Florida Senate - 2022                       CS for CS for SB 398
       
       
        
       By the Committees on Appropriations; and Transportation; and
       Senator Hooper
       
       
       
       
       576-03554-22                                           2022398c2
    1                        A bill to be entitled                      
    2         An act relating to transportation projects; amending
    3         s. 206.46, F.S.; revising the requirement for the
    4         annual commitment of State Transportation Trust Fund
    5         revenues for public transportation projects by the
    6         Department of Transportation; amending s. 337.025,
    7         F.S.; providing that the department’s program for
    8         innovative transportation projects may include
    9         progressive design-build contracts; authorizing the
   10         department to enter into a progressive design-build
   11         contract if it makes a certain determination;
   12         providing procedures and requirements for progressive
   13         design-build contracts; revising contracts exempt from
   14         a specified annual monetary cap on contracts; amending
   15         s. 337.11, F.S.; revising the department’s authority
   16         relating to design-build contracts; amending s.
   17         337.1101, F.S.; revising the calculation of a certain
   18         settlement paid to a nonselected responsive bidder
   19         which requires the department to maintain certain
   20         records and provide certain notices to the Legislature
   21         and Attorney General; amending s. 337.14, F.S.;
   22         revising a dollar limit of proposed budget estimates
   23         of construction contracts for which an applying
   24         contractor may submit certain financial statements;
   25         revising procedures relating to certificates of
   26         qualification issued by the department to construction
   27         contractors seeking certification to bid on certain
   28         contracts; exempting progressive design-build
   29         prequalifications from a certain restriction on
   30         contractors and their affiliates; amending s. 337.168,
   31         F.S.; deleting a public records exemption for certain
   32         documents revealing the identity of a potential
   33         bidder; providing an effective date.
   34          
   35  Be It Enacted by the Legislature of the State of Florida:
   36  
   37         Section 1. Subsection (3) of section 206.46, Florida
   38  Statutes, is amended to read:
   39         206.46 State Transportation Trust Fund.—
   40         (3) Unless otherwise specified in the General
   41  Appropriations Act, each fiscal year, at least a minimum of 15
   42  percent but not more than 25 percent of all state revenues
   43  deposited into the State Transportation Trust Fund, excluding
   44  state revenues used for matching federal grants, shall be
   45  committed annually by the department for public transportation
   46  projects in accordance with chapter 311, ss. 332.003-332.007,
   47  chapter 341, and chapter 343.
   48         Section 2. Section 337.025, Florida Statutes, is amended to
   49  read:
   50         337.025 Innovative transportation projects; department to
   51  establish program.—
   52         (1) The department may establish a program for
   53  transportation projects demonstrating innovative techniques of
   54  highway and bridge design, construction, maintenance, and
   55  finance which have the intended effect of measuring resiliency
   56  and structural integrity and controlling time and cost increases
   57  on construction projects. Such techniques may include, but are
   58  not limited to, state-of-the-art technology for pavement,
   59  safety, and other aspects of highway and bridge design,
   60  construction, and maintenance; innovative bidding and financing
   61  techniques; progressive design-build contracts as specified in
   62  subsection (2); accelerated construction procedures; and those
   63  techniques that have the potential to reduce project life cycle
   64  costs. To the maximum extent practical, the department must use
   65  the existing process to award and administer construction and
   66  maintenance contracts. When specific innovative techniques are
   67  to be used, the department is not required to adhere to those
   68  provisions of law that would prevent, preclude, or in any way
   69  prohibit the department from using the innovative technique.
   70  However, before using an innovative technique that is
   71  inconsistent with another provision of law, the department must
   72  document in writing the need for the exception and identify what
   73  benefits the traveling public and the affected community are
   74  anticipated to receive. The department may enter into no more
   75  than $120 million in contracts awarded annually for the purposes
   76  authorized by this section.
   77         (2) If the department determines that it is in the best
   78  interests of the public, the department may combine the design
   79  and construction phases of a project into a single contract and
   80  select the design-build firm in the early stages of a project to
   81  ensure that the design-build firm is part of the collaboration
   82  and development of the design as part of a step-by-step
   83  progression through construction. Such contract is referred to
   84  as a progressive design-build contract. For progressive design
   85  build contracts, the selection and award processes must include
   86  a two-phase process. For phase one, the department shall
   87  competitively award the contract to a design-build firm based
   88  upon qualifications. For phase two, the design-build firm shall
   89  competitively bid construction trade subcontractor packages and,
   90  based upon these bids, negotiate with the department a fixed
   91  firm price or guaranteed maximum price that meets the project
   92  budget and scope as advertised in the request for
   93  qualifications.
   94         (3) The annual cap on contracts provided in subsection (1)
   95  does not apply to:
   96         (a) Turnpike enterprise projects.
   97         (b) Progressive design-build contracts for complex, high
   98  risk projects with a minimum contract value of $400 million Low
   99  bid design-build milling and resurfacing contracts.
  100         Section 3. Paragraph (a) of subsection (7) of section
  101  337.11, Florida Statutes, is amended to read:
  102         337.11 Contracting authority of department; bids; emergency
  103  repairs, supplemental agreements, and change orders; combined
  104  design and construction contracts; progress payments; records;
  105  requirements of vehicle registration.—
  106         (7)(a) If the department determines that it is in the best
  107  interests of the public, the department may combine the design
  108  and construction phases of a building, a major bridge, a limited
  109  access facility, or a rail corridor project into a single
  110  contract. Such contract is referred to as a design-build
  111  contract. Design-build contracts may be advertised and awarded
  112  notwithstanding the requirements of paragraph (3)(c). However,
  113  construction activities may not begin on any portion of such
  114  projects for which the department has not yet obtained title to
  115  the necessary rights-of-way and easements for the construction
  116  of that portion of the project has vested in the state or a
  117  local governmental entity and all railroad crossing and utility
  118  agreements have been executed. Title to rights-of-way shall be
  119  deemed to have vested in the state when the title has been
  120  dedicated to the public or acquired by prescription.
  121         Section 4. Subsection (1) of section 337.1101, Florida
  122  Statutes, is amended to read:
  123         337.1101 Contracting and procurement authority of the
  124  department; settlements; notification required.—
  125         (1) When the department, or any entity or enterprise within
  126  the department, determines that it is in the best interest of
  127  the public to resolve a protest filed in accordance with s.
  128  120.57(3) of the award of a contract being procured pursuant to
  129  s. 337.11 or related to the purchase of personal property or
  130  contractual services being procured pursuant to s. 287.057,
  131  through a settlement that requires the department to pay a
  132  nonselected responsive bidder a total sum of $1 million or more,
  133  including any amount paid pursuant to s. 334.049, any amount
  134  paid pursuant to s. 337.11(8) which is not included in the
  135  department’s work program approved by the Legislature as part of
  136  the General Appropriations Act, or any amount paid pursuant to
  137  any other law, the department must:
  138         (a) Document in a written memorandum by the secretary the
  139  specific reasons that such settlement and payment to a
  140  nonselected responsive bidder is in the best interest of the
  141  state. The written memorandum must be included and maintained in
  142  the department’s permanent files concerning the procurement and
  143  must include:
  144         1. A description of the property rights, patent rights,
  145  copyrights, trademarks, or the engineering design or other
  146  design work that the department will acquire or retain as a
  147  result of such settlement; and
  148         2. The specific appropriation in the existing General
  149  Appropriations Act which the department intends to use to
  150  provide such payment.
  151         (b) Provide prior written notification to the President of
  152  the Senate, the Speaker of the House of Representatives, the
  153  Senate and House of Representatives minority leaders, the chair
  154  and vice chair of the Legislative Budget Commission, and the
  155  Attorney General at least 5 business days, or as soon thereafter
  156  as practicable, before the department makes the settlement
  157  agreement final. Such written notification must include the
  158  written memorandum required pursuant to paragraph (a).
  159         (c) Provide, at the time settlement discussions regarding
  160  any such payment have begun in earnest, written notification of
  161  such discussions to the President of the Senate, the Speaker of
  162  the House of Representatives, the Senate and House of
  163  Representatives minority leaders, the chair and vice chair of
  164  the Legislative Budget Commission, and the Attorney General.
  165         Section 5. Subsections (1), (4), and (7) of section 337.14,
  166  Florida Statutes, are amended to read:
  167         337.14 Application for qualification; certificate of
  168  qualification; restrictions; request for hearing.—
  169         (1) Any contractor desiring to bid for the performance of
  170  any construction contract in excess of $250,000 which the
  171  department proposes to let must first be certified by the
  172  department as qualified pursuant to this section and rules of
  173  the department. The rules of the department must address the
  174  qualification of contractors to bid on construction contracts in
  175  excess of $250,000 and must include requirements with respect to
  176  the equipment, past record, experience, financial resources, and
  177  organizational personnel of the applying contractor which are
  178  necessary to perform the specific class of work for which the
  179  contractor seeks certification. Any contractor who desires to
  180  bid on contracts in excess of $50 million and who is not
  181  qualified and in good standing with the department as of January
  182  1, 2019, must first be certified by the department as qualified
  183  and must have satisfactorily completed two projects, each in
  184  excess of $15 million, for the department or for any other state
  185  department of transportation. The department may limit the
  186  dollar amount of any contract upon which a contractor is
  187  qualified to bid or the aggregate total dollar volume of
  188  contracts such contractor is allowed to have under contract at
  189  any one time. Each applying contractor seeking qualification to
  190  bid on construction contracts in excess of $250,000 shall
  191  furnish the department a statement under oath, on such forms as
  192  the department may prescribe, setting forth detailed information
  193  as required on the application. Each application for
  194  certification must be accompanied by audited, certified
  195  financial statements prepared in accordance with generally
  196  accepted accounting principles and auditing standards by a
  197  certified public accountant licensed in this state or another
  198  state. The audited, certified financial statements must be for
  199  the applying contractor and must have been prepared within the
  200  immediately preceding 12 months. The department may not consider
  201  any financial information of the parent entity of the applying
  202  contractor, if any. The department may not certify as qualified
  203  any applying contractor who fails to submit the audited,
  204  certified financial statements required by this subsection. If
  205  the application or the annual financial statement shows the
  206  financial condition of the applying contractor more than 4
  207  months before the date on which the application is received by
  208  the department, the applicant must also submit interim audited,
  209  certified financial statements prepared in accordance with
  210  generally accepted accounting principles and auditing standards
  211  by a certified public accountant licensed in this state or
  212  another state. The interim financial statements must cover the
  213  period from the end date of the annual statement and must show
  214  the financial condition of the applying contractor no more than
  215  4 months before the date that the interim financial statements
  216  are received by the department. However, upon the request of the
  217  applying contractor, an application and accompanying annual or
  218  interim financial statement received by the department within 15
  219  days after either 4-month period under this subsection shall be
  220  considered timely. An applying contractor desiring to bid
  221  exclusively for the performance of construction contracts with
  222  proposed budget estimates of less than $2 $1 million may submit
  223  reviewed annual or reviewed interim financial statements
  224  prepared by a certified public accountant. The information
  225  required by this subsection is confidential and exempt from s.
  226  119.07(1). The department shall act upon the application for
  227  qualification within 30 days after the department determines
  228  that the application is complete. The department may waive the
  229  requirements of this subsection for projects having a contract
  230  price of $500,000 or less if the department determines that the
  231  project is of a noncritical nature and the waiver will not
  232  endanger public health, safety, or property.
  233         (4) If the applicant is found to possess the prescribed
  234  qualifications, the department shall issue to him or her a
  235  certificate of qualification that, unless thereafter revoked by
  236  the department for good cause, will be valid for a period of 18
  237  months after the date of the applicant’s financial statement or
  238  such shorter period as the department prescribes. Submission of
  239  an application does and subsequent approval do not affect
  240  expiration of the certificate of qualification, the ability
  241  factor of the applicant, or the maximum capacity rating of the
  242  applicant. An applicant may submit a written request with a
  243  timely submitted application to keep an existing certificate of
  244  qualification in place until the expiration date. If the request
  245  is approved by the department, the current maximum capacity
  246  rating of the applicant must remain in place until expiration of
  247  the current certificate of qualification. If the department
  248  finds that an application is incomplete or contains inadequate
  249  information or information that cannot be verified, the
  250  department may request in writing that the applicant provide the
  251  necessary information to complete the application or provide the
  252  source from which any information in the application may be
  253  verified. If the applicant fails to comply with the initial
  254  written request within a reasonable period of time as specified
  255  therein, the department shall request the information a second
  256  time. If the applicant fails to comply with the second request
  257  within a reasonable period of time as specified therein, the
  258  application shall be denied.
  259         (7) A “contractor” as defined in s. 337.165(1)(d) or his or
  260  her “affiliate” as defined in s. 337.165(1)(a) qualified with
  261  the department under this section may not also qualify under s.
  262  287.055 or s. 337.105 to provide testing services, construction,
  263  engineering, and inspection services to the department. This
  264  limitation does not apply to any design-build, including
  265  progressive design-build, prequalification under s. 337.11(7)
  266  and does not apply when the department otherwise determines by
  267  written order entered at least 30 days before advertisement that
  268  the limitation is not in the best interests of the public with
  269  respect to a particular contract for testing services,
  270  construction, engineering, and inspection services. This
  271  subsection does not authorize a contractor to provide testing
  272  services, or provide construction, engineering, and inspection
  273  services, to the department in connection with a construction
  274  contract under which the contractor is performing any work.
  275  Notwithstanding any other provision of law to the contrary, for
  276  a project that is wholly or partially funded by the department
  277  and administered by a local governmental entity, except for a
  278  seaport listed in s. 311.09 or an airport as defined in s.
  279  332.004, the entity performing design and construction
  280  engineering and inspection services may not be the same entity.
  281         Section 6. Section 337.168, Florida Statutes, is amended to
  282  read:
  283         337.168 Confidentiality of official estimates, identities
  284  of potential bidders, and bid analysis and monitoring system.—
  285         (1) A document or electronic file revealing the official
  286  cost estimate of the department of a project is confidential and
  287  exempt from the provisions of s. 119.07(1) until the contract
  288  for the project has been executed or until the project is no
  289  longer under active consideration.
  290         (2) A document that reveals the identity of a person who
  291  has requested or obtained a bid package, plan, or specifications
  292  pertaining to any project to be let by the department is
  293  confidential and exempt from the provisions of s. 119.07(1) for
  294  the period that begins 2 working days before the deadline for
  295  obtaining bid packages, plans, or specifications and ends with
  296  the letting of the bid. A document that reveals the identity of
  297  a person who has requested or obtained a bid package, plan, or
  298  specifications pertaining to any project to be let by the
  299  department before the 2 working days before the deadline for
  300  obtaining bid packages, plans, or specifications remains a
  301  public record subject to s. 119.07(1).
  302         (3) The bid analysis and monitoring system of the
  303  department is confidential and exempt from the provisions of s.
  304  119.07(1). This exemption applies to all system documentation,
  305  input, computer processes and programs, electronic data files,
  306  and output, but does not apply to the actual source documents,
  307  unless otherwise exempted under other provisions of law.
  308         Section 7. This act shall take effect July 1, 2022.