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 |
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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 |
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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. |