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P3 Legislative Update

Elise Holtzman Gerson

Legislators at both the state and local level have been busy introducing and considering new legislation that could impact the government procurement process and public/private partnerships. These new provisions will fundamentally affect the way business is done with any governmental entity, from basic discussions about potential P3 projects to the final negotiation of a contract for the provision of goods or services.

Bills currently in the state legislative pipeline will, if adopted, affect the Public Records Law. For example, House Bill 459 seeks to remove the trade secret exemption from the Public Records Law for all agencies where a trade secret exemption is currently in effect, resulting in an expansion in the scope of records that must be made public. In the context of procurement, the trade secret protection has allowed a bidder to propose alternative technical concepts or other ideas that the bidder views as a competitive advantage with a granting authority. That is why, on the other hand, House Bill 461 seeks to solidify the exemption from the public records requirements for trade secrets, and provide a process by which the exemption can be enforced. The bill puts the onus on the firm holding the trade secret to defend it. If a public records request seeks documents containing the trade secrets, the firm must file an action in circuit court seeking a declaratory judgment that the record in fact does contain a trade secret to prevent disclosure. Finally, Senate Bill 192 provides a narrow exemption from the Florida Public Records Law for fact-finding exercises by a board or commission, which is consistent with existing Florida caselaw. These proposed bills are just a few among others that are being introduced this year. We are closely monitoring each bill to make sure that your business is ready for any change in the already complex government approval and procurement process.

We also recently wrote about two proposed changes to the Miami-Dade County procurement process. The first, a proposed amendment to the County charter that would delegate more authority to the County administration, has not been moved forward by the Charter Review Task Force. However, the second proposed change, which is specifically designed to update the County’s procurement process to facilitate P3s, continues to move through the legislative process. The proposed P3 ordinance received preliminary approval from the County Commission, and it has been scheduled for a public hearing on November 14, 2017, before the Government Operations Committee. If the ordinance is approved by the committee, it will go back to the County Commission for final approval.

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