Can a Florida special district or airport authority buy goods and services off state term contracts?

Plain-English summary

The Sebring Airport Authority is a dependent special district of the City of Sebring that runs the Sebring Regional Airport and Industrial Park (home to the racetrack used for the 12 Hours of Sebring). Its lawyer asked Attorney General Pam Bondi whether the authority counted as an "eligible user" allowed to buy goods and services through the state's bulk purchasing system, the same way a state agency can.

The AG said yes. Section 287.056(1), Florida Statutes, lets "eligible users" buy commodities and contractual services from purchasing agreements and state term contracts that the Department of Management Services sets up. An "eligible user" is defined by department rule, and Rule 60A-1.005 of the Florida Administrative Code extends that status to "all governmental agencies" with a physical presence in Florida, including special districts. Because the Sebring Airport Authority is a special district, it fit the definition. The AG also explained that a 2011 amendment to the authority's charter, which had expressly let it buy through the purchasing agreements of other special districts, counties, and cities under section 189.4221, was meant to expand the authority's buying options, not to cut off its separate ability to use the state contracts. The opinion closed by noting one limit that stayed in place: the authority's charter still required certain contracts over $10,000 to be awarded by sealed competitive bid.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Florida's procurement statutes in Chapter 287 and the special-district laws in Chapters 189 and 190 have been amended and renumbered several times since 2012, and the administrative rule defining "eligible user" can change without legislation. Confirm the current statute, rule, and the authority's charter before relying on this analysis.

Common questions

Q: What is an "eligible user" of Florida's state purchasing contracts?
A: Section 287.056(1) splits buyers into two groups. State agencies must use the state's purchasing agreements and term contracts, while "eligible users" may use them. Section 287.012(11) defines an eligible user as a person or entity the Department of Management Services authorizes by rule, and Rule 60A-1.005 grants that status to governmental agencies with a physical presence in Florida.

Q: Does a special district qualify as an eligible user?
A: Under this opinion, yes. The AG read Rule 60A-1.005 together with the definition of "governmental agency" in section 163.3164(21), which lists school boards and "other special district[s], authority, or governmental entity," and concluded the Sebring Airport Authority fit.

Q: Did the 2011 charter change limit the authority's purchasing options?
A: No. The 2011 amendment let the authority buy through other special districts', counties', and cities' purchasing agreements under section 189.4221. The AG read that as an expansion, not a restriction, so the authority could still use the state's own contracts under Chapter 287.

Q: Could the authority skip competitive bidding by using a state contract?
A: Not entirely. The opinion flagged that the authority's charter (section 8 of Chapter 2011-265, Laws of Florida) still required certain contracts over $10,000 to be awarded by sealed bid, and the authority kept the right to reject all bids.

Background and statutory framework

Special districts and airport authorities are administrative agencies that hold only the powers their enabling laws grant or fairly imply. The opinion cited Grove Isle, Ltd. v. State Dept. of Environmental Regulation, 454 So. 2d 571 (Fla. 1st DCA 1984), and Coastal Petroleum Co. v. State Dept. of Environmental Protection, 649 So. 2d 930 (Fla. 1st DCA 1995), for that rule. The Sebring Airport Authority's charter is codified in Chapter 2005-300, Laws of Florida, as amended by Chapter 2011-265.

The procurement question turned on Part I of Chapter 287. Section 287.056(1) governs who may purchase from state purchasing agreements and term contracts procured under section 287.057, section 287.012(11) defines "eligible user," and the Department of Management Services filled in that definition through Rule 60A-1.005, Florida Administrative Code, by reference to the "governmental agency" definition in section 163.3164(21) of the Community Planning Act. The AG read the 2011 charter amendment authorizing purchases under section 189.4221 as additive, relying on the canon that repeal by implication is disfavored, citing Mann v. Goodyear Tire and Rubber Co., 300 So. 2d 666 (Fla. 1974).

Citations and references

Statutes and rules:

• s. 287.056(1), Fla. Stat. (eligible users may purchase from state agreements and term contracts)
• s. 287.057, Fla. Stat. (procurement of state term contracts)
• s. 287.012(11), Fla. Stat. (definition of "eligible user")
• s. 163.3164(21), Fla. Stat. (definition of "governmental agency")
• s. 189.4221, Fla. Stat. (special-district purchasing from other governments' agreements)
• Rule 60A-1.005, Fla. Admin. Code (eligible users include governmental agencies with a Florida presence)
• Ch. 2005-300 and Ch. 2011-265, Laws of Fla. (Sebring Airport Authority charter)

Cases:

• Grove Isle, Ltd. v. State Dept. of Environmental Regulation, 454 So. 2d 571 (Fla. 1st DCA 1984), agencies derive only the power statutes specify
• Coastal Petroleum Co. v. State Dept. of Environmental Protection, 649 So. 2d 930 (Fla. 1st DCA 1995), agency powers limited to those expressly granted or implied
• Mann v. Goodyear Tire and Rubber Co., 300 So. 2d 666 (Fla. 1974), repeal of statutes by implication is disfavored

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/special-districts-airports-contracts
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1608

Original opinion text

Mr. Paul R. Pizzo

Fowler White Boggs, P.A.

Post Office Box 1438

Tampa, Florida 33601

RE: SPECIAL DISTRICTS – AIRPORTS – CONTRACTS – COMMODITIES – whether airport authority is "eligible entity" for purposes of purchasing commodities or contractual services using purchasing agreements of state and other special districts. ss. 189.4221, 287.012, and 287.056, Fla. Stat.

Dear Mr. Pizzo:

As counsel for the Sebring Airport Authority, you request my opinion on substantially the following question:

Is the Sebring Airport Authority an "eligible user" under section 287.056(1), Florida Statutes, authorized to purchase commodities and contractual services from state purchasing agreements and state term contracts as provided under section 287.057, Florida Statutes?

In sum:

The Sebring Airport Authority is an "eligible user" under section 287.056(1), Florida Statutes, and is authorized to purchase commodities and contractual services from state purchasing agreements and state term contracts as provided under section 287.057, Florida Statutes.

The Sebring Airport Authority is a dependent special district of the City of Sebring exercising "powers relating to aviation conferred upon municipalities by general law, including the provisions of chapter 332, Florida Statutes, or the Federal Aviation Administration."[1] The charter of the district is codified in Chapter 2005-300, Laws of Florida, as amended by Chapter 2011-265, Laws of Florida. The Legislature has constituted the authority as a public instrumentality and stated that the exercise of the powers granted to the authority by its charter "shall be deemed and held to be the performance of essential governmental functions."[2]

The Sebring Airport Authority is authorized to exercise its powers and jurisdiction over the "Sebring Regional Airport and Industrial Park"[3] and the jurisdictional boundaries of the district are prescribed.[4] Among the powers specifically granted to the airport authority is the power to adopt bylaws for the regulation of affairs of the authority and the conduct of its business[5] and to acquire, lease, construct, reconstruct, improve, extend, repair, maintain, and operate "any airport and other facilities, including tire and automobile testing and racing, and commercial and industrial facilities, which may be located on the property of the authority."[6] The authority is empowered to issue bonds to finance the acquisition, construction, reconstruction, improvement, extension, enlargement, or equipment needed for airport facilities.[7] Contractual authority is extended to the district as may be "necessary or incidental to the performance of its duties and the execution of its powers under this act[.]"[8]

Administrative agencies, such as the airport authority, are creatures of statute and derive only the power specified therein.[9] The powers of administrative agencies are measured and limited by statutes or acts in which such powers are expressly granted or implicitly conferred.[10]

In 2011, the Legislature amended the authority's charter to specifically authorize purchases as provided in section 189.4221, Florida Statutes:

"The authority may purchase commodities or contractual services from the purchasing agreements of other special districts, municipalities, or counties as provided in section 189.4221, Florida Statutes."[11]

While acknowledging that the airport authority may now purchase commodities or contractual services using the purchasing agreements of other special districts, municipalities, or counties, you question whether the authority may purchase commodities or contractual services using state term contracts and purchasing agreements under section 287.057, Florida Statutes. Legislative history relating to the amendment of section 189.4221, Florida Statutes, states that "special districts may purchase commodities and contractual services from the DMS purchasing agreements and state term contracts"[12] and you have asked for reassurance that this is indeed the state of the law.

Section 287.056(1), Florida Statutes, provides that "[a]gencies shall, and eligible users may, purchase commodities and contractual services from purchasing agreements established and state term contracts procured, pursuant to s. 287.057, by the department." The statute requires that each such agency agreement include

"(a) A provision specifying a scope of work that clearly establishes all tasks that the contractor is required to perform.

(b) A provision dividing the contract into quantifiable, measurable, and verifiable units of deliverables that must be received and accepted in writing by the contract manager before payment. Each deliverable must be directly related to the scope of work and specify the required minimum level of service to be performed and the criteria for evaluating the successful completion of each deliverable."[13]

An "eligible user," as that term is used in Part I, Chapter 287, Florida Statutes, is "any person or entity authorized by the department [Department of Management Services] pursuant to rule to purchase from state term contracts or to use the online procurement system."[14] The Department of Management Services has promulgated Rule 60A-1.005, Florida Administrative Code, which provides that "eligible users" include "[a]ll governmental agencies, as defined in Section 163.3164, F.S., which have a physical presence within the State of Florida[.]" Listed among the governmental agencies in section 163.3164(21), Florida Statutes, the "Community Planning Act," is

"(c) Any local government, as defined in this section, or any department, commission, agency, or other instrumentality thereof.

(d) Any school board or other special district, authority, or governmental entity."

As a dependent special district of the City of Sebring, the Sebring Airport Authority would fall within the scope of this definition and would constitute an "eligible user" for purposes of section 287.056(1), Florida Statutes.

Thus, as an administrative agency, the Sebring Airport Authority is empowered to contract and authorized, in its discretion, to utilize the provisions of section 287.056(1), Florida Statutes, to purchase from state term contracts or to use the online procurement system. This is the same conclusion presented to the Legislature by staff in 2009 when considering SB 712 which, following adoption, became section 189.4221, Florida Statutes.[15]

Further, nothing in the amendment of the Sebring Airport Authority's charter to allow the authority to take advantage of the provisions of section 189.4221, Florida Statutes, or in that amendment's legislative history would suggest that the Legislature intended to restrict the ability of the airport authority to utilize the provisions of section 287.056(1), Florida Statutes.[16] Rather, the amendments made to the airport authority's charter in Chapter 2011-265, Laws of Florida, appear to have been intended as an expansion of the authority's power to purchase commodities or contractual services.[17]

Thus, it is my opinion that the Sebring Airport Authority is an "eligible user" under section 287.056(1), Florida Statutes, and is authorized to purchase commodities and contractual services from state purchasing agreements and state term contracts as provided under section 287.057, Florida Statutes.[18]

Sincerely,

Pam Bondi

Attorney General

PB/tgh

[1] See s. 17, Ch. 2005-300, Laws of Fla.

[2] See s. 2, Ch. 2005-300, Laws of Fla.

[3] See s. 3, Ch. 2005-300, Laws of Fla.

[4] Section 3, Ch. 2005-300, Laws of Fla., sets forth the boundaries of the Sebring Airport Authority.

[5] Section 6(1), Ch. 2005-300, Laws of Fla.

[6] Section 6 (5), Ch. 2011-265, Laws of Fla., amending Ch. 2005-300, Laws of Fla.

[7] Section 6(6), Ch. 2005-300, Laws of Fla.

[8] Section 6(10), supra. And see s. 8, Ch. 2005-300, Laws of Fla., requiring certain contracts for services or purchases over $10,000 be awarded by sealed bids with notice.

[9] Grove Isle, Ltd. v. State Dept. of Environmental Regulation, 454 So. 2d 571 (Fla. 1st DCA 1984).

[10] Coastal Petroleum Co. v. State Dept. of Environmental Protection, 649 So. 2d 930 (Fla. 1st DCA 1995), review denied, 660 So. 2d 712, appeal after remand, 672 So. 2d 571, rehearing denied, review denied, Chiles v. Coastal Petroleum Co., 678 So. 2d 1287; State Dept. of Environmental Regulation v. Puckett Oil Co., Inc., 577 So. 2d 988 (Fla. 1st DCA 1991).

[11] See s. 8(2), Ch. 2011-265, Laws of Fla.

[12] See Florida Senate Bill Analysis and Fiscal Impact Statement on CS/CS/SB 712, section II, "Agency Procurement of Personal Property and Services - Chapter 287, F.S.," dated April 21, 2009.

[13] Section 287.056(1), Fla. Stat.

[14] Section 287.012(11), Fla. Stat.; and see subsection (9) thereof for the definition of "[d]epartment."

[15] See Florida Senate Bill Analysis and Fiscal Impact Statement on CS/CS/SB 712, p. 2, "Agency Procurement of Personal Property and Services - Chapter 287, F.S.," dated April 21, 2009.

[16] Cf. Mann v. Goodyear Tire and Rubber Co., 300 So. 2d 666 (Fla. 1974) (repeal of statutes by implication is disfavored in the law, and that construction is favored which permits a separate field of operation for each statute validly enacted on the same subject); Agency for Health Care Administration v. In re Estate of Johnson, 743 So. 2d 83 (Fla. 3d DCA 1999).

[17] See The Florida Senate website, CS/HB 1489: Sebring Airport Authority, Highlands County, 2011 Legislative Session, for the description of this local bill and providing that the bill "expands power to purchase commodities or contractual services."

[18] However, the Sebring Airport Authority operates under a restriction, imposed in s. 8, Ch. 2011-265, Laws of Fla., that requires certain contracts involving expenditures of more than $10,000 be awarded by sealed bids under the provisions set forth therein. The language of s. 8 provides that the authority is authorized to reject all bids.