Florida Senate - 2023 SB 830 By Senator Hooper 21-01660-23 2023830__ 1 A bill to be entitled 2 An act relating to competitive award of public 3 construction works contracts; amending s. 255.20, 4 F.S.; revising the applicability of a requirement that 5 certain governmental entities must competitively award 6 certain public construction works contracts; making 7 technical changes; providing an effective date. 8 9 Be It Enacted by the Legislature of the State of Florida: 10 11 Section 1. Paragraph (c) of subsection (1) of section 12 255.20, Florida Statutes, is amended to read: 13 255.20 Local bids and contracts for public construction 14 works; specification of state-produced lumber.— 15 (1) A county, municipality, special district as defined in 16 chapter 189, or other political subdivision of the state seeking 17 to construct or improve a public building, structure, or other 18 public construction works must competitively award to an 19 appropriately licensed contractor each project that is estimated 20 to cost more than $300,000. For electrical work, the local 21 government must competitively award to an appropriately licensed 22 contractor each project that is estimated to cost more than 23 $75,000. As used in this section, the term “competitively award” 24 means to award contracts based on the submission of sealed bids, 25 proposals submitted in response to a request for proposal, 26 proposals submitted in response to a request for qualifications, 27 or proposals submitted for competitive negotiation. This 28 subsection expressly allows contracts for construction 29 management services, design/build contracts, continuation 30 contracts based on unit prices, and any other contract 31 arrangement with a private sector contractor permitted by any 32 applicable municipal or county ordinance, by district 33 resolution, or by state law. For purposes of this section, cost 34 includes employee compensation and benefits, except inmate 35 labor, the cost of equipment and maintenance, insurance costs, 36 and the cost of direct materials to be used in the construction 37 of the project, including materials purchased by the local 38 government, and other direct costs, plus a factor of 20 percent 39 for management, overhead, and other indirect costs. Subject to 40 the provisions of subsection (3), the county, municipality, 41 special district, or other political subdivision may establish, 42 by municipal or county ordinance or special district resolution, 43 procedures for conducting the bidding process. 44 (c)The provisions ofThis subsection doesdonot apply: 45 1. If the project is undertaken to replace, reconstruct, or 46 repair an existing public building, structure, or other public 47 construction works damaged or destroyed by a sudden unexpected 48 turn of events such as an act of God, riot, fire, flood, 49 accident, or other urgent circumstances, and such damage or 50 destruction creates: 51 a. An immediate danger to the public health or safety; 52 b. Other loss to public or private property which requires 53 emergency government action; or 54 c. An interruption of an essential governmental service. 55 2. If, after notice by publication in accordance with the 56 applicable ordinance or resolution, the governmental entity does 57 not receive any responsive bids or proposals. 58 3. To construction, remodeling, repair, or improvement to a 59 public electric or gas utility system if such work on the public 60 utility system is performed by personnel of the system. 61 4. To construction, remodeling, repair, or improvement by a 62 utility commission whose major contracts are to construct and 63 operate a public electric utility system. 64 5. If the project is undertaken as repair or maintenance of 65 an existing public facility. For the purposes of this paragraph, 66 the term “repair” means a corrective action to restore an 67 existing public facility to a safe and functional condition and 68 the term “maintenance” means a preventive or corrective action 69 to maintain an existing public facility in an operational state 70 or to preserve the facility from failure or decline. Repair or 71 maintenance includes activities that are necessarily incidental 72 to repairing or maintaining the facility. Repair or maintenance 73 does not include the construction of any new building, 74 structure, or other public construction works or any substantial 75 addition, extension, or upgrade to an existing public facility. 76 Such additions, extensions, or upgrades shall be considered 77 substantial if the estimated cost of the additions, extensions, 78 or upgrades included as part of the repair or maintenance 79 project exceeds the threshold amount in subsection (1) and 80 exceeds 20 percent of the estimated total cost of the repair or 81 maintenance project fully accounting for all costs associated 82 with performing and completing the work, including employee 83 compensation and benefits, equipment cost and maintenance, 84 insurance costs, and the cost of direct materials to be used in 85 the construction of the project, including materials purchased 86 by the local government, and other direct costs, plus a factor 87 of 20 percent for management, overhead, and other indirect 88 costs. An addition, extension, or upgrade mayshallnot be 89 considered substantial if it is undertaken pursuant to the 90 conditions specified in subparagraph 1., or if a consortium or 91 cooperative purchasing agreement is utilized. Repair and 92 maintenance projects and any related additions, extensions, or 93 upgrades may not be divided into multiple projects for the 94 purpose of evading the requirements of this subparagraph. 95 6. If the project is undertaken exclusively as part of a 96 public educational program. 97 7. If the funding source of the project will be diminished 98 or lost because the time required to competitively award the 99 project after the funds become available exceeds the time within 100 which the funding source must be spent. 101 8. If the local government competitively awarded a project 102 to a private sector contractor and the contractor abandoned the 103 project before completion or the local government terminated the 104 contract. 105 9. If the governing board of the local government complies 106 with all of the requirements of this subparagraph, conducts a 107 public meeting under s. 286.011 after public notice, and finds 108 by majority vote of the governing board that it is in the 109 public’s best interest to perform the project using its own 110 services, employees, and equipment. The public notice must be 111 published at least 21 days before the date of the public meeting 112 at which the governing board takes final action. The notice must 113 identify the project, the components and scope of the work, and 114 the estimated cost of the project fully accounting for all costs 115 associated with performing and completing the work, including 116 employee compensation and benefits, equipment cost and 117 maintenance, insurance costs, and the cost of direct materials 118 to be used in the construction of the project, including 119 materials purchased by the local government, and other direct 120 costs, plus a factor of 20 percent for management, overhead, and 121 other indirect costs. The notice must specify that the purpose 122 for the public meeting is to consider whether it is in the 123 public’s best interest to perform the project using the local 124 government’s own services, employees, and equipment. Upon 125 publication of the public notice and for 21 days thereafter, the 126 local government shall make available for public inspection, 127 during normal business hours and at a location specified in the 128 public notice, a detailed itemization of each component of the 129 estimated cost of the project and documentation explaining the 130 methodology used to arrive at the estimated cost. At the public 131 meeting, any qualified contractor or vendor who could have been 132 awarded the project had the project been competitively bid shall 133 be provided with a reasonable opportunity to present evidence to 134 the governing board regarding the project and the accuracy of 135 the local government’s estimated cost of the project. In 136 deciding whether it is in the public’s best interest for the 137 local government to perform a project using its own services, 138 employees, and equipment, the governing board must consider the 139 estimated cost of the project fully accounting for all costs 140 associated with performing and completing the work, including 141 employee compensation and benefits, equipment cost and 142 maintenance, insurance costs, and the cost of direct materials 143 to be used in the construction of the project, including 144 materials purchased by the local government, and other direct 145 costs, plus a factor of 20 percent for management, overhead, and 146 other indirect costs, and the accuracy of the estimated cost in 147 light of any other information that may be presented at the 148 public meeting and whether the project requires an increase in 149 the number of government employees or an increase in capital 150 expenditures for public facilities, equipment, or other capital 151 assets. The local government may further consider the impact on 152 local economic development, the impact on small and minority 153 business owners, the impact on state and local tax revenues, 154 whether the private sector contractors provide health insurance 155 and other benefits equivalent to those provided by the local 156 government, and any other factor relevant to what is in the 157 public’s best interest. A report summarizing completed projects 158 constructed by the local government pursuant to this subsection 159 mustshallbe publicly reviewed each year by the governing body 160 of the local government. The report mustshalldetail the 161 estimated costs and the actual costs of the projects constructed 162 by the local government pursuant to this subsection. The report 163 mustshallbe made available for review by the public. The 164 Auditor General shall review the report as part of his or her 165 audits of local governments. 166 10. If the governing board of the local government 167 determines upon consideration of specific substantive criteria 168 that it is in the best interest of the local government to award 169 the project to an appropriately licensed private sector 170 contractor pursuant to administrative procedures established by 171 and expressly set forth in a charter, ordinance, or resolution 172 of the local government adopted before July 1, 1994. The 173 criteria and procedures must be set out in the charter, 174 ordinance, or resolution and must be applied uniformly by the 175 local government to avoid awarding a project in an arbitrary or 176 capricious manner. This exception applies only if all of the 177 following occur: 178 a. The governing board of the local government, after 179 public notice, conducts a public meeting under s. 286.011 and 180 finds by a two-thirds vote of the governing board that it is in 181 the public’s best interest to award the project according to the 182 criteria and procedures established by charter, ordinance, or 183 resolution. The public notice must be published at least 14 days 184 before the date of the public meeting at which the governing 185 board takes final action. The notice must identify the project, 186 the estimated cost of the project, and specify that the purpose 187 for the public meeting is to consider whether it is in the 188 public’s best interest to award the project using the criteria 189 and procedures permitted by the preexisting charter, ordinance, 190 or resolution. 191 b. The project is to be awarded by any method other than a 192 competitive selection process, and the governing board finds 193 evidence that: 194 (I) There is one appropriately licensed contractor who is 195 uniquely qualified to undertake the project because that 196 contractor is currently under contract to perform work that is 197 affiliated with the project; or 198 (II) The time to competitively award the project will 199 jeopardize the funding for the project, materially increase the 200 cost of the project, or create an undue hardship on the public 201 health, safety, or welfare. 202 c. The project is to be awarded by any method other than a 203 competitive selection process, and the published notice clearly 204 specifies the ordinance or resolution by which the private 205 sector contractor will be selected and the criteria to be 206 considered. 207 d. The project is to be awarded by a method other than a 208 competitive selection process, and the architect or engineer of 209 record has provided a written recommendation that the project be 210 awarded to the private sector contractor without competitive 211 selection, and the consideration by, and the justification of, 212 the government body are documented, in writing, in the project 213 file and are presented to the governing board beforeprior to214 the approval required in this paragraph. 215 11. To projects subject to chapter 336. 216 Section 2. This act shall take effect July 1, 2023.