Contract Negotiations and HB1369 Anthony Garcia Governance Manager

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Contract Negotiations and HB1369Anthony
GarciaGovernance Manager
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Overview of Presentation

• Chapter 287, F.S., sections relevant to
  negotiations
• Florida Administrative Code rules relevant to
  negotiations
• Negotiation process in Florida (as I am familiar
  with it)
• Prospective changes to the negotiation process in
  Florida

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Competitive Solicitation Options
- Invitation to Negotiate - Request for
Proposals - Invitation to Bid
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Invitation to Negotiates. 287.012, Florida
Statutes

• (17)  "Invitation to negotiate" means a written
  solicitation for competitive sealed replies to
  select one or more vendors with which to commence
  negotiations for the procurement of commodities
  or contractual services. The invitation to
  negotiate is used when the agency determines that
  negotiations may be necessary for the state to
  receive the best value. A written solicitation
  includes a solicitation that is electronically
  posted.

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Looking for Value Examples where negotiation may
be necessary

• Cars
• Carpet
• Drug Testing Kits
• Lawn service
• Operation of a Prison
• Development of Software System
• Legal Services

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Negotiations are Flexible

• Not as rigid a process as ITB or RFP
• Ability to explore what each respondent has to
  offer that may meet your needs as identified in
  the ITN
• Ability to go back to each vendor
• Dont rely upon weak ITN specifications

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Best Value 287.012(4), F.S.

• (4)  "Best value" means the highest overall value
  to the state based on objective factors that
  include, but are not limited to, price, quality,
  design, and workmanship.

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Invitations to NegotiateS. 287.057(3), Florida
Statutes

• (b)  The agency shall evaluate and rank
  responsive replies against all evaluation
  criteria set forth in the invitation to negotiate
  and shall select, based on the ranking, one or
  more vendors with which to commence negotiations.
  After negotiations are conducted, the agency
  shall award the contract to the responsible and
  responsive vendor that the agency determines will
  provide the best value to the state. The contract
  file must contain a short plain statement that
  explains the basis for vendor selection and that
  sets forth the vendor's deliverables and price,
  pursuant to the contract, with an explanation of
  how these deliverables and price provide the best
  value to the state.

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Summary of the Process

• Rank the responses
• Select one or more to begin to negotiate with
• Best value determination
• Memo to file

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Where to Start?

• Know what you want!
• Dont rely upon a weak ITN
• Do your work early
• Know your ITN
• Know your responses
• Know where you need to seek clarification from
  each vendor
• Have a strategy before walking in the door
• What are your negotiable elements?

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Your Negotiation Team

• Team members
• From your division, agency or other departments
• Subject matter experts
• Consultants

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Negotiation Process

• Presentations
• Public meeting issues
• Questions / discussion regarding responses
• Begin identifying your concerns and needs
• Requests for email clarifications
• Public records

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Negotiation Process - 2

• Follow-up negotiation sessions
• Telephonic if needed
• Email questions for clarification
• As many as needed to determine which vendor will
  provide the best value to the state
• BAFO

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Negotiation Process

• Example of how negotiations may be conducted
• Not the only way, just need to make sure act in
  accordance with applicable laws in proceeding to
  recommendation.

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Negotiation Issues

• Confidential Information
• Proprietary Information
• Hesitancy by vendors to discuss pricing and other
  issues with competitors in room
• Chilling effect on negotiations
• Impact in being able to achieve best value for
  state

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Questions at this time?
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HB 1369
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HB 1369 Summary

• Qualified and temporary public records exemptions
  of bid responses.
• Qualified and temporary exclusion of recorded
  negotiations with vendors.

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Effected Chapters of Florida Statutes

• Chapter 119, Florida Statutes
• Chapter 286, Florida Statutes
• Chapter 287, Florida Statutes

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Relevant ITN portions of HB 1369- s119.071, F.S.

• (1)(b)2.a.  A competitive sealed reply in
  response to an invitation to negotiate, as
  defined in s. 287.012, is exempt from s.
  119.07(1) and s. 24(a), Art. I of the State
  Constitution until such time as the agency
  provides notice of a decision or intended
  decision pursuant to s. 120.57(3)(a) or until 20
  days after the final competitive sealed replies
  are all opened, whichever occurs earlier.

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s. 119.071, F.S

•  (1)(b)2.b.  If an agency rejects all competitive
  sealed replies in response to an invitation to
  negotiate and concurrently provides notice of its
  intent to reissue the invitation to negotiate and
  reissues the invitation to negotiate within 90
  days after the notice of intent to reissue the
  invitation to negotiate, the rejected replies
  remain exempt from s. 119.07(1) and s. 24(a),
  Art. I of the State Constitution .
• How long.

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HB 1369 and Negotiationss. 286.0113, F.S.

• (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.
•    (b)1.  A complete recording shall be made of
  any meeting made exempt in paragraph. No portion
  of the meeting may be held off the record.
• How long.

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Disclaimer

• This presentation is merely a summary of the ITN
  process and the sited statutes and HB 1369.
• Please review each to determine how they may
  apply to your particular fact pattern.

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• (16)  "Invitation to bid" means a written
  solicitation for competitive sealed bids. The
  invitation to bid is used when the agency is
  capable of specifically defining the scope of
  work for which a contractual service is required
  or when the agency is capable of establishing
  precise specifications defining the actual
  commodity or group of commodities required. A
  written solicitation includes a solicitation that
  is electronically posted.

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(22)  "Request for proposals" means a written
solicitation for competitive sealed proposals.
The request for proposals is used when it is not
practicable for the agency to specifically define
the scope of work for which the commodity, group
of commodities, or contractual service is
required and when the agency is requesting that a
responsible vendor propose a commodity, group of
commodities, or contractual service to meet the
specifications of the solicitation document. A
written solicitation includes a solicitation that
is electronically posted.