1 | A bill to be entitled |
2 | An act relating to public construction projects; amending |
3 | s. 255.20, F.S.; revising exceptions to the requirement |
4 | that certain public projects be competitively awarded; |
5 | defining the term "maintenance"; prohibiting an exception |
6 | if the local government contributed to a delay in funding |
7 | or awarding a project; requiring a local government to |
8 | support a decision to perform a project with its own |
9 | employees and to make a factual finding that the project |
10 | cost will be the same or less than the lowest bid; |
11 | providing additional exceptions for projects related to |
12 | public-use airports, certain ports, and certain public |
13 | transit systems; authorizing a project to be awarded to a |
14 | contractor that maintains a local presence under certain |
15 | circumstances; providing an effective date. |
16 |
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17 | Be It Enacted by the Legislature of the State of Florida: |
18 |
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19 | Section 1. Section 255.20, Florida Statutes, is amended to |
20 | read: |
21 | 255.20 Local bids and contracts for public construction |
22 | works; specification of state-produced lumber.-- |
23 | (1) A county, municipality, special district as defined in |
24 | chapter 189, or other political subdivision of the state seeking |
25 | to construct, or improve, or repair a public building, |
26 | structure, or other public construction works must competitively |
27 | award to an appropriately licensed contractor each project that |
28 | is estimated in accordance with generally accepted cost- |
29 | accounting principles to cost have total construction project |
30 | costs of more than $200,000. For electrical work, the local |
31 | government must competitively award to an appropriately licensed |
32 | contractor each project that is estimated in accordance with |
33 | generally accepted cost-accounting principles to have a cost of |
34 | more than $50,000. As used in this section, the term |
35 | "competitively award" means to award contracts based on the |
36 | submission of sealed bids, proposals submitted in response to a |
37 | request for proposal, proposals submitted in response to a |
38 | request for qualifications, or proposals submitted for |
39 | competitive negotiation. This subsection expressly allows |
40 | contracts for construction management services, design/build |
41 | contracts, continuation contracts based on unit prices, and any |
42 | other contract arrangement with a private sector contractor |
43 | permitted by any applicable municipal or county ordinance, by |
44 | district resolution, or by state law. For purposes of this |
45 | section, cost includes construction costs include the cost of |
46 | all labor, except inmate labor, and include the cost of |
47 | equipment and materials to be used in the construction of the |
48 | project. Subject to the provisions of subsection (3), the |
49 | county, municipality, special district, or other political |
50 | subdivision may establish, by municipal or county ordinance or |
51 | special district resolution, procedures for conducting the |
52 | bidding process. |
53 | (a) Notwithstanding any other law to the contrary, a |
54 | governmental entity a county, municipality, special district as |
55 | defined in chapter 189, or other political subdivision of the |
56 | state seeking to construct or improve bridges, roads, streets, |
57 | highways, or railroads, and services incidental thereto, at a |
58 | cost costs in excess of $250,000 may require that persons |
59 | interested in performing work under contract first be certified |
60 | or qualified to perform such work. A Any contractor may be |
61 | considered ineligible to bid by the governmental entity if the |
62 | contractor is behind by 10 percent or more on completing an |
63 | approved progress schedule for the governmental entity by 10 |
64 | percent or more at the time of advertising advertisement of the |
65 | work. A prequalified Any contractor prequalified and considered |
66 | eligible by the Department of Transportation to bid to perform |
67 | the type of work described under the contract is shall be |
68 | presumed to be qualified to perform the work described. The |
69 | governmental entity may provide an appeal process to overcome |
70 | that presumption with de novo review based on the record below |
71 | to the circuit court. |
72 | (b) For With respect to contractors who are not |
73 | prequalified by with the Department of Transportation, the |
74 | governmental entity shall publish prequalification criteria and |
75 | procedures prior to advertisement or notice of solicitation. |
76 | Such publications must shall include notice of a public hearing |
77 | for comment on such criteria and procedures prior to adoption. |
78 | The procedures must shall provide for an appeal process within |
79 | the authority for making objections to the prequalification |
80 | process with de novo review based on the record below to the |
81 | circuit court within 30 days. |
82 | (c) The provisions of this subsection do not apply: |
83 | 1. If When the project is undertaken to replace, |
84 | reconstruct, or repair an existing public building, structure, |
85 | or other public construction works facility damaged or destroyed |
86 | by a sudden unexpected turn of events, such as an act of God, |
87 | riot, fire, flood, accident, or other urgent circumstances, and |
88 | such damage or destruction creates: |
89 | a. An immediate danger to the public health or safety; |
90 | b. Other loss to public or private property which requires |
91 | emergency government action; or |
92 | c. An interruption of an essential governmental service. |
93 | 2. If When, after notice by publication in accordance with |
94 | the applicable ordinance or resolution, the governmental entity |
95 | does not receive any responsive bids or proposals responses. |
96 | 3. To construction, remodeling, repair, or improvement to |
97 | a public electric or gas utility system if when such work on the |
98 | public utility system is performed by personnel of the system. |
99 | 4. To construction, remodeling, repair, or improvement by |
100 | a utility commission whose major contracts are to construct and |
101 | operate a public electric utility system. |
102 | 5. If When the project consists exclusively of is |
103 | undertaken as repair or maintenance to a public building, |
104 | structure, or other public construction works of an existing |
105 | public facility. For the purposes of this section, the term |
106 | "maintenance" means those minor repairs and associated tasks |
107 | necessary to prevent the failure or decline of such facility |
108 | without having to undertake any new construction, additions, or |
109 | extensions. |
110 | 6. If When the project is undertaken exclusively as part |
111 | of a public educational program. |
112 | 7. If When the funding source of the project will be |
113 | diminished or lost because the time required to competitively |
114 | award the project after the funds become available exceeds the |
115 | time within which the funding source must be spent, and the |
116 | governmental entity undertaking the project has not materially |
117 | contributed to a delay in funding or in competitively awarding |
118 | the project. |
119 | 8. If When the local government has competitively awarded |
120 | a project to a private sector contractor and the contractor has |
121 | abandoned the project before completion or the local government |
122 | has terminated the contract. |
123 | 9. If the local government, after receiving competitive |
124 | bids or proposals, decides to perform the project using its own |
125 | services, employees, and equipment and complies with the |
126 | provisions of this subparagraph. If the local government |
127 | receives bids or proposals that are responsive but are all |
128 | greater than the local government's estimated cost of the |
129 | project, When the governing board of the local government, after |
130 | public notice, shall conduct conducts a public meeting under s. |
131 | 286.011 and may decide finds by a majority vote of the governing |
132 | board that it is in the public's best interest to perform the |
133 | project using its own services, employees, and equipment. The |
134 | public notice must be published at least 14 days before prior to |
135 | the date of the public meeting at which the governing board |
136 | takes final action to apply this subparagraph. The notice must |
137 | identify the project and, the estimated cost of the project, and |
138 | specify that the purpose for the public meeting is to consider |
139 | whether it is in the public's best interest to perform the |
140 | project using the local government's own services, employees, |
141 | and equipment. The local government's decision In deciding |
142 | whether it is in the public's best interest for local government |
143 | to perform a project using its own services, employees, and |
144 | equipment must be supported by a factual finding, subject to |
145 | challenge under subsection (5), that the local government can |
146 | perform the project at a cost equal to or less than the lowest |
147 | cost-responsive bid or proposal received, using generally |
148 | accepted cost-accounting principles that fully account for all |
149 | local government costs associated with performing the project, |
150 | including employee compensation and benefits, equipment, and |
151 | materials, the governing board may consider the cost of the |
152 | project, whether the project requires an increase in the number |
153 | of government employees, an increase in capital expenditures for |
154 | public facilities, equipment or other capital assets, the impact |
155 | on local economic development, the impact on small and minority |
156 | business owners, the impact on state and local tax revenues, |
157 | whether the private sector contractors provide health insurance |
158 | and other benefits equivalent to those provided by the local |
159 | government, and any other factor relevant to what is in the |
160 | public's best interest. |
161 | 10. If When the governing board of the local government |
162 | determines upon consideration of specific substantive criteria |
163 | and administrative procedures that it is in the best interest of |
164 | the local government to award the project to an appropriately |
165 | licensed private sector contractor pursuant according to |
166 | administrative procedures established by and expressly set forth |
167 | in a charter, ordinance, or resolution of the local government |
168 | adopted before prior to July 1, 1994. The criteria and |
169 | procedures must be set out in the charter, ordinance, or |
170 | resolution and must be applied uniformly by the local government |
171 | to avoid awarding a award of any project in an arbitrary or |
172 | capricious manner. This exception applies only if shall apply |
173 | when all of the following occur: |
174 | a. When The governing board of the local government, after |
175 | public notice, conducts a public meeting under s. 286.011 and |
176 | finds by a two-thirds vote of the governing board that it is in |
177 | the public's best interest to award the project according to the |
178 | criteria and procedures established by charter, ordinance, or |
179 | resolution. The public notice must be published at least 14 days |
180 | before prior to the date of the public meeting at which the |
181 | governing board takes final action to apply this subparagraph. |
182 | The notice must identify the project, the estimated cost of the |
183 | project, and specify that the purpose for the public meeting is |
184 | to consider whether it is in the public's best interest to award |
185 | the project using the criteria and procedures permitted by the |
186 | preexisting charter, ordinance, or resolution. |
187 | b. In the event The project is to be awarded by any method |
188 | other than a competitive selection process, and the governing |
189 | board finds must find evidence that: |
190 | (I) There is one appropriately licensed contractor who is |
191 | uniquely qualified to undertake the project because that |
192 | contractor is currently under contract to perform work that is |
193 | affiliated with the project; or |
194 | (II) The time to competitively award the project will |
195 | jeopardize the funding for the project, or will materially |
196 | increase the cost of the project, or will create an undue |
197 | hardship on the public health, safety, or welfare. |
198 | c. In the event The project is to be awarded by any method |
199 | other than a competitive selection process, and the published |
200 | notice must clearly specifies specify the ordinance or |
201 | resolution by which the private sector contractor will be |
202 | selected and the criteria to be considered. |
203 | d. In the event The project is to be awarded by a method |
204 | other than a competitive selection process, and the architect or |
205 | engineer of record has provided a written recommendation that |
206 | the project be awarded to the private sector contractor without |
207 | competitive selection,; and the consideration by, and the |
208 | justification of, the government body are documented, in |
209 | writing, in the project file and are presented to the governing |
210 | board prior to the approval required in this paragraph. |
211 | 11. To projects subject to chapter 336. |
212 | (d)1. If the project: |
213 | 1. Is to be awarded based on price, the contract must be |
214 | awarded to the lowest qualified and responsive bidder in |
215 | accordance with the applicable county or municipal ordinance or |
216 | district resolution and in accordance with the applicable |
217 | contract documents. The county, municipality, or special |
218 | district may reserve the right to reject all bids and to rebid |
219 | the project, or elect not to proceed with the project. This |
220 | subsection is not intended to restrict the rights of any local |
221 | government to reject the low bid of a nonqualified or |
222 | nonresponsive bidder and to award the contract to any other |
223 | qualified and responsive bidder in accordance with the standards |
224 | and procedures of any applicable county or municipal ordinance |
225 | or any resolution of a special district. |
226 | 2. If the project Uses a request for proposal or a request |
227 | for qualifications, the request must be publicly advertised and |
228 | the contract must be awarded in accordance with the applicable |
229 | local ordinances. |
230 | 3. If the project Is subject to competitive negotiations, |
231 | the contract must be awarded in accordance with s. 287.055. |
232 | (e) If a construction project greater than $200,000, or |
233 | $50,000 for electrical work, is started after October 1, 1999, |
234 | and is to be performed by a local government using its own |
235 | employees in a county or municipality that issues registered |
236 | contractor licenses, and requires a the project would require a |
237 | licensed contractor licensed under chapter 489 if performed by a |
238 | private sector contractor, the local government must use a |
239 | person appropriately registered or certified under chapter 489 |
240 | to supervise the work. |
241 | (f) If a construction project greater than $200,000, or |
242 | $50,000 for electrical work, is started after October 1, 1999, |
243 | and is to be performed by a local government using its own |
244 | employees in a county that does not issue registered contractor |
245 | licenses, and requires a the project would require a licensed |
246 | contractor licensed under chapter 489 if performed by a private |
247 | sector contractor, the local government must use a person |
248 | appropriately registered or certified under chapter 489 or a |
249 | person appropriately licensed under chapter 471 to supervise the |
250 | work. |
251 | (g) Projects performed by a local government using its own |
252 | services and employees must be inspected in the same manner as |
253 | inspections required for work performed by private sector |
254 | contractors. |
255 | (h) A construction project provided for in this subsection |
256 | may not be divided into more than one project for the purpose of |
257 | evading this subsection. |
258 | (i) This subsection does not preempt the requirements of |
259 | any small-business or disadvantaged-business enterprise program |
260 | or any local-preference ordinance. |
261 | (j) A local government that owns or operates a public-use |
262 | airport as defined in s. 332.004 is exempt from this section |
263 | when performing repairs or maintenance on the airport's |
264 | buildings, structures, or public construction works using the |
265 | local government's own services, employees, and equipment. |
266 | (k) A local government that owns or operates a port |
267 | identified in s. 403.021(9)(b) is exempt from this section when |
268 | performing repairs or maintenance on the port's buildings, |
269 | structures, or public construction works using the local |
270 | government's own services, employees, and equipment. |
271 | (l) A local government that owns or operates a public |
272 | transit system as defined in s. 343.52, a public transportation |
273 | system as defined in s. 343.62, or a mass transit system |
274 | described in s. 349.04(1)(b), is exempt from this section when |
275 | performing repairs or maintenance on the buildings, structures, |
276 | or public construction works of the public transit system, |
277 | public transportation system, or mass transit system using the |
278 | local government's own services, employees, and equipment. |
279 | (2) The threshold amount of $200,000 for construction or |
280 | $50,000 for electrical work must be adjusted by the percentage |
281 | change in the Consumer Price Index from January 1, 1994, to |
282 | January 1 of the year in which the project is scheduled to |
283 | begin. |
284 | (3) All county officials, boards of county commissioners, |
285 | school boards, city councils, city commissioners, and all other |
286 | public officers of state boards or commissions that are charged |
287 | with the letting of contracts for public work, for the |
288 | construction of public bridges, buildings, and other structures |
289 | must always specify lumber, timber, and other forest products |
290 | produced and manufactured in this state if whenever such |
291 | products are available and their price, fitness, and quality are |
292 | equal. This subsection does not apply to when plywood specified |
293 | for monolithic concrete forms, if when the structural or service |
294 | requirements for timber for a particular job cannot be supplied |
295 | by native species, or if when the construction is financed in |
296 | whole or in part from federal funds with the requirement |
297 | requirements that there be no restrictions as to species or |
298 | place of manufacture. |
299 | (4) If two or more responsive bids or proposals for a |
300 | project to be competitively awarded under this section are |
301 | otherwise equal with respect to price, quality, and service, the |
302 | local government may give preference to the contractor who |
303 | maintains the greatest local presence within the local |
304 | government's jurisdiction when awarding the project. For |
305 | purposes of this subsection, "local presence" includes |
306 | maintaining an office within the jurisdiction and employing |
307 | individuals or hiring subcontractors within the jurisdiction. |
308 | Except as provided in this subsection, a local government may |
309 | not give any consideration to a contractor's local presence or |
310 | similar criteria when evaluating bids or proposals or awarding a |
311 | project. |
312 | (5)(4) Any qualified contractor or vendor who could have |
313 | been awarded the project had the project been competitively bid |
314 | has shall have standing to challenge the propriety of a the |
315 | local government's actions taken pursuant to when the local |
316 | government seeks to invoke the provisions of this section. The |
317 | prevailing party in such action is shall be entitled to recover |
318 | its reasonable attorney's fees. |
319 | Section 2. This act shall take effect July 1, 2009. |