[CLC-Discussion] FW: [Locgovtopics] Caution regarding F.S. 119.0701 contract requirements

[Bruce Partington]

One of my partners sent me the e-mail below.  This is something that
those of us who represent contractors who contract with governmental
agencies need to be aware of.  

 

 

Bruce D. Partington

Clark Partington

bpartington at cphlaw.com <mailto:bpartington at cphlaw.com> 

Direct: 850-432-1399

Fax: 850-432-7340

*Board Certified in Construction Law

 

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From: LocGovTopics [
mailto:locgovtopics-bounces+wdunaway=cphlaw.com at listserve.com] On Behalf
Of Richard A. Harrison
Sent: Monday, January 13, 2014 9:10 AM
To: LocGovTopics at listserve.com
Subject: [Locgovtopics] Caution regarding F.S. 119.0701 contract
requirements

 

Most on here are familiar with the newly enacted F.S. 119.0701, which
requires that agency contracts contain specified terms as to a
contractor's obligations under the Public Records Law.

 

Many agencies are now routinely incorporating such requirements into
their contracts, and seemingly doing so without much thought on the
matter.

 

Here is a lurking issue: the statutory definition of "contractor" in
this section is any entity "that enters into a contract for services
with a public agency and is acting on behalf of the public agency as
provided under s. 119.011(2)." Thus, the definition incorporates the
"acting on behalf of" concept, and by extension the well-known Schwab
test for determining who is "acting on behalf of" a public agency. It
would therefore appear to me (and likely to any reviewing court) that an
agency and a contractor signing a contract with these provisions
incorporated have both expressly admitted that the contractor is "acting
on behalf of" the agency under 119.011(2) and Schwab.

 

If both parties do that knowingly, or just don't care (perhaps because
the contractor is plainly "acting on behalf of" the agency under Schwab)
then there's no problem. But if agency contractors in particular aren't
paying attention, then they will be making admissions that they may
later come to regret. And if they are paying attention, then agency
attorneys may soon have to confront objections to the inclusion of such
language in contracts. I can envision a contractor objecting, stating
that it refuses to concede in advance that it is "acting on behalf of"
the agency and therefore subject to the Public Records Law under
119.011(2) and Schwab. In some cases, that position may not be
unreasonable - after all, Schwab is a fact-intensive inquiry. 

 

Just a thought for a Monday morning . . . 

 

How are you dealing with this issue in your agency contracts?  

 

Richard A. Harrison, P.A. Attorneys at Law

 

Richard A. Harrison

Florida Bar No.:  602493

Board Certified by The Florida Bar in City, County & Local Government
Law

400 N. Ashley Drive

Suite 2600

Tampa, FL 33602

rah at harrisonpa.com

Office: 813-712-8757  Ext. 7057

Cell: 813-230-7317

www.harrisonpa.com

 

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