| 1 | A bill to be entitled |
| 2 | An act relating to public construction works; amending s. |
| 3 | 255.20, F.S.; revising requirements for a county, |
| 4 | municipality, special district, or other political |
| 5 | subdivision of the state to competitively award contracts |
| 6 | for certain construction projects; revising exceptions to |
| 7 | those requirements; providing procedures for an exception |
| 8 | to those requirements when all bids or proposals are |
| 9 | greater than a threshold amount; providing that certain |
| 10 | construction contract terms limiting the right of a |
| 11 | contractor to recover certain costs or damages are void; |
| 12 | providing that certain decisions by the local governmental |
| 13 | entity concerning additional compensation or time to which |
| 14 | a contractor is entitled are subject to de novo review in |
| 15 | state court; amending s. 336.41, F.S.; revising provisions |
| 16 | authorizing a county to employ labor and provide equipment |
| 17 | for road and bridge projects; removing authorization for a |
| 18 | county to use its own resources for constructing and |
| 19 | opening new roads and bridges; revising requirements for |
| 20 | certain county road and bridge projects to be let to |
| 21 | contract; authorizing the governing body of a municipality |
| 22 | to employ labor and provide equipment for repair and |
| 23 | maintenance of roads and bridges; requiring county and |
| 24 | municipal construction and reconstruction projects using |
| 25 | certain tax revenues to be let to contract; providing |
| 26 | exceptions; authorizing a municipality to require that |
| 27 | persons interested in performing work under the contract |
| 28 | first be certified or qualified to do the work when the |
| 29 | contract amount exceeds a certain threshold; providing for |
| 30 | qualification of a contractor by the Department of |
| 31 | Transportation; providing that a contractor may be |
| 32 | considered ineligible to bid by the municipality if the |
| 33 | contractor is behind an approved progress schedule by more |
| 34 | than a certain amount on another project for that |
| 35 | municipality at the time of the advertisement of the work |
| 36 | requiring prequalification; authorizing an appeal process; |
| 37 | requiring prequalification criteria and procedures to be |
| 38 | published prior to advertisement or notice of |
| 39 | solicitation; requiring notice of a public hearing for |
| 40 | comment on such criteria and procedures prior to adoption; |
| 41 | requiring the procedures to provide for an appeal process |
| 42 | for objections to the prequalification process; requiring |
| 43 | the municipality to publish for comment, prior to |
| 44 | adoption, the selection criteria and procedures to be used |
| 45 | if such procedures would allow selection of other than the |
| 46 | lowest responsible bidder; requiring the selection |
| 47 | criteria to include an appeal process; providing an |
| 48 | effective date. |
| 49 |
|
| 50 | Be It Enacted by the Legislature of the State of Florida: |
| 51 |
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| 52 | Section 1. Subsection (1) of section 255.20, Florida |
| 53 | Statutes, is amended to read: |
| 54 | 255.20 Local bids and contracts for public construction |
| 55 | works; specification of state-produced lumber.-- |
| 56 | (1) A county, municipality, special district as defined in |
| 57 | chapter 189, or other political subdivision of the state seeking |
| 58 | to construct, or improve, repair, or perform maintenance on a |
| 59 | public building, structure, facility, or other public |
| 60 | construction works must competitively award to an appropriately |
| 61 | licensed contractor each project that is estimated in accordance |
| 62 | with generally accepted cost-accounting principles to have total |
| 63 | construction project costs of more than $200,000. For electrical |
| 64 | work, local government must competitively award to an |
| 65 | appropriately licensed contractor each project that is estimated |
| 66 | in accordance with generally accepted cost-accounting principles |
| 67 | to have a cost of more than $50,000. As used in this section, |
| 68 | the term "competitively award" means to award contracts based on |
| 69 | the submission of sealed bids, proposals submitted in response |
| 70 | to a request for proposal, proposals submitted in response to a |
| 71 | request for qualifications, or proposals submitted for |
| 72 | competitive negotiation. This subsection expressly allows |
| 73 | contracts for construction management services, design/build |
| 74 | contracts, continuation contracts based on unit prices, and any |
| 75 | other contract arrangement with a private sector contractor |
| 76 | permitted by any applicable municipal or county ordinance, by |
| 77 | district resolution, or by state law. For purposes of this |
| 78 | section, construction costs include the cost of all labor, |
| 79 | except inmate labor, and include the cost of equipment and |
| 80 | materials to be used in the construction of the project. Subject |
| 81 | to the provisions of subsection (3), the county, municipality, |
| 82 | special district, or other political subdivision may establish, |
| 83 | by municipal or county ordinance or special district resolution, |
| 84 | procedures for conducting the bidding process. |
| 85 | (a) Notwithstanding any other law to the contrary, a |
| 86 | county, municipality, special district as defined in chapter |
| 87 | 189, or other political subdivision of the state seeking to |
| 88 | construct or improve bridges, roads, streets, highways, or |
| 89 | railroads, and services incidental thereto, at costs in excess |
| 90 | of $250,000 may require that persons interested in performing |
| 91 | work under contract first be certified or qualified to perform |
| 92 | such work. Any contractor may be considered ineligible to bid by |
| 93 | the governmental entity if the contractor is behind on |
| 94 | completing an approved progress schedule for the governmental |
| 95 | entity by 10 percent or more at the time of advertisement of the |
| 96 | work. Any contractor prequalified and considered eligible by the |
| 97 | Department of Transportation to bid to perform the type of work |
| 98 | described under the contract shall be presumed to be qualified |
| 99 | to perform the work described. The governmental entity may |
| 100 | provide an appeal process to overcome that presumption with de |
| 101 | novo review based on the record below to the circuit court. |
| 102 | (b) With respect to contractors not prequalified with the |
| 103 | Department of Transportation, the governmental entity shall |
| 104 | publish prequalification criteria and procedures prior to |
| 105 | advertisement or notice of solicitation. Such publications shall |
| 106 | include notice of a public hearing for comment on such criteria |
| 107 | and procedures prior to adoption. The procedures shall provide |
| 108 | for an appeal process within the authority for objections to the |
| 109 | prequalification process with de novo review based on the record |
| 110 | below to the circuit court within 30 days. |
| 111 | (c) The provisions of this subsection do not apply: |
| 112 | 1. When the project is undertaken to replace, reconstruct, |
| 113 | or repair an existing facility damaged or destroyed by a sudden |
| 114 | unexpected turn of events, such as an act of God, riot, fire, |
| 115 | flood, accident, or other urgent circumstances, and such damage |
| 116 | or destruction creates: |
| 117 | a. An immediate danger to the public health or safety; |
| 118 | b. Other loss to public or private property which requires |
| 119 | emergency government action; or |
| 120 | c. An interruption of an essential governmental service. |
| 121 | 2. When, after notice by publication in accordance with |
| 122 | the applicable ordinance or resolution, the governmental entity |
| 123 | does not receive any responsive bids or proposals responses. |
| 124 | 3. To construction, remodeling, repair, or improvement to |
| 125 | a public electric or gas utility system when such work on the |
| 126 | public utility system is performed by personnel of the system. |
| 127 | 4. To construction, remodeling, repair, or improvement by |
| 128 | a utility commission whose major contracts are to construct and |
| 129 | operate a public electric utility system. |
| 130 | 5. When the project is undertaken as repair or maintenance |
| 131 | of an existing public facility. |
| 132 | 5.6. When the project is undertaken exclusively as part of |
| 133 | a public educational program. |
| 134 | 6.7. When the funding source of the project will be |
| 135 | diminished or lost because, through no fault of the governmental |
| 136 | entity, the time required to competitively award the project |
| 137 | after the funds become available exceeds the time within which |
| 138 | the funding source must be spent. |
| 139 | 7.8. When the local government has competitively awarded a |
| 140 | project to a private sector contractor and the contractor has |
| 141 | abandoned the project before completion or the local government |
| 142 | has terminated the contract. |
| 143 | 8.9. When, after receipt of bids or proposals, all |
| 144 | responsive bids or proposals are at least 10 percent greater |
| 145 | than the local government's estimated cost of the project. In |
| 146 | this case, the local government may request that a professional |
| 147 | engineer not affiliated with the local government prepare an |
| 148 | independent estimate of the fair market cost of the project. If |
| 149 | the professional engineer's cost estimate is within 10 percent |
| 150 | of at least one of the responsive bids or proposals, the project |
| 151 | must be competitively awarded. If the professional engineer's |
| 152 | cost estimate is not within 10 percent of at least one of the |
| 153 | responsive bids or proposals, the local government may request |
| 154 | that a certified public accountant not affiliated with the local |
| 155 | government prepare, in conjunction with the professional |
| 156 | engineer, an estimate of the cost of the project if performed by |
| 157 | the local government using its own services, employees, and |
| 158 | equipment and using generally accepted accounting principles |
| 159 | that fully account for all employee compensation and benefits, |
| 160 | equipment and material costs, and any other associated costs and |
| 161 | expenses. Only if the accountant's estimate is less than the |
| 162 | lowest-priced responsive bid or proposal and the governing board |
| 163 | of the local government, after public notice, conducts a public |
| 164 | meeting under s. 286.011 and finds by a majority vote of the |
| 165 | governing board that it is in the public's best interest to |
| 166 | perform the project using its own services, employees, and |
| 167 | equipment may the local government perform the work using its |
| 168 | own services, employees, and equipment. The public notice must |
| 169 | be published at least 14 days prior to the date of the public |
| 170 | meeting at which the governing board takes final action to apply |
| 171 | this subparagraph. The notice must identify the project, the |
| 172 | estimated cost of the project, and specify that the purpose for |
| 173 | the public meeting is to consider whether it is in the public's |
| 174 | best interest to perform the project using the local |
| 175 | government's own services, employees, and equipment. In deciding |
| 176 | whether it is in the public's best interest for local government |
| 177 | to perform a project using its own services, employees, and |
| 178 | equipment, the governing board may consider the cost of the |
| 179 | project, whether the project requires an increase in the number |
| 180 | of government employees or, an increase in capital expenditures |
| 181 | for public facilities, equipment, or other capital assets, the |
| 182 | impact on local economic development, the impact on small and |
| 183 | minority business owners, the impact on state and local tax |
| 184 | revenues, whether the private sector contractors provide health |
| 185 | insurance and other benefits equivalent to those provided by the |
| 186 | local government, and any other factor relevant to what is in |
| 187 | the public's best interest. |
| 188 | 9.10. When the governing board of the local government |
| 189 | determines upon consideration of specific substantive criteria |
| 190 | and administrative procedures that it is in the best interest of |
| 191 | the local government to award the project to an appropriately |
| 192 | licensed private sector contractor according to procedures |
| 193 | established by and expressly set forth in a charter, ordinance, |
| 194 | or resolution of the local government adopted prior to July 1, |
| 195 | 1994. The criteria and procedures must be set out in the |
| 196 | charter, ordinance, or resolution and must be applied uniformly |
| 197 | by the local government to avoid award of any project in an |
| 198 | arbitrary or capricious manner. This exception shall apply when |
| 199 | all of the following occur: |
| 200 | a. When the governing board of the local government, after |
| 201 | public notice, conducts a public meeting under s. 286.011 and |
| 202 | finds by a two-thirds vote of the governing board that it is in |
| 203 | the public's best interest to award the project according to the |
| 204 | criteria and procedures established by charter, ordinance, or |
| 205 | resolution. The public notice must be published at least 14 days |
| 206 | prior to the date of the public meeting at which the governing |
| 207 | board takes final action to apply this subparagraph. The notice |
| 208 | must identify the project, the estimated cost of the project, |
| 209 | and specify that the purpose for the public meeting is to |
| 210 | consider whether it is in the public's best interest to award |
| 211 | the project using the criteria and procedures permitted by the |
| 212 | preexisting ordinance. |
| 213 | b. In the event the project is to be awarded by any method |
| 214 | other than a competitive selection process, the governing board |
| 215 | must find evidence that: |
| 216 | (I) There is one appropriately licensed contractor who is |
| 217 | uniquely qualified to undertake the project because that |
| 218 | contractor is currently under contract to perform work that is |
| 219 | affiliated with the project; or |
| 220 | (II) The time to competitively award the project will |
| 221 | jeopardize the funding for the project, or will materially |
| 222 | increase the cost of the project or will create an undue |
| 223 | hardship on the public health, safety, or welfare. |
| 224 | c. In the event the project is to be awarded by any method |
| 225 | other than a competitive selection process, the published notice |
| 226 | must clearly specify the ordinance or resolution by which the |
| 227 | private sector contractor will be selected and the criteria to |
| 228 | be considered. |
| 229 | d. In the event the project is to be awarded by a method |
| 230 | other than a competitive selection process, the architect or |
| 231 | engineer of record has provided a written recommendation that |
| 232 | the project be awarded to the private sector contractor without |
| 233 | competitive selection; and the consideration by, and the |
| 234 | justification of, the government body are documented, in |
| 235 | writing, in the project file and are presented to the governing |
| 236 | board prior to the approval required in this paragraph. |
| 237 | 10.11. To projects subject to chapter 336. |
| 238 | (d)1. If the project is to be awarded based on price, the |
| 239 | contract must be awarded to the lowest qualified and responsive |
| 240 | bidder in accordance with the applicable county or municipal |
| 241 | ordinance or district resolution and in accordance with the |
| 242 | applicable contract documents. The county, municipality, or |
| 243 | special district may reserve the right to reject all bids and to |
| 244 | rebid the project or elect not to proceed with the project. This |
| 245 | subsection is not intended to restrict the rights of any local |
| 246 | government to reject the low bid of a nonqualified or |
| 247 | nonresponsive bidder and to award the contract to any other |
| 248 | qualified and responsive bidder in accordance with the standards |
| 249 | and procedures of any applicable county or municipal ordinance |
| 250 | or any resolution of a special district. |
| 251 | 2. If the project uses a request for proposal or a request |
| 252 | for qualifications, the request must be publicly advertised and |
| 253 | the contract must be awarded in accordance with the applicable |
| 254 | local ordinances. |
| 255 | 3. If the project is subject to competitive negotiations, |
| 256 | the contract must be awarded in accordance with s. 287.055. |
| 257 | (e) If a construction project greater than $200,000, or |
| 258 | $50,000 for electrical work, is started after October 1, 1999, |
| 259 | and is to be performed by a local government using its own |
| 260 | employees in a county or municipality that issues registered |
| 261 | contractor licenses and the project would require a licensed |
| 262 | contractor under chapter 489 if performed by a private sector |
| 263 | contractor, the local government must use a person appropriately |
| 264 | registered or certified under chapter 489 to supervise the work. |
| 265 | (f) If a construction project greater than $200,000, or |
| 266 | $50,000 for electrical work, is started after October 1, 1999, |
| 267 | and is to be performed by a local government using its own |
| 268 | employees in a county that does not issue registered contractor |
| 269 | licenses and the project would require a licensed contractor |
| 270 | under chapter 489 if performed by a private sector contractor, |
| 271 | the local government must use a person appropriately registered |
| 272 | or certified under chapter 489 or a person appropriately |
| 273 | licensed under chapter 471 to supervise the work. |
| 274 | (g) Projects performed by a local government using its own |
| 275 | services and employees must be inspected in the same manner as |
| 276 | inspections required for work performed by private sector |
| 277 | contractors. |
| 278 | (h) A construction project provided for in this subsection |
| 279 | may not be divided into more than one project for the purpose of |
| 280 | evading this subsection. |
| 281 | (i) This subsection does not preempt the requirements of |
| 282 | any small-business or disadvantaged-business enterprise program |
| 283 | or any local-preference ordinance. |
| 284 | (j) Notwithstanding any other law to the contrary, any |
| 285 | provision contained in any public construction contract for a |
| 286 | county, municipality, special district as defined in chapter |
| 287 | 189, or other political subdivision of the state which purports |
| 288 | to limit, waive, release, or extinguish the rights of a |
| 289 | contractor to recover costs or damages for delay in performing |
| 290 | such contract, either on its behalf or on behalf of its |
| 291 | subcontractors, if and to the extent the delay is caused by acts |
| 292 | or omissions of the county, municipality, special district, or |
| 293 | political subdivision, its agents or employees, or other |
| 294 | entities with which it is in privity and due to causes within |
| 295 | its control, shall be void and unenforceable as against public |
| 296 | policy. The decisions of a county, municipality, special |
| 297 | district, or other political subdivision concerning additional |
| 298 | compensation or time to which a contractor is entitled in |
| 299 | connection with any public construction contract shall be |
| 300 | subject to de novo review in a state court of appropriate |
| 301 | jurisdiction. |
| 302 | Section 2. Section 336.41, Florida Statutes, is amended to |
| 303 | read: |
| 304 | 336.41 Counties and municipalities; employing labor and |
| 305 | providing road equipment; accounting; when competitive bidding |
| 306 | required.-- |
| 307 | (1) The governing body of a county or municipality |
| 308 | commissioners may employ labor and provide equipment as may be |
| 309 | necessary, except as provided in subsection (3), for |
| 310 | constructing and opening of new roads or bridges and repair and |
| 311 | maintenance of any existing roads and bridges. |
| 312 | (2) It shall be the duty of all persons to whom the |
| 313 | governing body of a county or municipality delivers |
| 314 | commissioners deliver equipment and supplies for road and bridge |
| 315 | purposes to make a strict accounting of the same to the |
| 316 | governing body commissioners. |
| 317 | (3)(a) All construction and reconstruction of roads and |
| 318 | bridges, including resurfacing, full scale mineral seal coating, |
| 319 | and major bridge and bridge system repairs, to be performed |
| 320 | utilizing the proceeds of the 80-percent portion of the surplus |
| 321 | of the constitutional fuel gas tax under s. 206.41(1)(a), the |
| 322 | county fuel tax under s. 206.41(1)(b) for county projects or the |
| 323 | municipal fuel tax under s. 206.41(1)(c) for municipal projects, |
| 324 | the ninth-cent fuel tax under s. 206.41(1)(d) when imposed by |
| 325 | the county, or the local option fuel tax under s. 206.41(1)(e) |
| 326 | when imposed by the county shall be let to contract to the |
| 327 | lowest responsible bidder by competitive bid. |
| 328 | (b) Notwithstanding paragraph (a), the county or |
| 329 | municipality may use its own forces, except for: |
| 330 | 1.(a) Construction and maintenance in emergency |
| 331 | situations., and |
| 332 | 2.(b) In addition to emergency work, construction and |
| 333 | reconstruction, including resurfacing, mineral seal coating, and |
| 334 | bridge repairs, having a total cumulative annual value not to |
| 335 | exceed 5 percent of its proceeds listed in paragraph (a) 80- |
| 336 | percent portion of the constitutional gas tax or $400,000, |
| 337 | whichever is greater., and |
| 338 | 3.(c) Construction of sidewalks, curbing, accessibility |
| 339 | ramps, or appurtenances incidental to roads and bridges if each |
| 340 | project is estimated in accordance with generally accepted cost- |
| 341 | accounting principles to have total construction project costs |
| 342 | of less than $400,000 or as adjusted by the percentage change in |
| 343 | the Construction Cost Index from January 1, 2008, |
| 344 |
|
| 345 | for which the county may utilize its own forces. |
| 346 | (c) However, if, after proper advertising, no bids are |
| 347 | received by a county or municipality for a specific project, the |
| 348 | county or municipality may use its own forces to construct the |
| 349 | project, notwithstanding the limitation of this subsection. |
| 350 | (d) Nothing in this section shall prevent the county or |
| 351 | municipality from performing routine maintenance as authorized |
| 352 | by law. |
| 353 | (4)(a) For contracts in excess of $250,000, any county or |
| 354 | municipality may require that persons interested in performing |
| 355 | work under the contract first be certified or qualified to do |
| 356 | the work. Any contractor prequalified and considered eligible to |
| 357 | bid by the department to perform the type of work described |
| 358 | under the contract shall be presumed to be qualified to perform |
| 359 | the work so described. Any contractor may be considered |
| 360 | ineligible to bid by the county or municipality if the |
| 361 | contractor is behind an approved progress schedule by 10 percent |
| 362 | or more on another project for that county or municipality at |
| 363 | the time of the advertisement of the work. The county or |
| 364 | municipality may provide an appeal process to overcome such |
| 365 | consideration with de novo review based on the record below to |
| 366 | the circuit court. |
| 367 | (b) The county or municipality, as appropriate, shall |
| 368 | publish prequalification criteria and procedures prior to |
| 369 | advertisement or notice of solicitation. Such publications shall |
| 370 | include notice of a public hearing for comment on such criteria |
| 371 | and procedures prior to adoption. The procedures shall provide |
| 372 | for an appeal process within the county or municipality for |
| 373 | objections to the prequalification process with de novo review |
| 374 | based on the record below to the circuit court. |
| 375 | (c) The county or municipality, as appropriate, shall also |
| 376 | publish for comment, prior to adoption, the selection criteria |
| 377 | and procedures to be used by the county or municipality if such |
| 378 | procedures would allow selection of other than the lowest |
| 379 | responsible bidder. The selection criteria shall include an |
| 380 | appeal process within the county or municipality with de novo |
| 381 | review based on the record below to the circuit court. |
| 382 | Section 3. This act shall take effect July 1, 2008. |