CS/CS/HB 611

1	A bill to be entitled
2	An act relating to public construction projects; amending
3	s. 255.20, F.S.; increasing the threshold amount for which
4	certain public projects must be competitively awarded;
5	revising exceptions to the requirement that certain public
6	projects be competitively awarded; defining the terms
7	"repair" and "maintenance"; requiring local governments to
8	provide notice for certain public projects; providing
9	notice requirements; extending the notice period for
10	specified public meetings; requiring a local government to
11	support a decision to perform a project with its own
12	employees and to make a factual finding that the project
13	cost will be the same or less than the lowest bid;
14	providing additional exceptions for projects related to
15	public-use airports, certain ports, and certain public
16	transit or transportation systems; revising the index and
17	year on which the required adjustment of the threshold
18	amounts is based; revising provisions for certain
19	contractors and vendors to challenge a local government's
20	actions; providing an effective date.
21
22	Be It Enacted by the Legislature of the State of Florida:
23
24	Section 1.  Section 255.20, Florida Statutes, is amended to
25	read:
26	255.20  Local bids and contracts for public construction
27	works; specification of state-produced lumber.--
28	(1)  A county, municipality, special district as defined in
29	chapter 189, or other political subdivision of the state seeking
30	to construct or improve a public building, structure, or other
31	public construction works must competitively award to an
32	appropriately licensed contractor each project that is estimated
33	in accordance with generally accepted cost-accounting principles
34	to cost have total construction project costs of more than
35	$300,000 $200,000. For electrical work, the local government
36	must competitively award to an appropriately licensed contractor
37	each project that is estimated in accordance with generally
38	accepted cost-accounting principles to have a cost of more than
39	$75,000 $50,000. As used in this section, the term
40	"competitively award" means to award contracts based on the
41	submission of sealed bids, proposals submitted in response to a
42	request for proposal, proposals submitted in response to a
43	request for qualifications, or proposals submitted for
44	competitive negotiation. This subsection expressly allows
45	contracts for construction management services, design/build
46	contracts, continuation contracts based on unit prices, and any
47	other contract arrangement with a private sector contractor
48	permitted by any applicable municipal or county ordinance, by
49	district resolution, or by state law. For purposes of this
50	section, cost includes construction costs include the cost of
51	all labor, except inmate labor, and include the cost of
52	equipment and materials to be used in the construction of the
53	project. Subject to the provisions of subsection (3), the
54	county, municipality, special district, or other political
55	subdivision may establish, by municipal or county ordinance or
56	special district resolution, procedures for conducting the
57	bidding process.
58	(a)  Notwithstanding any other law to the contrary, a
59	governmental entity a county, municipality, special district as
60	defined in chapter 189, or other political subdivision of the
61	state seeking to construct or improve bridges, roads, streets,
62	highways, or railroads, and services incidental thereto, at a
63	cost costs in excess of $250,000 may require that persons
64	interested in performing work under contract first be certified
65	or qualified to perform such work. A Any contractor may be
66	considered ineligible to bid by the governmental entity if the
67	contractor is behind by 10 percent or more on completing an
68	approved progress schedule for the governmental entity by 10
69	percent or more at the time of advertising advertisement of the
70	work. A prequalified Any contractor prequalified and considered
71	eligible by the Department of Transportation to bid to perform
72	the type of work described under the contract is shall be
73	presumed to be qualified to perform the work described. The
74	governmental entity may provide an appeal process to overcome
75	that presumption with de novo review based on the record below
76	to the circuit court.
77	(b)  For With respect to contractors who are not
78	prequalified by with the Department of Transportation, the
79	governmental entity shall publish prequalification criteria and
80	procedures prior to advertisement or notice of solicitation.
81	Such publications must shall include notice of a public hearing
82	for comment on such criteria and procedures prior to adoption.
83	The procedures must shall provide for an appeal process within
84	the authority for making objections to the prequalification
85	process with de novo review based on the record below to the
86	circuit court within 30 days.
87	(c)  The provisions of this subsection do not apply:
88	1.  If When the project is undertaken to replace,
89	reconstruct, or repair an existing public building, structure,
90	or other public construction works facility damaged or destroyed
91	by a sudden unexpected turn of events, such as an act of God,
92	riot, fire, flood, accident, or other urgent circumstances, and
93	such damage or destruction creates:
94	a.  An immediate danger to the public health or safety;
95	b.  Other loss to public or private property which requires
96	emergency government action; or
97	c.  An interruption of an essential governmental service.
98	2.  If When, after notice by publication in accordance with
99	the applicable ordinance or resolution, the governmental entity
100	does not receive any responsive bids or proposals responses.
101	3.  To construction, remodeling, repair, or improvement to
102	a public electric or gas utility system if when such work on the
103	public utility system is performed by personnel of the system.
104	4.  To construction, remodeling, repair, or improvement by
105	a utility commission whose major contracts are to construct and
106	operate a public electric utility system.
107	5.  If When the project is undertaken as repair or
108	maintenance of an existing public facility. For the purposes of
109	this section, the term "repair" means a corrective action to
110	restore an existing public facility to a safe and functional
111	condition and the term "maintenance" means a preventive or
112	corrective action to maintain an existing public facility in an
113	operational state or to preserve the facility from failure or
114	decline. Repair or maintenance includes activities that are
115	necessarily incidental to repairing or maintaining the facility.
116	Repair or maintenance does not include the construction of any
117	new building, structure, or other public construction works or
118	any substantial addition, extension, or upgrade to an existing
119	public facility in which the cost of that addition, extension,
120	or upgrade, in accordance with generally accepted cost-
121	accounting principles, is more than 20 percent of the total cost
122	of the repair or maintenance project. With respect to any repair
123	or maintenance project under this subparagraph which includes an
124	addition, extension, or upgrade to an existing public facility
125	and which the local government will perform using its own
126	services, employees, and equipment, the local government shall
127	publish a public notice identifying the project and the
128	components and scope of the work at least 30 days prior to
129	commencing the repair or maintenance. The public notice shall
130	state the estimated total cost of the project and the cost of
131	the addition, extension, or upgrade using generally accepted
132	cost-accounting principles that fully account for all costs
133	associated with performing the project, including employee
134	compensation and benefits, equipment cost and maintenance,
135	insurance costs, and materials. Upon publication of the public
136	notice and for 30 days thereafter, the local government shall
137	make available for public inspection, during normal business
138	hours and at a location specified in the public notice, a
139	detailed breakdown of each component of the estimated cost of
140	the project and documentation explaining the methodology used to
141	arrive at the estimated cost.
142	6.  If When the project is undertaken exclusively as part
143	of a public educational program.
144	7.  If When the funding source of the project will be
145	diminished or lost because the time required to competitively
146	award the project after the funds become available exceeds the
147	time within which the funding source must be spent.
148	8.  If When the local government has competitively awarded
149	a project to a private sector contractor and the contractor has
150	abandoned the project before completion or the local government
151	has terminated the contract.
152	9.  If When the governing board of the local government
153	complies with all of the requirements of this subparagraph,
154	after public notice, conducts a public meeting under s. 286.011,
155	and finds by a majority vote of the governing board that it is
156	in the public's best interest to perform the project using its
157	own services, employees, and equipment. The public notice must
158	be published at least 30 14 days before prior to the date of the
159	public meeting at which the governing board takes final action
160	to apply this subparagraph. The notice must identify the
161	project, the components and scope of the work, and the estimated
162	cost of the project using generally accepted cost-accounting
163	principles that fully account for all costs associated with
164	performing the project, including employee compensation and
165	benefits, equipment cost and maintenance, insurance costs, and
166	materials. The notice must specify that the purpose for the
167	public meeting is to consider whether it is in the public's best
168	interest to perform the project using the local government's own
169	services, employees, and equipment. Upon publication of the
170	public notice and for 30 days thereafter, the local government
171	shall make available for public inspection, during normal
172	business hours and at a location specified in the public notice,
173	a detailed breakdown of each component of the estimated cost of
174	the project and documentation explaining the methodology used to
175	arrive at the estimated cost. At the public meeting, any
176	qualified contractor or vendor who could have been awarded the
177	project had the project been competitively bid shall be provided
178	with an adequate opportunity to present evidence to the
179	governing board regarding the project and the accuracy of the
180	local government's estimated cost of the project. In deciding
181	whether it is in the public's best interest for the local
182	government to perform a project using its own services,
183	employees, and equipment, the governing board must may consider
184	the estimated cost of the project, and the accuracy of the
185	estimated cost in light of any other information that may be
186	presented at the public meeting and whether the project requires
187	an increase in the number of government employees, or an
188	increase in capital expenditures for public facilities,
189	equipment, or other capital assets. The local government may
190	further consider, the impact on local economic development, the
191	impact on small and minority business owners, the impact on
192	state and local tax revenues, whether the private sector
193	contractors provide health insurance and other benefits
194	equivalent to those provided by the local government, and any
195	other factor relevant to what is in the public's best interest.
196	10.  If When the governing board of the local government
197	determines upon consideration of specific substantive criteria
198	and administrative procedures that it is in the best interest of
199	the local government to award the project to an appropriately
200	licensed private sector contractor pursuant according to
201	administrative procedures established by and expressly set forth
202	in a charter, ordinance, or resolution of the local government
203	adopted before prior to July 1, 1994. The criteria and
204	procedures must be set out in the charter, ordinance, or
205	resolution and must be applied uniformly by the local government
206	to avoid awarding a award of any project in an arbitrary or
207	capricious manner. This exception applies only if shall apply
208	when all of the following occur:
209	a.  When The governing board of the local government, after
210	public notice, conducts a public meeting under s. 286.011 and
211	finds by a two-thirds vote of the governing board that it is in
212	the public's best interest to award the project according to the
213	criteria and procedures established by charter, ordinance, or
214	resolution. The public notice must be published at least 14 days
215	before prior to the date of the public meeting at which the
216	governing board takes final action to apply this subparagraph.
217	The notice must identify the project, the estimated cost of the
218	project, and specify that the purpose for the public meeting is
219	to consider whether it is in the public's best interest to award
220	the project using the criteria and procedures permitted by the
221	preexisting charter, ordinance, or resolution.
222	b.  In the event The project is to be awarded by any method
223	other than a competitive selection process, and the governing
224	board finds must find evidence that:
225	(I)  There is one appropriately licensed contractor who is
226	uniquely qualified to undertake the project because that
227	contractor is currently under contract to perform work that is
228	affiliated with the project; or
229	(II)  The time to competitively award the project will
230	jeopardize the funding for the project, or will materially
231	increase the cost of the project, or will create an undue
232	hardship on the public health, safety, or welfare.
233	c.  In the event The project is to be awarded by any method
234	other than a competitive selection process, and the published
235	notice must clearly specifies specify the ordinance or
236	resolution by which the private sector contractor will be
237	selected and the criteria to be considered.
238	d.  In the event The project is to be awarded by a method
239	other than a competitive selection process, and the architect or
240	engineer of record has provided a written recommendation that
241	the project be awarded to the private sector contractor without
242	competitive selection,; and the consideration by, and the
243	justification of, the government body are documented, in
244	writing, in the project file and are presented to the governing
245	board prior to the approval required in this paragraph.
246	11.  To projects subject to chapter 336.
247	(d)1.  If the project:
248	1.  Is to be awarded based on price, the contract must be
249	awarded to the lowest qualified and responsive bidder in
250	accordance with the applicable county or municipal ordinance or
251	district resolution and in accordance with the applicable
252	contract documents. The county, municipality, or special
253	district may reserve the right to reject all bids and to rebid
254	the project, or elect not to proceed with the project. This
255	subsection is not intended to restrict the rights of any local
256	government to reject the low bid of a nonqualified or
257	nonresponsive bidder and to award the contract to any other
258	qualified and responsive bidder in accordance with the standards
259	and procedures of any applicable county or municipal ordinance
260	or any resolution of a special district.
261	2.  If the project Uses a request for proposal or a request
262	for qualifications, the request must be publicly advertised and
263	the contract must be awarded in accordance with the applicable
264	local ordinances.
265	3.  If the project Is subject to competitive negotiations,
266	the contract must be awarded in accordance with s. 287.055.
267	(e)  If a construction project greater than $300,000
268	$200,000, or $75,000 $50,000 for electrical work, is started
269	after October 1, 1999, and is to be performed by a local
270	government using its own employees in a county or municipality
271	that issues registered contractor licenses, and the project
272	would require a licensed contractor licensed under chapter 489
273	if performed by a private sector contractor, the local
274	government must use a person appropriately registered or
275	certified under chapter 489 to supervise the work.
276	(f)  If a construction project greater than $300,000
277	$200,000, or $75,000 $50,000 for electrical work, is started
278	after October 1, 1999, and is to be performed by a local
279	government using its own employees in a county that does not
280	issue registered contractor licenses, and the project would
281	require a licensed contractor licensed under chapter 489 if
282	performed by a private sector contractor, the local government
283	must use a person appropriately registered or certified under
284	chapter 489 or a person appropriately licensed under chapter 471
285	to supervise the work.
286	(g)  Projects performed by a local government using its own
287	services and employees must be inspected in the same manner as
288	inspections required for work performed by private sector
289	contractors.
290	(h)  A construction project provided for in this subsection
291	may not be divided into more than one project for the purpose of
292	evading this subsection.
293	(i)  This subsection does not preempt the requirements of
294	any small-business or disadvantaged-business enterprise program
295	or any local-preference ordinance.
296	(j)  A county, municipality, special district as defined in
297	s. 189.403, or any other political subdivision of the state that
298	owns or operates a public-use airport as defined in s. 332.004
299	is exempt from this section when performing repairs or
300	maintenance on the airport's buildings, structures, or public
301	construction works using the local government's own services,
302	employees, and equipment.
303	(k)  A local government that owns or operates a port
304	identified in s. 403.021(9)(b) is exempt from this section when
305	performing repairs or maintenance on the port's buildings,
306	structures, or public construction works using the local
307	government's own services, employees, and equipment.
308	(l)  A local government that owns or operates a public
309	transit system as defined in s. 343.52, a public transportation
310	system as defined in s. 343.62, or a mass transit system
311	described in s. 349.04(1)(b) is exempt from this section when
312	performing repairs or maintenance on the buildings, structures,
313	or public construction works of the public transit system,
314	public transportation system, or mass transit system using the
315	local government's own services, employees, and equipment.
316	(2)  The threshold amount of $300,000 $200,000 for
317	construction or $75,000 $50,000 for electrical work, as
318	specified in subsection (1), must be adjusted by the percentage
319	change in the Engineering News Records Building Cost Consumer
320	Price Index from January 1, 2009 1994, to January 1 of the year
321	in which the project is scheduled to begin.
322	(3)  All county officials, boards of county commissioners,
323	school boards, city councils, city commissioners, and all other
324	public officers of state boards or commissions that are charged
325	with the letting of contracts for public work, for the
326	construction of public bridges, buildings, and other structures
327	must always specify lumber, timber, and other forest products
328	produced and manufactured in this state if whenever such
329	products are available and their price, fitness, and quality are
330	equal. This subsection does not apply to when plywood specified
331	for monolithic concrete forms, if when the structural or service
332	requirements for timber for a particular job cannot be supplied
333	by native species, or if when the construction is financed in
334	whole or in part from federal funds with the requirement
335	requirements that there be no restrictions as to species or
336	place of manufacture.
337	(4)  Any qualified contractor or vendor who could have been
338	awarded the project had the project been competitively bid has
339	shall have standing to challenge a the propriety of the local
340	government's actions to determine if the local government has
341	complied with when the local government seeks to invoke the
342	provisions of this section. The prevailing party in such action
343	is shall be entitled to recover its reasonable attorney's fees.
344	Section 2.  This act shall take effect July 1, 2009.

CODING: Words stricken are deletions; words underlined are additions.