| 1 | A bill to be entitled |
| 2 | An act relating to public project construction; amending |
| 3 | s. 255.05, F.S.; providing additional requirements for |
| 4 | payment and performance bonds; prohibiting conditioning |
| 5 | certain bonds on performance of or payment for certain |
| 6 | services; creating s. 255.103, F.S.; providing a |
| 7 | definition; authorizing local governments to select |
| 8 | construction-management or program-management entities to |
| 9 | be responsible for certain construction project |
| 10 | activities; providing requirements and authority for such |
| 11 | entities; providing construction; amending s. 287.055, |
| 12 | F.S.; requiring firms awarded certain design-build |
| 13 | contracts to, subsequent to competitive negotiations, |
| 14 | establish a guaranteed maximum price and guaranteed |
| 15 | completion date; providing an effective date. |
| 16 |
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| 17 | Be It Enacted by the Legislature of the State of Florida: |
| 18 |
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| 19 | Section 1. Paragraph (c) is added to subsection (1) of |
| 20 | section 255.05, Florida Statutes, to read: |
| 21 | 255.05 Bond of contractor constructing public buildings; |
| 22 | form; action by materialmen.-- |
| 23 | (1) |
| 24 | (c)1. The amount of the bond shall equal the contract |
| 25 | price, except, for a contract in excess of $250 million, if the |
| 26 | state, county, municipality, political subdivision, or other |
| 27 | public entity finds that a bond in the amount of the contract |
| 28 | price is not reasonably available, the public owner shall set |
| 29 | the amount of the bond at the largest amount reasonably |
| 30 | available, but not at less than $250 million. |
| 31 | 2. For a construction-management or design-build contract, |
| 32 | if the public owner does not include in the bond amount the cost |
| 33 | of design or other nonconstruction services, the bond may not be |
| 34 | conditioned on performance of such services or payment to |
| 35 | persons furnishing such services. Notwithstanding paragraph (a), |
| 36 | such a bond may exclude persons furnishing such services from |
| 37 | the classes of persons protected by the bond. |
| 38 | Section 2. Section 255.103, Florida Statutes, is created |
| 39 | to read: |
| 40 | 255.103 Construction-management or program-management |
| 41 | entities.-- |
| 42 | (1) The term "local government" as used in this section |
| 43 | means a county, municipality, special district as defined in |
| 44 | chapter 189, or other political subdivision of the state. |
| 45 | (2) A local government may select a construction- |
| 46 | management entity, pursuant to the process provided by s. |
| 47 | 287.055, that would be responsible for construction project |
| 48 | scheduling and coordination in both preconstruction and |
| 49 | construction phases and is generally responsible for the |
| 50 | successful, timely, and economical completion of the |
| 51 | construction project. The construction-management entity shall |
| 52 | consist of or contract with licensed or registered professionals |
| 53 | for the specific fields or areas of construction to be |
| 54 | performed, as required by law. The construction-management |
| 55 | entity may retain necessary design professionals selected under |
| 56 | the process provided in s. 287.055. At the option of the local |
| 57 | government, the construction-management entity, after being |
| 58 | selected and after competitive negotiations, may be required to |
| 59 | offer a guaranteed maximum price or a guaranteed completion |
| 60 | date, in which case, the construction-management entity shall |
| 61 | secure an appropriate surety bond pursuant to s. 255.05 and |
| 62 | shall hold construction subcontracts. If a project, as defined |
| 63 | in s. 287.055(2)(f), solicited by a local government under the |
| 64 | process provided in s. 287.055 includes a grouping of |
| 65 | substantially similar construction, rehabilitation, or |
| 66 | renovation activities as permitted under s. 287.055(2)(f), the |
| 67 | local government, after competitive negotiations, may require |
| 68 | the construction-management entity to provide for a separate |
| 69 | guaranteed maximum price or a separate lump-sum price and a |
| 70 | separate guaranteed completion date for each grouping of |
| 71 | substantially similar construction, rehabilitation, or |
| 72 | renovation activities included under the project. |
| 73 | (3) A local government may select a program-management |
| 74 | entity, pursuant to the process provided by s. 287.055, that |
| 75 | would be responsible for schedule control, cost control, and |
| 76 | coordination in providing or procuring planning, design, and |
| 77 | construction services. The program-management entity shall |
| 78 | consist of or contract with licensed or registered professionals |
| 79 | for the specific areas of design or construction to be |
| 80 | performed, as required by law. The program-management entity may |
| 81 | retain necessary design professionals selected under the process |
| 82 | provided in s. 287.055. At the option of the local government, |
| 83 | the program-management entity, after being selected and after |
| 84 | competitive negotiations, may be required to offer a guaranteed |
| 85 | maximum price or a lump-sum price and a guaranteed completion |
| 86 | date, in which case the program-management entity shall secure |
| 87 | an appropriate surety bond pursuant to s. 255.05 and shall hold |
| 88 | design and construction subcontracts. If a project, as defined |
| 89 | in s. 287.055(2)(f), solicited by a local government under the |
| 90 | process provided in s. 287.055, includes a grouping of |
| 91 | substantially similar construction, rehabilitation, or |
| 92 | renovation activities as permitted under s. 287.055(2)(f), the |
| 93 | local government, after competitive negotiations, may require |
| 94 | the program-management entity to provide for a separate |
| 95 | guaranteed maximum price or a lump-sum price and a separate |
| 96 | guaranteed completion date for each grouping of substantially |
| 97 | similar construction, rehabilitation, or renovation activities |
| 98 | included under the project. |
| 99 | (4) Nothing in this section shall be construed to prohibit |
| 100 | a local government from procuring construction-management |
| 101 | services, including the services of a program-management entity, |
| 102 | pursuant to the requirements of s. 255.20. |
| 103 | Section 3. Paragraph (c) of subsection (9) of section |
| 104 | 287.055, Florida Statutes, is amended to read: |
| 105 | 287.055 Acquisition of professional architectural, |
| 106 | engineering, landscape architectural, or surveying and mapping |
| 107 | services; definitions; procedures; contingent fees prohibited; |
| 108 | penalties.-- |
| 109 | (9) APPLICABILITY TO DESIGN-BUILD CONTRACTS.-- |
| 110 | (c) Except as otherwise provided in s. 337.11(7), the |
| 111 | Department of Management Services shall adopt rules for the |
| 112 | award of design-build contracts to be followed by state |
| 113 | agencies. Each other agency must adopt rules or ordinances for |
| 114 | the award of design-build contracts. Municipalities, political |
| 115 | subdivisions, school districts, and school boards shall award |
| 116 | design-build contracts by the use of a competitive proposal |
| 117 | selection process as described in this subsection, or by the use |
| 118 | of a qualifications-based selection process pursuant to |
| 119 | subsections (3), (4), and (5) for entering into a contract |
| 120 | whereby the selected firm will, subsequent to competitive |
| 121 | negotiations, subsequently establish a guaranteed maximum price |
| 122 | and guaranteed completion date. If the procuring agency elects |
| 123 | the option of qualifications-based selection, during the |
| 124 | selection of the design-build firm the procuring agency shall |
| 125 | employ or retain a licensed design professional appropriate to |
| 126 | the project to serve as the agency's representative. Procedures |
| 127 | for the use of a competitive proposal selection process must |
| 128 | include as a minimum the following: |
| 129 | 1. The preparation of a design criteria package for the |
| 130 | design and construction of the public construction project. |
| 131 | 2. The qualification and selection of no fewer than three |
| 132 | design-build firms as the most qualified, based on the |
| 133 | qualifications, availability, and past work of the firms, |
| 134 | including the partners or members thereof. |
| 135 | 3. The criteria, procedures, and standards for the |
| 136 | evaluation of design-build contract proposals or bids, based on |
| 137 | price, technical, and design aspects of the public construction |
| 138 | project, weighted for the project. |
| 139 | 4. The solicitation of competitive proposals, pursuant to |
| 140 | a design criteria package, from those qualified design-build |
| 141 | firms and the evaluation of the responses or bids submitted by |
| 142 | those firms based on the evaluation criteria and procedures |
| 143 | established prior to the solicitation of competitive proposals. |
| 144 | 5. For consultation with the employed or retained design |
| 145 | criteria professional concerning the evaluation of the responses |
| 146 | or bids submitted by the design-build firms, the supervision or |
| 147 | approval by the agency of the detailed working drawings of the |
| 148 | project; and for evaluation of the compliance of the project |
| 149 | construction with the design criteria package by the design |
| 150 | criteria professional. |
| 151 | 6. In the case of public emergencies, for the agency head |
| 152 | to declare an emergency and authorize negotiations with the best |
| 153 | qualified design-build firm available at that time. |
| 154 |
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| 155 | Section 4. This act shall take effect July 1, 2007. |