Florida Senate - 2023                                      SB 64
       By Senator Hooper
       21-00297A-23                                            202364__
    1                        A bill to be entitled                      
    2         An act relating to the Department of Transportation;
    3         amending s. 206.46, F.S.; requiring that no more than
    4         20 percent of revenues derived from certain taxes and
    5         fees and deposited into the State Transportation Trust
    6         Fund be committed annually by the department for
    7         public transit projects; amending s. 334.179, F.S.;
    8         revising the definition of the term “certified for
    9         use” in regard to permissible use of aggregates;
   10         prohibiting a producer from certifying shipments of
   11         aggregates which are not in compliance with department
   12         rules; requiring the department to certify aggregates
   13         in accordance with specified rules; amending s.
   14         337.025, F.S.; authorizing the department to include
   15         progressive design-build contracts in its program for
   16         innovative transportation; authorizing the department
   17         to enter into a progressive design-build contract if
   18         it makes a certain determination; providing
   19         requirements for progressive design-build contracts;
   20         revising the exemption from a specified annual
   21         monetary cap on certain contracts; amending s. 337.11,
   22         F.S.; revising the department’s authority relating to
   23         design-build contracts; requiring the department to
   24         adopt procedures for administering progressive design
   25         build contracts; requiring that contracts let by the
   26         department for performance of bridge construction or
   27         maintenance over navigable waters contain certain
   28         insurance requirements; requiring the department to
   29         implement and track strategies to reduce the cost of
   30         projects while ensuring such projects meet federal and
   31         state standards; authorizing the department to share a
   32         portion of cost savings with certain consultants under
   33         specified circumstances; providing that payment to
   34         consultants may not exceed a specified amount;
   35         amending s. 337.1101, F.S.; revising the calculation
   36         of a certain settlement paid to a nonselected
   37         responsive bidder which requires the department to
   38         maintain certain records and provide certain notices
   39         to the Legislature and the Attorney General; amending
   40         s. 337.14, F.S.; revising the dollar limit of proposed
   41         budget estimates of construction contracts for which
   42         an applying contractor may submit certain financial
   43         statements; revising procedures relating to
   44         certificates of qualification issued by the department
   45         to construction contractors seeking certification to
   46         bid on certain contracts; exempting progressive
   47         design-build prequalifications from a certain
   48         restriction on contractors and their affiliates;
   49         amending s. 337.168, F.S.; deleting a public records
   50         exemption for certain documents that reveal the
   51         identity of a potential bidder; amending s. 338.223,
   52         F.S.; deleting a specified timeframe required for the
   53         department’s request for legislative approval of
   54         proposed turnpike projects; creating s. 334.180, F.S.;
   55         prohibiting local governments from refusing to accept
   56         electronic tickets approved by the department for use
   57         as official records for material deliveries on local
   58         government projects; providing an effective date.
   60  Be It Enacted by the Legislature of the State of Florida:
   62         Section 1. Subsection (6) is added to section 206.46,
   63  Florida Statutes, to read:
   64         206.46 State Transportation Trust Fund.—
   65         (6) The department may not annually commit to public
   66  transit projects in accordance with chapter 341 more than 20
   67  percent of the revenues derived from state fuel taxes and motor
   68  vehicle license-related fees deposited into the State
   69  Transportation Trust Fund.
   70         Section 2. Section 334.179, Florida Statutes, is amended to
   71  read:
   72         334.179 Department standards or specifications for
   73  permissible use of aggregates.—
   74         (1) Notwithstanding any law, rule, or ordinance to the
   75  contrary, a local government may not adopt standards or
   76  specifications that are contrary to the department standards or
   77  specifications for permissible use of aggregates that have been
   78  certified for use. For purposes of this section, the term
   79  “certified for use” means that the aggregates have been
   80  certified by the producer in compliance accordance with
   81  department rules. This section does not apply to a multicounty
   82  independent special district created by a special act of the
   83  Legislature.
   84         (2)A producer may not certify any shipment of aggregates
   85  to a non-department customer unless such shipment is in
   86  compliance with department rules. Notwithstanding the provisions
   87  of this section, the department shall certify aggregates in
   88  accordance with rules adopted pursuant to s. 334.044(10).
   89         Section 3. Section 337.025, Florida Statutes, is amended to
   90  read:
   91         337.025 Innovative transportation projects; department to
   92  establish program.—
   93         (1) The department may establish a program for
   94  transportation projects demonstrating innovative techniques of
   95  highway and bridge design, construction, maintenance, and
   96  finance which have the intended effect of measuring resiliency
   97  and structural integrity and controlling time and cost increases
   98  on construction projects. Such techniques may include, but are
   99  not limited to, state-of-the-art technology for pavement,
  100  safety, and other aspects of highway and bridge design,
  101  construction, and maintenance; innovative bidding and financing
  102  techniques; progressive design-build contracts as specified in
  103  subsection (2); accelerated construction procedures; and those
  104  techniques that have the potential to reduce project life cycle
  105  costs. To the maximum extent practical, the department must use
  106  the existing process to award and administer construction and
  107  maintenance contracts. When specific innovative techniques are
  108  to be used, the department is not required to adhere to those
  109  provisions of law that would prevent, preclude, or in any way
  110  prohibit the department from using the innovative technique.
  111  However, before using an innovative technique that is
  112  inconsistent with another provision of law, the department must
  113  document in writing the need for the exception and identify the
  114  what benefits the traveling public and the affected community
  115  are anticipated to receive. The department may enter into no
  116  more than $120 million in contracts awarded annually for the
  117  purposes authorized by this section.
  118         (2) If the department determines that it is in the best
  119  interests of the public, the department may combine the design
  120  and construction phases of a project into a single contract and
  121  select the design-build firm in the early stages of a project to
  122  ensure that the design-build firm is part of the collaboration
  123  and development of the design and step-by-step progression
  124  through construction. Such contract is referred to as a
  125  progressive design-build contract. For progressive design-build
  126  contracts, the selection and award processes must include a two
  127  phase process. For phase one, the department shall competitively
  128  award the contract to a design-build firm based upon the firm’s
  129  qualifications. For phase two, the design-build firm must
  130  solicit and receive competitive bids on all construction trade
  131  subcontractor packages and, based upon these bids, negotiate
  132  with the department a fixed firm price or guaranteed maximum
  133  price that meets the project budget and scope as advertised in
  134  the department’s request for qualifications.
  135         (3) The annual cap on contracts provided in subsection (1)
  136  does not apply to:
  137         (a) Turnpike enterprise projects.
  138         (b) Progressive design-build contracts for complex, high
  139  risk projects with a minimum contract value of $400 million Low
  140  bid design-build milling and resurfacing contracts.
  141         Section 4. Present subsections (15) and (16) of section
  142  337.11, Florida Statutes, are redesignated as subsections (18)
  143  and (19), respectively, new subsections (15) and (16) and
  144  subsection (17) are added to that section, and paragraphs (a)
  145  and (b) of subsection (7) of that section are amended, to read:
  146         337.11 Contracting authority of department; bids; emergency
  147  repairs, supplemental agreements, and change orders; combined
  148  design and construction contracts; progress payments; records;
  149  requirements of vehicle registration.—
  150         (7)(a) If the department determines that it is in the best
  151  interests of the public, the department may combine the design
  152  and construction phases of a building, a major bridge, a limited
  153  access facility, or a rail corridor project into a single
  154  contract. Such contract is referred to as a design-build
  155  contract. Design-build contracts may be advertised and awarded
  156  notwithstanding the requirements of paragraph (3)(c). However,
  157  construction activities may not begin on any portion of such
  158  projects for which the department has not yet obtained title to
  159  the necessary rights-of-way and easements for the construction
  160  of that portion of the project has vested in the state or a
  161  local governmental entity and all railroad crossing and utility
  162  agreements have been executed. Title to rights-of-way is shall
  163  be deemed to have vested in the state when the title has been
  164  dedicated to the public or acquired by prescription.
  165         (b) The department shall adopt by rule procedures for
  166  administering design-build contracts, including progressive
  167  design-build contracts. Such procedures shall include, but are
  168  not be limited to:
  169         1. Prequalification requirements.
  170         2. Public announcement procedures.
  171         3. Scope of service requirements.
  172         4. Letters of interest requirements.
  173         5. Short-listing criteria and procedures.
  174         6. Bid proposal requirements.
  175         7. Technical review committee.
  176         8. Selection and award processes.
  177         9. Stipend requirements.
  178         (15)Each contract let by the department for performance of
  179  bridge construction or maintenance over navigable waters must
  180  contain a provision requiring marine general liability
  181  insurance, in an amount to be determined by the department,
  182  which covers third-party personal injury and property damage
  183  caused by vessels used by the contractor in the performance of
  184  the work.
  185         (16)The department shall implement strategies to reduce
  186  the cost of all project phases, including design, construction,
  187  and inspection, while ensuring that the design and construction
  188  of projects meet applicable federal and state standards, and
  189  shall track such strategies and the projected savings.
  190         (17)The department may share a portion of the construction
  191  cost savings realized due to a change in the construction
  192  contract design and scope, initiated after execution of the
  193  contract, with a design services consultant or a construction
  194  engineering and inspection services consultant in accordance
  195  with the extent that the consultant’s input and involvement
  196  contributed to such savings. The amount paid to a consultant
  197  pursuant to this subsection may not exceed 10 percent of the
  198  construction cost savings realized.
  199         Section 5. Subsection (1) of section 337.1101, Florida
  200  Statutes, is amended to read:
  201         337.1101 Contracting and procurement authority of the
  202  department; settlements; notification required.—
  203         (1) When the department, or any entity or enterprise within
  204  the department, determines that it is in the best interest of
  205  the public to resolve a protest filed in accordance with s.
  206  120.57(3) of the award of a contract being procured pursuant to
  207  s. 337.11 or related to the purchase of personal property or
  208  contractual services being procured pursuant to s. 287.057,
  209  through a settlement that requires the department to pay a
  210  nonselected responsive bidder a total sum of $1 million or more,
  211  including any amount paid pursuant to s. 334.049, any amount
  212  paid pursuant to s. 337.11(8) which is not included in the
  213  department’s work program approved by the Legislature as part of
  214  the General Appropriations Act, or any amount paid pursuant to
  215  any other law, the department must:
  216         (a) Document in a written memorandum by the secretary the
  217  specific reasons that such settlement and payment to a
  218  nonselected responsive bidder is in the best interest of the
  219  state. The written memorandum must be included and maintained in
  220  the department’s permanent files concerning the procurement and
  221  must include:
  222         1. A description of the property rights, patent rights,
  223  copyrights, trademarks, or the engineering design or other
  224  design work that the department will acquire or retain as a
  225  result of such settlement; and
  226         2. The specific appropriation in the existing General
  227  Appropriations Act which the department intends to use to
  228  provide such payment.
  229         (b) Provide prior written notification to the President of
  230  the Senate, the Speaker of the House of Representatives, the
  231  Senate and House of Representatives minority leaders, the chair
  232  and vice chair of the Legislative Budget Commission, and the
  233  Attorney General at least 5 business days, or as soon thereafter
  234  as practicable, before the department makes the settlement
  235  agreement final. Such written notification must include the
  236  written memorandum required pursuant to paragraph (a).
  237         (c) Provide, at the time settlement discussions regarding
  238  any such payment have begun in earnest, written notification of
  239  such discussions to the President of the Senate, the Speaker of
  240  the House of Representatives, the Senate and House of
  241  Representatives minority leaders, the chair and vice chair of
  242  the Legislative Budget Commission, and the Attorney General.
  243         Section 6. Subsections (1), (4), and (7) of section 337.14,
  244  Florida Statutes, are amended to read:
  245         337.14 Application for qualification; certificate of
  246  qualification; restrictions; request for hearing.—
  247         (1) A Any contractor desiring to bid for the performance of
  248  any construction contract in excess of $250,000 which the
  249  department proposes to let must first be certified by the
  250  department as qualified pursuant to this section and rules of
  251  the department. The rules of the department must address the
  252  qualification of contractors to bid on construction contracts in
  253  excess of $250,000 and must include requirements with respect to
  254  the equipment, past record, experience, financial resources, and
  255  organizational personnel of the applying contractor which are
  256  necessary to perform the specific class of work for which the
  257  contractor seeks certification. Any contractor who desires to
  258  bid on contracts in excess of $50 million and who is not
  259  qualified and in good standing with the department as of January
  260  1, 2019, must first be certified by the department as qualified
  261  and must have satisfactorily completed two projects, each in
  262  excess of $15 million, for the department or for any other state
  263  department of transportation. The department may limit the
  264  dollar amount of any contract upon which a contractor is
  265  qualified to bid or the aggregate total dollar volume of
  266  contracts such contractor is allowed to have under contract at
  267  any one time. Each applying contractor seeking qualification to
  268  bid on construction contracts in excess of $250,000 shall
  269  furnish the department a statement under oath, on such forms as
  270  the department may prescribe, setting forth detailed information
  271  as required on the application. Each application for
  272  certification must be accompanied by audited, certified
  273  financial statements prepared in accordance with generally
  274  accepted accounting principles and auditing standards by a
  275  certified public accountant licensed in this state or another
  276  state. The audited, certified financial statements must be for
  277  the applying contractor and must have been prepared within the
  278  immediately preceding 12 months. The department may not consider
  279  any financial information of the parent entity of the applying
  280  contractor, if any. The department may not certify as qualified
  281  any applying contractor who fails to submit the audited,
  282  certified financial statements required by this subsection. If
  283  the application or the annual financial statement shows the
  284  financial condition of the applying contractor more than 4
  285  months before the date on which the application is received by
  286  the department, the applicant must also submit interim audited,
  287  certified financial statements prepared in accordance with
  288  generally accepted accounting principles and auditing standards
  289  by a certified public accountant licensed in this state or
  290  another state. The interim financial statements must cover the
  291  period from the end date of the annual statement and must show
  292  the financial condition of the applying contractor no more than
  293  4 months before the date that the interim financial statements
  294  are received by the department. However, upon the request of the
  295  applying contractor, an application and accompanying annual or
  296  interim financial statement received by the department within 15
  297  days after either 4-month period under this subsection shall be
  298  considered timely. An applying contractor desiring to bid
  299  exclusively for the performance of construction contracts with
  300  proposed budget estimates of less than $2 $1 million may submit
  301  reviewed annual or reviewed interim financial statements
  302  prepared by a certified public accountant. The information
  303  required by this subsection is confidential and exempt from s.
  304  119.07(1). The department shall act upon the application for
  305  qualification within 30 days after the department determines
  306  that the application is complete. The department may waive the
  307  requirements of this subsection for projects having a contract
  308  price of $500,000 or less if the department determines that the
  309  project is of a noncritical nature and that the waiver will not
  310  endanger public health, safety, or property.
  311         (4) If the applicant is found to possess the prescribed
  312  qualifications, the department must shall issue to him or her a
  313  certificate of qualification that, unless thereafter revoked by
  314  the department for good cause, will be valid for a period of 18
  315  months after the date of the applicant’s financial statement or
  316  such shorter period as the department prescribes. Submission of
  317  an application does and subsequent approval do not affect
  318  expiration of the certificate of qualification, the ability
  319  factor of the applicant, or the maximum capacity rating of the
  320  applicant. An applicant may submit a written request with a
  321  timely submitted application to keep an existing certificate of
  322  qualification in place until the expiration date. If the request
  323  is approved by the department, the current maximum capacity
  324  rating of the applicant must remain in place until expiration of
  325  the current certificate of qualification. If the department
  326  finds that an application is incomplete or contains inadequate
  327  information or information that cannot be verified, the
  328  department may request in writing that the applicant provide the
  329  necessary information to complete the application or provide the
  330  source from which any information in the application may be
  331  verified. If the applicant fails to comply with the initial
  332  written request within a reasonable period of time as specified
  333  therein, the department must shall request the information a
  334  second time. If the applicant fails to comply with the second
  335  request within a reasonable period of time as specified therein,
  336  the application must shall be denied.
  337         (7) A “contractor” as defined in s. 337.165(1)(d) or his or
  338  her “affiliate” as defined in s. 337.165(1)(a) qualified with
  339  the department under this section may not also qualify under s.
  340  287.055 or s. 337.105 to provide testing services, construction,
  341  engineering, and inspection services to the department. This
  342  limitation does not apply to any design-build, including
  343  progressive design-build, prequalification under s. 337.11(7)
  344  and does not apply when the department otherwise determines by
  345  written order entered at least 30 days before advertisement that
  346  the limitation is not in the best interests of the public with
  347  respect to a particular contract for testing services,
  348  construction, engineering, and inspection services. This
  349  subsection does not authorize a contractor to provide testing
  350  services, or provide construction, engineering, and inspection
  351  services, to the department in connection with a construction
  352  contract under which the contractor is performing any work.
  353  Notwithstanding any other provision of law to the contrary, for
  354  a project that is wholly or partially funded by the department
  355  and administered by a local governmental entity, except for a
  356  seaport listed in s. 311.09 or an airport as defined in s.
  357  332.004, the entity performing design and construction
  358  engineering and inspection services may not be the same entity.
  359         Section 7. Section 337.168, Florida Statutes, is amended to
  360  read:
  361         337.168 Confidentiality of official estimates, identities
  362  of potential bidders, and bid analysis and monitoring system.—
  363         (1) A document or electronic file revealing the official
  364  cost estimate of the department of a project is confidential and
  365  exempt from the provisions of s. 119.07(1) until the contract
  366  for the project has been executed or until the project is no
  367  longer under active consideration.
  368         (2) A document that reveals the identity of a person who
  369  has requested or obtained a bid package, plan, or specifications
  370  pertaining to any project to be let by the department is
  371  confidential and exempt from the provisions of s. 119.07(1) for
  372  the period that begins 2 working days before the deadline for
  373  obtaining bid packages, plans, or specifications and ends with
  374  the letting of the bid. A document that reveals the identity of
  375  a person who has requested or obtained a bid package, plan, or
  376  specifications pertaining to any project to be let by the
  377  department before the 2 working days before the deadline for
  378  obtaining bid packages, plans, or specifications remains a
  379  public record subject to s. 119.07(1).
  380         (3) The bid analysis and monitoring system of the
  381  department is confidential and exempt from the provisions of s.
  382  119.07(1). This exemption applies to all system documentation,
  383  input, computer processes and programs, electronic data files,
  384  and output, but does not apply to the actual source documents,
  385  unless otherwise exempted under other provisions of law.
  386         Section 8. Paragraph (a) of subsection (1) of section
  387  338.223, Florida Statutes, is amended to read:
  388         338.223 Proposed turnpike projects.—
  389         (1)(a) Any proposed project to be constructed or acquired
  390  as part of the turnpike system and any turnpike improvement must
  391  shall be included in the tentative work program. A proposed
  392  project or group of proposed projects may not be added to the
  393  turnpike system unless such project or projects are determined
  394  to be economically feasible and a statement of environmental
  395  feasibility has been completed for such project or projects and
  396  such projects are determined to be consistent, to the maximum
  397  extent feasible, with approved local government comprehensive
  398  plans of the local governments in which such projects are
  399  located. The department may authorize engineering studies,
  400  traffic studies, environmental studies, and other expert studies
  401  of the location, costs, economic feasibility, and practicality
  402  of proposed turnpike projects throughout this the state and may
  403  proceed with the design phase of such projects. The department
  404  may not request legislative approval of a proposed turnpike
  405  project until the design phase of that project is at least 30
  406  percent complete. If a proposed project or group of proposed
  407  projects is found to be economically feasible, consistent, to
  408  the maximum extent feasible, with approved local government
  409  comprehensive plans of the local governments in which such
  410  projects are located, and a favorable statement of environmental
  411  feasibility has been completed, the department, with the
  412  approval of the Legislature, shall, after the receipt of all
  413  necessary permits, construct, maintain, and operate such
  414  turnpike projects.
  415         Section 9. Section 334.180, Florida Statutes, is created to
  416  read:
  417         334.180 Department electronic tickets.—Notwithstanding any
  418  law, rule, or ordinance to the contrary, a local government may
  419  not refuse to accept electronic tickets approved by the
  420  department for use on department projects as an official record
  421  for material deliveries on local government projects.
  422         Section 10. This act shall take effect July 1, 2023.