The Florida Senate

339.0805  Funds to be expended with certified disadvantaged business enterprises; specified percentage to be expended; construction management development program; bond guarantee program.--It is the policy of the state to meaningfully assist socially and economically disadvantaged business enterprises through a program that will provide for the development of skills through construction and business management training, as well as by providing contracting opportunities and financial assistance in the form of bond guarantees, to primarily remedy the effects of past economic disparity.

(1)(a)  Except to the extent that the head of the department determines otherwise, the department shall expend not less than 10 percent of federal-aid highway funds as defined in 49 C.F.R. s. 23.63(a) and state matching funds with small business concerns owned and controlled by socially and economically disadvantaged individuals as defined by the Surface Transportation and Uniform Relocation Assistance Act of 1987.

(b)  Upon a determination by the department of past and continuing discrimination in nonfederally funded projects on the basis of race, color, creed, national origin, or sex, the department may implement a program tailored to address specific findings of disparity. The program may include the establishment of annual goals for expending a percentage of state-administered highway funds with small business concerns. The department may utilize set-asides for small business concerns to assist in achieving goals established pursuant to this subsection. For the purpose of this subsection, "small business concern" means a business owned and controlled by socially and economically disadvantaged individuals as defined by the Surface Transportation and Uniform Relocation Assistance Act of 1987. The head of the department may elect to set goals only when significant disparity is documented. The findings of a disparity study shall be considered in determining the program goals for each group qualified to participate. Such a study shall be conducted or updated by the department or its designee at a minimum of every 5 years. The department shall adopt rules to implement this subsection on or before October 1, 1993.

(c)  The department shall certify a socially and economically disadvantaged business enterprise, which certification shall be valid for 12 months, or as prescribed by 49 C.F.R. part 23. The department's initial application for certification for a socially and economically disadvantaged business enterprise shall require sufficient information to determine eligibility as a small business concern owned and controlled by a socially and economically disadvantaged individual. For recertification of a disadvantaged business enterprise, the department may accept an affidavit, which meets department criteria as to form and content, certifying that the business remains qualified for certification in accordance with program requirements. A firm which does not fulfill all the department's criteria for certification shall not be considered a disadvantaged business enterprise. An applicant who is denied certification may not reapply within 6 months after issuance of the denial letter or the final order, whichever is later. The application and financial information required by this section are confidential and exempt from s. 119.07(1).

(2)  The department shall revoke the certification of a disadvantaged business enterprise upon receipt of notification of any change in ownership which results in the disadvantaged individual or individuals used to qualify the business as a disadvantaged business enterprise, no longer owning at least 51 percent of the business enterprise. Such notification shall be made to the department by certified mail within 10 days after the change in ownership, and such business shall be removed from the certified disadvantaged business list until a new application is submitted and approved by the department. Failure to notify the department of the change in the ownership which qualifies the business as a disadvantaged business enterprise will result in revocation of certification and subject the business to the provisions of s. 337.135. In addition, the department may, for good cause, deny or suspend the certification of a disadvantaged business enterprise. As used in this subsection, the term "good cause" includes, but is not limited to, the disadvantaged business enterprise:

(a)  No longer meeting the certification standards set forth in department rules;

(b)  Making a false, deceptive, or fraudulent statement ¹in its application for certification or in any other information submitted to the department;

(c)  Failing to maintain the records required by department rules;

(d)  Failing to perform a commercially useful function on projects for which the enterprise was used to satisfy contract goals;

(e)  Failing to fulfill its contractual obligations with contractors;

(f)  Failing to respond with a statement of interest to requests for bid quotations from contractors for three consecutive lettings;

(g)  Subcontracting to others more than 49 percent of the amount of any single subcontract that was used by the prime contractor to meet a contract goal;

(h)  Failing to provide notarized certification of payments received on specific projects to the prime contractor when required to do so by contract specifications;

(i)  Failing to schedule an onsite review upon request of the department; or

(j)  Becoming insolvent or the subject of a bankruptcy proceeding.

(3)  The head of the department is authorized to expend up to 6 percent of the funds specified in subsection (1) which are designated to be expended on small business firms owned and controlled by socially and economically disadvantaged individuals to conduct, by contract or otherwise, a construction management development program. Participation in the program will be limited to those firms which are certified under the provisions of subsection (1) by the department or the federal Small Business Administration or to any firm which has annual gross receipts not exceeding $2 million averaged over a 3-year period. The program will consist of classroom instruction and on-the-job instruction. To the extent feasible, the registration fee shall be set to cover the cost of instruction and overhead. No salary will be paid to any participant.

(a)  Classroom instruction will consist of, but is not limited to, project planning methods for identifying personnel, equipment, and financial resource needs; bookkeeping; state bidding and bonding requirements; state and federal tax requirements; and strategies for obtaining loans, bonding, and joint venture agreements.

(b)  On-the-job instruction will consist of, but is not limited to, setting up the job site; cash-flow methods; project scheduling; quantity takeoffs; estimating; reading plans and specifications; department procedures on billing and payments; quality assessment and control methods; and bid preparation methods.

(c)  Contractors who have demonstrated satisfactory project performance, as defined by the department, can be exempted from the provisions of paragraphs (a) and (b) and be validated as meeting the minimum curriculum standards of proficiency, in the same manner as participants who successfully complete the construction management development program only if they intend to apply for funds provided for in subsection (4).

(d)  The department shall develop, under contract with the State University System, the community college system, a school district in behalf of its vocational-technical center, or a private consulting firm, a curriculum for instruction in the courses that will lead to a certification of proficiency in the construction management development program.

(4)  The head of the department is authorized to expend up to 4 percent of the funds specified in subsection (1) on a bond guarantee program for participants who are certified under subsection (1) and who meet the minimum curriculum standards of proficiency. The state will guarantee up to 90 percent of a bond amount of $250,000, or less, and 80 percent of a bond amount greater than $250,000, which bond is provided by an approved surety. However, in addition to the requirements of paragraph (3)(c), the department shall retain 5 percent of the total contract amount designated for the disadvantaged business enterprise until final acceptance of the project, in order to receive a bond guarantee. The department shall not commit funds for this program which are in excess of those funds appropriated specifically for this purpose.

(5)  Annually, the head of the department is required to report the progress of this program to the President of the Senate, the Speaker of the House of Representatives, and the Governor. The report shall include, as a minimum, the number of users of the bond guarantee plan, along with the number of defaults and dollar loss to the state; the number of students participating in the construction management development program by urban location; the number certified and not certified; the cost of the program categorized by cost of administration, cost of instruction (on-the-job and classroom), and cost of supplies; and a comparison figure of those firms certified by the department under subsection (1) over the year, and the same figure for socially and economically disadvantaged contractors prequalified to perform prime contracting work for the department.

History.--s. 208, ch. 84-309; s. 1, ch. 84-370; s. 22, ch. 85-180; s. 7, ch. 87-93; s. 16, ch. 90-227; s. 29, ch. 93-164; s. 501, ch. 95-148; s. 41, ch. 96-323; s. 164, ch. 96-406; s. 4, ch. 98-105.

¹Note.--The word "in" was substituted for the word "it" by the editors.