1 | A bill to be entitled |
2 | An act relating to state construction management |
3 | contracting; creating s. 255.32, F.S.; defining terms; |
4 | authorizing the Department of Management Services to |
5 | select and contract with construction management entities |
6 | to assist in the management of state construction |
7 | projects; providing criteria; authorizing the department |
8 | to enter into continuing contracts under certain |
9 | circumstances; providing that a construction management |
10 | entity may be required to offer a guaranteed maximum price |
11 | and a guaranteed completion date under specified |
12 | circumstances and secure a surety bond; authorizing the |
13 | department to adopt rules; amending s. 287.055, F.S.; |
14 | revising definitions; including construction or program |
15 | managers under a prohibition against contingency fees for |
16 | certain professional services contracts; amending s. |
17 | 1001.74, F.S.; revising criteria for continuing contracts |
18 | for professional services by university boards of |
19 | trustees; amending s. 1013.45, F.S.; revising contracting |
20 | procedures for educational facilities contracting and |
21 | construction; providing an effective date. |
22 |
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23 | Be It Enacted by the Legislature of the State of Florida: |
24 |
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25 | Section 1. Section 255.32, Florida Statutes, is created to |
26 | read: |
27 | 255.32 State construction management contracting.-- |
28 | (1) As used in this section, the term: |
29 | (a) "Construction management entity" means a licensed |
30 | general contractor or a licensed building contractor, as defined |
31 | in s. 489.105(3), who coordinates and supervises a construction |
32 | project from the conceptual development stage through final |
33 | construction, including the scheduling, selection, contracting |
34 | with, and directing of specialty trade contractors and the value |
35 | engineering of a project. |
36 | (b) "Construction project" means any planned or unforeseen |
37 | fixed capital outlay activity authorized under s. 255.31. A |
38 | construction project may include: |
39 | 1. A grouping of minor construction, rehabilitation, or |
40 | renovation activities. |
41 | 2. A grouping of substantially similar construction, |
42 | rehabilitation, or renovation activities. |
43 | (c) "Continuing contract" means a contract with a |
44 | construction management entity for work during a defined time |
45 | period on construction projects, described by type, which may or |
46 | may not be identified at the time the contract is entered into. |
47 | (d) "Department" means the Department of Management |
48 | Services. |
49 | (2) To assist in the management of state construction |
50 | projects, the department may select and contract with |
51 | construction management entities that: |
52 | (a) Are competitively selected by the department pursuant |
53 | to s. 287.055; |
54 | (b) Agree to follow the advertising and competitive |
55 | bidding procedures that the department would be required to |
56 | follow if the department was managing the construction project |
57 | directly; and |
58 | (c) Are under a contract that is separate from the design |
59 | criteria professional contract, if any, assigned to the |
60 | construction project. |
61 | (3) The department's authority under subsection (2) |
62 | includes entering into continuing contracts for construction |
63 | projects the total estimated cost of which does not exceed $1 |
64 | million. |
65 | (4) The department may require the construction management |
66 | entity, after having been selected for a construction project |
67 | and after competitive negotiations, to offer a guaranteed |
68 | maximum price and a guaranteed completion date. If so required, |
69 | the construction management entity must secure an appropriate |
70 | surety bond pursuant to s. 255.05 and must hold construction |
71 | subcontracts. If a project solicited by the department pursuant |
72 | to s. 287.055 includes a grouping of construction, |
73 | rehabilitation, or renovation activities or substantially |
74 | similar construction, rehabilitation, or renovation activities |
75 | costing up to $1 million, the department may require the |
76 | construction management entity to provide for a separate |
77 | guaranteed maximum price and a separate guaranteed completion |
78 | date for each grouping included in the project. |
79 | (5) The department shall adopt rules for state agencies |
80 | using the services of construction management entities under |
81 | contract with the department. |
82 | Section 2. Paragraphs (a), (c), and (g) of subsection (2) |
83 | and paragraphs (a), (b), and (c) of subsection (6) of section |
84 | 287.055, Florida Statutes, are amended to read: |
85 | 287.055 Acquisition of professional architectural, |
86 | engineering, landscape architectural, or surveying and mapping |
87 | services; definitions; procedures; contingent fees prohibited; |
88 | penalties.-- |
89 | (2) DEFINITIONS.--For purposes of this section: |
90 | (a) "Professional services" means those services within |
91 | the scope of the practice of architecture, professional |
92 | engineering, landscape architecture, or registered surveying and |
93 | mapping, as defined by the laws of the state, or those performed |
94 | by any architect, professional engineer, landscape architect, or |
95 | registered surveyor and mapper in connection with his or her |
96 | professional employment or practice or construction or program |
97 | management services, as described in s. 255.103, performed by a |
98 | design-build, construction management, or program management |
99 | firm. |
100 | (c) "Firm" means any individual, firm, partnership, |
101 | corporation, association, or other legal entity permitted by law |
102 | to practice architecture, engineering, or surveying and mapping |
103 | in the state or any design-build, construction management, or |
104 | program management firm performing construction or program |
105 | management services as described in s. 255.103. |
106 | (g) A "continuing contract" is a contract for professional |
107 | services entered into in accordance with all the procedures of |
108 | this act between an agency and a firm whereby the firm provides |
109 | professional services to the agency for projects in which |
110 | construction costs for each individual project under the |
111 | contract do not exceed $2 $1 million, for study activity when |
112 | the fee for such professional service does not exceed $200,000 |
113 | for each individual study under the contract $50,000, or for |
114 | work of a specified nature as outlined in the contract required |
115 | by the agency, with no time limitation or limit on the aggregate |
116 | values under the contract except that the contract must provide |
117 | a termination clause. Firms providing professional services |
118 | under continuing contracts shall not be required to bid against |
119 | one another. |
120 | (6) PROHIBITION AGAINST CONTINGENT FEES.-- |
121 | (a) Each contract entered into by the agency for |
122 | professional services must contain a prohibition against |
123 | contingent fees as follows: "The architect (or registered |
124 | surveyor and mapper, or professional engineer, or construction |
125 | or program manager, as applicable) warrants that he or she has |
126 | not employed or retained any company or person, other than a |
127 | bona fide employee working solely for the architect (or |
128 | registered surveyor and mapper, or professional engineer, or |
129 | construction or program manager, as applicable) to solicit or |
130 | secure this agreement and that he or she has not paid or agreed |
131 | to pay any person, company, corporation, individual, or firm, |
132 | other than a bona fide employee working solely for the architect |
133 | (or registered surveyor and mapper, or professional engineer, or |
134 | construction or program manager, as applicable) any fee, |
135 | commission, percentage, gift, or other consideration contingent |
136 | upon or resulting from the award or making of this agreement." |
137 | For the breach or violation of this provision, the agency shall |
138 | have the right to terminate the agreement without liability and, |
139 | at its discretion, to deduct from the contract price, or |
140 | otherwise recover, the full amount of such fee, commission, |
141 | percentage, gift, or consideration. |
142 | (b) Any individual, corporation, partnership, firm, or |
143 | company, other than a bona fide employee working solely for an |
144 | architect, professional engineer, or registered land surveyor |
145 | and mapper, or construction or program manager, who offers, |
146 | agrees, or contracts to solicit or secure agency contracts for |
147 | professional services for any other individual, company, |
148 | corporation, partnership, or firm and to be paid, or is paid, |
149 | any fee, commission, percentage, gift, or other consideration |
150 | contingent upon, or resulting from, the award or the making of a |
151 | contract for professional services shall, upon conviction in a |
152 | competent court of this state, be found guilty of a first degree |
153 | misdemeanor, punishable as provided in s. 775.082 or s. 775.083. |
154 | (c) Any architect, professional engineer, or registered |
155 | surveyor and mapper, or construction or program manager, or any |
156 | group, association, company, corporation, firm, or partnership |
157 | thereof, who offers to pay, or pays, any fee, commission, |
158 | percentage, gift, or other consideration contingent upon, or |
159 | resulting from, the award or making of any agency contract for |
160 | professional services shall, upon conviction in a state court of |
161 | competent authority, be found guilty of a first degree |
162 | misdemeanor, punishable as provided in s. 775.082 or s. 775.083. |
163 | Section 3. Paragraph (a) of subsection (2) of section |
164 | 1001.74, Florida Statutes, is amended to read: |
165 | 1001.74 Powers and duties of university boards of |
166 | trustees.-- |
167 | (2) POWERS AND DUTIES RELATING TO ORGANIZATION AND |
168 | OPERATION OF STATE UNIVERSITIES.-- |
169 | (a) Each board of trustees constitutes the contracting |
170 | agent of the university. Each university shall comply with the |
171 | provisions of s. 287.055 for the procurement of professional |
172 | services and may approve and execute all contracts for planning, |
173 | construction, and equipment. For the purpose of a university's |
174 | contracting authority, a "continuing contract" for professional |
175 | services under the provisions of s. 287.055 is one in which |
176 | construction costs for each individual project under the |
177 | contract do not exceed $2 $1 million or in which the fee for |
178 | study activity does not exceed $200,000 for each individual |
179 | study under the contract, with no limit on the aggregate values |
180 | under the contract $100,000. Contracts executed pursuant to this |
181 | paragraph are subject to the requirements of s. 1010.62. |
182 | Section 4. Subsection (1) of section 1013.45, Florida |
183 | Statutes, is amended to read: |
184 | 1013.45 Educational facilities contracting and |
185 | construction techniques.-- |
186 | (1) Boards may employ procedures to contract for |
187 | construction of new facilities, or for major additions, |
188 | remodeling, renovation, maintenance, or repairs to existing |
189 | facilities, that will include, but not be limited to: |
190 | (a) Competitive bids. |
191 | (b) Procuring professional services or design-build |
192 | contracts pursuant to s. 287.055, including continuing contracts |
193 | for professional services. |
194 | (c) Selecting a construction management entity, pursuant |
195 | to the process provided by s. 287.055, that would be responsible |
196 | for all scheduling and coordination in both design and |
197 | construction phases and is generally responsible for the |
198 | successful, timely, and economical completion of the |
199 | construction project. The construction management entity must |
200 | consist of or contract with licensed or registered professionals |
201 | for the specific fields or areas of construction to be |
202 | performed, as required by law. At the option of the board, the |
203 | construction management entity, after having been selected, may |
204 | be required to offer a guaranteed maximum price or a guaranteed |
205 | completion date; in which case, the construction management |
206 | entity must secure an appropriate surety bond pursuant to s. |
207 | 255.05 and must hold construction subcontracts. The criteria for |
208 | selecting a construction management entity shall not unfairly |
209 | penalize an entity that has relevant experience in the delivery |
210 | of construction projects of similar size and complexity by |
211 | methods of delivery other than construction management. |
212 | (d) Selecting a program management entity, pursuant to the |
213 | process provided by s. 287.055, that would act as the agent of |
214 | the board and would be responsible for schedule control, cost |
215 | control, and coordination in providing or procuring planning, |
216 | design, and construction services. The program management entity |
217 | must consist of or contract with licensed or registered |
218 | professionals for the specific areas of design or construction |
219 | to be performed as required by law. The program management |
220 | entity may retain necessary design professionals selected under |
221 | the process provided in s. 287.055. At the option of the board, |
222 | the program management entity, after having been selected, may |
223 | be required to offer a guaranteed maximum price or a guaranteed |
224 | completion date, in which case the program management entity |
225 | must secure an appropriate surety bond pursuant to s. 255.05 and |
226 | must hold design and construction subcontracts. The criteria for |
227 | selecting a program management entity shall not unfairly |
228 | penalize an entity that has relevant experience in the delivery |
229 | of construction programs of similar size and complexity by |
230 | methods of delivery other than program management. |
231 | (e) Day-labor contracts not exceeding $280,000 for |
232 | construction, renovation, remodeling, or maintenance of existing |
233 | facilities. Beginning January 2009, this amount shall be |
234 | adjusted annually based upon changes in the Consumer Price |
235 | Index. |
236 | Section 5. This act shall take effect July 1, 2009. |