CS/HB 683

1
A bill to be entitled
2An act relating to public construction works; amending s.
3255.20, F.S.; revising provisions requiring a county,
4municipality, special district, or other political
5subdivision of the state to competitively award contracts
6for certain construction projects; revising exceptions to
7such requirements; revising provisions relating to an
8exemption for projects performed by a local government
9using its own services, employees, and equipment;
10providing that certain construction contract terms
11purporting to limit recovery of certain costs or damages
12by a contractor are void; providing that certain decisions
13by the local governmental entity concerning additional
14compensation or time to which a contractor is entitled are
15subject to de novo review in state court; providing an
16exception; exempting a local government owning or
17operating a public-use airport from specified requirements
18if performing certain tasks relating to the airport's
19buildings, structures, or public construction works;
20exempting a local government owning or operating a seaport
21from specified requirements when performing certain tasks
22relating to the seaport's buildings, structures, or public
23construction works; exempting a local government owning or
24operating a public transit system, public transportation
25system, or mass transit system from specified requirements
26when performing certain tasks relating to its buildings,
27structures, or public construction works; amending s.
28336.41, F.S.; revising requirements regarding contracting
29for certain county road and bridge projects; revising
30provisions authorizing a county to employ labor and
31provide equipment for road and bridge projects; removing a
32provision authorizing a county to use its own resources
33for constructing and opening new roads and bridges;
34requiring the governing body of a county or municipality
35to competitively award to a private sector contractor all
36construction and reconstruction or repair of roads and
37bridges; authorizing a county or municipality to use its
38own forces for certain projects; providing restrictions
39and limitations; providing for the purchase of materials
40for such projects; providing that a county or municipality
41is exempt from a certain restriction with regard to paving
42dirt roads; defining the term "competitively award" for
43specified purposes; clarifying applicability of certain
44provisions; specifying costs included in determining the
45value of a project for certain purposes; revising
46provisions allowing a county or municipality to perform
47routine maintenance; prohibiting a county, municipality,
48or special district from owning or operating an asphalt
49plant or a portable or stationary concrete batch plant
50with an independent mixer; authorizing a municipality to
51require that persons interested in performing work under
52the contract first be certified or qualified to do the
53work when the contract amount exceeds a certain threshold;
54providing that a contractor may be considered ineligible
55to bid by the municipality if the contractor is behind an
56approved progress schedule by more than a certain amount
57on another project for that municipality at the time of
58the advertisement of the work requiring prequalification;
59authorizing an appeal process; requiring that
60prequalification criteria and procedures be published
61before advertisement or notice of solicitation; requiring
62notice of a public hearing for comment on such criteria
63and procedures before adoption; requiring that the
64procedures provide for an appeal process for objections to
65the prequalification process; requiring the municipality
66to publish for comment, before adoption, the selection
67criteria and procedures to be used if such procedures
68would allow selection of other than the lowest responsible
69bidder; requiring that the selection criteria include an
70appeal process; amending s. 336.44, F.S.; conforming a
71cross-reference; providing that certain construction
72contract terms purporting to limit recovery of certain
73costs or damages by contractors are void; providing that
74certain decisions by the local governmental entity
75concerning additional compensation or time to which a
76contractor is entitled are subject to de novo review in
77state court; providing an exception; providing an
78effective date.
79
80Be It Enacted by the Legislature of the State of Florida:
81
82     Section 1.  Subsection (1) of section 255.20, Florida
83Statutes, is amended to read:
84     255.20  Local bids and contracts for public construction
85works; specification of state-produced lumber.--
86     (1)  A county, municipality, special district as defined in
87chapter 189, or other political subdivision of the state seeking
88to construct, or improve, repair, or perform maintenance on a
89public building, structure, or other public construction works
90must competitively award to an appropriately licensed contractor
91each project that is estimated in accordance with generally
92accepted cost-accounting principles to have total construction
93project costs of more than $200,000. For electrical work, local
94government must competitively award to an appropriately licensed
95contractor each project that is estimated in accordance with
96generally accepted cost-accounting principles to have a cost of
97more than $50,000. As used in this section, the term
98"competitively award" means to award contracts based on the
99submission of sealed bids, proposals submitted in response to a
100request for proposal, proposals submitted in response to a
101request for qualifications, or proposals submitted for
102competitive negotiation. This subsection expressly allows
103contracts for construction management services, design/build
104contracts, continuation contracts based on unit prices, and any
105other contract arrangement with a private sector contractor
106permitted by any applicable municipal or county ordinance, by
107district resolution, or by state law. For purposes of this
108section, construction costs include the cost of all labor,
109except inmate labor, and include the cost of equipment and
110materials to be used in the construction of the project. Subject
111to the provisions of subsection (3), the county, municipality,
112special district, or other political subdivision may establish,
113by municipal or county ordinance or special district resolution,
114procedures for conducting the bidding process.
115     (a)  Notwithstanding any other law to the contrary, a
116county, municipality, special district as defined in chapter
117189, or other political subdivision of the state seeking to
118construct or improve bridges, roads, streets, highways, or
119railroads, and services incidental thereto, at costs in excess
120of $250,000 may require that persons interested in performing
121work under contract first be certified or qualified to perform
122such work. Any contractor may be considered ineligible to bid by
123the governmental entity if the contractor is behind on
124completing an approved progress schedule for the governmental
125entity by 10 percent or more at the time of advertisement of the
126work. Any contractor prequalified and considered eligible by the
127Department of Transportation to bid to perform the type of work
128described under the contract shall be presumed to be qualified
129to perform the work described. The governmental entity may
130provide an appeal process to overcome that presumption with de
131novo review based on the record below to the circuit court.
132     (b)  With respect to contractors not prequalified with the
133Department of Transportation, the governmental entity shall
134publish prequalification criteria and procedures prior to
135advertisement or notice of solicitation. Such publications shall
136include notice of a public hearing for comment on such criteria
137and procedures prior to adoption. The procedures shall provide
138for an appeal process within the authority for objections to the
139prequalification process with de novo review based on the record
140below to the circuit court within 30 days.
141     (c)  The provisions of this subsection do not apply:
142     1.  When the project is undertaken to replace, reconstruct,
143or repair an existing public building, structure, or other
144public construction works facility damaged or destroyed by a
145sudden unexpected turn of events, such as an act of God, riot,
146fire, flood, accident, or other urgent circumstances, and such
147damage or destruction creates:
148     a.  An immediate danger to the public health or safety;
149     b.  Other loss to public or private property which requires
150emergency government action; or
151     c.  An interruption of an essential governmental service.
152     2.  When, after notice by publication in accordance with
153the applicable ordinance or resolution, the governmental entity
154does not receive any responsive bids or proposals responses.
155     3.  To construction, remodeling, repair, or improvement to
156a public electric or gas utility system when such work on the
157public utility system is performed by personnel of the system.
158     4.  To construction, remodeling, repair, or improvement by
159a utility commission whose major contracts are to construct and
160operate a public electric utility system.
161     5.  When the project is undertaken as repair or maintenance
162of an existing public facility.
163     5.6.  When the project is undertaken exclusively as part of
164a public educational program.
165     6.7.  When the funding source of the project will be
166diminished or lost because the time required to competitively
167award the project after the funds become available exceeds the
168time within which the funding source must be spent, so long as
169the governmental entity undertaking the project has not
170materially contributed to a delay in funding or competitively
171awarding the project.
172     7.8.  When the local government has competitively awarded a
173project to a private sector contractor and the contractor has
174abandoned the project before completion or the local government
175has terminated the contract.
176     8.9.  When the local government, after receiving
177competitive bids or proposals, decides to perform the project
178using its own services, employees, and equipment in compliance
179with the procedure in this subparagraph. If the local government
180receives bids or proposals that are otherwise responsive but are
181all at least 10 percent greater than the local government's
182estimated cost of the project, the governing board of the local
183government, after public notice, must conduct conducts a public
184meeting under s. 286.011 and decide finds by a majority vote of
185the governing board that it is in the public's best interest to
186perform the project using its own services, employees, and
187equipment. The public notice must be published at least 14 days
188prior to the date of the public meeting at which the governing
189board takes final action to apply this subparagraph. The notice
190must identify the project and, the estimated cost of the
191project, and specify that the purpose for the public meeting is
192to consider whether it is in the public's best interest to
193perform the project using the local government's own services,
194employees, and equipment. A local government's determination In
195deciding whether it is in the public's best interest for local
196government to perform a project using its own services,
197employees, and equipment must be supported by the following
198factual findings, which are subject to challenge under
199subsection (4):
200     a.  The local government's estimated cost of the project as
201specified in the bid documents reasonably represents the fair
202market cost of performing the project using private sector
203contractors; and
204     b.  The local government can perform the project using its
205own services, employees, and equipment at a cost equal to or
206less than its estimated cost of the project, using generally
207accepted accounting principles that fully account for all
208employee compensation and benefits, equipment, and material
209costs and any other associated costs and expenses, the governing
210board may consider the cost of the project, whether the project
211requires an increase in the number of government employees, an
212increase in capital expenditures for public facilities,
213equipment or other capital assets, the impact on local economic
214development, the impact on small and minority business owners,
215the impact on state and local tax revenues, whether the private
216sector contractors provide health insurance and other benefits
217equivalent to those provided by the local government, and any
218other factor relevant to what is in the public's best interest.
219     9.10.  When the governing board of the local government
220determines upon consideration of specific substantive criteria
221and administrative procedures that it is in the best interest of
222the local government to award the project to an appropriately
223licensed private sector contractor according to procedures
224established by and expressly set forth in a charter, ordinance,
225or resolution of the local government adopted prior to July 1,
2261994. The criteria and procedures must be set out in the
227charter, ordinance, or resolution and must be applied uniformly
228by the local government to avoid award of any project in an
229arbitrary or capricious manner. This exception shall apply when
230all of the following occur:
231     a.  When the governing board of the local government, after
232public notice, conducts a public meeting under s. 286.011 and
233finds by a two-thirds vote of the governing board that it is in
234the public's best interest to award the project according to the
235criteria and procedures established by charter, ordinance, or
236resolution. The public notice must be published at least 14 days
237prior to the date of the public meeting at which the governing
238board takes final action to apply this subparagraph. The notice
239must identify the project, the estimated cost of the project,
240and specify that the purpose for the public meeting is to
241consider whether it is in the public's best interest to award
242the project using the criteria and procedures permitted by the
243preexisting ordinance.
244     b.  If In the event the project is to be awarded by any
245method other than a competitive selection process, the governing
246board must find evidence that:
247     (I)  There is one appropriately licensed contractor who is
248uniquely qualified to undertake the project because that
249contractor is currently under contract to perform work that is
250affiliated with the project; or
251     (II)  The time to competitively award the project will
252jeopardize the funding for the project, or will materially
253increase the cost of the project or will create an undue
254hardship on the public health, safety, or welfare.
255     c.  If In the event the project is to be awarded by any
256method other than a competitive selection process, the published
257notice must clearly specify the ordinance or resolution by which
258the private sector contractor will be selected and the criteria
259to be considered.
260     d.  If In the event the project is to be awarded by a
261method other than a competitive selection process, the architect
262or engineer of record has provided a written recommendation that
263the project be awarded to the private sector contractor without
264competitive selection; and the consideration by, and the
265justification of, the government body are documented, in
266writing, in the project file and are presented to the governing
267board prior to the approval required in this paragraph.
268     10.11.  To projects subject to chapter 336.
269     (d)1.  If the project is to be awarded based on price, the
270contract must be awarded to the lowest qualified and responsive
271bidder in accordance with the applicable county or municipal
272ordinance or district resolution and in accordance with the
273applicable contract documents. The county, municipality, or
274special district may reserve the right to reject all bids and to
275rebid the project or elect not to proceed with the project. This
276subsection is not intended to restrict the rights of any local
277government to reject the low bid of a nonqualified or
278nonresponsive bidder and to award the contract to any other
279qualified and responsive bidder in accordance with the standards
280and procedures of any applicable county or municipal ordinance
281or any resolution of a special district.
282     2.  If the project uses a request for proposal or a request
283for qualifications, the request must be publicly advertised and
284the contract must be awarded in accordance with the applicable
285local ordinances.
286     3.  If the project is subject to competitive negotiations,
287the contract must be awarded in accordance with s. 287.055.
288     (e)  If a construction project greater than $200,000, or
289$50,000 for electrical work, is started after October 1, 1999,
290and is to be performed by a local government using its own
291employees in a county or municipality that issues registered
292contractor licenses and the project would require a licensed
293contractor under chapter 489 if performed by a private sector
294contractor, the local government must use a person appropriately
295registered or certified under chapter 489 to supervise the work.
296     (f)  If a construction project greater than $200,000, or
297$50,000 for electrical work, is started after October 1, 1999,
298and is to be performed by a local government using its own
299employees in a county that does not issue registered contractor
300licenses and the project would require a licensed contractor
301under chapter 489 if performed by a private sector contractor,
302the local government must use a person appropriately registered
303or certified under chapter 489 or a person appropriately
304licensed under chapter 471 to supervise the work.
305     (g)  Projects performed by a local government using its own
306services and employees must be inspected in the same manner as
307inspections required for work performed by private sector
308contractors.
309     (h)  A construction project provided for in this subsection
310may not be divided into more than one project for the purpose of
311evading this subsection.
312     (i)  This subsection does not preempt the requirements of
313any small-business or disadvantaged-business enterprise program
314or any local-preference ordinance.
315     (j)  Notwithstanding any other law to the contrary, any
316provision contained in a public construction contract with a
317county, municipality, special district as defined in chapter
318189, or other political subdivision of the state which purports
319to limit, waive, release, or extinguish the rights of a
320contractor to recover costs or damages for delay in performing
321such contract, on its behalf or on behalf of its subcontractors,
322if and to the extent the delay is caused by acts or omissions of
323the county, municipality, special district, or political
324subdivision, its agents or employees, or other entities with
325which it is in privity and due to causes within its control, is
326void and unenforceable as against public policy. The decisions
327of a county, municipality, special district, or other political
328subdivision concerning additional compensation or time to which
329a contractor is entitled in connection with any public
330construction contract is subject to de novo review in a state
331court of appropriate jurisdiction. This paragraph does not make
332void any provision in such construction contract which provides
333for reasonable liquidated damages in case of a delay to the
334completion of the project for which the contractor is
335responsible or which provides for reasonable liquidated damages
336to fairly compensate the contractor for its indirect costs and
337overhead expenses associated with a delay.
338     (k)  A local government owning or operating a public-use
339airport, as defined in s. 332.004(1), is exempt from this
340section if performing repairs or maintenance on the airport's
341buildings, structures, or public construction works using the
342local government's own services, employees, and equipment,
343regardless of the total construction cost. A public construction
344contract with such a local government for any construction,
345improvement, repair, or maintenance work performed on a public-
346use airport is not subject to paragraph (j).
347     (l)  A local government owning or operating a seaport, as
348identified in s. 403.021(9)(b), is exempt from this section if
349performing repairs or maintenance on the seaport's buildings,
350structures, or public construction works using the local
351government's own services, employees, and equipment, regardless
352of the total construction cost. A public construction contract
353with such a local government for any construction, improvement,
354repair, or maintenance work performed on a public seaport is not
355subject to paragraph (j).
356     (m)  A local government owning or operating a public
357transit system as defined in s. 343.52, a public transportation
358system as defined in s. 343.62, or a mass transit system as
359defined in s. 349.04(1)(b), is exempt from this section if
360performing repairs or maintenance on the buildings, structures,
361or public construction works, of a public transit system, public
362transportation system, or mass transit system using the local
363government's own services, employees, and equipment, regardless
364of the total construction cost. A public construction contract
365with such a local government for any construction, improvement,
366repair, or maintenance work performed on a public transit
367system, public transportation system, or mass transit system is
368not subject to paragraph (j).
369     Section 2.  Section 336.41, Florida Statutes, is amended to
370read:
371     336.41  Counties and municipalities; employing labor and
372providing road equipment; accounting; when competitive bidding
373required.--
374     (1)  The commissioners may employ labor and provide
375equipment as may be necessary, except as provided in subsection
376(3), for constructing and opening of new roads or bridges and
377repair and maintenance of any existing roads and bridges.
378     (1)(2)  It is shall be the duty of all persons to whom the
379governing body of a county or municipality delivers
380commissioners deliver equipment and construction materials
381supplies for road and bridge purposes to make a strict
382accounting of the same to the governing body commissioners.
383     (2)(a)(3)  The governing body of a county or municipality
384shall competitively award to a private sector contractor all
385construction, and reconstruction, or repair of roads and
386bridges, including resurfacing, full scale mineral seal coating,
387and major bridge and bridge system repairs., to be performed
388utilizing the proceeds of the 80-percent portion of the surplus
389of the constitutional gas tax shall be let to contract to the
390lowest responsible bidder by competitive bid, except for:
391     (b)  Notwithstanding paragraph (a), the county or
392municipality may use its own forces for:
393     1.(a)  Construction and maintenance in emergency
394situations., and
395     2.(b)  In addition to emergency work, Construction, and
396reconstruction, or repair of roads and bridges, including
397resurfacing, full-scale mineral seal coating, and major bridge
398and bridge system repairs. However:
399     a.  A single project may not exceed $250,000 in value or as
400adjusted by the percentage change in the Construction Cost Index
401dated January 1, 2009, exclusive of materials purchased in
402accordance with sub-subparagraph c.
403     b.  A project under this subsection may not be divided into
404more than one project for the purpose of avoiding the
405requirements of this subsection.
406     c.  All materials for such projects must be purchased or
407furnished from a commercial source, with the exception of
408government-owned local material pits for sand, shell, gravel,
409and rock existing before January 1, 2008.
410     d.  A county or municipality is not subject to the maximum
411project value in sub-subparagraph a. for paving dirt roads only.
412Such county or municipality is subject to sub-subparagraph c.,
413having a total cumulative annual value not to exceed 5 percent
414of its 80-percent portion of the constitutional gas tax or
415$400,000, whichever is greater, and
416     3.(c)  Construction of sidewalks, curbing, accessibility
417ramps, or appurtenances incidental to roads and bridges if each
418project is estimated in accordance with generally accepted cost-
419accounting principles to have total construction project costs
420of less than $400,000 or as adjusted by the percentage change in
421the Construction Cost Index from January 1, 2008.,
422
423for which the county may utilize its own forces.
424     (c)  However, if, after proper advertising, no bids are
425received by a county or municipality for a specific project, the
426county or municipality may use its own forces to construct the
427project, notwithstanding the limitation of this subsection.
428     (d)  As used in this section, the term "competitively
429award" means to award a contract based on the submission of
430sealed bids, proposals submitted in response to a request for
431qualifications, or proposals submitted for competitive
432negotiations. This subsection expressly allows contracts for
433construction management services, design-build contracts,
434continuation contracts based on unit prices, and any other
435contract arrangement with a private sector contractor permitted
436by any applicable municipal or county ordinance, by district
437resolution, or by state law.
438     (e)  For purposes of this section, the value of a project
439includes the cost of all labor, except inmate labor, labor
440burden, and equipment, including ownership, fuel, and
441maintenance costs to be used in the construction and
442reconstruction of the project.
443     (f)  Nothing in This section does not shall prevent the
444county or municipality from performing routine maintenance as
445authorized by law and defined in s. 334.03, including the
446grading and shaping of dirt roads.
447     (g)  Notwithstanding any law to the contrary, a county,
448municipality, or special district may not own or operate an
449asphalt plant or a portable or stationary concrete batch plant
450having an independent mixer.
451     (3)(4)(a)  For contracts in excess of $250,000, any county
452or municipality may require that persons interested in
453performing work under the contract first be certified or
454qualified to do the work. Any contractor prequalified and
455considered eligible to bid by the department to perform the type
456of work described under the contract shall be presumed to be
457qualified to perform the work so described. Any contractor may
458be considered ineligible to bid by the county or municipality if
459the contractor is behind an approved progress schedule by 10
460percent or more on another project for that county or
461municipality at the time of the advertisement of the work. The
462county or municipality may provide an appeal process to overcome
463such consideration with de novo review based on the record below
464to the circuit court.
465     (b)  The county or municipality, as appropriate, shall
466publish prequalification criteria and procedures prior to
467advertisement or notice of solicitation. Such publications shall
468include notice of a public hearing for comment on such criteria
469and procedures before prior to adoption. The procedures shall
470provide for an appeal process within the county or municipality
471for objections to the prequalification process with de novo
472review based on the record below to the circuit court.
473     (c)  The county or municipality, as appropriate, shall also
474publish for comment, before prior to adoption, the selection
475criteria and procedures to be used by the county or municipality
476if such procedures would allow selection of other than the
477lowest responsible bidder. The selection criteria shall include
478an appeal process within the county or municipality with de novo
479review based on the record below to the circuit court.
480     Section 3.  Subsection (1) of section 336.44, Florida
481Statutes, is amended, and subsection (6) is added to that
482section, to read:
483     336.44  Counties; contracts for construction of roads;
484procedure; contractor's bond.--
485     (1)  The commissioners shall let the work on roads out on
486contract, in accordance with s. 336.41(2) s. 336.41(3).
487     (6)  Notwithstanding any other law to the contrary, any
488provision contained in any public construction contract with a
489county, municipality, special district as defined in chapter
490189, or other political subdivision of the state that purports
491to limit, waive, release, or extinguish the rights of a
492contractor to recover costs or damages for delay in performing
493such contract, either on its behalf or on behalf of its
494subcontractors, if and to the extent the delay is caused by acts
495or omissions of the county, municipality, special district, or
496political subdivision, its agents or employees, or other
497entities with which it is in privity and due to causes within
498its control, shall be void and unenforceable as against public
499policy. The decisions of a county, municipality, special
500district, or other political subdivision concerning additional
501compensation or time to which a contractor is entitled in
502connection with any public construction contract shall be
503subject to de novo review in a state court of appropriate
504jurisdiction. This subsection shall not be construed to void any
505provision in such construction contract that provides for
506reasonable liquidated damages in case of a delay to the
507completion of the project for which the contractor is
508responsible or that provides for reasonable liquidated damages
509to fairly compensate the contractor for its indirect costs and
510overhead expenses associated with a delay.
511     Section 4.  This act shall take effect July 1, 2008.


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