Florida Senate - 2008 COMMITTEE AMENDMENT

Bill No. SB 2148

801590

CHAMBER ACTION

Senate

Comm: RS

4/17/2008

House

The Committee on Community Affairs (Haridopolos) recommended the

following amendment:

Senate Amendment (with title amendment)

Delete everything after the enacting clause

and insert:

Section 1. Subsection (1) of section 255.20, Florida

Statutes, is amended, and subsection (5) is added to that

section, to read:

255.20 Local bids and contracts for public construction

works; specification of state-produced lumber.--

(1) A county, municipality, special district as defined in

chapter 189, or other political subdivision of the state seeking

to construct, or improve, or repair a public building, structure,

or other public construction works must competitively award to an

appropriately licensed contractor each project that is estimated

in accordance with generally accepted cost-accounting principles

to have a cost total construction project costs of more than

$200,000. For electrical work, local government must

competitively award to an appropriately licensed contractor each

project that is estimated in accordance with generally accepted

cost-accounting principles to have a cost of more than $50,000.

As used in this section, the term "competitively award" means to

award contracts based on the submission of sealed bids, proposals

submitted in response to a request for proposal, proposals

submitted in response to a request for qualifications, or

proposals submitted for competitive negotiation. This subsection

expressly allows contracts for construction management services,

design/build contracts, continuation contracts based on unit

prices, and any other contract arrangement with a private sector

contractor permitted by any applicable municipal or county

ordinance, by district resolution, or by state law. For purposes

of this section, construction costs include the cost of all

labor, except inmate labor, and include the cost of equipment and

materials to be used in the construction of the project. Subject

to the provisions of subsection (3), the county, municipality,

special district, or other political subdivision may establish,

by municipal or county ordinance or special district resolution,

procedures for conducting the bidding process.

(a) Notwithstanding any other law to the contrary, a

county, municipality, special district as defined in chapter 189,

or other political subdivision of the state seeking to construct

or improve bridges, roads, streets, highways, or railroads, and

services incidental thereto, at costs in excess of $250,000 may

require that persons interested in performing work under contract

first be certified or qualified to perform such work. Any

contractor may be considered ineligible to bid by the

governmental entity if the contractor is behind on completing an

approved progress schedule for the governmental entity by 10

percent or more at the time of advertisement of the work. Any

contractor prequalified and considered eligible by the Department

of Transportation to bid to perform the type of work described

under the contract shall be presumed to be qualified to perform

the work described. The governmental entity may provide an appeal

process to overcome that presumption with de novo review based on

the record below to the circuit court.

(b) With respect to contractors not prequalified with the

Department of Transportation, the governmental entity shall

publish prequalification criteria and procedures prior to

advertisement or notice of solicitation. Such publications shall

include notice of a public hearing for comment on such criteria

and procedures prior to adoption. The procedures shall provide

for an appeal process within the authority for objections to the

prequalification process with de novo review based on the record

below to the circuit court within 30 days.

1. When the project is undertaken to replace, reconstruct,

or repair an existing facility damaged or destroyed by a sudden

unexpected turn of events, such as an act of God, riot, fire,

flood, accident, or other urgent circumstances, and such damage

or destruction creates:

a. An immediate danger to the public health or safety;

b. Other loss to public or private property which requires

emergency government action; or

c. An interruption of an essential governmental service.

2. When, after notice by publication in accordance with the

applicable ordinance or resolution, the governmental entity does

not receive any responsive bids or responses.

3. To construction, remodeling, repair, or improvement to a

public electric or gas utility system when such work on the

public utility system is performed by personnel of the system.

4. To construction, remodeling, repair, or improvement by a

utility commission whose major contracts are to construct and

operate a public electric utility system.

5. When the project consists exclusively of routine is

undertaken as repair or maintenance to a public building,

structure, or other public construction work of an existing

public facility. As used in this subparagraph, the term "routine

maintenance" means minor repairs and associated tasks necessary

to preserve the building, structure, or other construction works

in its as-built state without undertaking any new construction,

additions, or extensions.

6. When the project is undertaken exclusively as part of a

public educational program.

7. When the funding source of the project will be

diminished or lost because the time required to competitively

award the project after the funds become available exceeds the

time within which the funding source must be spent.

8. When the local government has competitively awarded a

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project to a private sector contractor and the contractor has

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abandoned the project before completion or the local government

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has terminated the contract.

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9. When the local government, after receiving competitive

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bids or proposals, decides to perform the project using its own

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services, employees, and equipment in compliance with the

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procedure in this subparagraph. If the local government receives

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bids or proposals that are otherwise responsive but are all at

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least 10 percent greater than the local government's estimated

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cost of the project, the governing board of the local government,

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after public notice, must conduct conducts a public meeting under

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s. 286.011 and determine finds by a majority vote of the

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governing board that it is in the public's best interest to

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perform the project using its own services, employees, and

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equipment. The public notice must be published at least 14 days

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prior to the date of the public meeting at which the governing

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board takes final action to apply this subparagraph. The notice

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must identify the project, the estimated cost of the project, and

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specify that the purpose for the public meeting is to consider

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whether it is in the public's best interest to perform the

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project using the local government's own services, employees, and

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equipment. A local government's determination In deciding whether

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it is in the public's best interest for local government to

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perform a project using its own services, employees, and

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equipment must be supported by the following factual findings,

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which are subject to challenge under subsection (4):

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a. The local government's estimated cost of the project as

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specified in the bid documents reasonably represented the fair

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market cost of performing the project using private-sector

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contractors; and

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b. The local government can perform the project using its

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own services, employees, and equipment at a cost equal to or less

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than its estimated cost of the project, using generally accepted

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accounting principles that fully account for all employee

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compensation and benefits, equipment, and material costs and any

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other associated costs and expenses, the governing board may

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consider the cost of the project, whether the project requires an

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increase in the number of government employees, an increase in

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capital expenditures for public facilities, equipment or other

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capital assets, the impact on local economic development, the

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impact on small and minority business owners, the impact on state

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and local tax revenues, whether the private sector contractors

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provide health insurance and other benefits equivalent to those

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provided by the local government, and any other factor relevant

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to what is in the public's best interest.

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10. When the governing board of the local government

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determines upon consideration of specific substantive criteria

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and administrative procedures that it is in the best interest of

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the local government to award the project to an appropriately

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licensed private sector contractor according to procedures

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established by and expressly set forth in a charter, ordinance,

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or resolution of the local government adopted prior to July 1,

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1994. The criteria and procedures must be set out in the charter,

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ordinance, or resolution and must be applied uniformly by the

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local government to avoid award of any project in an arbitrary or

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capricious manner. This exception shall apply when all of the

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following occur:

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a. When the governing board of the local government, after

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public notice, conducts a public meeting under s. 286.011 and

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finds by a two-thirds vote of the governing board that it is in

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the public's best interest to award the project according to the

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criteria and procedures established by charter, ordinance, or

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resolution. The public notice must be published at least 14 days

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prior to the date of the public meeting at which the governing

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board takes final action to apply this subparagraph. The notice

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must identify the project, the estimated cost of the project, and

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specify that the purpose for the public meeting is to consider

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whether it is in the public's best interest to award the project

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using the criteria and procedures permitted by the preexisting

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ordinance.

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b. In the event the project is to be awarded by any method

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other than a competitive selection process, the governing board

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must find evidence that:

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(I) There is one appropriately licensed contractor who is

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uniquely qualified to undertake the project because that

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contractor is currently under contract to perform work that is

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affiliated with the project; or

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(II) The time to competitively award the project will

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jeopardize the funding for the project, or will materially

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increase the cost of the project or will create an undue hardship

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on the public health, safety, or welfare.

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c. In the event the project is to be awarded by any method

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other than a competitive selection process, the published notice

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must clearly specify the ordinance or resolution by which the

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private sector contractor will be selected and the criteria to be

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considered.

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d. In the event the project is to be awarded by a method

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other than a competitive selection process, the architect or

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engineer of record has provided a written recommendation that the

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project be awarded to the private sector contractor without

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competitive selection; and the consideration by, and the

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justification of, the government body are documented, in writing,

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in the project file and are presented to the governing board

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prior to the approval required in this paragraph.

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11. To projects subject to chapter 336.

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(d)1. If the project is to be awarded based on price, the

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contract must be awarded to the lowest qualified and responsive

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bidder in accordance with the applicable county or municipal

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ordinance or district resolution and in accordance with the

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applicable contract documents. The county, municipality, or

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special district may reserve the right to reject all bids and to

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rebid the project or elect not to proceed with the project. This

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subsection is not intended to restrict the rights of any local

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government to reject the low bid of a nonqualified or

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nonresponsive bidder and to award the contract to any other

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qualified and responsive bidder in accordance with the standards

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and procedures of any applicable county or municipal ordinance or

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any resolution of a special district.

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2. If the project uses a request for proposal or a request

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for qualifications, the request must be publicly advertised and

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the contract must be awarded in accordance with the applicable

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local ordinances.

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3. If the project is subject to competitive negotiations,

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the contract must be awarded in accordance with s. 287.055.

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(e) If a construction project greater than $200,000, or

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$50,000 for electrical work, is started after October 1, 1999,

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and is to be performed by a local government using its own

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employees in a county or municipality that issues registered

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contractor licenses and the project would require a licensed

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contractor under chapter 489 if performed by a private sector

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contractor, the local government must use a person appropriately

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registered or certified under chapter 489 to supervise the work.

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(f) If a construction project greater than $200,000, or

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$50,000 for electrical work, is started after October 1, 1999,

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and is to be performed by a local government using its own

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employees in a county that does not issue registered contractor

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licenses and the project would require a licensed contractor

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under chapter 489 if performed by a private sector contractor,

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the local government must use a person appropriately registered

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or certified under chapter 489 or a person appropriately licensed

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under chapter 471 to supervise the work.

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(g) Projects performed by a local government using its own

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services and employees must be inspected in the same manner as

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inspections required for work performed by private sector

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contractors.

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(h) A construction project provided for in this subsection

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may not be divided into more than one project for the purpose of

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evading this subsection.

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(i) This subsection does not preempt the requirements of

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any small-business or disadvantaged-business enterprise program

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or any local-preference ordinance.

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(j) A local government owning or operating a public-use

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airport, as defined in s. 332.004(1), is exempt from this section

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if performing repairs or maintenance on the airport's buildings,

244

structures, or public construction works using the local

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government's own services, employees, and equipment, regardless

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of the total construction cost.

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(k) A local government owning or operating a seaport, as

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identified in s. 403.021(9)(b), is exempt from this section if

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performing repairs or maintenance on the seaport's buildings,

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structures, or public construction works using the local

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government's own services, employees, and equipment, regardless

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of the total construction cost.

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(l) A local government owning or operating a public transit

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system, as defined in s. 343.52, a public transportation system,

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as defined in s. 343.62, or a mass transit system as defined in

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s. 349.04(1)(b) is exempt from this section if performing repairs

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or maintenance on the buildings, structures, or public

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construction works, of a public transit, public transportation

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system or mass transit system using the local government's own

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services, employees, and equipment, regardless of the total

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construction cost.

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(5) Notwithstanding any law to the contrary, a county,

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municipality, or special district may not own or operate an

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asphalt plant or a portable or stationary concrete batch plant

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that has an independent mixer.

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Section 2. Section 336.41, Florida Statutes, is amended to

267

read:

268

336.41 Counties and municipalities; employing labor and

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providing road equipment; accounting; when competitive bidding

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required.--

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(1) The commissioners may employ labor and provide

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equipment as may be necessary, except as provided in subsection

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(3), for constructing and opening of new roads or bridges and

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repair and maintenance of any existing roads and bridges.

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(1)(2) It shall be the duty of All persons to whom the

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governing body of a county or municipality delivers commissioners

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deliver equipment and construction materials supplies for road

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and bridge purposes shall to make a strict accounting of the

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equipment and construction materials same to the governing body

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commissioners.

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(2)(a)(3) The governing body of a county or municipality

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shall competitively award to a private-sector contractor all

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construction, and reconstruction, or repair of roads and bridges,

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including resurfacing, full scale mineral seal coating, and major

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bridge and bridge system repairs., to be performed utilizing the

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proceeds of the 80-percent portion of the surplus of the

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constitutional gas tax shall be let to contract to the lowest

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responsible bidder by competitive bid, except

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(b) Notwithstanding paragraph (a), the county or

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municipality may use its own forces for:

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1.(a) Construction and maintenance in emergency

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situations., and

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2.(b) In addition to emergency work, Construction, and

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reconstruction, or repair of roads and bridges, including

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resurfacing, full scale mineral seal coating, and major bridge

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and bridge system repairs. However:, having a total cumulative

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annual value not to exceed 5 percent of its 80-percent portion of

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the constitutional gas tax or $400,000, whichever is greater, and

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a. A single project may not exceed $250,000 in value or as

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adjusted by the percentage change in the Construction Cost Index

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from January 1, 2009, exclusive of materials purchased in

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accordance with sub-subparagraph c.

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b. A project provided for in this subsection may not be

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divided into more than one project for the purpose of evading

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this subsection.

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c. All materials for such projects must be purchased or

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furnished from a commercial source, with the exception of

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government-owned material pits for sand, shell, gravel, and rock

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existing before January 1, 2008.

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d. A county or municipality is not subject to the maximum

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project value in sub-subparagraph a. for paving dirt roads only.

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Such counties or municipalities are subject to the material

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purchase provisions of sub-subparagraph c.

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3.(c) Construction of sidewalks, curbing, accessibility

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ramps, or appurtenances incidental to roads and bridges if each

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project is estimated in accordance with generally accepted cost-

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accounting principles to have total construction project costs of

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less than $400,000 or as adjusted by the percentage change in the

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Construction Cost Index from January 1, 2008,

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for which the county may utilize its own forces.

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received by a county or municipality for a specific project, the

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county or municipality may use its own forces to construct the

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project, notwithstanding the limitation of this subsection.

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Nothing in this section shall prevent the county from performing

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routine maintenance as authorized by law.

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(d) As used in this section, the term "competitively award"

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means to award a contract based on the submission of sealed bids,

330

proposals submitted in response to a request for qualifications,

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or proposals submitted for competitive negotiations. This

332

subsection authorizes contracts for construction management

333

services, design-build contracts, continuation contracts based on

334

unit prices, and any other contract arrangement with a private-

335

sector contractor permitted by any applicable municipal or county

336

ordinance, by district resolution, or by state law.

337

(e) For purposes for this section, the value of a project

338

includes the cost of all labor except inmate labor, labor burden,

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and equipment, including ownership, fuel, and maintenance costs

340

to be used in the construction and reconstruction of the project.

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(f) This section does not prevent the county or

342

municipality from performing routine maintenance as authorized by

343

law and defined in s. 334.03, including the grading and shaping

344

of dirt roads.

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(g) Notwithstanding any law to the contrary, a county,

346

municipality, or special district may not own or operate an

347

asphalt plant or a portable or stationary concrete batch plant

348

that has an independent mixer.

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(3)(4)(a) For contracts in excess of $250,000, any county

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or municipality may require that persons interested in performing

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work under the contract first be certified or qualified to do the

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work. Any contractor prequalified and considered eligible to bid

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by the department to perform the type of work described under the

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contract shall be presumed to be qualified to perform the work so

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described. Any contractor may be considered ineligible to bid by

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the county or municipality if the contractor is behind an

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approved progress schedule by 10 percent or more on another

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project for that county or municipality at the time of the

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advertisement of the work. The county or municipality may provide

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an appeal process to overcome such consideration with de novo

361

review based on the record below to the circuit court.

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(b) The county or municipality, as appropriate, shall

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publish prequalification criteria and procedures prior to

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advertisement or notice of solicitation. Such publications shall

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include notice of a public hearing for comment on such criteria

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and procedures prior to adoption. The procedures shall provide

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for an appeal process within the county or municipality for

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objections to the prequalification process with de novo review

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based on the record below to the circuit court.

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publish for comment, prior to adoption, the selection criteria

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and procedures to be used by the county or municipality if such

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procedures would allow selection of other than the lowest

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responsible bidder. The selection criteria shall include an

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appeal process within the county or municipality with de novo

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review based on the record below to the circuit court.

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Section 3. Section 336.44, Florida Statutes, is amended to

378

read:

379

336.44 Counties and municipalities; contracts for

380

construction of roads; procedure; contractor's bond.--

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(1) The governing body of a county or municipality

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commissioners shall let the work on roads out on contract, in

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accordance with s. 336.41(2) s. 336.41(3).

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(2) Such contracts shall be let to the lowest responsible

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bidder, after publication of notice for bids containing

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specifications furnished by the governing body of a county or

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municipality commissioners in a newspaper published in the county

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where such contract is made, at least once each week for 2

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consecutive weeks prior to the making of such contract.

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(3) Upon accepting a satisfactory bid, the governing body

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of a county or municipality commissioners shall enter into a

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contract with the party whose bid has been accepted. Such

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contract shall contain the specifications of the work to be done

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or material furnished, the time limit in which the construction

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is to be completed or material delivered, the time and amounts in

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which payments are to be made upon the contract, and a penalty to

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be paid by the contractor for the failure to comply with the

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terms of such contract.

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(4) The successful bidder shall enter into a good and

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sufficient bond with the governing body of a county or

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municipality commissioners for the faithful execution of the

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contract; the amount of the bond to be fixed by the governing

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body of a county or municipality commissioners, and the

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sufficiency of the said bond to be likewise approved by the

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governing body of a county or municipality commissioners.

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(5) The governing body of a county or municipality

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commissioners may reject any or all bids and require new bids to

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be made.

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Section 4. This act shall take effect upon becoming a law.

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================ T I T L E A M E N D M E N T ================

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And the title is amended as follows:

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Delete everything before the enacting clause

414

and insert:

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A bill to be entitled

416

An act relating to public construction; amending s.

417

255.20, F.S.; requiring that a county, municipality,

418

special district, or other political subdivision seeking

419

to construct, repair, or improve a public building or

420

structure competitively award each project; providing

421

certain exceptions; revising the procedure for a local

422

government to perform a project using its own services,

423

employees, and equipment; exempting local governments

424

owning or operating a public-use airport, a seaport, or a

425

public transit system as defined by state law from certain

426

requirements under certain conditions; prohibiting a

427

county, municipality, or special district from owning or

428

operating an asphalt plant or concrete plant having an

429

independent mixer; amending s. 336.41, F.S.; deleting

430

provisions authorizing county commissioners to employ

431

labor and provide equipment for certain projects;

432

requiring that all persons to whom the governing body of a

433

county or municipality delivers equipment or material to

434

account for such equipment or material to the governing

435

body; requiring that such governing body competitively

436

award certain projects to a private-sector contractor;

437

authorizing a county or municipality to use its own forces

438

for certain projects; defining the term "competitively

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award" for specified purposes; providing that the value of

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a project includes specified costs; providing that

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requirements to competitively award certain contractors do

442

not prevent counties and municipalities from performing

443

routine maintenance, including the grading and shaping of

444

dirt roads; prohibiting a county, municipality, or special

445

district from owning or operating an asphalt plant or a

446

concrete plant having an independent mixer; authorizing

447

municipalities to provide for certain requirements for

448

contracts exceeding a specified value; requiring that a

449

municipality publish certain information before

450

advertisement, notice of solicitation, or adoption;

451

amending s. 336.44, F.S.; requiring that the governing

452

body of a county or municipality let the work on roads out

453

on contract in accordance with state law; providing an

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effective date.

4/15/2008 5:05:00 PM 26-07387C-08

CODING: Words stricken are deletions; words underlined are additions.