Florida Senate - 2009                              CS for SB 616
       
       
       
       By the Committee on Community Affairs; and Senator Haridopolos
       
       
       
       
       578-04367-09                                           2009616c1
    1                        A bill to be entitled                      
    2         An act relating to public construction projects;
    3         amending s. 255.20, F.S.; increasing the threshold
    4         amounts for projects required to be competitively
    5         awarded; including specified items within the scope of
    6         the term “cost”; specifying additional circumstances
    7         under which a contractor may be considered ineligible
    8         to bid; revising exceptions to the requirement that
    9         certain public projects be competitively awarded;
   10         defining the terms “repair” and “maintenance”;
   11         requiring that a local government publish a notice
   12         containing certain information for certain repair or
   13         maintenance projects and make certain information
   14         available for public inspection for a specified period
   15         after publication of the notice; requiring that a
   16         local government consider certain information when
   17         considering whether it is in the public’s best
   18         interest for the local government to perform a project
   19         using its own services, employees, and equipment;
   20         authorizing such a local government to consider
   21         certain additional information; providing for
   22         applicability of certain exceptions to the requirement
   23         that certain public projects be competitively awarded;
   24         requiring that a local government use certain persons
   25         to supervise certain projects; exempting certain
   26         government entities from certain requirements of state
   27         law when performing repairs or maintenance on certain
   28         facilities; authorizing the adjustment of threshold
   29         amounts for projects required to be competitively
   30         awarded according to a specified standard; providing
   31         an effective date.
   32  
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Section 255.20, Florida Statutes, is amended to
   36  read:
   37         255.20 Local bids and contracts for public construction
   38  works; specification of state-produced lumber.—
   39         (1) A county, municipality, special district as defined in
   40  chapter 189, or other political subdivision of the state seeking
   41  to construct or improve a public building, structure, or other
   42  public construction works must competitively award to an
   43  appropriately licensed contractor each project that is estimated
   44  in accordance with generally accepted cost-accounting principles
   45  to cost have total construction project costs of more than
   46  $300,000 $200,000. For electrical work, the local government
   47  must competitively award to an appropriately licensed contractor
   48  each project that is estimated in accordance with generally
   49  accepted cost-accounting principles to have a cost of more than
   50  $75,000 $50,000. As used in this section, the term
   51  “competitively award” means to award contracts based on the
   52  submission of sealed bids, proposals submitted in response to a
   53  request for proposal, proposals submitted in response to a
   54  request for qualifications, or proposals submitted for
   55  competitive negotiation. This subsection expressly allows
   56  contracts for construction management services, design/build
   57  contracts, continuation contracts based on unit prices, and any
   58  other contract arrangement with a private sector contractor
   59  permitted by any applicable municipal or county ordinance, by
   60  district resolution, or by state law. For purposes of this
   61  section, the term “cost” includes construction costs include the
   62  cost of all labor, except inmate labor, and include the cost of
   63  equipment and materials to be used in the construction of the
   64  project. Subject to the provisions of subsection (3), the
   65  county, municipality, special district, or other political
   66  subdivision may establish, by municipal or county ordinance or
   67  special district resolution, procedures for conducting the
   68  bidding process.
   69         (a) Notwithstanding any other law to the contrary, a
   70  governmental entity county, municipality, special district as
   71  defined in chapter 189, or other political subdivision of the
   72  state seeking to construct or improve bridges, roads, streets,
   73  highways, or railroads, and services incidental thereto, at a
   74  cost costs in excess of $250,000 may require that persons
   75  interested in performing work under contract first be certified
   76  or qualified to perform such work. A Any contractor may be
   77  considered ineligible to bid by the governmental entity if the
   78  contractor is behind by 10 percent or more on completing an
   79  approved progress schedule for the governmental entity by 10
   80  percent or more at the time of advertisement of the work. A
   81  prequalified Any contractor prequalified and considered eligible
   82  by the Department of Transportation to bid to perform the type
   83  of work described under the contract is shall be presumed to be
   84  qualified to perform the work described. The governmental entity
   85  may provide an appeal process to overcome that presumption with
   86  de novo review based on the record below to the circuit court.
   87         (b) For With respect to contractors who are not
   88  prequalified by with the Department of Transportation, the
   89  governmental entity shall publish prequalification criteria and
   90  procedures prior to advertisement or notice of solicitation.
   91  Such publications must shall include notice of a public hearing
   92  for comment on such criteria and procedures before prior to
   93  adoption. The procedures shall provide for an appeal process
   94  within the authority for making objections to the
   95  prequalification process with de novo review based on the record
   96  below to the circuit court within 30 days.
   97         (c)Any contractor may be considered ineligible to bid by
   98  the governmental entity if the contractor has been found guilty
   99  by a court of violations of federal labor or employment tax laws
  100  regarding subjects such as safety, tax withholding, workers’
  101  compensation, unemployment tax, social security and Medicare
  102  tax, wage or hour, or prevailing rate laws within the past 5
  103  years.
  104         (d)(c) The provisions of this subsection do not apply:
  105         1. If When the project is undertaken to replace,
  106  reconstruct, or repair an existing public buildings, structures,
  107  or other public construction works facility damaged or destroyed
  108  by a sudden unexpected turn of events, such as an act of God,
  109  riot, fire, flood, accident, or other urgent circumstances, and
  110  such damage or destruction creates:
  111         a. An immediate danger to the public health or safety;
  112         b. Other loss to public or private property which requires
  113  emergency government action; or
  114         c. An interruption of an essential governmental service.
  115         2. If When, after notice by publication in accordance with
  116  the applicable ordinance or resolution, the governmental entity
  117  does not receive any responsive bids or proposals responses.
  118         3. To construction, remodeling, repair, or improvement to a
  119  public electric or gas utility system if when such work on the
  120  public utility system is performed by personnel of the system.
  121         4. To construction, remodeling, repair, or improvement by a
  122  utility commission whose major contracts are to construct and
  123  operate a public electric utility system.
  124         5. When the project is undertaken as repair or maintenance
  125  of an existing public facility. For purposes of this section,
  126  “repair” means corrective action to restore an existing public
  127  facility to a safe and functional condition, and “maintenance”
  128  means preventive or corrective action for the purpose of
  129  maintaining an existing public facility in an operational state
  130  or preserving the facility from failure or decline. Repair or
  131  maintenance includes activities that are necessarily incidental
  132  to repairing or maintaining the facility. Repair or maintenance
  133  does not include the construction of any new building,
  134  structure, or other public construction works, or any
  135  substantial addition, extension, or upgrade to an existing
  136  public facility for which the cost of such addition, extension,
  137  or upgrade, in accordance with generally accepted cost
  138  accounting principles, is more than 20 percent of the total cost
  139  of the repair or maintenance project. With respect to any repair
  140  or maintenance project under this subparagraph which includes an
  141  addition, extension, or upgrade to an existing public facility
  142  and which the local government will perform using its own
  143  services, employees, and equipment, the local government shall
  144  publish a public notice identifying the project and the
  145  components and scope of the work at least 30 days before
  146  commencing the repair or maintenance. The public notice shall
  147  state the estimated total cost of the project and the cost of
  148  the addition, extension, or upgrade, using generally accepted
  149  cost-accounting principles that fully account for all costs
  150  associated with performing the project, including employee
  151  compensation and benefits, equipment cost and maintenance,
  152  insurance costs, and materials. Upon publication of the public
  153  notice and for 30 days thereafter, the local government shall
  154  make available for public inspection during normal business
  155  hours at a location specified in the public notice a detailed
  156  itemization of each component of the estimated cost of the
  157  project and documentation explaining the methodology used to
  158  arrive at the estimated cost.
  159         6. If When the project is undertaken exclusively as part of
  160  a public educational program.
  161         7. If When the funding source of the project will be
  162  diminished or lost because the time required to competitively
  163  award the project after the funds become available exceeds the
  164  time within which the funding source must be spent.
  165         8. If When the local government has competitively awarded a
  166  project to a private sector contractor and the contractor has
  167  abandoned the project before completion or the local government
  168  has terminated the contract.
  169         9. If When the governing board of the local government
  170  complies with all of the requirements of this paragraph, after
  171  public notice, conducts a public meeting under s. 286.011, and
  172  finds by a majority vote of the governing board that it is in
  173  the public’s best interest to perform the project using its own
  174  services, employees, and equipment. The public notice must be
  175  published at least 30 14 days before prior to the date of the
  176  public meeting at which the governing board takes final action
  177  to apply this subparagraph. The notice must identify the
  178  project, the components and scope of the work, and the estimated
  179  cost of the project using generally accepted cost-accounting
  180  principles that fully account for all costs associated with
  181  performing the project, including employee compensation and
  182  benefits, equipment cost and maintenance, insurance costs, and
  183  materials. The notice shall, and specify that the purpose for
  184  the public meeting is to consider whether it is in the public’s
  185  best interest to perform the project using the local
  186  government’s own services, employees, and equipment. Upon
  187  publication of the public notice and for 30 days thereafter, the
  188  local government shall make available for public inspection
  189  during normal business hours at a location specified in the
  190  public notice a detailed itemization of each component of the
  191  estimated cost of the project and documentation explaining the
  192  methodology used to arrive at the estimated cost. At the public
  193  meeting, any qualified contractor or vendor who might have been
  194  awarded the project if the project had been competitively bid
  195  shall be provided with an adequate opportunity to present
  196  evidence to the governing board regarding the project and the
  197  accuracy of the local government’s estimated cost of the
  198  project. In deciding whether it is in the public’s best interest
  199  for the local government to perform a project using its own
  200  services, employees, and equipment, the governing board must may
  201  consider the estimated cost of the project and the accuracy of
  202  such estimated cost in light of any other information presented
  203  at the public meeting, and whether the project requires an
  204  increase in the number of government employees or, an increase
  205  in capital expenditures for public facilities, equipment or
  206  other capital assets. The local government may further consider,
  207  the impact on local economic development, the impact on small
  208  and minority business owners, the impact on state and local tax
  209  revenues, whether the private sector contractors provide health
  210  insurance and other benefits equivalent to those provided by the
  211  local government, and any other factor relevant to what is in
  212  the public’s best interest.
  213         10. If When the governing board of the local government
  214  determines upon consideration of specific substantive criteria
  215  and administrative procedures that it is in the best interest of
  216  the local government to award the project to an appropriately
  217  licensed private sector contractor pursuant according to
  218  administrative procedures established by and expressly set forth
  219  in a charter, ordinance, or resolution of the local government
  220  adopted before prior to July 1, 1994. The criteria and
  221  procedures must be set out in the charter, ordinance, or
  222  resolution and must be applied uniformly by the local government
  223  to avoid awarding a award of any project in an arbitrary or
  224  capricious manner. This exception applies only if shall apply
  225  when all of the following occur:
  226         a. When The governing board of the local government, after
  227  public notice, conducts a public meeting under s. 286.011 and
  228  finds by a two-thirds vote of the governing board that it is in
  229  the public’s best interest to award the project according to the
  230  criteria and procedures established by charter, ordinance, or
  231  resolution. The public notice must be published at least 14 days
  232  before prior to the date of the public meeting at which the
  233  governing board takes final action to apply this subparagraph.
  234  The notice must identify the project, the estimated cost of the
  235  project, and specify that the purpose for the public meeting is
  236  to consider whether it is in the public’s best interest to award
  237  the project using the criteria and procedures permitted by the
  238  preexisting charter, ordinance, or resolution.
  239         b. In the event The project is to be awarded by any method
  240  other than a competitive selection process, and the governing
  241  board finds must find evidence that:
  242         (I) There is one appropriately licensed contractor who is
  243  uniquely qualified to undertake the project because that
  244  contractor is currently under contract to perform work that is
  245  affiliated with the project; or
  246         (II) The time to competitively award the project will
  247  jeopardize the funding for the project, or will materially
  248  increase the cost of the project, or will create an undue
  249  hardship on the public health, safety, or welfare.
  250         c. In the event The project is to be awarded by any method
  251  other than a competitive selection process, and the published
  252  notice must clearly specifies specify the ordinance or
  253  resolution by which the private sector contractor will be
  254  selected and the criteria to be considered.
  255         d. In the event The project is to be awarded by a method
  256  other than a competitive selection process, and the architect or
  257  engineer of record has provided a written recommendation that
  258  the project be awarded to the private sector contractor without
  259  competitive selection,; and the consideration by, and the
  260  justification of, the government body are documented, in
  261  writing, in the project file and are presented to the governing
  262  board prior to the approval required in this paragraph.
  263         11. To projects subject to chapter 336.
  264         (d)1. If the project:
  265         1. Is to be awarded based on price, the contract must be
  266  awarded to the lowest qualified and responsive bidder in
  267  accordance with the applicable county or municipal ordinance or
  268  district resolution and in accordance with the applicable
  269  contract documents. The county, municipality, or special
  270  district may reserve the right to reject all bids and to rebid
  271  the project or elect not to proceed with the project. This
  272  subsection is not intended to restrict the rights of any local
  273  government to reject the low bid of a nonqualified or
  274  nonresponsive bidder and to award the contract to any other
  275  qualified and responsive bidder in accordance with the standards
  276  and procedures of any applicable county or municipal ordinance
  277  or any resolution of a special district.
  278         2. If the project Uses a request for proposal or a request
  279  for qualifications, the request must be publicly advertised and
  280  the contract must be awarded in accordance with the applicable
  281  local ordinances.
  282         3. If the project Is subject to competitive negotiations,
  283  the contract must be awarded in accordance with s. 287.055.
  284         (e) If a construction project greater than $300,000
  285  $200,000, or $75,000 $50,000 for electrical work, is started
  286  after October 1, 1999, and is to be performed by a local
  287  government using its own employees in a county or municipality
  288  that issues registered contractor licenses, and the project
  289  would require a licensed contractor licensed under chapter 489
  290  if performed by a private sector contractor, the local
  291  government must use a person appropriately registered or
  292  certified under chapter 489 to supervise the work.
  293         (f) If a construction project greater than $300,000
  294  $200,000, or $75,000 $50,000 for electrical work, is started
  295  after October 1, 1999, and is to be performed by a local
  296  government using its own employees in a county that does not
  297  issue registered contractor licenses, and the project would
  298  require a licensed contractor licensed under chapter 489 if
  299  performed by a private sector contractor, the local government
  300  must use a person appropriately registered or certified under
  301  chapter 489 or a person appropriately licensed under chapter 471
  302  to supervise the work.
  303         (g) Projects performed by a local government using its own
  304  services and employees must be inspected in the same manner as
  305  inspections required for work performed by private sector
  306  contractors.
  307         (h) A construction project provided for in this subsection
  308  may not be divided into more than one project for the purpose of
  309  evading this subsection.
  310         (i) This subsection does not preempt the requirements of
  311  any small-business or disadvantaged-business enterprise program
  312  or any local-preference ordinance.
  313         (j)A county, municipality, special district as defined in
  314  s. 189.403, or any other political subdivision of the state
  315  owning or operating a public-use airport as defined in s.
  316  332.004 is exempt from this section when performing repairs or
  317  maintenance on the airport’s buildings, structures, or public
  318  construction works using the local government’s own services,
  319  employees, and equipment.
  320         (k)A local government owning or operating a port
  321  identified in s. 403.021(9)(b) is exempt from this section when
  322  performing repairs or maintenance on the port’s buildings,
  323  structures, or public construction works using the local
  324  government’s own services, employees, and equipment.
  325         (l)A local government owning or operating a public transit
  326  system as defined in s. 343.52, a public transportation system
  327  as defined in s. 343.62, or a mass transit system as described
  328  in s. 349.04(1)(b), is exempt from this section when performing
  329  repairs or maintenance on the buildings, structures, or public
  330  construction works of the public transit system, public
  331  transportation system, or mass transit system using the local
  332  government’s own services, employees, and equipment.
  333         (2) The threshold amount of $300,000 $200,000 for
  334  construction or $75,000 $50,000 for electrical work, as
  335  specified in subsection (1), must be adjusted by the percentage
  336  change in the Engineering News - Record’s Building Costs Index
  337  Consumer Price Index from January 1, 2009 1994, to January 1 of
  338  the year in which the project is scheduled to begin.
  339         (3) All county officials, boards of county commissioners,
  340  school boards, city councils, city commissioners, and all other
  341  public officers of state boards or commissions that are charged
  342  with the letting of contracts for public work, for the
  343  construction of public bridges, buildings, and other structures
  344  must always specify lumber, timber, and other forest products
  345  produced and manufactured in this state if whenever such
  346  products are available and their price, fitness, and quality are
  347  equal. This subsection does not apply to when plywood specified
  348  for monolithic concrete forms if, when the structural or service
  349  requirements for timber for a particular job cannot be supplied
  350  by native species, or when the construction is financed in whole
  351  or in part from federal funds with the requirement requirements
  352  that there be no restrictions as to species or place of
  353  manufacture.
  354         (4) Any qualified contractor or vendor who could have been
  355  awarded the project had the project been competitively bid has
  356  shall have standing to challenge a the propriety of the local
  357  government’s actions to determine if the local government has
  358  complied with when the local government seeks to invoke the
  359  provisions of this section. The prevailing party in such action
  360  is shall be entitled to recover its reasonable attorney’s fees.
  361         Section 2. This act shall take effect July 1, 2009.