Florida Senate - 2021                                    SB 1600
       
       
        
       By Senator Cruz
       
       
       
       
       
       18-01040-21                                           20211600__
    1                        A bill to be entitled                      
    2         An act relating to public construction contracts;
    3         creating s. 255.104, F.S.; defining terms; requiring a
    4         contractor who responds to a solicitation for a
    5         vertical construction project, as part of the bid, to
    6         certify certain information regarding the usage of
    7         apprentice or on-the-job training labor for the
    8         project; requiring the contractor to submit the
    9         certification before the awarding body enters into the
   10         contract; specifying the minimum percentage of
   11         apprentice labor required on the vertical construction
   12         project; requiring the contractor to submit a written
   13         notification of its inability to meet the labor
   14         requirement to the awarding body for its determination
   15         of whether a good faith effort existed; requiring
   16         applicable contracts to include a provision regarding
   17         compliance with the act; requiring the Department of
   18         Management Services to develop a form that the
   19         contractor must submit to document compliance with the
   20         requirements; requiring the contractor to submit the
   21         form to the awarding body on a monthly basis;
   22         providing penalties for noncompliance; requiring the
   23         department to adopt a rule to determine the amount of
   24         the penalty for noncompliance; specifying authorized
   25         uses for any collected penalties; providing the
   26         awarding body with remedies for noncompliance by the
   27         contractor; requiring awarding bodies to submit
   28         reports to the department detailing contracts entered
   29         into under the act; providing applicability; providing
   30         an effective date.
   31          
   32  Be It Enacted by the Legislature of the State of Florida:
   33  
   34         Section 1. Section 255.104, Florida Statutes, is created to
   35  read:
   36         255.104Use of apprentices in specified public construction
   37  contracts.—
   38         (1) As used in this section, the term:
   39         (a) “Apprentice” means any person who is enrolled in and
   40  participating in an apprenticeship program or on-the-job
   41  training program, as those terms are defined in s. 446.021(6)
   42  and (7), respectively, registered with the Department of
   43  Education or the United States Department of Labor.
   44         (b) “Awarding body” means any state agency, department,
   45  county, or municipality or any political subdivision that awards
   46  and enters into a contract with a contractor for a vertical
   47  construction project.
   48         (c) “Good faith effort” means that the contractor, without
   49  an intent to defraud or seek an unfair advantage, took all
   50  necessary steps to secure and maximize the required percentage
   51  for apprentice labor on a vertical construction project, to the
   52  satisfaction of the awarding body.
   53         (d) “Labor hours” means the total hours worked on the site
   54  of a vertical construction project by workers who are employed
   55  by contractors or subcontractors on the vertical construction
   56  project, not including any hours worked by forepersons,
   57  superintendents, or owners.
   58         (e) “Vertical construction project” means a contract of $1
   59  million or more which is funded by the awarding body and
   60  involves the building, altering, repairing, improving, or
   61  demolishing of any public structure or building or making other
   62  public improvements of any kind which are predominately above
   63  ground to any real property owned by or under control of the
   64  awarding body.
   65         (2) When responding to a solicitation for a vertical
   66  construction project, a contractor who bids on the project must
   67  certify one of the following:
   68         (a) The contractor or its subcontractors participate in an
   69  apprenticeship program that is registered with the Department of
   70  Education or the United States Department of Labor.
   71         (b) The contractor commits that at the time the contractor
   72  executes a construction contract, it or its subcontractors will
   73  participate in an apprenticeship program that is approved by the
   74  Department of Education or the United States Department of Labor
   75  or an on-the-job training program.
   76         (c) The contractor has submitted documentation that
   77  confirms, to the satisfaction of the awarding body, that there
   78  are no registered apprenticeship or on-the-job training programs
   79  for any type of work to be performed on the construction
   80  project.
   81         (3) The contractor must submit documentation verifying
   82  compliance with subsection (2) to the awarding body before the
   83  awarding body may enter into a contract for a vertical
   84  construction project with the contractor.
   85         (4) For the duration of the contract for the vertical
   86  construction project, and as the project may be extended through
   87  the issuance of change orders, at least 12 percent of the labor
   88  hours on the vertical construction project, including all work
   89  performed pursuant to change orders, must be performed by
   90  apprentices employed by the contractor or subcontractors.
   91         (5)(a) If the contractor is unable to achieve or maintain
   92  the percentage prescribed in subsection (4), the contractor must
   93  notify the awarding body in writing and must provide evidence of
   94  good faith efforts to achieve or maintain the required
   95  percentage for consideration by the awarding body. Following
   96  such notification and evaluation of any submitted documentation,
   97  the awarding body must determine whether the contractor has made
   98  a good faith effort.
   99         (b) The evidence of a good faith effort may include
  100  documentation of the contractor’s communication with the
  101  Department of Education’s Division of Career and Adult
  102  Education’s Apprenticeship section; documentation of its
  103  communication with state-approved training programs, labor
  104  organizations, and technical schools and training schools;
  105  documentation of its use of job fairs and other outreach
  106  efforts; the frequency and duration of any employment
  107  advertisements for apprentices; the extent to which the size of
  108  the contractor’s workforce affects its hiring opportunities for
  109  apprentices; or any other evidence demonstrating to the
  110  satisfaction of the awarding body that the contractor made a
  111  good faith attempt to secure apprentice labor.
  112         (6) The contract for the vertical construction project must
  113  include a provision requiring the contractor and its
  114  subcontractors to comply with the requirements of this section,
  115  unless any of the exceptions under subsection (10) apply.
  116         (7)(a)The Department of Management Services must develop a
  117  standardized form for the contractor to use to report all of the
  118  following information:
  119         1. The name, hourly rate, and trade classification of each
  120  apprentice.
  121         2. The cumulative number of hours worked on the project by
  122  each apprentice.
  123         3. The number of labor hours of all workers on the
  124  construction project, including subcontractors.
  125         (b) On a monthly basis, the contractor must prepare,
  126  certify, and submit to the awarding body, using the form
  127  provided, the information required under paragraph (a).
  128         (8)(a) Contracts for all projects to which these
  129  requirements apply must provide that if a contractor fails to
  130  fully comply with the percentage requirement prescribed in
  131  subsection (4) and the percentage required has not been reduced
  132  by the awarding body in accordance with paragraph (10)(d), the
  133  contractor will be assessed a penalty for each hour that the
  134  percentage requirement is not achieved.
  135         1. The penalty amount per hour must be assessed based on
  136  the extent to which the contractor or subcontractor met the
  137  percentage requirements prescribed in subsection (4). The
  138  Department of Management Services shall adopt by rule the fee
  139  schedule for the hourly assessment.
  140         2. The assessments imposed must be deducted from the
  141  contractor’s monthly pay application and be used to support
  142  construction or building trade apprentice training programs
  143  registered with the Department of Education or the United States
  144  Department of Labor which are located within the area of the
  145  vertical construction project.
  146         (b) Failure of a contractor to comply with the requirements
  147  of this section may subject the contractor to all remedies
  148  available under state law, including, but not limited to,
  149  debarment or suspension of the contractor from consideration for
  150  the award of future contracts and termination of the current
  151  contract.
  152         (9)(a)By January 1, 2022, July 1, 2022, and thereafter by
  153  July 1 of each year, each awarding body shall prepare a report
  154  to be submitted to the Department of Management Services which
  155  includes all of the following information for each contract that
  156  is subject to this section:
  157         1. The name of the contractor.
  158         2. The name or description of the construction project.
  159         3. The total dollar value of the construction project.
  160         4.The number of apprentices hired for the construction
  161  project.
  162         5. The number of apprentice hours worked on the
  163  construction project.
  164         6. The total labor hours expended on the construction
  165  project.
  166         (b) The report must also identify any contracts in which
  167  the percentage requirement prescribed in subsection (4) was not
  168  met and any reasons for such failure and must include any
  169  recommendations regarding the program which the awarding body
  170  wishes to provide.
  171         (10)This section does not apply if:
  172         (a) It is prohibited by or in conflict with federal or
  173  state law or the terms of a federal or state grant applicable to
  174  the vertical construction project.
  175         (b) The awarding body determines that emergency
  176  circumstances exist and that applying the requirements of this
  177  section to the vertical construction project is not in the best
  178  interest of the awarding body.
  179         (c) A subcontractor is a women-owned or minority-owned
  180  business and the amount to be paid under the applicable
  181  subcontract for labor costs does not exceed $1 million.
  182         (d) The awarding body reduces the percentage of required
  183  apprentice labor because:
  184         1. The contractor demonstrated to the awarding body, after
  185  making a good faith effort, that the contractor was unable to
  186  find, or there does not exist, a sufficient number or type of
  187  apprentices available to meet the percentage prescribed in
  188  subsection (4).
  189         2. The awarding body determined that a disproportionately
  190  high ratio of material costs to labor hours exists for a
  191  vertical construction project which makes attaining the
  192  percentage prescribed in subsection (4) infeasible.
  193         Section 2. This act shall take effect July 1, 2021.