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A bill to be entitled

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An act relating to public construction works; amending s.

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255.20, F.S.; revising requirements for a county,

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municipality, special district, or other political

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subdivision of the state to competitively award contracts

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for certain construction projects; revising exceptions to

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those requirements; providing procedures for an exception

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to those requirements when all bids or proposals are

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greater than a threshold amount; providing that certain

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construction contract terms limiting the right of a

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contractor to recover certain costs or damages are void;

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providing that certain decisions by the local governmental

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entity concerning additional compensation or time to which

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a contractor is entitled are subject to de novo review in

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state court; amending s. 336.41, F.S.; revising provisions

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authorizing a county to employ labor and provide equipment

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for road and bridge projects; removing authorization for a

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county to use its own resources for constructing and

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opening new roads and bridges; revising requirements for

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certain county road and bridge projects to be let to

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contract; authorizing the governing body of a municipality

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to employ labor and provide equipment for repair and

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maintenance of roads and bridges; requiring county and

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municipal construction and reconstruction projects using

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certain tax revenues to be let to contract; providing

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exceptions; authorizing a municipality to require that

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persons interested in performing work under the contract

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first be certified or qualified to do the work when the

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contract amount exceeds a certain threshold; providing for

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qualification of a contractor by the Department of

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Transportation; providing that a contractor may be

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considered ineligible to bid by the municipality if the

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contractor is behind an approved progress schedule by more

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than a certain amount on another project for that

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municipality at the time of the advertisement of the work

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requiring prequalification; authorizing an appeal process;

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requiring prequalification criteria and procedures to be

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published prior to advertisement or notice of

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solicitation; requiring notice of a public hearing for

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comment on such criteria and procedures prior to adoption;

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requiring the procedures to provide for an appeal process

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for objections to the prequalification process; requiring

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the municipality to publish for comment, prior to

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adoption, the selection criteria and procedures to be used

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if such procedures would allow selection of other than the

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lowest responsible bidder; requiring the selection

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criteria to include an appeal process; providing an

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effective date.

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

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

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Statutes, is amended to read:

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     255.20  Local bids and contracts for public construction

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works; specification of state-produced lumber.--

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

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chapter 189, or other political subdivision of the state seeking

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to construct, or improve, repair, or perform maintenance on a

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public building, structure, facility, or other public

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construction works must competitively award to an appropriately

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licensed contractor each project that is estimated in accordance

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with generally accepted cost-accounting principles to have total

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construction project costs of more than $200,000. For electrical

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work, local government must competitively award to an

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appropriately licensed contractor each project that is estimated

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in accordance with generally accepted cost-accounting principles

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to have a cost of more than $50,000. As used in this section, the

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term "competitively award" means to award contracts based on the

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submission of sealed bids, proposals submitted in response to a

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request for proposal, proposals submitted in response to a

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request for qualifications, or proposals submitted for

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competitive negotiation. This subsection expressly allows

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contracts for construction management services, design/build

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contracts, continuation contracts based on unit prices, and any

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other contract arrangement with a private sector contractor

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permitted by any applicable municipal or county ordinance, by

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district resolution, or by state law. For purposes of this

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section, construction costs include the cost of all labor, except

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inmate labor, and include the cost of equipment and materials to

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

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

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district, or other political subdivision may establish, by

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municipal or county ordinance or special district resolution,

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procedures for conducting the bidding process.

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

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

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or other political subdivision of the state seeking to construct

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

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

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require that persons interested in performing work under contract

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first be certified or qualified to perform such work. Any

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contractor may be considered ineligible to bid by the

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governmental entity if the contractor is behind on completing an

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approved progress schedule for the governmental entity by 10

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

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contractor prequalified and considered eligible by the Department

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of Transportation to bid to perform the type of work described

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under the contract shall be presumed to be qualified to perform

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the work described. The governmental entity may provide an appeal

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process to overcome that presumption with de novo review based on

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the record below to the circuit court.

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     (b)  With respect to contractors not prequalified with the

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Department of Transportation, the governmental entity 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 authority for objections to the

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prequalification process with de novo review based on the record

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below to the circuit court within 30 days.

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     (c)  The provisions of this subsection do not apply:

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

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or repair an existing facility damaged or destroyed by a sudden

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

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

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or destruction creates:

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

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     b.  Other loss to public or private property which requires

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emergency government action; or

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     c.  An interruption of an essential governmental service.

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

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applicable ordinance or resolution, the governmental entity does

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not receive any responsive bids or proposals responses.

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

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public electric or gas utility system when such work on the

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public utility system is performed by personnel of the system.

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

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utility commission whose major contracts are to construct and

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operate a public electric utility system.

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     5. When the project is undertaken as repair or maintenance

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of an existing public facility.

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     5.6. When the project is undertaken exclusively as part of

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a public educational program.

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     6.7. When the funding source of the project will be

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diminished or lost because, through no fault of the governmental

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entity, the time required to competitively award the project

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after the funds become available exceeds the time within which

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the funding source must be spent.

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     7.8. 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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     8.9. When, after receipt of bids or proposals, all

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responsive bids or proposals are at least 10 percent greater than

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the local government's estimated cost of the project. In this

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case, the local government may request that a professional

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engineer not affiliated with the local government prepare an

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independent estimate of the fair market cost of the project. If

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the professional engineer's cost estimate is within 10 percent of

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at least one of the responsive bids or proposals, the project

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must be competitively awarded. If the professional engineer's

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cost estimate is not within 10 percent of at least one of the

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responsive bids or proposals, the local government may request

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that a certified public accountant not affiliated with the local

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government prepare, in conjunction with the professional

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engineer, an estimate of the cost of the project if performed by

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the local government using its own services, employees, and

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equipment and using generally accepted accounting principles that

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fully account for all employee compensation and benefits,

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equipment and material costs, and any other associated costs and

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expenses. Only if the accountant's estimate is less than the

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lowest-priced responsive bid or proposal and the governing board

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of the local government, after public notice, conducts a public

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meeting under s. 286.011 and 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 may the local government perform the work using its own

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services, employees, and equipment. The public notice must be

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published at least 14 days prior to the date of the public

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meeting at which the governing board takes final action to apply

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this subparagraph. The notice must identify the project, the

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estimated cost of the project, and specify that the purpose for

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the public meeting is to consider whether it is in the public's

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best interest to perform the project using the local government's

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own services, employees, and equipment. In deciding whether it is

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in the public's best interest for local government to perform a

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project using its own services, employees, and equipment, the

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governing board may consider the cost of the project, whether the

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project requires an increase in the number of government

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employees or, an increase in capital expenditures for public

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facilities, equipment, or other capital assets, the impact on

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local economic development, the impact on small and minority

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business owners, the impact on state and local tax revenues,

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whether the private sector contractors provide health insurance

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and other benefits equivalent to those provided by the local

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government, and any other factor relevant to what is in the

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public's best interest.

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     9.10. 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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     10.11. 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) Notwithstanding any other law to the contrary, any

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provision contained in any public construction contract for a

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

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or other political subdivision of the state which purports to

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limit, waive, release, or extinguish the rights of a contractor

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to recover costs or damages for delay in performing such

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contract, either on its behalf or on behalf of its

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subcontractors, if and to the extent the delay is caused by acts

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or omissions of the county, municipality, special district, or

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political subdivision, its agents or employees, or other entities

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with which it is in privity and due to causes within its control,

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shall be void and unenforceable as against public policy. The

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decisions of a county, municipality, special district, or other

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political subdivision concerning additional compensation or time

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to which a contractor is entitled in connection with any public

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construction contract shall be subject to de novo review in a

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state court of appropriate jurisdiction.

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

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read:

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     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 governing body of a county or municipality

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commissioners may employ labor and provide equipment as may be

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necessary, except as provided in subsection (3), for constructing

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and opening of new roads or bridges and repair and maintenance of

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any existing roads and bridges.

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     (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 supplies for road and bridge purposes to

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make a strict accounting of the same to the governing body

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commissioners.

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     (3)(a) All construction and reconstruction of roads and

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bridges, including resurfacing, full scale mineral seal coating,

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and major bridge and bridge system repairs, to be performed

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

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of the constitutional fuel gas tax under s. 206.41(1)(a), the

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county fuel tax under s. 206.41(1)(b) for county projects or the

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municipal fuel tax under s. 206.41(1)(c) for municipal projects,

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the ninth-cent fuel tax under s. 206.41(1)(d) when imposed by the

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county, or the local option fuel tax under s. 206.41(1)(e) when

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imposed by the county shall be let to contract to the lowest

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responsible bidder by competitive bid.

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

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municipality may use its own forces, except 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, including resurfacing, mineral seal coating, and

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bridge repairs, having a total cumulative annual value not to

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exceed 5 percent of its proceeds listed in paragraph (a) 80-

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percent portion of the constitutional gas tax or $400,000,

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whichever is greater., and

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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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     (c) However, if, after proper advertising, no bids are

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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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     (d) Nothing in this section shall prevent the county or

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municipality from performing routine maintenance as authorized by

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law.

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

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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

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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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     (c) The county or municipality, as appropriate, shall also

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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.  This act shall take effect July 1, 2008.