Current through Reg. 48, No. 66; April 5, 2022
(1) The secretary or a designee is authorized
to execute contracts for commodities and contractual services which are to be
used in the normal operation of the Lottery provided that such contracts are
made in accordance with the provisions of these rules. The Lottery specifically
finds that, due to the unique nature of its business, strict compliance with
Chapter 287, F.S., and the rules adopted thereunder, would impair or impede the
effective and efficient operation of the Lottery. Therefore, the Lottery is
adopting this rule to provide the following alternative procedures for
purchasing commodities and contractual services in an open and competitive
manner. Chapter 287, F.S., and the rules (excluding the forms) adopted
thereunder shall govern in all areas not specifically addressed.
A formal competitive process is required
for the purchase of commodities or contractual services that have a total
contract value in excess of the threshold for Category Three of the purchasing
categories established in Section 287.017, F.S., unless the purchase is a
single source, emergency, state term contract or purchasing agreement, or is a
purchase of the commodities or services specified in Section 287.057(5)(f),
F.S., or paragraph
(3) Purchases that have a
total contract value less than or equal to the threshold for Category Three
will be made using an informal competitive process unless there are exigencies
that prevent the use of such process or unless the purchase is a single source,
emergency or state term contract or purchasing agreement purchase.
(4) Legal Notice. All purchases of
commodities or contractual services in excess of the threshold amount for
Category Three that are to be acquired by a formal competitive process shall be
posted electronically as defined in Section 287.012(11), F.S., at a centralized
Internet website designated by the Department of Management Services no less
than 10 calendar days prior to the date set for receipt of submissions to the
procurement solicitation document ("submissions").
Procedures Regarding Submissions.
(a) Submissions shall be opened publicly at
the time and place designated in the procurement solicitation document. The
name of each vendor shall be recorded, and in the case of an invitation to bid,
the amount of the bid shall be recorded. Sealed submissions are not public
records subject to the provisions of Chapter 119, F.S., until such time as the
agency provides notice of a decision or intended decision or within ten days
after submission opening, whichever is earlier. When the competitive
procurement document requires the submission to be placed in two separately
sealed envelopes to be submitted simultaneously and not opened on the same
date, the 10-day period begins the day after the opening of the second
(b) In the event that
only one or no responsive submissions are received, the Lottery shall review
the situation in order to determine the reasons, if any, why only one or no
responsive submissions were received before making a determination of whether
or not to issue a second procurement solicitation document. If the Lottery
determines that the commodities or contractual services are available only from
a single source, or that conditions and circumstances warrant negotiation on
the best terms and conditions, the Lottery's intended decision shall be posted
in accordance with Section 120.57(3), F.S., and paragraph (7)(a) below before
the Lottery proceeds with procurement. The Lottery shall document the
conditions and circumstances used in making the decision to proceed without a
second call for submissions.
(6) Evaluation of Submissions. Submissions in
response to a procurement solicitation shall be evaluated as specified in the
of Intended Award and Award.
(a) Notice of an
award of contract, or of an intended award of contract, as applicable,
including rejection of some or all submissions received, shall be given by
electronic posting at a centralized Internet website designated by the
Department of Management Services. All notices of decision or intended decision
shall contain the following statement: "Failure to file a protest within the
time prescribed in Section 24.109(2)(a), F.S., shall constitute a waiver of
proceedings under Chapter 120, F.S."
(b) Any contract entered into pursuant to an
invitation to bid, request for proposals, or invitation to negotiate shall be
evidenced by a purchase order or other written agreement with the vendor
selected pursuant to the solicitation document.
(c) If the contract is terminated during the
initial or renewal contract period, the award may be made to the next
responsive vendor who agrees to hold the prices, terms, and conditions
submitted in response to the original solicitation. In making this
determination, the Lottery will consider if such action is warranted in light
of good business practices, such as the time remaining on the contract term and
any changes in technology that have occurred.
Single Source Purchase. Commodities or
contractual services available only from a single source costing in excess of
the threshold for Category Three may be purchased without a formal competitive
procurement process as follows:
promotional events and sponsorship opportunities, such as community fairs and
sports team sponsorships, which offer promotional opportunities unique to the
event or sponsorship and in which participation is available only through the
organizer of the event or the sponsorship provider, the commodities and
contractual services are hereby determined to be available from only a single
source and the notice of agency decision shall be given as set forth in
paragraph (8)(c) below.
(b) For the
purchase of a license to use the trademark or other intellectual property of a
person or entity, from the owner of the property or its authorized agent, the
license and any associated commodities and contractual services are hereby
determined to be available from only a single source and the notice of agency
decision to make such purchases shall be given as set forth in paragraph (8)(c)
(c) For the single source
purchases set forth in paragraphs (8)(a) and (b) above, the Lottery shall
provide notice of its agency decision by electronic posting in accordance with
paragraph (7)(a) above. Such single source purchases shall be excepted from the
posting requirements specified in Section 287.057(5)(c), F.S.
(d) For all other commodities and contractual
services that are believed to be available only from a single source, the
Lottery shall electronically post a description of the commodities or
contractual services sought and the name of the intended single source provider
for at least 7 business days and request prospective vendors to provide
information regarding their ability to provide the commodities or services
sought. If information is received from prospective vendors and the Lottery
determines after reviewing the information that the commodities and contractual
services are available from only a single source, the Lottery shall provide
notice of its agency decision by electronic posting in accordance with
paragraph (7)(a) above. If no information is received from prospective vendors,
no additional posting will be made.
(a) The Secretary may waive any requirement
of this rule and permit emergency purchases of commodities and contractual
services where a valid emergency exists.
(b) A valid emergency is defined as a
circumstance caused by an unexpected turn of events beyond the control of the
Lottery involving the security, integrity or the financial status of the
Lottery; or involving public health, welfare, safety, injury or loss.
An emergency purchase shall be made by:
1. Obtaining pricing information from at
least two prospective vendors unless the Lottery determines in writing that the
time required to obtain pricing information will increase the immediate danger
involving the security, integrity or financial status of the Lottery; or
involving the public health, safety, or welfare, or injury or loss. In such
case, the pricing requirement shall be excepted; and
2. The responsible executive or senior
manager providing a written certification under oath stating the conditions and
circumstances of the emergency and the basis for the waiver of the procurement
requirements of this rule and the selection of the particular source. This
certification shall be submitted to the Secretary for approval.
MyFloridaMarketplace Transaction Fee Exemption. The Lottery specifically finds
that compliance in certain types of procurements with the 1% Transaction Fee
provisions of Rule
F.A.C. would impair or impede the effective and efficient operation of the
Lottery. Therefore, procurements of commodities and services specific to the
lottery industry and for which the Florida Lottery is the sole purchaser in the
state of Florida are exempt from the 1% Transaction Fee that would otherwise
apply under Rule
F.A.C. Such procurements would include, for example, a lottery gaming system,
instant tickets, and related commodities or services. Acquiring such
commodities and services through the state's on-line procurement system would
not further the stated goal of leveraging the state's purchasing power.
Application of the 1% transaction fee would increase the cost of the contract
without providing a corresponding benefit to the state and would reduce the
amount of funds transferable to the Educational Enhancement Trust Fund at the
end of each fiscal year.
Lottery may participate in, sponsor or conduct cooperative purchasing
arrangements with other governmental entities for the purchase of commodities
or contractual services, including construction.
(12) The Lottery may acquire any commodity or
contractual service that is available on state term contract or purchasing
agreement without competitive bidding.
(13) The Lottery may, at reasonable times,
inspect a vendor's place of business to determine the capability of the vendor
to perform any contract awarded by the Lottery.
(14) This emergency rule replaces emergency
Rule 53ER02-45, F.A.C.