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