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