HB 0513 2004
1	A bill to be entitled
2	An act relating to professional geology; amending s.
3	287.055, F.S.; including professional geology in the
4	services covered by the Consultants' Competitive
5	Negotiation Act; amending s. 190.033, F.S., relating to
6	services contracted by community development districts, to
7	conform; amending s. 373.117, F.S.; providing requirements
8	for certification by a professional geologist of water
9	resource activities for which a permit or license and such
10	certification are required; providing an effective date.
11
12	Be It Enacted by the Legislature of the State of Florida:
13
14	Section 1. Section 287.055, Florida Statutes, is amended
15	to read:
16	287.055 Acquisition of professional architectural,
17	engineering, geology,landscape architectural, or surveying and
18	mapping services; definitions; procedures; contingent fees
19	prohibited; penalties.--
20	(1) SHORT TITLE.--This section shall be known as the
21	"Consultants' Competitive Negotiation Act."
22	(2) DEFINITIONS.--For purposes of this section:
23	(a) "Professional services" means those services within
24	the scope of the practice of architecture, professional
25	engineering, professional geology,landscape architecture, or
26	registered surveying and mapping, as defined by the laws of the
27	state, or those performed by any architect, professional
28	engineer, professional geologist,landscape architect, or
29	registered surveyor and mapper in connection with his or her
30	professional employment or practice.
31	(b) "Agency" means the state, a state agency, a
32	municipality, a political subdivision, a school district, or a
33	school board. The term "agency" does not extend to a
34	nongovernmental developer that contributes public facilities to
35	a political subdivision under s. 380.06 or ss. 163.3220-
36	163.3243.
37	(c) "Firm" means any individual, firm, partnership,
38	corporation, association, or other legal entity permitted by law
39	to practice architecture, engineering, geology,or surveying and
40	mapping in the state.
41	(d) "Compensation" means the total amount paid by the
42	agency for professional services.
43	(e) "Agency official" means any elected or appointed
44	officeholder, employee, consultant, person in the category of
45	other personal service or any other person receiving
46	compensation from the state, a state agency, municipality, or
47	political subdivision, a school district or a school board.
48	(f) "Project" means that fixed capital outlay study or
49	planning activity described in the public notice of the state or
50	a state agency under paragraph (3)(a). A project may include:
51	1. A grouping of minor construction, rehabilitation, or
52	renovation activities.
53	2. A grouping of substantially similar construction,
54	rehabilitation, or renovation activities.
55	(g) A "continuing contract" is a contract for professional
56	services entered into in accordance with all the procedures of
57	this act between an agency and a firm whereby the firm provides
58	professional services to the agency for projects in which
59	construction costs do not exceed $1 million, for study activity
60	when the fee for such professional service does not exceed
61	$50,000, or for work of a specified nature as outlined in the
62	contract required by the agency, with no time limitation except
63	that the contract must provide a termination clause.
64	(h) A "design-build firm" means a partnership,
65	corporation, or other legal entity that:
66	1. Is certified under s. 489.119 to engage in contracting
67	through a certified or registered general contractor or a
68	certified or registered building contractor as the qualifying
69	agent; or
70	2. Is certified under s. 471.023 to practice or to offer
71	to practice engineering; certified under s. 492.111 to practice
72	or to offer to practice professional geology;certified under s.
73	481.219 to practice or to offer to practice architecture; or
74	certified under s. 481.319 to practice or to offer to practice
75	landscape architecture.
76	(i) A "design-build contract" means a single contract with
77	a design-build firm for the design and construction of a public
78	construction project.
79	(j) A "design criteria package" means concise,
80	performance-oriented drawings or specifications of the public
81	construction project. The purpose of the design criteria package
82	is to furnish sufficient information to permit design-build
83	firms to prepare a bid or a response to an agency's request for
84	proposal, or to permit an agency to enter into a negotiated
85	design-build contract. The design criteria package must specify
86	performance-based criteria for the public construction project,
87	including the legal description of the site, survey information
88	concerning the site, interior space requirements, material
89	quality standards, schematic layouts and conceptual design
90	criteria of the project, cost or budget estimates, design and
91	construction schedules, site development requirements,
92	provisions for utilities, stormwater retention and disposal, and
93	parking requirements applicable to the project.
94	(k) A "design criteria professional" means a firm that who
95	holds a current certificate of registration under chapter 481 to
96	practice architecture or landscape architecture, or a firm who
97	holdsa current certificate as a registered engineer under
98	chapter 471 to practice engineering, or a current certificate of
99	authorization under chapter 492 to practice professional geology
100	and that whois employed by or under contract to the agency for
101	the providing of professional architect services, landscape
102	architect services, or engineering services, or geological
103	servicesin connection with the preparation of the design
104	criteria package.
105	(3) PUBLIC ANNOUNCEMENT AND QUALIFICATION PROCEDURES.--
106	(a) Each agency shall publicly announce, in a uniform and
107	consistent manner, each occasion when professional services must
108	be purchased for a project the basic construction cost of which
109	is estimated by the agency to exceed the threshold amount
110	provided in s. 287.017 for CATEGORY FIVE or for a planning or
111	study activity when the fee for professional services exceeds
112	the threshold amount provided in s. 287.017 for CATEGORY TWO,
113	except in cases of valid public emergencies certified by the
114	agency head. The public notice must include a general
115	description of the project and must indicate how interested
116	consultants may apply for consideration.
117	(b) Each agency shall encourage firms engaged in the
118	lawful practice of their professions that desire to provide
119	professional services to the agency to submit annually
120	statements of qualifications and performance data.
121	(c) Any firm or individual desiring to provide
122	professional services to the agency must first be certified by
123	the agency as qualified pursuant to law and the regulations of
124	the agency. The agency must find that the firm or individual to
125	be employed is fully qualified to render the required service.
126	Among the factors to be considered in making this finding are
127	the capabilities, adequacy of personnel, past record, and
128	experience of the firm or individual.
129	(d) Each agency shall evaluate professional services,
130	including capabilities, adequacy of personnel, past record,
131	experience, whether the firm is a certified minority business
132	enterprise as defined by the Florida Small and Minority Business
133	Assistance Act of 1985, and other factors determined by the
134	agency to be applicable to its particular requirements. When
135	securing professional services, an agency must endeavor to meet
136	the minority business enterprise procurement goals under s.
137	287.09451.
138	(e) The public must not be excluded from the proceedings
139	under this section.
140	(4) COMPETITIVE SELECTION.--
141	(a) For each proposed project, the agency shall evaluate
142	current statements of qualifications and performance data on
143	file with the agency, together with those that may be submitted
144	by other firms regarding the proposed project, and shall conduct
145	discussions with, and may require public presentations by, no
146	fewer than three firms regarding their qualifications, approach
147	to the project, and ability to furnish the required services.
148	(b) The agency shall select in order of preference no
149	fewer than three firms deemed to be the most highly qualified to
150	perform the required services. In determining whether a firm is
151	qualified, the agency shall consider such factors as the ability
152	of professional personnel; whether a firm is a certified
153	minority business enterprise; past performance; willingness to
154	meet time and budget requirements; location; recent, current,
155	and projected workloads of the firms; and the volume of work
156	previously awarded to each firm by the agency, with the object
157	of effecting an equitable distribution of contracts among
158	qualified firms, provided such distribution does not violate the
159	principle of selection of the most highly qualified firms. The
160	agency may request, accept, and consider proposals for the
161	compensation to be paid under the contract only during
162	competitive negotiations under subsection (5).
163	(c) This subsection does not apply to a professional
164	service contract for a project the basic construction cost of
165	which is estimated by the agency to be not in excess of the
166	threshold amount provided in s. 287.017 for CATEGORY FIVE or for
167	a planning or study activity when the fee for professional
168	services is not in excess of the threshold amount provided in s.
169	287.017 for CATEGORY TWO.
170	(d) Nothing in this act shall be construed to prohibit a
171	continuing contract between a firm and an agency.
172	(5) COMPETITIVE NEGOTIATION.--
173	(a) The agency shall negotiate a contract with the most
174	qualified firm for professional services at compensation which
175	the agency determines is fair, competitive, and reasonable. In
176	making such determination, the agency shall conduct a detailed
177	analysis of the cost of the professional services required in
178	addition to considering their scope and complexity. For any
179	lump-sum or cost-plus-a-fixed-fee professional service contract
180	over the threshold amount provided in s. 287.017 for CATEGORY
181	FOUR, the agency shall require the firm receiving the award to
182	execute a truth-in-negotiation certificate stating that wage
183	rates and other factual unit costs supporting the compensation
184	are accurate, complete, and current at the time of contracting.
185	Any professional service contract under which such a certificate
186	is required must contain a provision that the original contract
187	price and any additions thereto will be adjusted to exclude any
188	significant sums by which the agency determines the contract
189	price was increased due to inaccurate, incomplete, or noncurrent
190	wage rates and other factual unit costs. All such contract
191	adjustments must be made within 1 year following the end of the
192	contract.
193	(b) Should the agency be unable to negotiate a
194	satisfactory contract with the firm considered to be the most
195	qualified at a price the agency determines to be fair,
196	competitive, and reasonable, negotiations with that firm must be
197	formally terminated. The agency shall then undertake
198	negotiations with the second most qualified firm. Failing accord
199	with the second most qualified firm, the agency must terminate
200	negotiations. The agency shall then undertake negotiations with
201	the third most qualified firm.
202	(c) Should the agency be unable to negotiate a
203	satisfactory contract with any of the selected firms, the agency
204	shall select additional firms in the order of their competence
205	and qualification and continue negotiations in accordance with
206	this subsection until an agreement is reached.
207	(6) PROHIBITION AGAINST CONTINGENT FEES.--
208	(a) Each contract entered into by the agency for
209	professional services must contain a prohibition against
210	contingent fees as follows: "The architect (or registered
211	surveyor and mapper, or professional engineer, or professional
212	geologist,as applicable) warrants that he or she has not
213	employed or retained any company or person, other than a bona
214	fide employee working solely for the architect (or registered
215	surveyor and mapper, or professional engineer, or professional
216	geologist,as applicable) to solicit or secure this agreement
217	and that he or she has not paid or agreed to pay any person,
218	company, corporation, individual, or firm, other than a bona
219	fide employee working solely for the architect (or registered
220	surveyor and mapper, or professional engineer, or professional
221	geologist,as applicable) any fee, commission, percentage, gift,
222	or other consideration contingent upon or resulting from the
223	award or making of this agreement." For the breach or violation
224	of this provision, the agency shall have the right to terminate
225	the agreement without liability and, at its discretion, to
226	deduct from the contract price, or otherwise recover, the full
227	amount of such fee, commission, percentage, gift, or
228	consideration.
229	(b) Any individual, corporation, partnership, firm, or
230	company, other than a bona fide employee working solely for an
231	architect, professional engineer, professional geologist,or
232	registered land surveyor and mapper, who offers, agrees, or
233	contracts to solicit or secure agency contracts for professional
234	services for any other individual, company, corporation,
235	partnership, or firm and to be paid, or is paid, any fee,
236	commission, percentage, gift, or other consideration contingent
237	upon, or resulting from, the award or the making of a contract
238	for professional services shall, upon conviction in a competent
239	court of this state, be found guilty of a first degree
240	misdemeanor, punishable as provided in s. 775.082 or s. 775.083.
241	(c) Any architect, professional engineer, professional
242	geologist,or registered surveyor and mapper, or any group,
243	association, company, corporation, firm, or partnership thereof,
244	who offers to pay, or pays, any fee, commission, percentage,
245	gift, or other consideration contingent upon, or resulting from,
246	the award or making of any agency contract for professional
247	services shall, upon conviction in a state court of competent
248	authority, be found guilty of a first degree misdemeanor,
249	punishable as provided in s. 775.082 or s. 775.083.
250	(d) Any agency official who offers to solicit or secure,
251	or solicits or secures, a contract for professional services and
252	to be paid, or is paid, any fee, commission, percentage, gift,
253	or other consideration contingent upon the award or making of
254	such a contract for professional services between the agency and
255	any individual person, company, firm, partnership, or
256	corporation shall, upon conviction by a court of competent
257	authority, be found guilty of a first degree misdemeanor,
258	punishable as provided in s. 775.082 or s. 775.083.
259	(7) AUTHORITY OF DEPARTMENT OF MANAGEMENT
260	SERVICES.--Notwithstanding any other provision of this section,
261	the Department of Management Services shall be the agency of
262	state government which is solely and exclusively authorized and
263	empowered to administer and perform the functions described in
264	subsections (3), (4), and (5) respecting all projects for which
265	the funds necessary to complete same are appropriated to the
266	Department of Management Services, irrespective of whether such
267	projects are intended for the use and benefit of the Department
268	of Management Services or any other agency of government.
269	However, nothing herein shall be construed to be in derogation
270	of any authority conferred on the Department of Management
271	Services by other express provisions of law. Additionally, any
272	agency of government may, with the approval of the Department of
273	Management Services, delegate to the Department of Management
274	Services authority to administer and perform the functions
275	described in subsections (3), (4), and (5). Under the terms of
276	the delegation, the agency may reserve its right to accept or
277	reject a proposed contract.
278	(8) STATE ASSISTANCE TO LOCAL AGENCIES.--On any
279	professional service contract for which the fee is over $25,000,
280	the Department of Transportation or the Department of Management
281	Services shall provide, upon request by a municipality,
282	political subdivision, school board, or school district, and
283	upon reimbursement of the costs involved, assistance in
284	selecting consultants and in negotiating consultant contracts.
285	(9) APPLICABILITY TO DESIGN-BUILD CONTRACTS.--
286	(a) Except as provided in this subsection, this section is
287	not applicable to the procurement of design-build contracts by
288	any agency, and the agency must award design-build contracts in
289	accordance with the procurement laws, rules, and ordinances
290	applicable to the agency.
291	(b) The design criteria package must be prepared and
292	sealed by a design criteria professional employed by or retained
293	by the agency. If the agency elects to enter into a professional
294	services contract for the preparation of the design criteria
295	package, then the design criteria professional must be selected
296	and contracted with under the requirements of subsections (4)
297	and (5). A design criteria professional who has been selected to
298	prepare the design criteria package is not eligible to render
299	services under a design-build contract executed pursuant to the
300	design criteria package.
301	(c) Except as otherwise provided in s. 337.11(7), the
302	Department of Management Services shall adopt rules for the
303	award of design-build contracts to be followed by state
304	agencies. Each other agency must adopt rules or ordinances for
305	the award of design-build contracts. Municipalities, political
306	subdivisions, school districts, and school boards shall award
307	design-build contracts by the use of a competitive proposal
308	selection process as described in this subsection, or by the use
309	of a qualifications-based selection process pursuant to
310	subsections (3), (4), and (5) for entering into a contract
311	whereby the selected firm will subsequently establish a
312	guaranteed maximum price and guaranteed completion date. If the
313	procuring agency elects the option of qualifications-based
314	selection, during the selection of the design-build firm the
315	procuring agency shall employ or retain a licensed design
316	professional appropriate to the project to serve as the agency's
317	representative. Procedures for the use of a competitive proposal
318	selection process must include as a minimum the following:
319	1. The preparation of a design criteria package for the
320	design and construction of the public construction project.
321	2. The qualification and selection of no fewer than three
322	design-build firms as the most qualified, based on the
323	qualifications, availability, and past work of the firms,
324	including the partners or members thereof.
325	3. The criteria, procedures, and standards for the
326	evaluation of design-build contract proposals or bids, based on
327	price, technical, and design aspects of the public construction
328	project, weighted for the project.
329	4. The solicitation of competitive proposals, pursuant to
330	a design criteria package, from those qualified design-build
331	firms and the evaluation of the responses or bids submitted by
332	those firms based on the evaluation criteria and procedures
333	established prior to the solicitation of competitive proposals.
334	5. For consultation with the employed or retained design
335	criteria professional concerning the evaluation of the responses
336	or bids submitted by the design-build firms, the supervision or
337	approval by the agency of the detailed working drawings of the
338	project; and for evaluation of the compliance of the project
339	construction with the design criteria package by the design
340	criteria professional.
341	6. In the case of public emergencies, for the agency head
342	to declare an emergency and authorize negotiations with the best
343	qualified design-build firm available at that time.
344	(10) REUSE OF EXISTING PLANS.--Notwithstanding any other
345	provision of this section, there shall be no public notice
346	requirement or utilization of the selection process as provided
347	in this section for projects in which the agency is able to
348	reuse existing plans from a prior project of the agency, or, in
349	the case of a board as defined in s. 1013.01, a prior project of
350	that or any other board. Except for plans of a board as defined
351	in s. 1013.01, public notice for any plans that are intended to
352	be reused at some future time must contain a statement that
353	provides that the plans are subject to reuse in accordance with
354	the provisions of this subsection.
355	(11) CONSTRUCTION OF LAW.--Nothing in the amendment of
356	this section by chapter 75-281, Laws of Florida, is intended to
357	supersede the provisions of ss. 1013.45 and 1013.46.
358	Section 2. Subsection (2) of section 190.033, Florida
359	Statutes, is amended to read:
360	190.033 Bids required.--
361	(2) The provisions of the Consultants' Competitive
362	Negotiation Act, s. 287.055, apply to contracts for engineering,
363	geology,architecture, landscape architecture, or registered
364	surveying and mapping services let by the board.
365	Section 3. Section 373.117, Florida Statutes, is amended
366	to read:
367	373.117 Certification by professional engineer or
368	professional geologist.--
369	(1) If an application for a permit or license to conduct
370	an activity regulated under this chapter requires the services
371	of a professional engineer as regulated and defined by chapter
372	471 or a professional geologist as regulated and defined by
373	chapter 492, the department or governing board of a water
374	management district may require, as a condition of granting a
375	permit or license, that a professional engineer licensed under
376	chapter 471 or a professional geologist licensed under chapter
377	492certify upon completion of the permitted or licensed
378	activity that such activity has been completed in substantial
379	conformance with the plans and specifications approved by the
380	department or board.
381	(2) The cost of such certification by a professional
382	engineer or professional geologistshall be borne by the
383	permittee.
384	(3) No permitted or licensed activity which is required to
385	be so certified shall be placed into use or operation until the
386	professional engineer's certificate or the professional
387	geologist's signature and seal are isfiled with the department
388	or board.
389	Section 4. This act shall take effect upon becoming a law.