CS/HB 1459

1
A bill to be entitled
2An act relating to state construction management
3contracting; creating s. 255.32, F.S.; defining terms;
4authorizing the Department of Management Services to
5select and contract with construction management entities
6to assist in the management of state construction
7projects; providing criteria; authorizing the department
8to enter into continuing contracts under certain
9circumstances; providing that a construction management
10entity may be required to offer a guaranteed maximum price
11and a guaranteed completion date under specified
12circumstances and secure a surety bond; authorizing the
13department to adopt rules; amending s. 287.055, F.S.;
14revising definitions; including construction or program
15managers under a prohibition against contingency fees for
16certain professional services contracts; amending s.
171001.74, F.S.; revising criteria for continuing contracts
18for professional services by university boards of
19trustees; amending s. 1013.45, F.S.; revising contracting
20procedures for educational facilities contracting and
21construction; providing an effective date.
22
23Be It Enacted by the Legislature of the State of Florida:
24
25     Section 1.  Section 255.32, Florida Statutes, is created to
26read:
27     255.32  State construction management contracting.--
28     (1)  As used in this section, the term:
29     (a)  "Construction management entity" means a licensed
30general contractor or a licensed building contractor, as defined
31in s. 489.105(3), who coordinates and supervises a construction
32project from the conceptual development stage through final
33construction, including the scheduling, selection, contracting
34with, and directing of specialty trade contractors and the value
35engineering of a project.
36     (b)  "Construction project" means any planned or unforeseen
37fixed capital outlay activity authorized under s. 255.31. A
38construction project may include:
39     1.  A grouping of minor construction, rehabilitation, or
40renovation activities.
41     2.  A grouping of substantially similar construction,
42rehabilitation, or renovation activities.
43     (c)  "Continuing contract" means a contract with a
44construction management entity for work during a defined time
45period on construction projects, described by type, which may or
46may not be identified at the time the contract is entered into.
47     (d)  "Department" means the Department of Management
48Services.
49     (2)  To assist in the management of state construction
50projects, the department may select and contract with
51construction management entities that:
52     (a)  Are competitively selected by the department pursuant
53to s. 287.055;
54     (b)  Agree to follow the advertising and competitive
55bidding procedures that the department would be required to
56follow if the department was managing the construction project
57directly; and
58     (c)  Are under a contract that is separate from the design
59criteria professional contract, if any, assigned to the
60construction project.
61     (3)  The department's authority under subsection (2)
62includes entering into continuing contracts for construction
63projects the total estimated cost of which does not exceed $1
64million.
65     (4)  The department may require the construction management
66entity, after having been selected for a construction project
67and after competitive negotiations, to offer a guaranteed
68maximum price and a guaranteed completion date. If so required,
69the construction management entity must secure an appropriate
70surety bond pursuant to s. 255.05 and must hold construction
71subcontracts. If a project solicited by the department pursuant
72to s. 287.055 includes a grouping of construction,
73rehabilitation, or renovation activities or substantially
74similar construction, rehabilitation, or renovation activities
75costing up to $1 million, the department may require the
76construction management entity to provide for a separate
77guaranteed maximum price and a separate guaranteed completion
78date for each grouping included in the project.
79     (5)  The department shall adopt rules for state agencies
80using the services of construction management entities under
81contract with the department.
82     Section 2.  Paragraphs (a), (c), and (g) of subsection (2)
83and paragraphs (a), (b), and (c) of subsection (6) of section
84287.055, Florida Statutes, are amended to read:
85     287.055  Acquisition of professional architectural,
86engineering, landscape architectural, or surveying and mapping
87services; definitions; procedures; contingent fees prohibited;
88penalties.--
89     (2)  DEFINITIONS.--For purposes of this section:
90     (a)  "Professional services" means those services within
91the scope of the practice of architecture, professional
92engineering, landscape architecture, or registered surveying and
93mapping, as defined by the laws of the state, or those performed
94by any architect, professional engineer, landscape architect, or
95registered surveyor and mapper in connection with his or her
96professional employment or practice or construction or program
97management services, as described in s. 255.103, performed by a
98design-build, construction management, or program management
99firm.
100     (c)  "Firm" means any individual, firm, partnership,
101corporation, association, or other legal entity permitted by law
102to practice architecture, engineering, or surveying and mapping
103in the state or any design-build, construction management, or
104program management firm performing construction or program
105management services as described in s. 255.103.
106     (g)  A "continuing contract" is a contract for professional
107services entered into in accordance with all the procedures of
108this act between an agency and a firm whereby the firm provides
109professional services to the agency for projects in which
110construction costs for each individual project under the
111contract do not exceed $2 $1 million, for study activity when
112the fee for such professional service does not exceed $200,000
113for each individual study under the contract $50,000, or for
114work of a specified nature as outlined in the contract required
115by the agency, with no time limitation or limit on the aggregate
116values under the contract except that the contract must provide
117a termination clause. Firms providing professional services
118under continuing contracts shall not be required to bid against
119one another.
120     (6)  PROHIBITION AGAINST CONTINGENT FEES.--
121     (a)  Each contract entered into by the agency for
122professional services must contain a prohibition against
123contingent fees as follows: "The architect (or registered
124surveyor and mapper, or professional engineer, or construction
125or program manager, as applicable) warrants that he or she has
126not employed or retained any company or person, other than a
127bona fide employee working solely for the architect (or
128registered surveyor and mapper, or professional engineer, or
129construction or program manager, as applicable) to solicit or
130secure this agreement and that he or she has not paid or agreed
131to pay any person, company, corporation, individual, or firm,
132other than a bona fide employee working solely for the architect
133(or registered surveyor and mapper, or professional engineer, or
134construction or program manager, as applicable) any fee,
135commission, percentage, gift, or other consideration contingent
136upon or resulting from the award or making of this agreement."
137For the breach or violation of this provision, the agency shall
138have the right to terminate the agreement without liability and,
139at its discretion, to deduct from the contract price, or
140otherwise recover, the full amount of such fee, commission,
141percentage, gift, or consideration.
142     (b)  Any individual, corporation, partnership, firm, or
143company, other than a bona fide employee working solely for an
144architect, professional engineer, or registered land surveyor
145and mapper, or construction or program manager, who offers,
146agrees, or contracts to solicit or secure agency contracts for
147professional services for any other individual, company,
148corporation, partnership, or firm and to be paid, or is paid,
149any fee, commission, percentage, gift, or other consideration
150contingent upon, or resulting from, the award or the making of a
151contract for professional services shall, upon conviction in a
152competent court of this state, be found guilty of a first degree
153misdemeanor, punishable as provided in s. 775.082 or s. 775.083.
154     (c)  Any architect, professional engineer, or registered
155surveyor and mapper, or construction or program manager, or any
156group, association, company, corporation, firm, or partnership
157thereof, who offers to pay, or pays, any fee, commission,
158percentage, gift, or other consideration contingent upon, or
159resulting from, the award or making of any agency contract for
160professional services shall, upon conviction in a state court of
161competent authority, be found guilty of a first degree
162misdemeanor, punishable as provided in s. 775.082 or s. 775.083.
163     Section 3.  Paragraph (a) of subsection (2) of section
1641001.74, Florida Statutes, is amended to read:
165     1001.74  Powers and duties of university boards of
166trustees.--
167     (2)  POWERS AND DUTIES RELATING TO ORGANIZATION AND
168OPERATION OF STATE UNIVERSITIES.--
169     (a)  Each board of trustees constitutes the contracting
170agent of the university. Each university shall comply with the
171provisions of s. 287.055 for the procurement of professional
172services and may approve and execute all contracts for planning,
173construction, and equipment. For the purpose of a university's
174contracting authority, a "continuing contract" for professional
175services under the provisions of s. 287.055 is one in which
176construction costs for each individual project under the
177contract do not exceed $2 $1 million or in which the fee for
178study activity does not exceed $200,000 for each individual
179study under the contract, with no limit on the aggregate values
180under the contract $100,000. Contracts executed pursuant to this
181paragraph are subject to the requirements of s. 1010.62.
182     Section 4.  Subsection (1) of section 1013.45, Florida
183Statutes, is amended to read:
184     1013.45  Educational facilities contracting and
185construction techniques.--
186     (1)  Boards may employ procedures to contract for
187construction of new facilities, or for major additions,
188remodeling, renovation, maintenance, or repairs to existing
189facilities, that will include, but not be limited to:
190     (a)  Competitive bids.
191     (b)  Procuring professional services or design-build
192contracts pursuant to s. 287.055, including continuing contracts
193for professional services.
194     (c)  Selecting a construction management entity, pursuant
195to the process provided by s. 287.055, that would be responsible
196for all scheduling and coordination in both design and
197construction phases and is generally responsible for the
198successful, timely, and economical completion of the
199construction project. The construction management entity must
200consist of or contract with licensed or registered professionals
201for the specific fields or areas of construction to be
202performed, as required by law. At the option of the board, the
203construction management entity, after having been selected, may
204be required to offer a guaranteed maximum price or a guaranteed
205completion date; in which case, the construction management
206entity must secure an appropriate surety bond pursuant to s.
207255.05 and must hold construction subcontracts. The criteria for
208selecting a construction management entity shall not unfairly
209penalize an entity that has relevant experience in the delivery
210of construction projects of similar size and complexity by
211methods of delivery other than construction management.
212     (d)  Selecting a program management entity, pursuant to the
213process provided by s. 287.055, that would act as the agent of
214the board and would be responsible for schedule control, cost
215control, and coordination in providing or procuring planning,
216design, and construction services. The program management entity
217must consist of or contract with licensed or registered
218professionals for the specific areas of design or construction
219to be performed as required by law. The program management
220entity may retain necessary design professionals selected under
221the process provided in s. 287.055. At the option of the board,
222the program management entity, after having been selected, may
223be required to offer a guaranteed maximum price or a guaranteed
224completion date, in which case the program management entity
225must secure an appropriate surety bond pursuant to s. 255.05 and
226must hold design and construction subcontracts. The criteria for
227selecting a program management entity shall not unfairly
228penalize an entity that has relevant experience in the delivery
229of construction programs of similar size and complexity by
230methods of delivery other than program management.
231     (e)  Day-labor contracts not exceeding $280,000 for
232construction, renovation, remodeling, or maintenance of existing
233facilities. Beginning January 2009, this amount shall be
234adjusted annually based upon changes in the Consumer Price
235Index.
236     Section 5.  This act shall take effect July 1, 2009.


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