sheet, all questions received, official answers, any schedule changes, and any revised solicitation pages, including attachments.


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CONDUCTING PRE-BID/PROPOSAL CONFERENCES

  • Issue (post) addendum, and copy all procurement team members.

  • AFTER posting, send courtesy email link to the posting web site to participants who provided email addresses at pre-proposal conference or who provided email address before or after and requested notification.


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ELEMENTS IN THE PURCHASING PROCESSES

AMENDING A SOLICITATION


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AMENDING A SOLICITATION

  • ALWAYS make available simultaneously to all vendors, as required by 287.057 for the solicitation itself.

  • ALWAYS provide point-of-entry language per 120.57(3), just as for the original issuance of the solicitation.


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AMENDING A SOLICITATION

"Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."


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AMENDING A SOLICITATION

RECOMMENDATIONS:

  • Provide in draft for approval of the customer and team members before issuance.

  • Copy customer upon issuance: see below.

  • Post the addendum electronically.


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AMENDING A SOLICITATION

RECOMMENDATIONS (cont.)

  • After posting, provide courtesy email with link to web site to vendors known to be interested.

  • Provide an addendum cover letter, sequentially numbered (e.g. Addendum 1) with the solicitation number, (e.g. Bid # N) subject matter and (new?) due date clearly identified.


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AMENDING A SOLICITATION

RECOMMENDATIONS (cont.)

  • Provide an addendum acknowledgement signature block, or electronic acknowledgement, or explicitly indicate that written acknowledgement of the addendum is not required. (When?)

  • State in full the changes, or summarize and reference attached revised or new pages to the solicitation and its attachments.

  • State that “All other terms and conditions remain unchanged.”


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AMENDING A SOLICITATION

RECOMMENDATIONS (con.t)

  • Attaching revised pages, and advising discard of the previous pages, is preferable to requiring the vendor to keep track of all revisions, e.g. penning them in.

  • Make sure you have the revision date on each revised page.


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ELEMENTS IN THE PURCHASING PROCESSES

REVISING A DUE DATE


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REVISING A DUE DATE

  • PURCHASE ORDER

    • CHECK FEASIBILITY WITH VENDOR AND/OR CUSTOMER.

    • ALWAYS REVISE IN WRITING.

    • INDICATE “DUE DATE REVISION ONLY, DO NOT DUPLICATE ORDER.”


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REVISING A DUE DATE

  • ITN/RFP/ITN

    • CHECK FEASIBILITY WITH CUSTOMER, PERHAPS BIDDERS, E.G. AT PRE-BID CONFERENCE.

    • ALWAYS REVISE IN WRITING.

    • FOLLOW PROCEDURES DISCUSSED IN “AMENDING A SOLICITATION.”


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ELEMENTS IN THE PURCHASING PROCESSES

RECEIVING BIDS AND PROPOSALS


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RECEIVING BIDS AND PROPOSALS

  • CLEARLY SPECIFY IN WRITING, IN THE SOLICITATION, WHEN (date & time) and WHERE BIDS & PROPOSALS ARE TO BE DELIVERED.

  • INCLUDE ANY SPECIAL INSTRUCTIONS, e.g., ON ELECTRONIC SUBMITTAL, ADDITIONAL COPIES, PRODUCT SAMPLES.


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RECEIVING BIDS AND PROPOSALS

  • PROVIDE FOR BIDS TO BE TIME & DATE STAMPED UPON RECEIPT, EITHER BY THE eSOURCING TOOL, OR PHYSICALLY. FOR LARGE PACKAGES, TIME/DATE STAMPED LABELS MAY BE AFFIXED, OR DATE & TIME HAND WRITTEN. IN BOTH CASES, ADD BID # & VENDOR. ANY HAND ENTRY MUST BE SIGNED OR INITIALED.


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RECEIVING BIDS AND PROPOSALS

  • PROVIDE FOR SECURE STORAGE OF SEALED BIDS & PROPOSALS, EITHER ELECTRONICALLY FOR eSOURCING RESPONSES, OR LOCK & KEY FOR PAPER BIDS AND BIDS SUBMITTED ON ELECTRONIC MEDIA (e.g. diskette or CD). Control access to keys and electronic bid responses.


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ELEMENTS IN THE PURCHASING PROCESSES

HANDLING LATE BIDS


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HANDLING LATE BIDS

  • ANNOUNCE IN THE SOLICITATION THAT IT IS THE BIDDER’S/RESPONDENT’S RESPONSIBILITY TO DELIVER THE BID AT THE REQUIRED TIME & PLACE

  • ANNOUNCE IN THE SOLICITATION THAT BIDS/PROPOSALS NOT RECEIVED BY THE DUE DATE AND TIME WILL NOT BE CONSIDERED


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HANDLING LATE BIDS

RECOMMENDATION:

  • CLOCK IN AND SECURE ALL BIDS. IF A PERSON DELIVERING A BID LATE ASKS WHETHER OR NOT IT WILL BE CONSIDERED FOR AWARD, ADVISE THAT THE DECISION WILL BE MADE AFTER DELIBERATION, BUT THAT THE REQUIREMENT FOR TIMELY DELIVERY WAS CLEARLY AND UNEQUIVOCALLY STATED IN THE SOLICITATION. AGREE OR DISAGREE?


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HANDLING LATE BIDS

  • LATE BIDS ARE ALMOST NEVER CONSIDERED FOR AWARD: WHY?

  • COURTS HAVE IN SOME CIRCUMSTANCES ALLOWED A LATE BID TO BE CONSIDERED FOR AWARD.

  • A LATE BID, PROPERLY CLOCKED IN, MAY BE OF VALUE TO THE AGENCY. WHAT?


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HANDLING LATE BIDS

A REAL-LIFE EXAMPLE

  • BIDS WERE DUE AT A FLORIDA AGENCY THE AFTERNOON OF SEPT. 12, 2001.

  • A BIDDER HAND DELIVERED HIS BID THAT MORNING, JUST AS THE AGENCY POSTED AN ADDENDUM POSTPONING THE DUE DATE 3 DAYS.


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HANDLING LATE BIDS

  • THE BID WAS CLOCKED IN AND SECURED.

  • THE BIDDER ASKED IF OTHER BIDS HAD BEEN RECEIVED AND WAS TOLD THEY HAD NOT.

  • TWO DAYS LATER, A COMPETITOR’S BID WAS RECEIVED.

  • AFTER EVALUATION, THE SECOND BID WAS SELECTED FOR AWARD.


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HANDLING LATE BIDS

  • THE FIRST BIDDER FILED A PROTEST, CONTENDING HIS BID WAS TIMELY DELIVERED, AND THAT THE LATE ADDENDUM POSTPONING THE DEADLINE GAVE HIS COMPETITOR AN UNFAIR ADVANTAGE, AND THAT HIS BID SHOULD BE ACCEPTED AS THE ONLY TIMELY FILED BID, OR THE PROCESS SHOULD BE CONDUCTED ANEW.


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HANDLING LATE BIDS

  • THE SECOND BIDDER WAS ABLE TO SHOW THAT HIS BID HAD BEEN RECEIVED BY FEDERAL EXPRESS ON THE MORNING OF SEPTEMBER 11, 2001, AND WOULD NORMALLY HAVE BEEN DELIVERED THE MORNING OF SEPTEMBER 12.

  • WHAT’S YOUR OPINION?


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ELEMENTS IN THE PURCHASING PROCESSES

OPENING BIDS AND PROPOSALS


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OPENING BIDS AND PROPOSALS

  • BID & PROPOSAL OPENING SHALL OCCUR AT THE TIME ANNOUNCED IN THE SOLICIATION, AND SHALL BE OPEN TO THE PUBLIC [REF. s.287.057(1){ITB}, (2){RFP}, (3){ITN}, FS]


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OPENING BIDS AND PROPOSALS

  • THE OPENING SHOULD BE CONDUCTED BY AN EMPLOYEE OF THE AGENCY AND WITNESSED BY AT LEAST ONE OTHER EMPLOYEE OF THE AGENCY.

  • OPENINGS & NEGOTIATIONS SHALL BE CONDUCTED IN A MANNER TO COMPLY WITH CONFIDENTIALITY AND EXEMPTION REQUIREMENTS OF S. 815.045, FS. (Trade secret information)


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OPENING BIDS AND PROPOSALS

  • Bid or proposal tabulation sheets should be completed simultaneously with the public reading of prices whenever appropriate. Upon completion of the tabulation, a copy shall be made accessible for inspection by any interested party.


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OPENING BIDS AND PROPOSALS

  • Sealed bids/proposals and negotiation submittals are not public records subject to the provisions of s.119.07(1) FS until posting of a notice of decision or intended decision pursuant to 120.57(3) FS or 10 days after the bid or proposal opening, whichever comes first. [119.071(1)(b)]


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ELEMENTS IN THE PURCHASING PROCESSES

DEBRIEFING VENDORS


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DEBRIEFING VENDORS

  • BE PREPARED TO PROVIDE ACCESS TO EVALUATION RECORDS. ADVISE EVALUATORS THAT ALL NOTES THEY MAKE WILL EVENTUALLY BECOME PUBLIC RECORD. GENERALLY, ALL DOCUMENTS IN THE PURCHASING FILE ARE PUBLIC RECORDS, WITH THE EXCEPTION OF TRADE SECRETS PROTECTED BY S.812.081 FS.


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DEBRIEFING VENDORS

  • GENERALLY, THE RECORD SHOULD SPEAK FOR ITSELF. THAT IS, BE WARY OF ADDING INTERPRETATION TO THE RECORD OF BID OR PROPOSAL SCORES. YOUR INTERPRETATIONS MAY APPEAR TO DIFFER FROM OR CONFLICT WITH THE RECORD, AND RESULT IN LITIGATION.


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DEBRIEFING VENDORS

  • IN AN “INVITATION TO NEGOTIATE” PROCESS IT CAN BE VALUABLE TO DEBRIEF EACH SHORTLISTED VENDOR BEFORE PROCEEDING TO THE NEXT STAGE OF NEGOTIATION, SO THEY BECOME AWARE OF ASPECTS OF THEIR INITIAL PROPOSAL WHICH WERE NOT WELL RECEIVED BY THE EVALUATORS.


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DEBRIEFING VENDORS

  • A MEETING WITH EACH OF THE SHORTLISTED VENDORS, WHERE AGENCY NEGOTIATION TEAM MEMBERS INDICATE AREAS OF CONCERN CAN BE USEFUL IN AIDING THE VENDOR TO PREPARE A BETTER PROPOSAL FOR THE NEXT STAGE, AND/OR TO HELP AGENCY TEAM MEMBERS BETTER UNDERSTAND THE ISSUES AND THE AGENCY’S OPTIONS.


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ELEMENTS IN THE PURCHASING PROCESSES

CONDUCTING DISCUSSIONS/NEGOTIATIONS


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CONDUCTING DISCUSSIONS/NEGOTIATIONS

  • All three formal procurement methods: General Instructions to Respondents, PUR 1001, paragraph 15: Clarifications/Revisions. The Buyer may seek clarifications or request any information deemed necessary for proper evaluation of submissions from all respondents deemed eligible for Contract award.


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CONDUCTING DISCUSSIONS/NEGOTIATIONS

  • INVITATION TO NEGOTIATE: The agency shall evaluate and rank responsive replies…and shall select based on the ranking one or more vendors…to commence negotiations [s.287.057(3)(b)FS].


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CONDUCTING DISCUSSIONS/NEGOTIATIONS

INVITATION TO NEGOTIATE (cont.):

  • Recommendation: Conduct concurrent (occurring or existing simultaneously or side by side) competitive negotiations rather than serial (occurring in a series rather than simultaneously) negotiations, to obtain greatest advantage from the vendors’ varying degrees of expertise, competitiveness and candor.


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CONDUCTING DISCUSSIONS/NEGOTIATIONS

  • ITN: Negotiation should generally be a team effort.

  • Teams should generally include major stakeholders, e.g. purchasing, business process representative(s), technical support, and possibly accounting and legal advisers.


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CONDUCTING DISCUSSIONS/NEGOTIATIONS

  • Team members must include persons who can speak authoritatively for the end user organization and any other agency decision makers.

  • For contracts exceeding Category 4 ($150,000), at least three persons to evaluate, and 3 to negotiate [s.287.057(17) FS]. Also, if >$1M need FCCN on team and if >$10M need PMP.


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CONDUCTING DISCUSSIONS/NEGOTIATIONS

The negotiation team members need to have a common understanding of the outcome their agency is seeking. At a minimum, desired outcome would include the

  • Requirements for performance and design, e.g., quality, architecture, and function of the products/services/system

  • Schedule and

  • Budget constraints or goals.


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CONDUCTING DISCUSSIONS/NEGOTIATIONS

TEAM MEETINGS. Teams will meet among themselves when preparing the ITN, and when preparing for vendor meetings and/or revision of requirements (addenda to the ITN).


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CONDUCTING DISCUSSIONS/NEGOTIATIONS

TEAM & VENDOR MEETINGS. Meet separately with each selected vendor for fact finding and proposal development (caveat: 286.011 FS). Be open to further revisions (addenda) of the requirements. 286.0113 General exemptions from public meetings.-- (2)(a)  A meeting at which a negotiation with a vendor is conducted pursuant to s. 287.057(3) is exempt from s. 286.011 and s. 24(b), Art. I of the State Constitution.


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CONDUCTING DISCUSSIONS/NEGOTIATIONS

  • BEST AND FINAL OFFER. After at least three meetings with each of the selected respondents, and corresponding changes to proposals and/or requirements, a best-and-final offer (BAFO) is submitted. OPTION: Require a meeting for presentation of the BAFO, and allow pen and ink corrections at that meeting.


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CONDUCTING DISCUSSIONS/NEGOTIATIONS

  • In Florida, the Sunshine Laws (s.286.011 FS) require meetings where official acts are taken to be public. This includes the final evaluation of the BAFOs. But see also s.119.07(1) FS.

  • Some agencies find “workarounds” in having members score individually, and just average the scores at the public meeting. This however entails the loss of valuable discussions among team members.


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CONDUCTING DISCUSSIONS/NEGOTIATIONS

  • In Leach-Wells v. City of Bradenton, 1999, Fla. District Court of Appeal held that scoring separately without a public meeting violated the Sunshine Law: “… we conclude that the short-listing was formal action that was required to be taken at a public meeting.”


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ELEMENTS IN THE PURCHASING PROCESSES

RESOLVING TIE BIDS


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RESOLVING TIE BIDS

Award of identical evaluations of responses per 60A-1.011, FAC, in order listed:

  • The response from a Florida domiciled entity (see 287.084 FS)

  • Commodities manufactured within this State (see also 287.082 FS and 283.035 for printing)


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RESOLVING TIE BIDS

  • Bid of foreign manufacturer with over 200 employees in State (see also 287.092 FS)

  • Certification of drug free workplace (see also 287.087 FS)


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RESOLVING TIE BIDS

  • Number of valid vendor complaints on file.

  • By a means of random selection (drawing on numbers, coin toss, or the like).


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ELEMENTS IN THE PURCHASING PROCESSES

BEST AND FINAL OFFERS


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BEST AND FINAL OFFERS

  • The term “best-and-final offer” (BAFO) does not exist in Florida purchasing rules and statutes.

  • The term is a common purchasing term of art, and is used in Federal procurement.


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BEST AND FINAL OFFERS

  • Best-and-final offer terminology serves a useful purpose in negotiations:

    Best-and-final offer language clearly informs vendors involved in negotiations with the state that this (BAFO) offer will be the last iteration in what may have been a series of offers.


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BEST AND FINAL OFFERS

  • The best-and-final offer is the final version of the vendor’s proposal, which will be evaluated in competition with the BAFOs of the other vendors competing for the state’s business in the same negotiation process.


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ELEMENTS IN THE PURCHASING PROCESSES

DETERMINING RESPONSIVENESS & RESPONSIBILITY


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

S.287.057, FLORIDA STATUTES, ADDRESSES AWARD OF BIDS, PROPOSALS AND NEGOTIATIONS TO RESPONSIVE AND RESPONSIBLE VENDORS.


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

“RESPONSIVE BID OR PROPOSAL” MEANS A BID OR PROPOSAL OR REPLY …THAT CONFORMS IN ALL MATERIAL RESPECTS to THE SOLICITATION.


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

  • RECOMMENDED APPROACH: MATERIAL REQUIREMENTS ARE THOSE INDICATED BY SHALL, MUST, OR WILL (EXCEPT WHEN USED MERELY TO INDICATE FUTURITY), OR WHICH ARE NECESSARY FOR COMPARISON AND EVALUATION OF BIDS, WHICH AFFECT COMPETITIVE ADVANTAGE OR AFFECT COST TO THE STATE.


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

  • NECESSARY FOR COMPARISON AND EVALUATION OF BIDS: IF YOU CAN’T COMPARE THE CONTENT AND COST OF THE OFFER TO OTHER OFFERS BECAUSE OF MISSING PIECES OR CONTINGENCY QUALIFIERS.


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

  • COMPETITIVE ADVANTAGE: OMITS A COST OR RISK ELEMENT REQUIRED OF OTHER BIDDERS, E.G. AS TO SPECIFICATIONS, PERFORMANCE, SCHEDULE, BONDS AND DAMAGES, ETC.


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

  • COST TO THE STATE: THE OFFER MOVES COST OR RISK OF COST FROM THE BIDDER, AS SPECIFIED IN THE SOLICITATION, TO THE STATE, EITHER EXPLICITLY, OR THROUGH QUALIFIED OFFERS (e.g. will provide or perform or charge, if, or unless, or until…)


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

  • CAUTION: IN CONSIDERING WHAT TO MAKE MANDATORY IN A BID OR RESPONSE (SHALL, MUST, WILL), ASK YOURSELF NOT JUST WHETHER YOU WANT TO SEE THIS, BUT WHETHER YOU WOULD REJECT AN OTHERWISE BEST VALUE IF THIS WERE LACKING.


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

  • “Responsible vendor” means [287.012(24) FS] “a vendor who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance.”


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

  • REMEMBER the requirements in s. 287.057 FS that criteria used to determine the acceptability of a bid/proposal must be stated in the solicitation, and no others may be used.


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

  • For responsibility issues, you can use

    • Criteria established by law or rule, such as complaints on file as tie breakers, or not using suspended, convicted or discriminatory vendors.

    • Criteria stated in the solicitation document.


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

Methods of addressing responsibility in the solicitation, include but are not limited to:

  • Requiring bid bonds & performance bonds.

  • Requiring occupational or business licenses.

  • Requiring written certifications of years in business or other facts.


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

Methods of addressing responsibility in the solicitation:

  • Requiring individuals to possess certain levels of training and/or certification.

  • Requiring third party evaluations, such as Dun & Bradstreet “Supplier Evaluation Reports.” or audited financial statements.

  • Requiring documentation of facilities and security procedures.


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

  • You may also consider other information which you acquire, such as financial, legal or performance information, however, you cannot be arbitrary and must be prepared to more strongly defend responsibility criteria not announced in the solicitation.


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DETERMINING RESPONSIVENESS & RESPONSIBILITY

SAME CAUTION AS WITH “RESPONSIVENESS”:

  • IN CONSIDERING WHAT TO MAKE MANDATORY IN A BID OR RESPONSE (SHALL, MUST, WILL), ASK YOURSELF NOT JUST WHETHER YOU WANT TO SEE THIS, BUT WHETHER YOU WOULD REJECT AN OTHERWISE BEST VALUE IF THIS WERE LACKING.


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ELEMENTS IN THE PURCHASING PROCESSES

MISTAKES IN BIDS AND PROPOSALS


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MISTAKES IN BIDS AND PROPOSALS

  • Occasionally a vendor will advise of a mistake in a bid or proposal, or the agency rep. will catch a mistake.

  • The vendor and the agency both have some, limited, options.


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MISTAKES IN BIDS AND PROPOSALS

Vendor options:

  • No submissions made after the bid or proposal opening which amend or supplement the bid or proposal shall be considered [s. 120.57(3)(f) FS].

  • This means NO written alteration or page substitution of a bid document, after opening, which might make it appear that something else was timely submitted.


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MISTAKES IN BIDS AND PROPOSALS

Vendor options:

  • A vendor MAY submit a sealed revision to a bid prior to the deadline, and instruct the agency to consider the revision.

  • Nothing in statute or rule prevents an agency from considering a respondent’s request to withdraw a bid or proposal, subject to terms of the solicitation.


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MISTAKES IN BIDS AND PROPOSALS

AGENCY OPTIONS:

  • First, no option: Do not write upon, strike through, erase, substitute pages, or otherwise alter the submitted bid. It is a public record, to be secured “as is.”

  • The agency has the right to waive minor irregularities in an otherwise valid bid/proposal. [PUR 1001(16)]

  • Variations which are not minor cannot be waived.


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MISTAKES IN BIDS AND PROPOSALS

  • Mistakes in an arithmetic extension of pricing may be corrected by the agency. Recommendation: Do not write on the original bid; preserve the record. Write on a copy or attach a recalculation, sign and date.


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MISTAKES IN BIDS AND PROPOSALS

  • Minor variations are NOT those exceptions to requirements indicated by shall, must, or will (except when used merely to indicate futurity), or which are necessary for comparison and evaluation of bids, which affect competitive advantage or affect cost to the state.


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MISTAKES IN BIDS AND PROPOSALS

  • Again, in writing requirements, ask yourself if you’d be comfortable rejecting the best value if it lacked the requirement.

  • Minor irregularities CAN be corrected AFTER submittal by provision in writing. Possible example: Vendor omits copy of business license, but it was in effect at the time bidding ended, and omission was a clerical oversight. Vendor submits copy prior to conclusion of evaluation process.


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ELEMENTS IN THE PURCHASING PROCESSES

POSTING INTENDED DECISIONS


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POSTING INTENDED DECISIONS

  • Notice of the intended award, including rejection of some or all bids received, shall be given by electronic posting of the decision as specified in the solicitation [60A-1.021 FAC]


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POSTING INTENDED DECISIONS

  • Postings shall contain the protest statement provided by Rule 28-110.005(3) FAC: “Failure to file a protest within the time prescribed by Section 120.57(3) Florida Statutes, or failure to post the bond or other security required by law shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.”


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POSTING INTENDED DECISIONS

  • Single source purchases must be noticed in accordance with 287.057(5)(c), FS, and posted in the manner specified is 120.57(3), FS: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."


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POSTING INTENDED DECISIONS

  • All postings are now accomplished through the Vendor Bid System and MyFloridaMarketPlace, in accordance with s.287.012(11) and s.287.042(3)(b), Florida Statutes.


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ELEMENTS IN THE PURCHASING PROCESSES

HANDLING PROTESTS, INCLUDING FLORIDA CASES


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HANDLING PROTESTS, INCLUDING FLORIDA CASES

  • An Intent to Protest can be a simple written statement indicating the firm intends to file a protest.

  • Upon receipt of the intent to protest, the agency has 72 hours, excluding Sat. & Sun., and state holidays, to provide the estimated contract amount to the vendor [287.042(2)(c) FS], in order to establish the 1% protest bond amount.


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HANDLING PROTESTS, INCLUDING FLORIDA CASES

  • The estimated contract amount shall be based upon the contract price submitted by the protestor or, if no contract price was submitted, the agency shall estimate the contract amount.

  • The estimated contract amount is not subject to protest.


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HANDLING PROTESTS

  • Failure to file a protest within the time prescribed by Section 120.57(3) Florida Statutes, or failure to post the (1%) bond or other security required by law shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.


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HANDLING PROTESTS

  • Upon receipt of the formal written protest that has been timely filed, the agency shall stop the solicitation or contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the solicitation or contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare. [120.57(3)]


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HANDLING PROTESTS

  • The preceding means you cannot re-bid, re-post, or take any other action, with the exception of emergency action, until the protest is resolved.


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HANDLING PROTESTS

Possible outcomes of a formal protest

  • Agency offers a settlement meeting, held within 7 days in accordance with 120.57(3) FS. Agency determines it erred, and enters into written agreement with protester that protester will withdraw protest and agency will post a new notice of intended decision.

  • Agency offers a settlement meeting, and the protestor withdraws. Note that these are public meetings. We recommend inviting the intended awardee.


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HANDLING PROTESTS

  • Agency offers a settlement meeting in accordance with 120.57(3), and achieves a compromise. All parties sign a settlement agreement and the protester withdraws the protest.


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HANDLING PROTESTS

  • The matter is referred to the Division of Administrative Hearings or the agency head, if no disputed issues of material fact are involved, and any party has moved the administrative law judge to relinquish jurisdiction to the agency .


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HANDLING PROTESTS

  • If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of the formal written protest, and if there is a disputed issue of material fact, the agency shall refer the protest to the division for proceedings under subsection (1).


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HANDLING PROTESTS

  • A DOAH hearing will be held within 30 days of receipt of the protest at DOAH.

  • A recommended order will be issued within 30 days after the hearing or after the administrative law judge receives the transcript, whichever is later.


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HANDLING PROTESTS

  • Each party shall have 10 days to object to the recommended order.

  • A final order shall be entered by the agency within 30 days of the recommended order.


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HANDLING PROTESTS

  • In a competitive-procurement protest, other than a rejection of all bids, proposals, or replies, the administrative law judge shall conduct a de novo (anew; afresh; again; from the beginning) proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the solicitation specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious.


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HANDLING PROTESTS

  • In any bid-protest proceeding contesting an intended agency action to reject all bids, proposals, or replies, the standard of review by an administrative law judge shall be whether the agency's intended action is illegal, arbitrary, dishonest, or fraudulent.


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ELEMENTS IN THE PURCHASING PROCESSES

MAINTAINING A PROCUREMENT FILE


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MAINTAINING A PROCUREMENT FILE

  • Purchase orders, contracts, solicitations, quotes, bids, proposals, memos, score sheets, etc., are public records.

  • The purchasing officer or other custodian must maintain a file of these records.


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MAINTAINING A PROCUREMENT FILE

  • Rule 60A-1.016(3) requires the chief procurement officer of each agency to maintain a file of all purchase orders issued or voided.

  • The Florida Dept. of State publishes a “General Schedule for State Government Agencies GS1-S,” at http://dlis.dos.state.fl.us/recordsmgmt/gen_records_schedules.cfm


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MAINTAINING A PROCUREMENT FILE

  • The DOS schedule contains retention schedules that require record retention until all applicable audits have been released and resolved AND the following minimum time periods have elapsed:


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MAINTAINING A PROCUREMENT FILE

  • Internal admin. records, 2 fiscal years.

  • Legal advertisements, 5 fiscal years.

  • Bid records, non capital imp., 5 FYs.

  • Contracts, non-capital imp, 5 FYs.

  • Capital imp bids & contracts, 15 FYs

  • Correspondence, admin. 3 FYs.

  • Correspondence, program, 5 FYs.

  • Policies & Procedures, 2 FYs after obsolescence.

  • Purchase Orders & PO Logs, 3 FYs


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MAINTAINING A PROCUREMENT FILE

  • The requirements of the Department of State are minimums. Keep the records longer if they are of use to you.


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ELEMENTS IN THE PURCHASING PROCESSES

PUBLIC RECORDS REQUESTS


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PUBLIC RECORDS REQUESTS

  • Florida has a strong public records law, Ch. 119, Florida Statutes:

    • It is the policy of this state that all state, county, and municipal records shall be open for personal inspection by any person.

  • Generally, the custodian of any public record must make it available upon request.


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PUBLIC RECORDS REQUESTS

  • "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.


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PUBLIC RECORDS REQUESTS

  • A public officer who knowingly violates the provisions of s. 119.07(1) is subject to suspension and removal or impeachment and, in addition, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.


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PUBLIC RECORDS REQUESTS

  • Who is considered the custodian of a public record?

    • The elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee, shall be the custodian thereof.


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PUBLIC RECORDS REQUESTS

  • Who may examine a public record? Ref. 119.07 FS:

    • Every person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or the custodian's designee.


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PUBLIC RECORDS REQUESTS

  • If requested, you must furnish a copy of the public record:

    • The custodian shall furnish a copy or a certified copy of the record upon payment of the fee prescribed by law.


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PUBLIC RECORDS REQUESTS

  • S.119.07 exempts some records from public inspection. However, If the person who has custody of a public record contends that the record or part of it is exempt from inspection and examination, he or she shall state the basis of the exemption which he or she contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute, and, if requested by the person seeking the right under this subsection to inspect, examine, or copy the record, he or she shall state in writing and with particularity the reasons for the conclusion that the record is exempt.


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PUBLIC RECORDS REQUESTS

  • EXEMPTIONS include active criminal intelligence information, informants’ names, licensure examination questions, personal information on law enforcement officers and their families, data processing software acquired under license, and certain other information. Consult legal counsel if in doubt.


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PUBLIC RECORDS REQUESTS

  • Trade secrets are protected by s.815.045 FS and it is a felony to disclose such records.

  • You must delete only protected portions from the otherwise public record per s.119.07: …Delete or excise from the record only that portion of the record with respect to which an exemption has been asserted and validly applies, and … produce the remainder of such record for inspection and examination.


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PUBLIC RECORDS REQUESTS

If in doubt about any public records request, consult counsel before acting, and proceed in accordance with the policy of your agency.


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PUBLIC RECORDS REQUESTS

  • Some good news on provision of copies: As an additional means of inspecting, examining, and copying public records of the executive branch, judicial branch, or any political subdivision of the state, public records custodians may provide access to the records by remote electronic means. (s.119.985)


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ELEMENTS IN THE PURCHASING PROCESSES

DEFERRED PAYMENT CONTRACTS


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DEFERRED PAYMENT PURCHASES

  • LEASE

  • LEASE PURCHASE

  • INSTALLMENT PURCHASE

  • CONSOLIDATED EQUIPMENT FINANCING PROGRAM

    REF. S. 287.063 FS


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DEFERRED PAYMENT PURCHASES

  • CONSIDER: BUDGET, TCO, TECHNOLOGICAL CHANGE, SERVICE IN THE OUT YEARS

  • CONTRACTS REQUIRING DEFERRED PAYMENT & PAYMENT OF INTEREST AND LEASES ARE SUBJECT TO CFO’s PRIOR APPROVAL

  • THRESHOLD FOR DFS PRIOR APPROVAL OF LEASES ESTABLISHED AT $25,000

  • FORMS ARE AVAILABLE FROM THE BUREAU OF AUDITING & ACCOUNTING. VISIT THE DEPT. OF FINANCIAL SERVICES WEB SITE.


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DEFERRED PAYMENT PURCHASES

  • INTEREST RATE MAY NOT EXCEED CFO’s RATE

  • DEFERRED PAYMENT PURCHASES UNDER $30K MAY NOT BE APPROVED

  • DEFERRED PAYMENT CONTRACTS EXCEEDING 5 YEARS MAY NOT BE APPROVED

  • NONE OF THIS APPLIES TO THE LEGISLATURE


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DEFERRED PAYMENT PURCHASES

  • S.287.064 ESTABLISHES THE CONSOLIDATED EQUIPMENT FINANCING PROGRAM

  • CONTRACT AWARDED BY DIVISION OF BOND FINANCE, DEPT OF FINANCIAL SERVICES

  • THESE FINANCING AGREEMENTS ARE LIMITED TO 3 YEARS

  • FORMS ARE AVAILABLE FROM THE BUREAU OF AUDITING & ACCOUNTING, AND THROUGH DFS WEB SITE.


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ELEMENTS IN THE PURCHASING PROCESSES

BLANKET PURCHASE ORDERS


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BLANKET PURCHASE ORDERS

BPOs may be appropriate in the following circumstances:

  • An agency anticipates a series of requirements from a vendor over a given period of time, and can estimate total expenditures

  • The agency wishes to avoid storage costs and order as-needed (JIT)

  • It would be inefficient to involve agency approvers in every transaction


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BLANKET PURCHASE ORDERS

Vendor advantage: A blanket purchase order can allow a vendor a contract enabling him to plan for multiple sales over an estimated time period at pre-arranged terms, with an estimate of the total amount of business


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BLANKET PURCHASE ORDERS

Buyer advantage: A blanket purchase order can allow the agency’s designated representative to order within pre-approved limitations without the delays of going back through the approval process each time


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BLANKET PURCHASE ORDER REQUIREMENTS

  • Blanket Purchase Orders must be identified as such

  • Include all appropriate organizational, accounting, vendor and contract codes

  • Identify a vendor


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BLANKET PURCHASE ORDER REQUIREMENTS

  • Name the items or types of items authorized for purchase

  • Include item prices or a reference to how prices will be established at time of purchase

  • Include maximum total authorized dollar amount for all purchases against the BPO


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BLANKET PURCHASE ORDER REQUIREMENTS

  • Identify each authorized user (buyer), by name and/or title and/or function

  • Specify the start and end dates during which orders (releases) may be made against the BPO

    (Reference State Purchasing Memorandum No. 03, 2003-04)


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EMERGENCY MANAGEMENT

  • FLORIDA EMERGENCY SUPPLIER NETWORK

  • FLORIDA EMERGENCY PURCHASING NETWORK


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FLORIDA EMERGENCY SUPPLIER NETWORK

  • Determine requirements

  • Develop correspondence, contract and certificate

  • Develop supplier data sheet

  • Collect and organize

  • Issue to EOC government buyers during emergencies


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VENDOR SIGN-UP IN THE FESN

VENDORS & CONTRACTORS go to http://dms.myflorida.com/dms/purchasing

  • Click “FLORIDA EMERGENCY NETWORK” under “Division Navigation” in the column on the left

  • Then click on the network link:

    • FLORIDA EMERGENCY SUPPLIER NETWORK


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VENDOR SIGN-UP IN THE FESN

YOU WILL FIND LINKS TO TWO DOCUMENTS:

  • EMERGENCY SUPPLIER RECORD

  • FLORIDA EMERGENCY SUPPLIER AGREEMENT


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VENDOR SIGN-UP IN THE FESN

DOWNLOAD THE TWO DOCUMENTS, IN MSWord, COMPLETE THE REQUIRED INFORMATION, AND ATTACH THE TWO DOCUMENTS TO AN EMAIL TO

[email protected]


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BUYER SIGN-UP IN THE FEPN

  • GO TO THE FLORIDA EMERGENCY PURCHASING NETWORK AT http://dms.myflorida.com/dms/purchasing/florida_emergency_network/florida_emergency_purchasing_network_fepn

  • DOWNLOAD, COMPLETE AND EMAIL THE VOLUNTEER REGISTRATION FORM


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NOT INCLUDED IN STATE PURCHASING EMERGENCY TASKS

  • Identifying the particular emergency products/services required during an emergency

  • Logistical & Staging issues

  • Software to be used by Division of Emergency Management

  • Funding and payment arrangements

  • Specific training by DEM


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PUBLIC PURCHASINGIN FLORIDA

ELEMENTS IN THE PURCHASING PROCESSES

(REV. 05/27/08)

Thanks Big Spenders!


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