Agenda 06/14/2016 Item #17F 6/14/2016 17.F.
EXECUTIVE SUMMARY
Recommendation to (1) amend Ordinance No. 2013-69, as amended, the Collier County
Purchasing Ordinance, by adding a new sub-section establishing a vendor payment dispute
resolution process in accordance with the Local Government Prompt Payment Act, to be
conducted by an impartial Prompt Payment Hearing Examiner; and (2) authorize the
establishment of the Collier County Prompt Payment Procedure process for the conduct of
hearings before the Prompt Payment Hearing Examiner.
OBJECTIVE: To create a process to help resolve vendor payment disputes.
CONSIDERATIONS: At its April 12, 2016 regular meeting (Item 10-F), the Board of County
Commissioners directed the County Manager and County Attorney to prepare a vendor payment
dispute resolution process in keeping with the Local Government Prompt Payment Act (§ 218.70
et. seq., Fla. Stat.). The Local Government Prompt Payment Act (LGPPA) was enacted in 1989
to ensure that local governmental entities promptly pay their vendors. Failure to meet the
timelines established in the LGPPA can result in significant interest penalties assessed against a
local governmental.
The proposed Ordinance adds a new sub-section to the Collier County Purchasing Ordinance
entitled "Vendor Payment Dispute Resolution," which mirrors the dispute resolution process
outlined in the LGPPA, and also provides for the appointment of a Hearing Examiner in the
event the parties are unable to reach resolution on the payment dispute.
The Board of County Commissioners discussed the amendment on May 10, 2016 (Item 11-A)
and authorized the County Attorney to prepare and advertise the amending Ordinance, which
Ordinance was duly advertised. To implement the Ordinance, the County Attorney, working
with Staff, prepared a proposed process for the conduct of hearings before the Prompt Payment
Hearing Examiner, and is requesting Board approval of same.
FISCAL IMPACT: The cost of advertising the proposed Ordinance was $387.15.
LEGAL CONSIDERATIONS: The County Attorney reviewed this item and approved it as to
form and legality. Majority support of the Board is required for approval. - JAK
GROWTH MANAGEMENT IMPACT: None.
RECOMMENDATION: That the Board of County Commissioners 1) amends Ordinance No.
2013-69, as amended, the Collier County Purchasing Ordinance, by adding a new sub-section
establishing a vendor payment dispute resolution process in accordance with the Local
Government Prompt Payment Act, to be conducted by an impartial Prompt Payment Hearing
Examiner; and (2) authorizes the establishment of the Collier County Prompt Payment Procedure
process for the conduct of hearings before the Prompt Payment Hearing Examiner.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney.
Attachments: Proposed Ordinance; Proposed Prompt Payment Procedure
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6/14/2016 17.F.
COLLIER COUNTY
Board of County Commissioners
Item Number: 17.17.F.
Item Summary: Recommendation to (1) amend Ordinance No. 2013-69, as amended, the
Collier County Purchasing Ordinance, by adding a new sub-section establishing a vendor
payment dispute resolution process in accordance with the Local Government Prompt Payment
Act, to be conducted by an impartial Prompt Payment Hearing Examiner; and (2) authorize the
establishment of the Collier County Prompt Payment Procedure process for the conduct of
hearings before the Prompt Payment Hearing Examiner.
Meeting Date: 6/14/2016
Prepared By
Name: NeetVirginia
Title: Legal Assistant/Paralegal, CAO Office Administration
6/7/2016 3:38:40 PM
Submitted by
Title: Legal Assistant/Paralegal,CAO Office Administration
Name: NeetVirginia
6/7/2016 3:38:41 PM
Approved By
Name: MarkiewiczJoanne
Title: Division Director-Procurement Services,Procurement Services
Date: 6/7/2016 4:02:09 PM
Name: BrockMaryJo
Title: Executive Secretary to County Manager, County Managers Office
Date: 6/8/2016 3:16:04 PM
Name: BrockMaryJo
Title: Executive Secretary to County Manager, County Managers Office
Date: 6/8/2016 3:28:27 PM
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6/14/2016 17.F.
Name: KlatzkowJeff
Title: County Attorney,
Date: 6/8/2016 4:52:47 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 6/8/2016 5:03:50 PM
Name: IsacksonMark
Title: Division Director-Corp Fin&Mgmt Svc, Office of Management&Budget
Date: 6/8/2016 5:08:20 PM
Name: OchsLeo
Title: County Manager, County Managers Office
Date: 6/8/2016 5:28:30 PM
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6/14/2016 17.F.
ORDINANCE NO.2016-
AN ORDINANCE AMENDING ORDINANCE 2013-69, KNOWN AS THE
COLLIER COUNTY PURCHASING ORDINANCE, BY ADDING A NEW
SUB-SECTION TO SECTION SIXTEEN, PAYMENT OF INVOICES,
WHICH ESTABLISHS A VENDOR PAYMENT DISPUTE RESOLUTION
PROCESS IN ACCORDANCE WITH THE LOCAL GOVERNMENT
PROMPT PAYMENT ACT; PROVIDING FOR CONFLICT AND
SEVERABILITY, INCLUSION INTO THE CODE OF LAWS AND
ORDINANCES,AND AN EFFECTIVE DATE.
WHEREAS, the Board of County Commissioners (the Board) desires to seek the
maximum value for the County by procuring the best value in obtaining commodities and
contractual services; and
WHEREAS, to better effectuate this desire, on December 10th, 2013, the Board adopted
Ordinance No. 2013-69, known as the Collier County Purchasing Ordinance;and
WHEREAS,the Board wishes to establish a vendor payment dispute resolution process
in accordance with the Local Government Prompt Payment Act; and
WHEREAS, in keeping with the above, the Board of County Commissioners wishes to
amend this Ordinance as follows.
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY,FLORIDA,that:
SECTION ONE: Section Sixteen of the Purchasing Ordinance, Payment of Invoices, is hereby
amended as follows:
A. Agencies under the purview of the Board of County Commissioners shall be in compliance
with F.S. § 218.70, otherwise known as the "Local Government Prompt Payment Act."
Pursuant to this,the requirements of this section shall apply to the following transactions:
1. The purchase of commodities and services;
2. The purchase or lease of personal property;
3. The lease of real property.
B. The County Manager shall establish and maintain procedures that authorize minor payment
variances between the purchase order and invoice where warranted. The authority to pay such
variances shall not exceed 5%of the purchase order amount or$500,whichever is less.
C. The County Manager shall establish and maintain a process that authorizes the payment of
freight and delivery charges that are not specifically identified on the purchase order of less
than$500.
Words Underlined are added;Words ask—Through are deleted.
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D. It shall be the responsibility of the County Manager, in consultation with the Clerk's
Finance Director and operating Divisions, to establish, procedures for the timely payment of
all transactions as defined under subsection 16.A (subsection A of this section). Such
procedures shall include, but are not limited to the following:
1. Formally defining the County's requirements for the content and submission of a
proper invoice, codifying the County's payment requirements and notifying each vendor
of their availability.
2. Steps required for the receipt of all invoices and the prompt return of improper
invoices.
3. Steps required for the resolution of payment disputes between the County and a
vendor.
E. Each December,the Procurement Services Director and the Clerk of the Courts shall submit
a report to the Board listing the number and total dollar amount of interest penalty payments
made during the preceding fiscal year.
F. Prior to payment, the Board shall approve all expenditures with a finding that such
expenditures serve a valid public purpose.
G. Vendor Payment Dispute Resolution Process. The purpose of this section is to establish a
procedure whereby payment disputes with vendors who provide goods and services to the
County are resolved in a timely manner and in keeping with the Local Government Prompt
Payment Act.
1 Definitions. The definitions set forth in the Local Government Prompt Payment Act
(Section 218.72, Florida Statutes 2016)are hereby incorporated by reference.
2 If an improper payment request or invoice is submitted by a vendor, the County's shall,
within 10 days after the improper payment request or invoice is received, notify the
vendor, in writing, that the payment request or invoice is improper and indicate what
corrective action on the part of the vendor is needed to make the payment request or
invoice proper.
3 If the parties are unable to reach resolution on the payment dispute,the County Manager
shall appoint a Hearing Examiner, to whom the matter will be referred to. The Hearing
Examiner shall have the sole and full authority to thereafter resolve the dispute. The
proceedings before the Hearing Examiner to resolve the dispute shall commence with 45
days after the date the payment request or improper invoice was received by the County
and shall be concluded with final written decision by the Hearing Examiner within 60
days after the date the payment request or improper invoice was received by the County.
These proceedings are not subject to Chapter 120,Florida Statutes,and do not constitute
an administrative hearing. Rather, these proceedings are intended to be quasi-judicial,
open to the public, with the written decision of the Hearing Examiner being final,
subject only to certiorari review. If the dispute is resolved in favor of the County,
interest charges shall begin to accrue 15 days after the Hearing Examiner's final
Words Underlined are added;Words&Fuck—Through are deleted.
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decision. If the dispute is resolved in favor of the Vendor,interest begins to accrue as of
the original date the payment became due.
4 If the County does not timely commence this dispute resolution process within the time
required, a contractor may give written notice to the County of the failure to timely
commence this dispute resolution procedure. If the County fails to commence this
dispute resolution procedure within four business days after such notice, any amounts
resolved in the contractor's favor shall bear mandatory interest, as set forth in Chapter
218, Florida Statutes, from the date the payment request or invoice containing the
disputed amounts was submitted to the County.If the dispute resolution procedure is not
commenced within 4 business days after the notice,the objection to the payment request
or invoice shall be deemed waived. The waiver of an objection pursuant to this
paragraph does not relieve a contractor of its contractual obligations.
5 In an action to recover amounts due under this part,the court shall award court costs and
reasonable attorney's fees, including fees incurred through appeal, to the prevailing
party.
6 The conduct of the Hearing Examiner proceedings, including notice, process, and
criteria, shall be set forth the Procurement Division's Policies and Procedures.
SECTION TWO: Conflict and Severability.
In the event this Ordinance conflicts with any other ordinance of Collier County or other
applicable law,the more restrictive shall apply. If any phrase or portion of this Ordinance is held
invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and such holding shall not affect the validity of the
remaining portion.
SECTION THREE: Inclusion in the Code of Laws and Ordinances.
The provisions of this Ordinance shall become and be made a part of the Code of Laws
and Ordinance of Collier County, Florida. The sections of the Ordinance may be renumbered or
relettered to accomplish such, and the word "ordinance" may be changed to "section," "article,"
or any other appropriate word.
SECTION FOUR: Effective Date.
This Ordinance shall be effective upon filing with the Department of State.
PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier
County, Florida,this day of June, 2016.
Words Underlined are added; Words —Through are deleted.
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A l"l EST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E.BROCK,Clerk COLLIER COUNTY,FLORIDA
By: By:
Deputy Clerk DONNA FIALA,CHAIRMAN
Appr, ,, +'form . a egality:
—00001,4 fit"
Jeffrey,;. t atzkow, County Attorney
Words Underlined are added;Words Struckugh are deleted.
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Collier County Prompt Payment Procedure
1. Generally:
Both the "Local Government Prompt Payment Act" (§ 218.70 et seq., Fla. Stat.) and Ordinance
No. 2016 - are hereby incorporated into and are made a part of this procedure.
There is hereby established a prompt payment procedure and a process for resolving payment
disputes between vendors and Collier County government. The dispute resolution procedure shall be in
furtherance of and in accordance with the Local Government Prompt Payment Act and the Collier
County Purchasing Ordinance (Ord.No. 2013-69,as amended).
The Collier County Manager shall be responsible for execution of the prompt payment procedure.
2. The Hearing Examiner:
If an improper payment request or invoice is submitted by a vendor or contractor (collectively
referred to as "vendor"), the County shall, within 10 days after the improper payment request or
invoice is received, notify the vendor, in writing, that the payment request or invoice is improper and
indicate what corrective action on the part of the vendor is needed to make the payment request or
invoice proper. If the parties are unable to reach resolution on the payment dispute, the County
Manager shall appoint the Special Magistrate as a Hearing Examiner, to whom the matter will be
referred. Should the Special Magistrate be unable to serve, the County Manager shall appoint an
unbiased individual who possesses, in the County Manager's sole opinion, the necessary credentials
and background to so serve as a Hearing Examiner.
The Hearing Examiner shall have the sole and full authority to thereafter resolve the dispute. The
proceedings before the Hearing Examiner to resolve the dispute shall commence within 45 days after
the date the payment request or improper invoice was received and shall be concluded with final
written decision by the Hearing Examiner within 60 days after the date the payment request or
improper invoice was received.
These proceedings are not subject to Chapter 120, Florida Statutes and do not constitute an
administrative hearing. Rather,these proceedings are intended to be quasi-judicial, open to the public,
with the written decision of the Hearing Examiner being final, subject only to certiorari review. If the
dispute is resolved in favor of the County, interest charges shall begin to accrue 15 days after the
Hearing Examiner's final decision. If the dispute is resolved in favor of the vendor, interest begins to
accrue as of the original date the payment became due.
If the County does not commence this dispute resolution process within the time required, a
vendor may give written notice to the County of the failure to timely commence this dispute resolution
procedure. If the County fails to commence this dispute resolution procedure within four business
days after such notice, any amounts resolved in the vendor's favor shall bear mandatory interest, as set
forth in Chapter 218, Florida Statutes, from the date the payment request or invoice containing the
disputed amounts was submitted to the County. If the dispute resolution procedure is not commenced
within 4 business days after the notice, the objection to the payment request or invoice shall be
deemed waived. The waiver of an objection pursuant to this paragraph does not relieve a vendor of its
contractual obligations.
3. Conduct of the Hearing:
The Hearing Examiner shall hold proceedings at a venue selected by the County Manager. The
conduct of the hearing shall be substantially as follows:
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The hearing is informal.
Only relevant evidence will be considered at the hearing. The Hearing Examiner will determine
what is relevant. Before commencing, the court reporter should administer the oath to all those
wishing to speak. If a speaker arrives at the hearing after the oath is given, the speaker must be sworn
in before they can speak.
The Hearing Examiner should endeavor not to take part in any ex-parte communications. To the
extent that such communications were had, at the beginning of the hearing the Hearing Examiner must
fully disclose all such communications including letters, e-mails, phone calls, and meetings. The
subject matter of the communication and the identity of the person, groups or entity with whom the
communication took place are all part of the disclosure. The Hearing Examiner must give any person
who wishes to question the ex-parte disclosure the opportunity to ask questions. This right shall be
waived by a failure to ask questions of the Hearing Examiner.
The presentation of the hearing should be as follows:
i. The vendor presents its case. Following the presentation,the County may question the vendor.
ii. The County then presents its case. Following the presentation, the vendor may question the
County.
iii. The Hearing Examiner may ask questions at any time during the proceedings.
iv. Interested members of the public may then speak. The Hearing Examiner should only give
consideration to public testimony that is relevant to the issues being discussed.
v. After the public has given testimony, in order, the vendor and the County should each have
the opportunity to make a closing statement.
vi. Upon conclusion of the closing statements, the Hearing Examiner should close the public
hearing.
vii. The Hearing Examiner has the discretion with respect to limiting the time for any given party
or witness should the testimony become duplicative or immaterial and to issue any rulings to preserve
order during the hearing.
4. The Decision:
The Hearing Examiner shall announce a decision by a written final order. The Hearing Examiner
shall make all reasonable efforts to render a decision within five (5) business days of the hearing date.
The text of the final order shall find facts and make conclusions, which conclusions shall be
deductible from the facts as found by the Hearing Examiner. The findings of fact shall be stated in
non-argumentative and neutral terms and be divided into short, separately numbered, declarative
paragraphs or sentences each of which contains only one (1) feature or point. At the Hearing
Examiner's discretion, proposed findings of fact and conclusions may be submitted by the County
and the vendor. The final order shall be considered rendered and final upon its execution by the
Hearing Examiner and delivery of the decision to the County Manager, who shall promptly distribute
the decision to the parties. The final decision of the Hearing Examiner may include recommendations
for process or contract improvements, if applicable.
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In reaching the decision, the Hearing Examiner must review, where applicable, the underlying
Agreement, Purchase Order, Work Order, Solicitation, and other relevant documents, to determine
whether the payment of the invoice,in whole or in part, is proper. In addition, in determining whether
an invoice should be paid, the Hearing Examiner should consider the following:
a. The invoice should set forth the County purchase order number under which the purchase
was made;and
b. The invoice should set forth the name of the business organization that is recited in the
county purchase order;and
c. The invoice should set forth the date of its preparation;and
d. The invoice should set forth an identifying number to facilitate identification of the invoice,
including any revisions(indicated by original invoice number appended by"R"for"revised"); and
e. The invoice should set forth a description of the goods, services or property provided to
the county which may include a part or item number; and
f. The invoice should set forth the location and date of delivery of the goods, services or
property to the county,; and
g. The invoice should set forth the quantity of the goods or services or property provided to
the county, if applicable;and
h. The invoice should set forth the unit price of the goods or services or property provided to
the county, if applicable;and
i. The invoice should set forth the extended total price of the goods or services or
property provided to the county; and
j. The invoice may set forth applicable discounts and the time period to which they are
available if payment is made within the terms.
The County Manager shall provide such clerical and administrative personnel and legal services
as may be reasonably required by the Hearing Examiner for the proper performance of its duties,
including but not limited to the services currently utilized by the Collier County Hearing Examiner
(Ord. No. 2013-25). As the Board's invoice payment agent, the Clerk's Finance Department is
encouraged to participate and support the Hearing Examiner.
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Totfpe i
NOTICE OF INTENT TO CONSIDER ORDINANCE
Notice is hereby'given that on Tuesday, June 14, 2016, in the
Boardroom,Third Floor,Administration Building,Collier County
Government Center,3299 East Tamiami Trail,Naples,Florida,the
Board of•County Commissioners,will consider the enactment of
a County Ordinance. The meeting will commence at 9:00 A.M.
The title of the proposed Ordinance is as follows:
AN ORDINANCE AMENDING ORDINANCE 2013-69, KNOWN
AS THE COLLIER COUNTY PURCHASING ORDINANCE,
BY ADDING A NEW SUB-SECTION TO SECTION SIXTEEN,
PAYMENT OF INVOICES, WHICH ESTABLISHES A VENDOR
PAYMENT DISPUTE RESOLUTION PROCESS IN ACCORDANCE
WITH THE LOCAL GOVERNMENT PROMPT PAYMENT ACT;
PROVIDING FOR CONFLICT AND SEVERABILITY,INCLUSION
INTO THE CODE OF.LAWS AND ORDINANCES, AND AN
EFFECTIVE DATE.
0 'A Copy of the proposed Ordinance is on file with the Clerk to the
011 Board and is available for inspection. All interested parties are
,invited to attend and be heard.
1.0 NOTE:All persons wishing to speak on any agenda item must
register with the County administrator prior to presentation of
c.� the agenda item to be addressed. Individual speakers will be
limited to 3 minutes on any item. The selection of an individual
to speak on behalf of an organization or group is encouraged.
If recognized by the Chairman, a spokesperson for a group or
3 organization may be allotted 10 minutes to speak on an item.
Persons wishing to have written or graphic materials included in
the Board agenda packets must submit said material a minimum
N of 3 weeks prior to the respective public hearing. In any case,
c written materials intended to be considered by the Board shall
be submitted to the appropriate County staff a minimum of
seven days prior to the public hearing. All material used in
5 presentations before the Board will become a permanent part
of the record.
�^ Any person who decides to appeal a decision of the Board
will need a record of the proceedings pertaining thereto and
therefore, may need to ensure that a verbatim record of the
proceedings is made,which record includes the testimony and
evidence upon which the appeal is based.
0
if you are aperson with a disabilitywho needs any accommodation
in order to participate in this proceeding,you are entitled,at no
Q. cost to you,to the provision of certain assistance.Please contact
the Collier County Facilities Management Department, located
at 3335 Tatman Trail East, Suite #101, Building W, Naples,
Florida 34112, (239)252-8380.Assisted listening devices for the
hearing impaired are available in the County Commissioners'
Office.
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY,FLORIDA
DONNA FIALA,CHAIRMAN
DWIGHT E.BROCK,CLERK
By: Martha Vergara,Deputy Clerk
(SEAL)
June 1,2016 No.1104622
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