Senate Bill sb1878

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    Florida Senate - 2004                                  SB 1878

    By Senator Saunders





    37-1372-04                                          See HB 513

  1                      A bill to be entitled

  2         An act relating to professional geology;

  3         amending s. 287.055, F.S.; including

  4         professional geology in the services covered by

  5         the Consultants' Competitive Negotiation Act;

  6         amending s. 190.033, F.S., relating to services

  7         contracted by community development districts,

  8         to conform; amending s. 373.117, F.S.;

  9         providing requirements for certification by a

10         professional geologist of water resource

11         activities for which a permit or license and

12         such certification are required; providing an

13         effective date.

14  

15  Be It Enacted by the Legislature of the State of Florida:

16  

17         Section 1.  Section 287.055, Florida Statutes, is

18  amended to read:

19         287.055  Acquisition of professional architectural,

20  engineering, geology, landscape architectural, or surveying

21  and mapping services; definitions; procedures; contingent fees

22  prohibited; penalties.--

23         (1)  SHORT TITLE.--This section shall be known as the

24  "Consultants' Competitive Negotiation Act."

25         (2)  DEFINITIONS.--For purposes of this section:

26         (a)  "Professional services" means those services

27  within the scope of the practice of architecture, professional

28  engineering, professional geology, landscape architecture, or

29  registered surveying and mapping, as defined by the laws of

30  the state, or those performed by any architect, professional

31  engineer, professional geologist, landscape architect, or

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1  registered surveyor and mapper in connection with his or her

 2  professional employment or practice.

 3         (b)  "Agency" means the state, a state agency, a

 4  municipality, a political subdivision, a school district, or a

 5  school board. The term "agency" does not extend to a

 6  nongovernmental developer that contributes public facilities

 7  to a political subdivision under s. 380.06 or ss.

 8  163.3220-163.3243.

 9         (c)  "Firm" means any individual, firm, partnership,

10  corporation, association, or other legal entity permitted by

11  law to practice architecture, engineering, geology, or

12  surveying and mapping in the state.

13         (d)  "Compensation" means the total amount paid by the

14  agency for professional services.

15         (e)  "Agency official" means any elected or appointed

16  officeholder, employee, consultant, person in the category of

17  other personal service or any other person receiving

18  compensation from the state, a state agency, municipality, or

19  political subdivision, a school district or a school board.

20         (f)  "Project" means that fixed capital outlay study or

21  planning activity described in the public notice of the state

22  or a state agency under paragraph (3)(a). A project may

23  include:

24         1.  A grouping of minor construction, rehabilitation,

25  or renovation activities.

26         2.  A grouping of substantially similar construction,

27  rehabilitation, or renovation activities.

28         (g)  A "continuing contract" is a contract for

29  professional services entered into in accordance with all the

30  procedures of this act between an agency and a firm whereby

31  the firm provides professional services to the agency for

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1  projects in which construction costs do not exceed $1 million,

 2  for study activity when the fee for such professional service

 3  does not exceed $50,000, or for work of a specified nature as

 4  outlined in the contract required by the agency, with no time

 5  limitation except that the contract must provide a termination

 6  clause.

 7         (h)  A "design-build firm" means a partnership,

 8  corporation, or other legal entity that:

 9         1.  Is certified under s. 489.119 to engage in

10  contracting through a certified or registered general

11  contractor or a certified or registered building contractor as

12  the qualifying agent; or

13         2.  Is certified under s. 471.023 to practice or to

14  offer to practice engineering; certified under s. 492.111 to

15  practice or to offer to practice professional geology;

16  certified under s. 481.219 to practice or to offer to practice

17  architecture; or certified under s. 481.319 to practice or to

18  offer to practice landscape architecture.

19         (i)  A "design-build contract" means a single contract

20  with a design-build firm for the design and construction of a

21  public construction project.

22         (j)  A "design criteria package" means concise,

23  performance-oriented drawings or specifications of the public

24  construction project. The purpose of the design criteria

25  package is to furnish sufficient information to permit

26  design-build firms to prepare a bid or a response to an

27  agency's request for proposal, or to permit an agency to enter

28  into a negotiated design-build contract. The design criteria

29  package must specify performance-based criteria for the public

30  construction project, including the legal description of the

31  site, survey information concerning the site, interior space

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1  requirements, material quality standards, schematic layouts

 2  and conceptual design criteria of the project, cost or budget

 3  estimates, design and construction schedules, site development

 4  requirements, provisions for utilities, stormwater retention

 5  and disposal, and parking requirements applicable to the

 6  project.

 7         (k)  A "design criteria professional" means a firm that

 8  who holds a current certificate of registration under chapter

 9  481 to practice architecture or landscape architecture, or a

10  firm who holds a current certificate as a registered engineer

11  under chapter 471 to practice engineering, or a current

12  certificate of authorization under chapter 492 to practice

13  professional geology and that who is employed by or under

14  contract to the agency for the providing of professional

15  architect services, landscape architect services, or

16  engineering services, or geological services in connection

17  with the preparation of the design criteria package.

18         (3)  PUBLIC ANNOUNCEMENT AND QUALIFICATION

19  PROCEDURES.--

20         (a)  Each agency shall publicly announce, in a uniform

21  and consistent manner, each occasion when professional

22  services must be purchased for a project the basic

23  construction cost of which is estimated by the agency to

24  exceed the threshold amount provided in s. 287.017 for

25  CATEGORY FIVE or for a planning or study activity when the fee

26  for professional services exceeds the threshold amount

27  provided in s. 287.017 for CATEGORY TWO, except in cases of

28  valid public emergencies certified by the agency head. The

29  public notice must include a general description of the

30  project and must indicate how interested consultants may apply

31  for consideration.

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1         (b)  Each agency shall encourage firms engaged in the

 2  lawful practice of their professions that desire to provide

 3  professional services to the agency to submit annually

 4  statements of qualifications and performance data.

 5         (c)  Any firm or individual desiring to provide

 6  professional services to the agency must first be certified by

 7  the agency as qualified pursuant to law and the regulations of

 8  the agency. The agency must find that the firm or individual

 9  to be employed is fully qualified to render the required

10  service. Among the factors to be considered in making this

11  finding are the capabilities, adequacy of personnel, past

12  record, and experience of the firm or individual.

13         (d)  Each agency shall evaluate professional services,

14  including capabilities, adequacy of personnel, past record,

15  experience, whether the firm is a certified minority business

16  enterprise as defined by the Florida Small and Minority

17  Business Assistance Act of 1985, and other factors determined

18  by the agency to be applicable to its particular requirements.

19  When securing professional services, an agency must endeavor

20  to meet the minority business enterprise procurement goals

21  under s. 287.09451.

22         (e)  The public must not be excluded from the

23  proceedings under this section.

24         (4)  COMPETITIVE SELECTION.--

25         (a)  For each proposed project, the agency shall

26  evaluate current statements of qualifications and performance

27  data on file with the agency, together with those that may be

28  submitted by other firms regarding the proposed project, and

29  shall conduct discussions with, and may require public

30  presentations by, no fewer than three firms regarding their

31  

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1  qualifications, approach to the project, and ability to

 2  furnish the required services.

 3         (b)  The agency shall select in order of preference no

 4  fewer than three firms deemed to be the most highly qualified

 5  to perform the required services. In determining whether a

 6  firm is qualified, the agency shall consider such factors as

 7  the ability of professional personnel; whether a firm is a

 8  certified minority business enterprise; past performance;

 9  willingness to meet time and budget requirements; location;

10  recent, current, and projected workloads of the firms; and the

11  volume of work previously awarded to each firm by the agency,

12  with the object of effecting an equitable distribution of

13  contracts among qualified firms, provided such distribution

14  does not violate the principle of selection of the most highly

15  qualified firms. The agency may request, accept, and consider

16  proposals for the compensation to be paid under the contract

17  only during competitive negotiations under subsection (5).

18         (c)  This subsection does not apply to a professional

19  service contract for a project the basic construction cost of

20  which is estimated by the agency to be not in excess of the

21  threshold amount provided in s. 287.017 for CATEGORY FIVE or

22  for a planning or study activity when the fee for professional

23  services is not in excess of the threshold amount provided in

24  s. 287.017 for CATEGORY TWO.

25         (d)  Nothing in this act shall be construed to prohibit

26  a continuing contract between a firm and an agency.

27         (5)  COMPETITIVE NEGOTIATION.--

28         (a)  The agency shall negotiate a contract with the

29  most qualified firm for professional services at compensation

30  which the agency determines is fair, competitive, and

31  reasonable. In making such determination, the agency shall

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1  conduct a detailed analysis of the cost of the professional

 2  services required in addition to considering their scope and

 3  complexity. For any lump-sum or cost-plus-a-fixed-fee

 4  professional service contract over the threshold amount

 5  provided in s. 287.017 for CATEGORY FOUR, the agency shall

 6  require the firm receiving the award to execute a

 7  truth-in-negotiation certificate stating that wage rates and

 8  other factual unit costs supporting the compensation are

 9  accurate, complete, and current at the time of contracting.

10  Any professional service contract under which such a

11  certificate is required must contain a provision that the

12  original contract price and any additions thereto will be

13  adjusted to exclude any significant sums by which the agency

14  determines the contract price was increased due to inaccurate,

15  incomplete, or noncurrent wage rates and other factual unit

16  costs. All such contract adjustments must be made within 1

17  year following the end of the contract.

18         (b)  Should the agency be unable to negotiate a

19  satisfactory contract with the firm considered to be the most

20  qualified at a price the agency determines to be fair,

21  competitive, and reasonable, negotiations with that firm must

22  be formally terminated. The agency shall then undertake

23  negotiations with the second most qualified firm. Failing

24  accord with the second most qualified firm, the agency must

25  terminate negotiations. The agency shall then undertake

26  negotiations with the third most qualified firm.

27         (c)  Should the agency be unable to negotiate a

28  satisfactory contract with any of the selected firms, the

29  agency shall select additional firms in the order of their

30  competence and qualification and continue negotiations in

31  accordance with this subsection until an agreement is reached.

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1         (6)  PROHIBITION AGAINST CONTINGENT FEES.--

 2         (a)  Each contract entered into by the agency for

 3  professional services must contain a prohibition against

 4  contingent fees as follows: "The architect (or registered

 5  surveyor and mapper, or professional engineer, or professional

 6  geologist, as applicable) warrants that he or she has not

 7  employed or retained any company or person, other than a bona

 8  fide employee working solely for the architect (or registered

 9  surveyor and mapper, or professional engineer, or professional

10  geologist, as applicable) to solicit or secure this agreement

11  and that he or she has not paid or agreed to pay any person,

12  company, corporation, individual, or firm, other than a bona

13  fide employee working solely for the architect (or registered

14  surveyor and mapper, or professional engineer, or professional

15  geologist, as applicable) any fee, commission, percentage,

16  gift, or other consideration contingent upon or resulting from

17  the award or making of this agreement." For the breach or

18  violation of this provision, the agency shall have the right

19  to terminate the agreement without liability and, at its

20  discretion, to deduct from the contract price, or otherwise

21  recover, the full amount of such fee, commission, percentage,

22  gift, or consideration.

23         (b)  Any individual, corporation, partnership, firm, or

24  company, other than a bona fide employee working solely for an

25  architect, professional engineer, professional geologist, or

26  registered land surveyor and mapper, who offers, agrees, or

27  contracts to solicit or secure agency contracts for

28  professional services for any other individual, company,

29  corporation, partnership, or firm and to be paid, or is paid,

30  any fee, commission, percentage, gift, or other consideration

31  contingent upon, or resulting from, the award or the making of

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1  a contract for professional services shall, upon conviction in

 2  a competent court of this state, be found guilty of a first

 3  degree misdemeanor, punishable as provided in s. 775.082 or s.

 4  775.083.

 5         (c)  Any architect, professional engineer, professional

 6  geologist, or registered surveyor and mapper, or any group,

 7  association, company, corporation, firm, or partnership

 8  thereof, who offers to pay, or pays, any fee, commission,

 9  percentage, gift, or other consideration contingent upon, or

10  resulting from, the award or making of any agency contract for

11  professional services shall, upon conviction in a state court

12  of competent authority, be found guilty of a first degree

13  misdemeanor, punishable as provided in s. 775.082 or s.

14  775.083.

15         (d)  Any agency official who offers to solicit or

16  secure, or solicits or secures, a contract for professional

17  services and to be paid, or is paid, any fee, commission,

18  percentage, gift, or other consideration contingent upon the

19  award or making of such a contract for professional services

20  between the agency and any individual person, company, firm,

21  partnership, or corporation shall, upon conviction by a court

22  of competent authority, be found guilty of a first degree

23  misdemeanor, punishable as provided in s. 775.082 or s.

24  775.083.

25         (7)  AUTHORITY OF DEPARTMENT OF MANAGEMENT

26  SERVICES.--Notwithstanding any other provision of this

27  section, the Department of Management Services shall be the

28  agency of state government which is solely and exclusively

29  authorized and empowered to administer and perform the

30  functions described in subsections (3), (4), and (5)

31  respecting all projects for which the funds necessary to

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1  complete same are appropriated to the Department of Management

 2  Services, irrespective of whether such projects are intended

 3  for the use and benefit of the Department of Management

 4  Services or any other agency of government. However, nothing

 5  herein shall be construed to be in derogation of any authority

 6  conferred on the Department of Management Services by other

 7  express provisions of law. Additionally, any agency of

 8  government may, with the approval of the Department of

 9  Management Services, delegate to the Department of Management

10  Services authority to administer and perform the functions

11  described in subsections (3), (4), and (5). Under the terms of

12  the delegation, the agency may reserve its right to accept or

13  reject a proposed contract.

14         (8)  STATE ASSISTANCE TO LOCAL AGENCIES.--On any

15  professional service contract for which the fee is over

16  $25,000, the Department of Transportation or the Department of

17  Management Services shall provide, upon request by a

18  municipality, political subdivision, school board, or school

19  district, and upon reimbursement of the costs involved,

20  assistance in selecting consultants and in negotiating

21  consultant contracts.

22         (9)  APPLICABILITY TO DESIGN-BUILD CONTRACTS.--

23         (a)  Except as provided in this subsection, this

24  section is not applicable to the procurement of design-build

25  contracts by any agency, and the agency must award

26  design-build contracts in accordance with the procurement

27  laws, rules, and ordinances applicable to the agency.

28         (b)  The design criteria package must be prepared and

29  sealed by a design criteria professional employed by or

30  retained by the agency. If the agency elects to enter into a

31  professional services contract for the preparation of the

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1  design criteria package, then the design criteria professional

 2  must be selected and contracted with under the requirements of

 3  subsections (4) and (5). A design criteria professional who

 4  has been selected to prepare the design criteria package is

 5  not eligible to render services under a design-build contract

 6  executed pursuant to the design criteria package.

 7         (c)  Except as otherwise provided in s. 337.11(7), the

 8  Department of Management Services shall adopt rules for the

 9  award of design-build contracts to be followed by state

10  agencies. Each other agency must adopt rules or ordinances for

11  the award of design-build contracts. Municipalities, political

12  subdivisions, school districts, and school boards shall award

13  design-build contracts by the use of a competitive proposal

14  selection process as described in this subsection, or by the

15  use of a qualifications-based selection process pursuant to

16  subsections (3), (4), and (5) for entering into a contract

17  whereby the selected firm will subsequently establish a

18  guaranteed maximum price and guaranteed completion date. If

19  the procuring agency elects the option of qualifications-based

20  selection, during the selection of the design-build firm the

21  procuring agency shall employ or retain a licensed design

22  professional appropriate to the project to serve as the

23  agency's representative. Procedures for the use of a

24  competitive proposal selection process must include as a

25  minimum the following:

26         1.  The preparation of a design criteria package for

27  the design and construction of the public construction

28  project.

29         2.  The qualification and selection of no fewer than

30  three design-build firms as the most qualified, based on the

31  

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1  qualifications, availability, and past work of the firms,

 2  including the partners or members thereof.

 3         3.  The criteria, procedures, and standards for the

 4  evaluation of design-build contract proposals or bids, based

 5  on price, technical, and design aspects of the public

 6  construction project, weighted for the project.

 7         4.  The solicitation of competitive proposals, pursuant

 8  to a design criteria package, from those qualified

 9  design-build firms and the evaluation of the responses or bids

10  submitted by those firms based on the evaluation criteria and

11  procedures established prior to the solicitation of

12  competitive proposals.

13         5.  For consultation with the employed or retained

14  design criteria professional concerning the evaluation of the

15  responses or bids submitted by the design-build firms, the

16  supervision or approval by the agency of the detailed working

17  drawings of the project; and for evaluation of the compliance

18  of the project construction with the design criteria package

19  by the design criteria professional.

20         6.  In the case of public emergencies, for the agency

21  head to declare an emergency and authorize negotiations with

22  the best qualified design-build firm available at that time.

23         (10)  REUSE OF EXISTING PLANS.--Notwithstanding any

24  other provision of this section, there shall be no public

25  notice requirement or utilization of the selection process as

26  provided in this section for projects in which the agency is

27  able to reuse existing plans from a prior project of the

28  agency, or, in the case of a board as defined in s. 1013.01, a

29  prior project of that or any other board. Except for plans of

30  a board as defined in s. 1013.01, public notice for any plans

31  that are intended to be reused at some future time must

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1  contain a statement that provides that the plans are subject

 2  to reuse in accordance with the provisions of this subsection.

 3         (11)  CONSTRUCTION OF LAW.--Nothing in the amendment of

 4  this section by chapter 75-281, Laws of Florida, is intended

 5  to supersede the provisions of ss. 1013.45 and 1013.46.

 6         Section 2.  Subsection (2) of section 190.033, Florida

 7  Statutes, is amended to read:

 8         190.033  Bids required.--

 9         (2)  The provisions of the Consultants' Competitive

10  Negotiation Act, s. 287.055, apply to contracts for

11  engineering, geology, architecture, landscape architecture, or

12  registered surveying and mapping services let by the board.

13         Section 3.  Section 373.117, Florida Statutes, is

14  amended to read:

15         373.117  Certification by professional engineer or

16  professional geologist.--

17         (1)  If an application for a permit or license to

18  conduct an activity regulated under this chapter requires the

19  services of a professional engineer as regulated and defined

20  by chapter 471 or a professional geologist as regulated and

21  defined by chapter 492, the department or governing board of a

22  water management district may require, as a condition of

23  granting a permit or license, that a professional engineer

24  licensed under chapter 471 or a professional geologist

25  licensed under chapter 492 certify upon completion of the

26  permitted or licensed activity that such activity has been

27  completed in substantial conformance with the plans and

28  specifications approved by the department or board.

29         (2)  The cost of such certification by a professional

30  engineer or professional geologist shall be borne by the

31  permittee.

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    Florida Senate - 2004                                  SB 1878
    37-1372-04                                          See HB 513




 1         (3)  No permitted or licensed activity which is

 2  required to be so certified shall be placed into use or

 3  operation until the professional engineer's certificate or the

 4  professional geologist's signature and seal are is filed with

 5  the department or board.

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