| 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. |