Florida Senate - 2009 CS for SB 2666
By the Committee on General Government Appropriations; and
Senators Haridopolos and Baker
601-05241-09 20092666c1
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
6 entities to assist in the management of state
7 construction projects; providing criteria; authorizing
8 the department to enter into continuing contracts
9 under certain circumstances; providing that a
10 construction management entity may be required to
11 offer a guaranteed maximum price and a guaranteed
12 completion date under specified circumstances and
13 secure a surety bond; requiring the department to
14 adopt rules; amending s. 255.103, F.S.; replacing the
15 term “local government” with “governmental entity”;
16 defining the term “governmental entity”; authorizing
17 governmental entities to enter into continuing
18 contracts under certain circumstances; defining the
19 term “continuing contract”; amending s. 287.055, F.S.;
20 clarifying the definition of “continuing contract”;
21 amending s. 287.057, F.S.; providing that for the
22 purpose of exempting certain specified contractual
23 services and commodities from competitive-solicitation
24 requirements, the listed exemption for artistic
25 services does not include advertising; defining the
26 term “advertising”; amending s. 1013.45, F.S.;
27 revising provisions relating to contracting and
28 construction for educational facilities; providing an
29 effective date.
30
31 Be It Enacted by the Legislature of the State of Florida:
32
33 Section 1. Section 255.32, Florida Statutes, is created to
34 read:
35 255.32 State construction management contracting.—
36 (1) As used in this section, the term:
37 (a) “Construction management entity” means a licensed
38 general contractor or a licensed building contractor, as defined
39 in s. 489.105, who coordinates and supervises a construction
40 project from the conceptual development stage through final
41 construction, including the scheduling, selection, contracting
42 with, and directing of specialty trade contractors, and the
43 value engineering of a project.
44 (b) “Construction project” means any planned or unforeseen
45 fixed capital outlay activity authorized under s. 255.31. A
46 construction project may include:
47 1. A grouping of minor construction, rehabilitation, or
48 renovation activities.
49 2. A grouping of substantially similar construction,
50 rehabilitation, or renovation activities.
51 (c) “Continuing contract” means a contract with a
52 construction management entity for work during a defined time
53 period on construction projects described by type, which may or
54 may not be identified at the time of entering into the contract.
55 (d) ”Department” means the Department of Management
56 Services.
57 (2) To assist in the management of state construction
58 projects, the department may select and contract with
59 construction management entities that:
60 (a) Are competitively selected by the department pursuant
61 to s. 287.055;
62 (b) Agree to follow the advertising and competitive bidding
63 procedures that the department is required to follow if the
64 department is managing the construction project directly; and
65 (c) Are under a contract that is separate from the design
66 criteria professional contract, if any, assigned to the
67 construction project.
68 (3) The department’s authority under subsection (2)
69 includes entering into a continuing contract for construction
70 projects for which the total estimated construction cost for
71 each project under the contract does not exceed $1 million.
72 (4) The department may require the construction management
73 entity, after having been selected for a construction project
74 and after competitive negotiations, to offer a guaranteed
75 maximum price and a guaranteed completion date. If so required,
76 the construction management entity must secure an appropriate
77 surety bond pursuant to s. 255.05 and must hold construction
78 subcontracts. If a project solicited by the department pursuant
79 to s. 287.055 includes a grouping of construction,
80 rehabilitation, or renovation activities or substantially
81 similar construction, rehabilitation, or renovation activities
82 costing up to $1 million, the department may require the
83 construction management entity to provide a separate guaranteed
84 maximum price and a separate guaranteed completion date for each
85 grouping included in the project.
86 (5) The department shall adopt rules for state agencies
87 using the services of construction management entities under
88 contract with the department.
89 Section 2. Section 255.103, Florida Statues, is amended to
90 read:
91 255.103 Construction management or program management
92 entities.—
93 (1) As used in this section, the term “governmental entity”
94 “local government” means a county, municipality, school
95 district, special district as defined in chapter 189, or other
96 political subdivision of the state.
97 (2) A governmental entity local government may select a
98 construction management entity, pursuant to the process provided
99 by s. 287.055, which is to be responsible for construction
100 project scheduling and coordination in both preconstruction and
101 construction phases and generally responsible for the
102 successful, timely, and economical completion of the
103 construction project. The construction management entity must
104 consist of or contract with licensed or registered professionals
105 for the specific fields or areas of construction to be
106 performed, as required by law. The construction management
107 entity may retain necessary design professionals selected under
108 the process provided in s. 287.055. At the option of the
109 governmental entity local government, the construction
110 management entity, after having been selected and after
111 competitive negotiations, may be required to offer a guaranteed
112 maximum price and a guaranteed completion date or a lump-sum
113 price and a guaranteed completion date, in which case, the
114 construction management entity must secure an appropriate surety
115 bond pursuant to s. 255.05 and must hold construction
116 subcontracts. If a project, as defined in s. 287.055(2)(f),
117 solicited by a governmental entity local government under the
118 process provided in s. 287.055 includes a grouping of
119 substantially similar construction, rehabilitation, or
120 renovation activities as permitted under s. 287.055(2)(f), the
121 governmental entity local government, after competitive
122 negotiations, may require the construction management entity to
123 provide for a separate guaranteed maximum price or a separate
124 lump-sum price and a separate guaranteed completion date for
125 each grouping of substantially similar construction,
126 rehabilitation, or renovation activities included within the
127 project.
128 (3) A governmental entity local government may select a
129 program management entity, pursuant to the process provided by
130 s. 287.055, which is to be responsible for schedule control,
131 cost control, and coordination in providing or procuring
132 planning, design, and construction services. The program
133 management entity must consist of or contract with licensed or
134 registered professionals for the specific areas of design or
135 construction to be performed as required by law. The program
136 management entity may retain necessary design professionals
137 selected under the process provided in s. 287.055. At the option
138 of the governmental entity local government, the program
139 management entity, after having been selected and after
140 competitive negotiations, may be required to offer a guaranteed
141 maximum price and a guaranteed completion date or a lump-sum
142 price and guaranteed completion date, in which case the program
143 management entity must secure an appropriate surety bond
144 pursuant to s. 255.05 and must hold design and construction
145 subcontracts. If a project, as defined in s. 287.055(2)(f),
146 solicited by a governmental entity local government under the
147 process provided in s. 287.055 includes a grouping of
148 substantially similar construction, rehabilitation, or
149 renovation activities as permitted under s. 287.055(2)(f), the
150 governmental entity local government, after competitive
151 negotiations, may require the program management entity to
152 provide for a separate guaranteed maximum price or a lump-sum
153 price and a separate guaranteed completion date for each
154 grouping of substantially similar construction, rehabilitation,
155 or renovation activities included within the project.
156 (4) A governmental entity’s authority under subsections (2)
157 and (3) includes entering into a continuing contract for
158 construction projects, pursuant to the process provided in s.
159 287.055, for which the total estimated construction cost for
160 each project under the contract does not exceed $1 million. For
161 purposes of this subsection, the term “continuing contract”
162 means a contract with a construction management or program
163 management entity for work during a defined period on
164 construction projects described by type which may or may not be
165 identified at the time of entering into the contract.
166 (5)(4) This section does not prohibit a local government
167 from procuring construction management services, including the
168 services of a program management entity, pursuant to the
169 requirements of s. 255.20.
170 Section 3. Paragraph (g) of subsection (2) of section
171 287.055, Florida Statutes, is amended to read:
172 287.055 Acquisition of professional architectural,
173 engineering, landscape architectural, or surveying and mapping
174 services; definitions; procedures; contingent fees prohibited;
175 penalties.—
176 (2) DEFINITIONS.—For purposes of this section:
177 (g) A “continuing contract” is a contract for professional
178 services entered into in accordance with all the procedures of
179 this act between an agency and a firm whereby the firm provides
180 professional services to the agency for projects in which
181 construction costs for each project under the contract do not
182 exceed $2 $1 million, for study activity if when the fee for
183 such professional services for each study under the contract do
184 service does not exceed $200,000 $50,000, or for work of a
185 specified nature as outlined in the contract required by the
186 agency, with no time limitation or limit on the aggregate values
187 under the contract, except that the contract must provide a
188 termination clause. Firms providing professional services under
189 continuing contracts do not have shall not be required to bid
190 against one another.
191 Section 4. Paragraph (f) of subsection (5) of section
192 287.057, Florida Statutes, is amended to read:
193 287.057 Procurement of commodities or contractual
194 services.—
195 (5) When the purchase price of commodities or contractual
196 services exceeds the threshold amount provided in s. 287.017 for
197 CATEGORY TWO, no purchase of commodities or contractual services
198 may be made without receiving competitive sealed bids,
199 competitive sealed proposals, or competitive sealed replies
200 unless:
201 (f) The following contractual services and commodities are
202 not subject to the competitive-solicitation requirements of this
203 section:
204 1. Artistic services. For the purposes of this subsection,
205 the term “artistic services” does not include advertising. As
206 used in this subparagraph, the term “advertising” means the
207 making of a representation in any form in connection with a
208 trade, business, craft or profession in order to promote the
209 supply of commodities or services by the person promoting the
210 commodities or contractual services.
211 2. Academic program reviews.
212 3. Lectures by individuals.
213 4. Auditing services.
214 5. Legal services, including attorney, paralegal, expert
215 witness, appraisal, or mediator services.
216 6. Health services involving examination, diagnosis,
217 treatment, prevention, medical consultation, or administration.
218 7. Services provided to persons with mental or physical
219 disabilities by not-for-profit corporations which have obtained
220 exemptions under the provisions of s. 501(c)(3) of the United
221 States Internal Revenue Code or when such services are governed
222 by the provisions of Office of Management and Budget Circular A
223 122. However, in acquiring such services, the agency shall
224 consider the ability of the vendor, past performance,
225 willingness to meet time requirements, and price.
226 8. Medicaid services delivered to an eligible Medicaid
227 recipient by a health care provider who has not previously
228 applied for and received a Medicaid provider number from the
229 Agency for Health Care Administration. However, this exception
230 shall be valid for a period not to exceed 90 days after the date
231 of delivery to the Medicaid recipient and shall not be renewed
232 by the agency.
233 9. Family placement services.
234 10. Prevention services related to mental health, including
235 drug abuse prevention programs, child abuse prevention programs,
236 and shelters for runaways, operated by not-for-profit
237 corporations. However, in acquiring such services, the agency
238 shall consider the ability of the vendor, past performance,
239 willingness to meet time requirements, and price.
240 11. Training and education services provided to injured
241 employees pursuant to s. 440.491(6).
242 12. Contracts entered into pursuant to s. 337.11.
243 13. Services or commodities provided by governmental
244 agencies.
245 Section 5. Subsection (1) of section 1013.45, Florida
246 Statutes, is amended to read:
247 1013.45 Educational facilities contracting and construction
248 techniques.—
249 (1) Boards may employ procedures to contract for
250 construction of new facilities, or for major additions,
251 remodeling, renovation, maintenance, or repairs to existing
252 facilities, that will include, but not be limited to:
253 (a) Competitive bids.
254 (b) Procuring professional services or design-build
255 contracts Design-build pursuant to s. 287.055, including
256 continuing contracts for professional services.
257 (c) Selecting a construction management entity, pursuant to
258 s. 255.103 the process provided by s. 287.055, that would be
259 responsible for all scheduling and coordination in both design
260 and construction phases and is generally responsible for the
261 successful, timely, and economical completion of the
262 construction project. The construction management entity must
263 consist of or contract with licensed or registered professionals
264 for the specific fields or areas of construction to be
265 performed, as required by law. At the option of the board, the
266 construction management entity, after having been selected, may
267 be required to offer a guaranteed maximum price or a guaranteed
268 completion date; in which case, the construction management
269 entity must secure an appropriate surety bond pursuant to s.
270 255.05 and must hold construction subcontracts. The criteria for
271 selecting a construction management entity shall not unfairly
272 penalize an entity that has relevant experience in the delivery
273 of construction projects of similar size and complexity by
274 methods of delivery other than construction management.
275 (d) Selecting a program management entity, pursuant to s.
276 255.103 the process provided by s. 287.055, that would act as
277 the agent of the board and would be responsible for schedule
278 control, cost control, and coordination in providing or
279 procuring planning, design, and construction services. The
280 program management entity must consist of or contract with
281 licensed or registered professionals for the specific areas of
282 design or construction to be performed as required by law. The
283 program management entity may retain necessary design
284 professionals selected under the process provided in s. 287.055.
285 At the option of the board, the program management entity, after
286 having been selected, may be required to offer a guaranteed
287 maximum price or a guaranteed completion date, in which case the
288 program management entity must secure an appropriate surety bond
289 pursuant to s. 255.05 and must hold design and construction
290 subcontracts. The criteria for selecting a program management
291 entity shall not unfairly penalize an entity that has relevant
292 experience in the delivery of construction programs of similar
293 size and complexity by methods of delivery other than program
294 management.
295 Section 6. This act shall take effect July 1, 2009.