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; authorizing
17	governmental entities to consider certain contractors
18	ineligible to bid; revising the index and year on which
19	the required adjustment of the threshold amounts is based;
20	revising provisions for certain contractors and vendors to
21	challenge a local government's actions; providing an
22	effective date.
23
24	Be It Enacted by the Legislature of the State of Florida:
25
26	Section 1.  Section 255.20, Florida Statutes, is amended to
27	read:
28	255.20  Local bids and contracts for public construction
29	works; specification of state-produced lumber.--
30	(1)  A county, municipality, special district as defined in
31	chapter 189, or other political subdivision of the state seeking
32	to construct or improve a public building, structure, or other
33	public construction works must competitively award to an
34	appropriately licensed contractor each project that is estimated
35	in accordance with generally accepted cost-accounting principles
36	to cost have total construction project costs of more than
37	$300,000 $200,000. For electrical work, the local government
38	must competitively award to an appropriately licensed contractor
39	each project that is estimated in accordance with generally
40	accepted cost-accounting principles to have a cost of more than
41	$75,000 $50,000. As used in this section, the term
42	"competitively award" means to award contracts based on the
43	submission of sealed bids, proposals submitted in response to a
44	request for proposal, proposals submitted in response to a
45	request for qualifications, or proposals submitted for
46	competitive negotiation. This subsection expressly allows
47	contracts for construction management services, design/build
48	contracts, continuation contracts based on unit prices, and any
49	other contract arrangement with a private sector contractor
50	permitted by any applicable municipal or county ordinance, by
51	district resolution, or by state law. For purposes of this
52	section, cost includes construction costs include the cost of
53	all labor, except inmate labor, and include the cost of
54	equipment and materials to be used in the construction of the
55	project. Subject to the provisions of subsection (3), the
56	county, municipality, special district, or other political
57	subdivision may establish, by municipal or county ordinance or
58	special district resolution, procedures for conducting the
59	bidding process.
60	(a)  Notwithstanding any other law to the contrary, a
61	governmental entity a county, municipality, special district as
62	defined in chapter 189, or other political subdivision of the
63	state seeking to construct or improve bridges, roads, streets,
64	highways, or railroads, and services incidental thereto, at a
65	cost costs in excess of $250,000 may require that persons
66	interested in performing work under contract first be certified
67	or qualified to perform such work. A Any contractor may be
68	considered ineligible to bid by the governmental entity if the
69	contractor is behind by 10 percent or more on completing an
70	approved progress schedule for the governmental entity by 10
71	percent or more at the time of advertising advertisement of the
72	work. A prequalified Any contractor prequalified and considered
73	eligible by the Department of Transportation to bid to perform
74	the type of work described under the contract is shall be
75	presumed to be qualified to perform the work described. The
76	governmental entity may provide an appeal process to overcome
77	that presumption with de novo review based on the record below
78	to the circuit court.
79	(b)  For With respect to contractors who are not
80	prequalified by with the Department of Transportation, the
81	governmental entity shall publish prequalification criteria and
82	procedures prior to advertisement or notice of solicitation.
83	Such publications must shall include notice of a public hearing
84	for comment on such criteria and procedures prior to adoption.
85	The procedures must shall provide for an appeal process within
86	the authority for making objections to the prequalification
87	process with de novo review based on the record below to the
88	circuit court within 30 days.
89	(c)  The provisions of this subsection do not apply:
90	1.  If When the project is undertaken to replace,
91	reconstruct, or repair an existing public building, structure,
92	or other public construction works facility damaged or destroyed
93	by a sudden unexpected turn of events, such as an act of God,
94	riot, fire, flood, accident, or other urgent circumstances, and
95	such damage or destruction creates:
96	a.  An immediate danger to the public health or safety;
97	b.  Other loss to public or private property which requires
98	emergency government action; or
99	c.  An interruption of an essential governmental service.
100	2.  If When, after notice by publication in accordance with
101	the applicable ordinance or resolution, the governmental entity
102	does not receive any responsive bids or proposals responses.
103	3.  To construction, remodeling, repair, or improvement to
104	a public electric or gas utility system if when such work on the
105	public utility system is performed by personnel of the system.
106	4.  To construction, remodeling, repair, or improvement by
107	a utility commission whose major contracts are to construct and
108	operate a public electric utility system.
109	5.  If When the project is undertaken as repair or
110	maintenance of an existing public facility. For the purposes of
111	this paragraph, the term "repair" means a corrective action to
112	restore an existing public facility to a safe and functional
113	condition and the term "maintenance" means a preventive or
114	corrective action to maintain an existing public facility in an
115	operational state or to preserve the facility from failure or
116	decline. Repair or maintenance includes activities that are
117	necessarily incidental to repairing or maintaining the facility.
118	Repair or maintenance does not include the construction of any
119	new building, structure, or other public construction works or
120	any substantial addition, extension, or upgrade to an existing
121	public facility. Such additions, extensions, or upgrades shall
122	be considered substantial if the estimated cost of the
123	additions, extensions, or upgrades included as part of the
124	repair or maintenance project exceeds the threshold amount in
125	subsection (1) and exceeds 20 percent of the estimated total
126	cost of the repair or maintenance project using generally
127	accepted cost-accounting principles that fully account for all
128	costs associated with performing and completing the work,
129	including employee compensation and benefits, equipment cost and
130	maintenance, insurance costs, and materials. An addition,
131	extension, or upgrade shall not be considered substantial if it
132	is undertaken pursuant to the conditions specified in
133	subparagraph 1. Repair and maintenance projects and any related
134	additions, extensions, or upgrades may not be divided into
135	multiple projects for the purpose of evading the requirements of
136	this subparagraph.
137	6.  If When the project is undertaken exclusively as part
138	of a public educational program.
139	7.  If When the funding source of the project will be
140	diminished or lost because the time required to competitively
141	award the project after the funds become available exceeds the
142	time within which the funding source must be spent.
143	8.  If When the local government has competitively awarded
144	a project to a private sector contractor and the contractor has
145	abandoned the project before completion or the local government
146	has terminated the contract.
147	9.  If When the governing board of the local government
148	complies with all of the requirements of this subparagraph,
149	after public notice, conducts a public meeting under s. 286.011
150	after public notice, and finds by a majority vote of the
151	governing board that it is in the public's best interest to
152	perform the project using its own services, employees, and
153	equipment. The public notice must be published at least 21 14
154	days before prior to the date of the public meeting at which the
155	governing board takes final action to apply this subparagraph.
156	The notice must identify the project, the components and scope
157	of the work, and the estimated cost of the project using
158	generally accepted cost-accounting principles that fully account
159	for all costs associated with performing and completing the
160	work, including employee compensation and benefits, equipment
161	cost and maintenance, insurance costs, and materials. The notice
162	must specify that the purpose for the public meeting is to
163	consider whether it is in the public's best interest to perform
164	the project using the local government's own services,
165	employees, and equipment. Upon publication of the public notice
166	and for 21 days thereafter, the local government shall make
167	available for public inspection, during normal business hours
168	and at a location specified in the public notice, a detailed
169	itemization of each component of the estimated cost of the
170	project and documentation explaining the methodology used to
171	arrive at the estimated cost. At the public meeting, any
172	qualified contractor or vendor who could have been awarded the
173	project had the project been competitively bid shall be provided
174	with a reasonable opportunity to present evidence to the
175	governing board regarding the project and the accuracy of the
176	local government's estimated cost of the project. In deciding
177	whether it is in the public's best interest for the local
178	government to perform a project using its own services,
179	employees, and equipment, the governing board must may consider
180	the estimated cost of the project, and the accuracy of the
181	estimated cost in light of any other information that may be
182	presented at the public meeting and whether the project requires
183	an increase in the number of government employees, or an
184	increase in capital expenditures for public facilities,
185	equipment, or other capital assets. The local government may
186	further consider, the impact on local economic development, the
187	impact on small and minority business owners, the impact on
188	state and local tax revenues, whether the private sector
189	contractors provide health insurance and other benefits
190	equivalent to those provided by the local government, and any
191	other factor relevant to what is in the public's best interest.
192	10.  If When the governing board of the local government
193	determines upon consideration of specific substantive criteria
194	and administrative procedures that it is in the best interest of
195	the local government to award the project to an appropriately
196	licensed private sector contractor pursuant according to
197	administrative procedures established by and expressly set forth
198	in a charter, ordinance, or resolution of the local government
199	adopted before prior to July 1, 1994. The criteria and
200	procedures must be set out in the charter, ordinance, or
201	resolution and must be applied uniformly by the local government
202	to avoid awarding a award of any project in an arbitrary or
203	capricious manner. This exception applies only if shall apply
204	when all of the following occur:
205	a.  When The governing board of the local government, after
206	public notice, conducts a public meeting under s. 286.011 and
207	finds by a two-thirds vote of the governing board that it is in
208	the public's best interest to award the project according to the
209	criteria and procedures established by charter, ordinance, or
210	resolution. The public notice must be published at least 14 days
211	before prior to the date of the public meeting at which the
212	governing board takes final action to apply this subparagraph.
213	The notice must identify the project, the estimated cost of the
214	project, and specify that the purpose for the public meeting is
215	to consider whether it is in the public's best interest to award
216	the project using the criteria and procedures permitted by the
217	preexisting charter, ordinance, or resolution.
218	b.  In the event The project is to be awarded by any method
219	other than a competitive selection process, and the governing
220	board finds must find evidence that:
221	(I)  There is one appropriately licensed contractor who is
222	uniquely qualified to undertake the project because that
223	contractor is currently under contract to perform work that is
224	affiliated with the project; or
225	(II)  The time to competitively award the project will
226	jeopardize the funding for the project, or will materially
227	increase the cost of the project, or will create an undue
228	hardship on the public health, safety, or welfare.
229	c.  In the event The project is to be awarded by any method
230	other than a competitive selection process, and the published
231	notice must clearly specifies specify the ordinance or
232	resolution by which the private sector contractor will be
233	selected and the criteria to be considered.
234	d.  In the event The project is to be awarded by a method
235	other than a competitive selection process, and the architect or
236	engineer of record has provided a written recommendation that
237	the project be awarded to the private sector contractor without
238	competitive selection,; and the consideration by, and the
239	justification of, the government body are documented, in
240	writing, in the project file and are presented to the governing
241	board prior to the approval required in this paragraph.
242	11.  To projects subject to chapter 336.
243	(d)1.  If the project:
244	1.  Is to be awarded based on price, the contract must be
245	awarded to the lowest qualified and responsive bidder in
246	accordance with the applicable county or municipal ordinance or
247	district resolution and in accordance with the applicable
248	contract documents. The county, municipality, or special
249	district may reserve the right to reject all bids and to rebid
250	the project, or elect not to proceed with the project. This
251	subsection is not intended to restrict the rights of any local
252	government to reject the low bid of a nonqualified or
253	nonresponsive bidder and to award the contract to any other
254	qualified and responsive bidder in accordance with the standards
255	and procedures of any applicable county or municipal ordinance
256	or any resolution of a special district.
257	2.  If the project Uses a request for proposal or a request
258	for qualifications, the request must be publicly advertised and
259	the contract must be awarded in accordance with the applicable
260	local ordinances.
261	3.  If the project Is subject to competitive negotiations,
262	the contract must be awarded in accordance with s. 287.055.
263	(e)  If a construction project greater than $300,000
264	$200,000, or $75,000 $50,000 for electrical work, is started
265	after October 1, 1999, and is to be performed by a local
266	government using its own employees in a county or municipality
267	that issues registered contractor licenses, and the project
268	would require a licensed contractor licensed under chapter 489
269	if performed by a private sector contractor, the local
270	government must use a person appropriately registered or
271	certified under chapter 489 to supervise the work.
272	(f)  If a construction project greater than $300,000
273	$200,000, or $75,000 $50,000 for electrical work, is started
274	after October 1, 1999, and is to be performed by a local
275	government using its own employees in a county that does not
276	issue registered contractor licenses, and the project would
277	require a licensed contractor licensed under chapter 489 if
278	performed by a private sector contractor, the local government
279	must use a person appropriately registered or certified under
280	chapter 489 or a person appropriately licensed under chapter 471
281	to supervise the work.
282	(g)  Projects performed by a local government using its own
283	services and employees must be inspected in the same manner as
284	inspections required for work performed by private sector
285	contractors.
286	(h)  A construction project provided for in this subsection
287	may not be divided into more than one project for the purpose of
288	evading this subsection.
289	(i)  This subsection does not preempt the requirements of
290	any small-business or disadvantaged-business enterprise program
291	or any local-preference ordinance.
292	(j)  A county, municipality, special district as defined in
293	s. 189.403, or any other political subdivision of the state that
294	owns or operates a public-use airport as defined in s. 332.004
295	is exempt from this section when performing repairs or
296	maintenance on the airport's buildings, structures, or public
297	construction works using the local government's own services,
298	employees, and equipment.
299	(k)  A local government that owns or operates a port
300	identified in s. 403.021(9)(b) is exempt from this section when
301	performing repairs or maintenance on the port's buildings,
302	structures, or public construction works using the local
303	government's own services, employees, and equipment.
304	(l)  A local government that owns or operates a public
305	transit system as defined in s. 343.52, a public transportation
306	system as defined in s. 343.62, or a mass transit system
307	described in s. 349.04(1)(b) is exempt from this section when
308	performing repairs or maintenance on the buildings, structures,
309	or public construction works of the public transit system,
310	public transportation system, or mass transit system using the
311	local government's own services, employees, and equipment.
312	(m)  Any contractor may be considered ineligible to bid by
313	the governmental entity if the contractor has been found guilty
314	by a court of any violation of federal labor or employment tax
315	laws regarding subjects such as safety, tax withholding, workers
316	compensation, unemployment tax, social security and Medicare
317	tax, wage or hour, or prevailing rate laws within the past 5
318	years.
319	(2)  The threshold amount of $300,000 $200,000 for
320	construction or $75,000 $50,000 for electrical work, as
321	specified in subsection (1), must be adjusted by the percentage
322	change in the Engineering News-Record's Building Cost Consumer
323	Price Index from January 1, 2009 1994, to January 1 of the year
324	in which the project is scheduled to begin.
325	(3)  All county officials, boards of county commissioners,
326	school boards, city councils, city commissioners, and all other
327	public officers of state boards or commissions that are charged
328	with the letting of contracts for public work, for the
329	construction of public bridges, buildings, and other structures
330	must always specify lumber, timber, and other forest products
331	produced and manufactured in this state if whenever such
332	products are available and their price, fitness, and quality are
333	equal. This subsection does not apply to when plywood specified
334	for monolithic concrete forms, if when the structural or service
335	requirements for timber for a particular job cannot be supplied
336	by native species, or if when the construction is financed in
337	whole or in part from federal funds with the requirement
338	requirements that there be no restrictions as to species or
339	place of manufacture.
340	(4)  Any qualified contractor or vendor who could have been
341	awarded the project had the project been competitively bid has
342	shall have standing to challenge a the propriety of the local
343	government's actions to determine if the local government has
344	complied with when the local government seeks to invoke the
345	provisions of this section. The prevailing party in such action
346	is shall be entitled to recover its reasonable attorney's fees.
347	Section 2.  This act shall take effect October 1, 2009.
348

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