Florida Senate - 2009                                     SB 616
       
       
       
       By Senator Haridopolos
       
       
       
       
       26-00472A-09                                           2009616__
    1                        A bill to be entitled                      
    2         An act relating to public construction projects;
    3         amending s. 255.20, F.S.; revising exceptions to the
    4         requirement that certain public projects be
    5         competitively awarded; defining the term
    6         “maintenance”; prohibiting an exception if the local
    7         government contributed to a delay in funding or
    8         awarding a project; requiring a local government to
    9         support a decision to perform a project with its own
   10         employees and to make a factual finding that the
   11         project cost will be the same or less than the lowest
   12         bid; providing additional exceptions for projects
   13         related to public-use airports, certain ports, and
   14         certain public transit systems; authorizing a project
   15         to be awarded to a contractor that maintains a local
   16         presence under certain circumstances; providing an
   17         effective date.
   18         
   19  Be It Enacted by the Legislature of the State of Florida:
   20         
   21         Section 1. Section 255.20, Florida Statutes, is amended to
   22  read:
   23         255.20 Local bids and contracts for public construction
   24  works; specification of state-produced lumber.—
   25         (1) A county, municipality, special district as defined in
   26  chapter 189, or other political subdivision of the state seeking
   27  to construct, or improve, or repair a public building,
   28  structure, or other public construction works must competitively
   29  award to an appropriately licensed contractor each project that
   30  is estimated in accordance with generally accepted cost
   31  accounting principles to cost have total construction project
   32  costs of more than $200,000. For electrical work, the local
   33  government must competitively award to an appropriately licensed
   34  contractor each project that is estimated in accordance with
   35  generally accepted cost-accounting principles to have a cost of
   36  more than $50,000. As used in this section, the term
   37  “competitively award” means to award contracts based on the
   38  submission of sealed bids, proposals submitted in response to a
   39  request for proposal, proposals submitted in response to a
   40  request for qualifications, or proposals submitted for
   41  competitive negotiation. This subsection expressly allows
   42  contracts for construction management services, design/build
   43  contracts, continuation contracts based on unit prices, and any
   44  other contract arrangement with a private sector contractor
   45  permitted by any applicable municipal or county ordinance, by
   46  district resolution, or by state law. For purposes of this
   47  section, cost includes construction costs include the cost of
   48  all labor, except inmate labor, and include the cost of
   49  equipment and materials to be used in the construction of the
   50  project. Subject to the provisions of subsection (3), the
   51  county, municipality, special district, or other political
   52  subdivision may establish, by municipal or county ordinance or
   53  special district resolution, procedures for conducting the
   54  bidding process.
   55         (a) Notwithstanding any other law to the contrary, a
   56  governmental entity a county, municipality, special district as
   57  defined in chapter 189, or other political subdivision of the
   58  state seeking to construct or improve bridges, roads, streets,
   59  highways, or railroads, and services incidental thereto, at a
   60  cost costs in excess of $250,000 may require that persons
   61  interested in performing work under contract first be certified
   62  or qualified to perform such work. A Any contractor may be
   63  considered ineligible to bid by the governmental entity if the
   64  contractor is behind by 10 percent or more on completing an
   65  approved progress schedule for the governmental entity by 10
   66  percent or more at the time of advertising advertisement of the
   67  work. A prequalified Any contractor prequalified and considered
   68  eligible by the Department of Transportation to bid to perform
   69  the type of work described under the contract is shall be
   70  presumed to be qualified to perform the work described. The
   71  governmental entity may provide an appeal process to overcome
   72  that presumption with de novo review based on the record below
   73  to the circuit court.
   74         (b) For With respect to contractors who are not
   75  prequalified by with the Department of Transportation, the
   76  governmental entity shall publish prequalification criteria and
   77  procedures prior to advertisement or notice of solicitation.
   78  Such publications must shall include notice of a public hearing
   79  for comment on such criteria and procedures prior to adoption.
   80  The procedures must shall provide for an appeal process within
   81  the authority for making objections to the prequalification
   82  process with de novo review based on the record below to the
   83  circuit court within 30 days.
   84         (c) The provisions of this subsection do not apply:
   85         1. If When the project is undertaken to replace,
   86  reconstruct, or repair an existing public building, structure,
   87  or other public construction works facility damaged or destroyed
   88  by a sudden unexpected turn of events, such as an act of God,
   89  riot, fire, flood, accident, or other urgent circumstances, and
   90  such damage or destruction creates:
   91         a. An immediate danger to the public health or safety;
   92         b. Other loss to public or private property which requires
   93  emergency government action; or
   94         c. An interruption of an essential governmental service.
   95         2. If When, after notice by publication in accordance with
   96  the applicable ordinance or resolution, the governmental entity
   97  does not receive any responsive bids or proposals responses.
   98         3. To construction, remodeling, repair, or improvement to a
   99  public electric or gas utility system if when such work on the
  100  public utility system is performed by personnel of the system.
  101         4. To construction, remodeling, repair, or improvement by a
  102  utility commission whose major contracts are to construct and
  103  operate a public electric utility system.
  104         5. If When the project consists exclusively of is
  105  undertaken as repair or maintenance to a public building,
  106  structure, or other public construction works of an existing
  107  public facility. For the purposes of this section, the term
  108  “maintenance” means those minor repairs and associated tasks
  109  necessary to prevent the failure or decline of such facility
  110  without having to undertake any new construction, additions, or
  111  extensions.
  112         6. If When the project is undertaken exclusively as part of
  113  a public educational program.
  114         7. If When the funding source of the project will be
  115  diminished or lost because the time required to competitively
  116  award the project after the funds become available exceeds the
  117  time within which the funding source must be spent, and the
  118  governmental entity undertaking the project has not materially
  119  contributed to a delay in funding or in competitively awarding
  120  the project.
  121         8. If When the local government has competitively awarded a
  122  project to a private sector contractor and the contractor has
  123  abandoned the project before completion or the local government
  124  has terminated the contract.
  125         9. If the local government, after receiving competitive
  126  bids or proposals, decides to perform the project using its own
  127  services, employees, and equipment and complies with the
  128  provisions of this subparagraph. If the local government
  129  receives bids or proposals that are responsive but are all at
  130  least 10 percent greater than the local government's estimated
  131  cost of the project, When the governing board of the local
  132  government, after public notice, shall conduct conducts a public
  133  meeting under s. 286.011 and may decide finds by a majority vote
  134  of the governing board that it is in the public's best interest
  135  to perform the project using its own services, employees, and
  136  equipment. The public notice must be published at least 14 days
  137  before prior to the date of the public meeting at which the
  138  governing board takes final action to apply this subparagraph.
  139  The notice must identify the project and, the estimated cost of
  140  the project, and specify that the purpose for the public meeting
  141  is to consider whether it is in the public's best interest to
  142  perform the project using the local government's own services,
  143  employees, and equipment. The local government's decision In
  144  deciding whether it is in the public's best interest for local
  145  government to perform a project using its own services,
  146  employees, and equipment must be supported by a factual finding,
  147  subject to challenge under subsection (5), that the local
  148  government can perform the project at a cost equal to or less
  149  than the lowest cost-responsive bid or proposal received, using
  150  generally accepted cost-accounting principles that fully account
  151  for all local government costs associated with performing the
  152  project, including employee compensation and benefits,
  153  equipment, and materials, the governing board may consider the
  154  cost of the project, whether the project requires an increase in
  155  the number of government employees, an increase in capital
  156  expenditures for public facilities, equipment or other capital
  157  assets, the impact on local economic development, the impact on
  158  small and minority business owners, the impact on state and
  159  local tax revenues, whether the private sector contractors
  160  provide health insurance and other benefits equivalent to those
  161  provided by the local government, and any other factor relevant
  162  to what is in the public's best interest.
  163         10. If When the governing board of the local government
  164  determines upon consideration of specific substantive criteria
  165  and administrative procedures that it is in the best interest of
  166  the local government to award the project to an appropriately
  167  licensed private sector contractor pursuant according to
  168  administrative procedures established by and expressly set forth
  169  in a charter, ordinance, or resolution of the local government
  170  adopted before prior to July 1, 1994. The criteria and
  171  procedures must be set out in the charter, ordinance, or
  172  resolution and must be applied uniformly by the local government
  173  to avoid awarding a award of any project in an arbitrary or
  174  capricious manner. This exception applies only if shall apply
  175  when all of the following occur:
  176         a. When The governing board of the local government, after
  177  public notice, conducts a public meeting under s. 286.011 and
  178  finds by a two-thirds vote of the governing board that it is in
  179  the public's best interest to award the project according to the
  180  criteria and procedures established by charter, ordinance, or
  181  resolution. The public notice must be published at least 14 days
  182  before prior to the date of the public meeting at which the
  183  governing board takes final action to apply this subparagraph.
  184  The notice must identify the project, the estimated cost of the
  185  project, and specify that the purpose for the public meeting is
  186  to consider whether it is in the public's best interest to award
  187  the project using the criteria and procedures permitted by the
  188  preexisting charter, ordinance, or resolution.
  189         b. In the event The project is to be awarded by any method
  190  other than a competitive selection process, and the governing
  191  board finds must find evidence that:
  192         (I) There is one appropriately licensed contractor who is
  193  uniquely qualified to undertake the project because that
  194  contractor is currently under contract to perform work that is
  195  affiliated with the project; or
  196         (II) The time to competitively award the project will
  197  jeopardize the funding for the project, or will materially
  198  increase the cost of the project, or will create an undue
  199  hardship on the public health, safety, or welfare.
  200         c. In the event The project is to be awarded by any method
  201  other than a competitive selection process, and the published
  202  notice must clearly specifies specify the ordinance or
  203  resolution by which the private sector contractor will be
  204  selected and the criteria to be considered.
  205         d. In the event The project is to be awarded by a method
  206  other than a competitive selection process, and the architect or
  207  engineer of record has provided a written recommendation that
  208  the project be awarded to the private sector contractor without
  209  competitive selection,; and the consideration by, and the
  210  justification of, the government body are documented, in
  211  writing, in the project file and are presented to the governing
  212  board prior to the approval required in this paragraph.
  213         11. To projects subject to chapter 336.
  214         (d)1. If the project:
  215         1. Is to be awarded based on price, the contract must be
  216  awarded to the lowest qualified and responsive bidder in
  217  accordance with the applicable county or municipal ordinance or
  218  district resolution and in accordance with the applicable
  219  contract documents. The county, municipality, or special
  220  district may reserve the right to reject all bids and to rebid
  221  the project, or elect not to proceed with the project. This
  222  subsection is not intended to restrict the rights of any local
  223  government to reject the low bid of a nonqualified or
  224  nonresponsive bidder and to award the contract to any other
  225  qualified and responsive bidder in accordance with the standards
  226  and procedures of any applicable county or municipal ordinance
  227  or any resolution of a special district.
  228         2. If the project Uses a request for proposal or a request
  229  for qualifications, the request must be publicly advertised and
  230  the contract must be awarded in accordance with the applicable
  231  local ordinances.
  232         3. If the project Is subject to competitive negotiations,
  233  the contract must be awarded in accordance with s. 287.055.
  234         (e) If a construction project greater than $200,000, or
  235  $50,000 for electrical work, is started after October 1, 1999,
  236  and is to be performed by a local government using its own
  237  employees in a county or municipality that issues registered
  238  contractor licenses, and requires a the project would require a
  239  licensed contractor licensed under chapter 489 if performed by a
  240  private sector contractor, the local government must use a
  241  person appropriately registered or certified under chapter 489
  242  to supervise the work.
  243         (f) If a construction project greater than $200,000, or
  244  $50,000 for electrical work, is started after October 1, 1999,
  245  and is to be performed by a local government using its own
  246  employees in a county that does not issue registered contractor
  247  licenses, and requires a the project would require a licensed
  248  contractor licensed under chapter 489 if performed by a private
  249  sector contractor, the local government must use a person
  250  appropriately registered or certified under chapter 489 or a
  251  person appropriately licensed under chapter 471 to supervise the
  252  work.
  253         (g) Projects performed by a local government using its own
  254  services and employees must be inspected in the same manner as
  255  inspections required for work performed by private sector
  256  contractors.
  257         (h) A construction project provided for in this subsection
  258  may not be divided into more than one project for the purpose of
  259  evading this subsection.
  260         (i) This subsection does not preempt the requirements of
  261  any small-business or disadvantaged-business enterprise program
  262  or any local-preference ordinance.
  263         (j)A local government that owns or operates a public-use
  264  airport as defined in s. 332.004 is exempt from this section
  265  when performing repairs or maintenance on the airport's
  266  buildings, structures, or public construction works using the
  267  local government's own services, employees, and equipment.
  268         (k)A local government that owns or operates a port
  269  identified in s. 403.021(9)(b) is exempt from this section when
  270  performing repairs or maintenance on the port's buildings,
  271  structures, or public construction works using the local
  272  government's own services, employees, and equipment.
  273         (l)A local government that owns or operates a public
  274  transit system as defined in s. 343.52, a public transportation
  275  system as defined in s. 343.62, or a mass transit system
  276  described in s. 349.04(1)(b), is exempt from this section when
  277  performing repairs or maintenance on the buildings, structures,
  278  or public construction works of the public transit system,
  279  public transportation system, or mass transit system using the
  280  local government's own services, employees, and equipment.
  281         (2) The threshold amount of $200,000 for construction or
  282  $50,000 for electrical work must be adjusted by the percentage
  283  change in the Consumer Price Index from January 1, 1994, to
  284  January 1 of the year in which the project is scheduled to
  285  begin.
  286         (3) All county officials, boards of county commissioners,
  287  school boards, city councils, city commissioners, and all other
  288  public officers of state boards or commissions that are charged
  289  with the letting of contracts for public work, for the
  290  construction of public bridges, buildings, and other structures
  291  must always specify lumber, timber, and other forest products
  292  produced and manufactured in this state if whenever such
  293  products are available and their price, fitness, and quality are
  294  equal. This subsection does not apply to when plywood specified
  295  for monolithic concrete forms, if when the structural or service
  296  requirements for timber for a particular job cannot be supplied
  297  by native species, or if when the construction is financed in
  298  whole or in part from federal funds with the requirement
  299  requirements that there be no restrictions as to species or
  300  place of manufacture.
  301         (4)If two or more responsive bids or proposals for a
  302  project to be competitively awarded under this section are
  303  otherwise equal with respect to price, quality, and service, the
  304  local government may give preference to the contractor who
  305  maintains the greatest local presence within the local
  306  government’s jurisdiction when awarding the project. For
  307  purposes of this subsection, “local presence” includes
  308  maintaining an office within the jurisdiction and employing
  309  individuals or hiring subcontractors within the jurisdiction.
  310  Except as provided in this subsection, a local government may
  311  not give any consideration to a contractor’s local presence or
  312  similar criteria when evaluating bids or proposals or awarding a
  313  project.
  314         (5)(4) Any qualified contractor or vendor who could have
  315  been awarded the project had the project been competitively bid
  316  has shall have standing to challenge the propriety of a the
  317  local government's actions taken pursuant to when the local
  318  government seeks to invoke the provisions of this section. The
  319  prevailing party in such action is shall be entitled to recover
  320  its reasonable attorney's fees.
  321         Section 2. This act shall take effect July 1, 2009.