| 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. 255.103, F.S.; |
| 14 | revising terminology; providing a definition; authorizing |
| 15 | governmental entities to enter into continuing contracts |
| 16 | under certain circumstances; amending s. 287.055, F.S.; |
| 17 | revising a definition; amending s. 287.057, F.S.; |
| 18 | excluding advertising from artistic services exempt from |
| 19 | competitive-solicitation requirements for contractual |
| 20 | services and commodities; providing a definition; amending |
| 21 | s. 1013.45, F.S.; revising contracting procedures for |
| 22 | educational facilities contracting and construction; |
| 23 | providing an effective date. |
| 24 |
|
| 25 | Be It Enacted by the Legislature of the State of Florida: |
| 26 |
|
| 27 | Section 1. Section 255.32, Florida Statutes, is created to |
| 28 | read: |
| 29 | 255.32 State construction management contracting.-- |
| 30 | (1) As used in this section, the term: |
| 31 | (a) "Construction management entity" means a licensed |
| 32 | general contractor or a licensed building contractor, as defined |
| 33 | in s. 489.105(3), who coordinates and supervises a construction |
| 34 | project from the conceptual development stage through final |
| 35 | construction, including the scheduling, selection, contracting |
| 36 | with, and directing of specialty trade contractors and the value |
| 37 | engineering of a project. |
| 38 | (b) "Construction project" means any planned or unforeseen |
| 39 | fixed capital outlay activity authorized under s. 255.31. A |
| 40 | construction project may include: |
| 41 | 1. A grouping of minor construction, rehabilitation, or |
| 42 | renovation activities. |
| 43 | 2. A grouping of substantially similar construction, |
| 44 | rehabilitation, or renovation activities. |
| 45 | (c) "Continuing contract" means a contract with a |
| 46 | construction management entity for work during a defined time |
| 47 | period on construction projects, described by type, which may or |
| 48 | may not be identified at the time the contract is entered into. |
| 49 | (d) "Department" means the Department of Management |
| 50 | Services. |
| 51 | (2) To assist in the management of state construction |
| 52 | projects, the department may select and contract with |
| 53 | construction management entities that: |
| 54 | (a) Are competitively selected by the department pursuant |
| 55 | to s. 287.055; |
| 56 | (b) Agree to follow the advertising and competitive |
| 57 | bidding procedures that the department is required to follow if |
| 58 | the department was managing the construction project directly; |
| 59 | and |
| 60 | (c) Are under a contract that is separate from the design |
| 61 | criteria professional contract, if any, assigned to the |
| 62 | construction project. |
| 63 | (3) The department's authority under subsection (2) |
| 64 | includes entering into continuing contracts for construction |
| 65 | projects for which the total estimated construction cost for |
| 66 | each project under the contract does not exceed $2 million. |
| 67 | (4) The department may require the construction management |
| 68 | entity, after having been selected for a construction project |
| 69 | and after competitive negotiations, to offer a guaranteed |
| 70 | maximum price and a guaranteed completion date. If so required, |
| 71 | the construction management entity must secure an appropriate |
| 72 | surety bond pursuant to s. 255.05 and must hold construction |
| 73 | subcontracts. If a project solicited by the department pursuant |
| 74 | to s. 287.055 includes a grouping of construction, |
| 75 | rehabilitation, or renovation activities or substantially |
| 76 | similar construction, rehabilitation, or renovation activities |
| 77 | costing up to $1 million, the department may require the |
| 78 | construction management entity to provide a separate guaranteed |
| 79 | maximum price and a separate guaranteed completion date for each |
| 80 | grouping included in the project. |
| 81 | (5) The department shall adopt rules for state agencies |
| 82 | using the services of construction management entities under |
| 83 | contract with the department. |
| 84 | Section 2. Section 255.103, Florida Statutes, is amended |
| 85 | to read: |
| 86 | 255.103 Construction management or program management |
| 87 | entities.-- |
| 88 | (1) As used in this section, the term "governmental entity |
| 89 | local government" means a county, municipality, school district, |
| 90 | special district as defined in chapter 189, or other political |
| 91 | subdivision of the state. |
| 92 | (2) A governmental entity local government may select a |
| 93 | construction management entity, pursuant to the process provided |
| 94 | by s. 287.055, which is to be responsible for construction |
| 95 | project scheduling and coordination in both preconstruction and |
| 96 | construction phases and generally responsible for the |
| 97 | successful, timely, and economical completion of the |
| 98 | construction project. The construction management entity must |
| 99 | consist of or contract with licensed or registered professionals |
| 100 | for the specific fields or areas of construction to be |
| 101 | performed, as required by law. The construction management |
| 102 | entity may retain necessary design professionals selected under |
| 103 | the process provided in s. 287.055. At the option of the |
| 104 | governmental entity local government, the construction |
| 105 | management entity, after having been selected and after |
| 106 | competitive negotiations, may be required to offer a guaranteed |
| 107 | maximum price and a guaranteed completion date or a lump-sum |
| 108 | price and a guaranteed completion date, in which case, the |
| 109 | construction management entity must secure an appropriate surety |
| 110 | bond pursuant to s. 255.05 and must hold construction |
| 111 | subcontracts. If a project, as defined in s. 287.055(2)(f), |
| 112 | solicited by a governmental entity local government under the |
| 113 | process provided in s. 287.055 includes a grouping of |
| 114 | substantially similar construction, rehabilitation, or |
| 115 | renovation activities as permitted under s. 287.055(2)(f), the |
| 116 | governmental entity local government, after competitive |
| 117 | negotiations, may require the construction management entity to |
| 118 | provide for a separate guaranteed maximum price or a separate |
| 119 | lump-sum price and a separate guaranteed completion date for |
| 120 | each grouping of substantially similar construction, |
| 121 | rehabilitation, or renovation activities included within the |
| 122 | project. |
| 123 | (3) A governmental entity local government may select a |
| 124 | program management entity, pursuant to the process provided by |
| 125 | s. 287.055, which is to be responsible for schedule control, |
| 126 | cost control, and coordination in providing or procuring |
| 127 | planning, design, and construction services. The program |
| 128 | management entity must consist of or contract with licensed or |
| 129 | registered professionals for the specific areas of design or |
| 130 | construction to be performed as required by law. The program |
| 131 | management entity may retain necessary design professionals |
| 132 | selected under the process provided in s. 287.055. At the option |
| 133 | of the governmental entity local government, the program |
| 134 | management entity, after having been selected and after |
| 135 | competitive negotiations, may be required to offer a guaranteed |
| 136 | maximum price and a guaranteed completion date or a lump-sum |
| 137 | price and guaranteed completion date, in which case the program |
| 138 | management entity must secure an appropriate surety bond |
| 139 | pursuant to s. 255.05 and must hold design and construction |
| 140 | subcontracts. If a project, as defined in s. 287.055(2)(f), |
| 141 | solicited by a governmental entity local government under the |
| 142 | process provided in s. 287.055 includes a grouping of |
| 143 | substantially similar construction, rehabilitation, or |
| 144 | renovation activities as permitted under s. 287.055(2)(f), the |
| 145 | governmental entity local government, after competitive |
| 146 | negotiations, may require the program management entity to |
| 147 | provide for a separate guaranteed maximum price or a lump-sum |
| 148 | price and a separate guaranteed completion date for each |
| 149 | grouping of substantially similar construction, rehabilitation, |
| 150 | or renovation activities included within the project. |
| 151 | (4) A governmental entity's authority under subsections |
| 152 | (2) and (3) includes entering into a continuing contract for |
| 153 | construction projects, pursuant to the process provided in s. |
| 154 | 287.055, for which the total estimated construction cost for |
| 155 | each project under the contract does not exceed $2 million. For |
| 156 | purposes of this subsection, the term "continuing contract" |
| 157 | means a contract with a construction management or program |
| 158 | management entity for work during a defined period on |
| 159 | construction projects described by type which may or may not be |
| 160 | identified at the time of entering into the contract. |
| 161 | (5)(4) This section does not prohibit a governmental |
| 162 | entity local government from procuring construction management |
| 163 | services, including the services of a program management entity, |
| 164 | pursuant to the requirements of s. 255.20. |
| 165 | Section 3. Paragraph (g) of subsection (2) of section |
| 166 | 287.055, Florida Statutes, is amended to read: |
| 167 | 287.055 Acquisition of professional architectural, |
| 168 | engineering, landscape architectural, or surveying and mapping |
| 169 | services; definitions; procedures; contingent fees prohibited; |
| 170 | penalties.-- |
| 171 | (2) DEFINITIONS.--For purposes of this section: |
| 172 | (g) A "continuing contract" is a contract for professional |
| 173 | services entered into in accordance with all the procedures of |
| 174 | this act between an agency and a firm whereby the firm provides |
| 175 | professional services to the agency for projects in which |
| 176 | construction costs for each project under the contract do not |
| 177 | exceed $2 $1 million, for study activity if when the fee for |
| 178 | such professional services for each study under the contract |
| 179 | service does not exceed $200,000 $50,000, or for work of a |
| 180 | specified nature as outlined in the contract required by the |
| 181 | agency, with the contract being for a fixed term or with no time |
| 182 | limitation except that the contract must provide a termination |
| 183 | clause. Firms providing professional services under continuing |
| 184 | contracts shall not be required to bid against one another. |
| 185 | Section 4. Paragraph (f) of subsection (5) of section |
| 186 | 287.057, Florida Statutes, is amended to read: |
| 187 | 287.057 Procurement of commodities or contractual |
| 188 | services.-- |
| 189 | (5) When the purchase price of commodities or contractual |
| 190 | services exceeds the threshold amount provided in s. 287.017 for |
| 191 | CATEGORY TWO, no purchase of commodities or contractual services |
| 192 | may be made without receiving competitive sealed bids, |
| 193 | competitive sealed proposals, or competitive sealed replies |
| 194 | unless: |
| 195 | (f) The following contractual services and commodities are |
| 196 | not subject to the competitive-solicitation requirements of this |
| 197 | section: |
| 198 | 1. Artistic services. For the purposes of this subsection, |
| 199 | the term "artistic services" does not include advertising. As |
| 200 | used in this subparagraph, the term "advertising" means the |
| 201 | making of a representation in any form in connection with a |
| 202 | trade, business, craft, or profession in order to promote the |
| 203 | supply of commodities or contractual services by the person |
| 204 | promoting the commodities or contractual services. |
| 205 | 2. Academic program reviews. |
| 206 | 3. Lectures by individuals. |
| 207 | 4. Auditing services. |
| 208 | 5. Legal services, including attorney, paralegal, expert |
| 209 | witness, appraisal, or mediator services. |
| 210 | 6. Health services involving examination, diagnosis, |
| 211 | treatment, prevention, medical consultation, or administration. |
| 212 | 7. Services provided to persons with mental or physical |
| 213 | disabilities by not-for-profit corporations which have obtained |
| 214 | exemptions under the provisions of s. 501(c)(3) of the United |
| 215 | States Internal Revenue Code or when such services are governed |
| 216 | by the provisions of Office of Management and Budget Circular A- |
| 217 | 122. However, in acquiring such services, the agency shall |
| 218 | consider the ability of the vendor, past performance, |
| 219 | willingness to meet time requirements, and price. |
| 220 | 8. Medicaid services delivered to an eligible Medicaid |
| 221 | recipient by a health care provider who has not previously |
| 222 | applied for and received a Medicaid provider number from the |
| 223 | Agency for Health Care Administration. However, this exception |
| 224 | shall be valid for a period not to exceed 90 days after the date |
| 225 | of delivery to the Medicaid recipient and shall not be renewed |
| 226 | by the agency. |
| 227 | 9. Family placement services. |
| 228 | 10. Prevention services related to mental health, |
| 229 | including drug abuse prevention programs, child abuse prevention |
| 230 | programs, and shelters for runaways, operated by not-for-profit |
| 231 | corporations. However, in acquiring such services, the agency |
| 232 | shall consider the ability of the vendor, past performance, |
| 233 | willingness to meet time requirements, and price. |
| 234 | 11. Training and education services provided to injured |
| 235 | employees pursuant to s. 440.491(6). |
| 236 | 12. Contracts entered into pursuant to s. 337.11. |
| 237 | 13. Services or commodities provided by governmental |
| 238 | agencies. |
| 239 | Section 5. Subsection (1) of section 1013.45, Florida |
| 240 | Statutes, is amended to read: |
| 241 | 1013.45 Educational facilities contracting and |
| 242 | construction techniques.-- |
| 243 | (1) Boards may employ procedures to contract for |
| 244 | construction of new facilities, or for major additions, |
| 245 | remodeling, renovation, maintenance, or repairs to existing |
| 246 | facilities, that will include, but not be limited to: |
| 247 | (a) Competitive bids. |
| 248 | (b) Procuring professional services or design-build |
| 249 | contracts pursuant to s. 287.055, including continuing contracts |
| 250 | for professional services. |
| 251 | (c) Selecting a construction management entity, pursuant |
| 252 | to s. 255.103 or the process provided by s. 287.055, that would |
| 253 | be responsible for all scheduling and coordination in both |
| 254 | design and construction phases and is generally responsible for |
| 255 | the successful, timely, and economical completion of the |
| 256 | construction project. The construction management entity must |
| 257 | consist of or contract with licensed or registered professionals |
| 258 | for the specific fields or areas of construction to be |
| 259 | performed, as required by law. At the option of the board, the |
| 260 | construction management entity, after having been selected, may |
| 261 | be required to offer a guaranteed maximum price or a guaranteed |
| 262 | completion date; in which case, the construction management |
| 263 | entity must secure an appropriate surety bond pursuant to s. |
| 264 | 255.05 and must hold construction subcontracts. The criteria for |
| 265 | selecting a construction management entity shall not unfairly |
| 266 | penalize an entity that has relevant experience in the delivery |
| 267 | of construction projects of similar size and complexity by |
| 268 | methods of delivery other than construction management. |
| 269 | (d) Selecting a program management entity, pursuant to s. |
| 270 | 255.103 or the process provided by s. 287.055, that would act as |
| 271 | the agent of the board and would be responsible for schedule |
| 272 | control, cost control, and coordination in providing or |
| 273 | procuring planning, design, and construction services. The |
| 274 | program management entity must consist of or contract with |
| 275 | licensed or registered professionals for the specific areas of |
| 276 | design or construction to be performed as required by law. The |
| 277 | program management entity may retain necessary design |
| 278 | professionals selected under the process provided in s. 287.055. |
| 279 | At the option of the board, the program management entity, after |
| 280 | having been selected, may be required to offer a guaranteed |
| 281 | maximum price or a guaranteed completion date, in which case the |
| 282 | program management entity must secure an appropriate surety bond |
| 283 | pursuant to s. 255.05 and must hold design and construction |
| 284 | subcontracts. The criteria for selecting a program management |
| 285 | entity shall not unfairly penalize an entity that has relevant |
| 286 | experience in the delivery of construction programs of similar |
| 287 | size and complexity by methods of delivery other than program |
| 288 | management. |
| 289 | (e) Day-labor contracts not exceeding $280,000 for |
| 290 | construction, renovation, remodeling, or maintenance of existing |
| 291 | facilities. Beginning January 2009, this amount shall be |
| 292 | adjusted annually based upon changes in the Consumer Price |
| 293 | Index. |
| 294 | Section 6. This act shall take effect July 1, 2009. |