FL
Florida House Bill H1159

Florida 2023 Regular Session

Florida House Bill H1159 Compare Versions

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1010 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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1414 A bill to be entitled 1
1515 An act relating to contractual services contract 2
1616 liability limits; amending s. 287.058, F.S.; requiring 3
1717 certain contract documents to include a specified 4
1818 provision that provides certain liability limits; 5
19-reenacting ss. 287.0571(5) and 1002.84(13), F.S., 6
20-relating to contract requirements for proposed 7
21-outsourcing and procurement contract requirements for 8
22-early learning coalitions, respectively, to 9
23-incorporate the amendment made to s. 287.058, F.S., in 10
24-references thereto; providing an effective date. 11
25- 12
26-Be It Enacted by the Legislature of the State of Florida: 13
27- 14
28- Section 1. Subsection (8) is added to section 287.058, 15
29-Florida Statutes, to read: 16
30- 287.058 Contract document.— 17
31- (8) In addition to any other provision required to be 18
32-included, the written agreement for a procurement of contractual 19
33-services in excess of the threshold amount provided in s. 20
34-287.017 for CATEGORY TWO must include the following provisio n: 21
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36-For all claims against the Contractor under any 23
37-contract or purchase order, and regardless of the 24
38-basis on which the claim is made, the Contractor's 25
19+providing an effective date. 6
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21+Be It Enacted by the Legislature of the State of Florida: 8
22+ 9
23+ Section 1. Subsection (8) is added to section 287.058, 10
24+Florida Statutes, to read: 11
25+ 287.058 Contract document .— 12
26+ (8) In addition to any other provision required to be 13
27+included, the written agreement for a procurement of contractual 14
28+services in excess of the threshold amount provided in s. 15
29+287.017 for CATEGORY TWO must include the following provision: 16
30+ 17
31+For all claims against the Contractor under any 18
32+contract or purchase order, and regardless of the 19
33+basis on which the claim is made, the Contractor's 20
34+liability for direct damages under a contract or 21
35+purchase order shall be limited to the greater of 22
36+$100,000, the dollar amount of the contract or 23
37+purchase order, or two times the charges rendered by 24
38+the Contractor under the purchase order. This 25
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4747 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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51-liability for direct damages under a contract or 26
52-purchase order shall be limited to the greater of 27
53-$100,000, the dollar amount of the contract or 28
54-purchase order, or two times the charges rendered by 29
55-the Contractor under the purchase order. This 30
56-limitation shall not apply to claims arising under the 31
57-Indemnity paragraph contained in this agreement. 32
58-Unless otherwise specifically enumerated in the 33
59-Contract or in the purchase order, no party shall be 34
60-liable to another for special, indirect, punitive, or 35
61-consequential damages, including lost data or records 36
62-(unless the contract or purchase order requires the 37
63-Contractor to back-up data or records), even if the 38
64-party has been advised that such damages are possible. 39
65-No party shall be liable for lost profits, lost 40
66-revenue, or lost institutional operating savings. The 41
67-State and Customer may, in addition to other remedie s 42
68-available to them at law or equity and upon notice to 43
69-the Contractor, retain such monies from amounts due 44
70-Contractor as may be necessary to satisfy any claim 45
71-for damages, penalties, costs and the like asserted by 46
72-or against them. The State may set off an y liability 47
73-or other obligation of the Contractor or its 48
74-affiliates to the State against any payments due the 49
75-Contractor under any contract with the State. 50
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84-F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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88- Section 2. For the purpose of incorporating the amendment 51
89-made by this act to section 287.058, F lorida Statutes, in a 52
90-reference thereto, subsection (5) of section 287.0571, Florida 53
91-Statutes, is reenacted to read: 54
92- 287.0571 Business case to outsource; applicability. — 55
93- (5) In addition to the contract requirements provided in 56
94-s. 287.058, each contract for a proposed outsourcing, pursuant 57
95-to this section, must include, but need not be limited to, the 58
96-following contractual provisions: 59
97- (a) A scope-of-work provision that clearly specifies each 60
98-service or deliverable to be provided, including a descriptio n 61
99-of each deliverable or activity that is quantifiable, 62
100-measurable, and verifiable. This provision must include a clause 63
101-that states if a particular service or deliverable is 64
102-inadvertently omitted or not clearly specified but determined to 65
103-be operationally necessary and verified to have been performed 66
104-by the agency within the 12 months before the execution of the 67
105-contract, such service or deliverable will be provided by the 68
106-contractor through the identified contract -amendment process. 69
107- (b) A service-level-agreement provision describing all 70
108-services to be provided under the terms of the agreement, the 71
109-state agency's service requirements and performance objectives, 72
110-specific responsibilities of the state agency and the 73
111-contractor, and the process for amending any portion of the 74
112-service-level agreement. Each service -level agreement must 75
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121-F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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125-contain an exclusivity clause that allows the state agency to 76
126-retain the right to perform the service or activity, directly or 77
127-with another contractor, if service levels are not being 78
128-achieved. 79
129- (c) A provision that identifies all associated costs, 80
130-specific payment terms, and payment schedules, including 81
131-provisions governing incentives and financial disincentives and 82
132-criteria governing payment. 83
133- (d) A provision that identifies a clear and specific 84
134-transition plan that will be implemented in order to complete 85
135-all required activities needed to transfer the service or 86
136-activity from the state agency to the contractor and operate the 87
137-service or activity successfully. 88
138- (e) A performance-standards provision that identifies all 89
139-required performance standards, which must include, at a 90
140-minimum: 91
141- 1. Detailed and measurable acceptance criteria for each 92
142-deliverable and service to be provided to the state agency under 93
143-the terms of the contract which document the required 94
144-performance level. 95
145- 2. A method for monitoring and reporting progress in 96
146-achieving specified performance standards and levels. 97
147- 3. The sanctions or disincentives that shall be imposed 98
148-for nonperformance by the contrac tor or state agency. 99
149- (f) A provision that requires the contractor and its 100
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158-F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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162-subcontractors to maintain adequate accounting records that 101
163-comply with all applicable federal and state laws and generally 102
164-accepted accounting principles. 103
165- (g) A provision that a uthorizes the state agency to have 104
166-access to and to audit all records related to the contract and 105
167-subcontracts, or any responsibilities or functions under the 106
168-contract and subcontracts, for purposes of legislative 107
169-oversight, and a requirement for audits by a service 108
170-organization in accordance with professional auditing standards, 109
171-if appropriate. 110
172- (h) A provision that requires the contractor to interview 111
173-and consider for employment with the contractor each displaced 112
174-state employee who is interested in such employment. 113
175- (i) A contingency-plan provision that describes the 114
176-mechanism for continuing the operation of the service or 115
177-activity, including transferring the service or activity back to 116
178-the state agency or successor contractor if the contractor fails 117
179-to perform and comply with the performance standards and levels 118
180-of the contract and the contract is terminated. 119
181- (j) A provision that requires the contractor and its 120
182-subcontractors to comply with public records laws, specifically 121
183-to: 122
184- 1. Keep and maintain t he public records that ordinarily 123
185-and necessarily would be required by the state agency in order 124
186-to perform the service or activity. 125
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195-F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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199- 2. Provide the public with access to such public records 126
200-on the same terms and conditions that the state agency would 127
201-provide the records and at a cost that does not exceed that 128
202-provided in chapter 119 or as otherwise provided by law. 129
203- 3. Ensure that records that are exempt or records that are 130
204-confidential and exempt are not disclosed except as authorized 131
205-by law. 132
206- 4. Meet all requirements for retaining records and 133
207-transfer to the state agency, at no cost, all public records in 134
208-possession of the contractor upon termination of the contract 135
209-and destroy any duplicate public records that are exempt or 136
210-confidential and exempt. Al l records stored electronically must 137
211-be provided to the state agency in a format that is compatible 138
212-with the information technology systems of the state agency. 139
213- (k)1. A provision that provides that any copyrightable or 140
214-patentable intellectual property pr oduced as a result of work or 141
215-services performed under the contract, or in any way connected 142
216-with the contract, shall be the property of the state, with only 143
217-such exceptions as are clearly expressed and reasonably valued 144
218-in the contract. 145
219- 2. A provision that provides that, if the primary purpose 146
220-of the contract is the creation of intellectual property, the 147
221-state shall retain an unencumbered right to use such property. 148
222- (l) If applicable, a provision that allows the agency to 149
223-purchase from the contractor, at its depreciated value, assets 150
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232-F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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236-used by the contractor in the performance of the contract. If 151
237-assets have not depreciated, the agency shall retain the right 152
238-to negotiate to purchase at an agreed -upon cost. 153
239- Section 3. For the purpose of incorporating t he amendment 154
240-made by this act to section 287.058, Florida Statutes, in a 155
241-reference thereto, subsection (13) of section 1002.84, Florida 156
242-Statutes, is reenacted to read: 157
243- 1002.84 Early learning coalitions; school readiness powers 158
244-and duties.—Each early learning coalition shall: 159
245- (13) Comply with federal procurement requirements and the 160
246-procurement requirements of ss. 215.971, 287.057, and 287.058, 161
247-except that an early learning coalition is not required to 162
248-competitively procure direct services for school rea diness 163
249-program and Voluntary Prekindergarten Education Program 164
250-providers. 165
251- Section 4. This act shall take effect July 1, 2023. 166
51+limitation shall not apply to claims arising under the 26
52+Indemnity paragraph contained in this agreement. 27
53+Unless otherwise specifi cally enumerated in the 28
54+Contract or in the purchase order, no party shall be 29
55+liable to another for special, indirect, punitive, or 30
56+consequential damages, including lost data or records 31
57+(unless the contract or purchase order requires the 32
58+Contractor to back-up data or records), even if the 33
59+party has been advised that such damages are possible. 34
60+No party shall be liable for lost profits, lost 35
61+revenue, or lost institutional operating savings. The 36
62+State and Customer may, in addition to other remedies 37
63+available to them at law or equity and upon notice to 38
64+the Contractor, retain such monies from amounts due 39
65+Contractor as may be necessary to satisfy any claim 40
66+for damages, penalties, costs and the like asserted by 41
67+or against them. The State may set off any liability 42
68+or other obligation of the Contractor or its 43
69+affiliates to the State against any payments due the 44
70+Contractor under any contract with the State. 45
71+ Section 2. This act shall take effect July 1, 2023. 46