December 07, 2019
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_h0683__
HB 683

1
A bill to be entitled
2An act relating to public construction works; amending s.
3255.20, F.S.; revising requirements for a county,
4municipality, special district, or other political
5subdivision of the state to competitively award contracts
6for certain construction projects; revising exceptions to
7those requirements; providing procedures for an exception
8to those requirements when all bids or proposals are
9greater than a threshold amount; providing that certain
10construction contract terms limiting the right of a
11contractor to recover certain costs or damages are void;
12providing that certain decisions by the local governmental
13entity concerning additional compensation or time to which
14a contractor is entitled are subject to de novo review in
15state court; amending s. 336.41, F.S.; revising provisions
16authorizing a county to employ labor and provide equipment
17for road and bridge projects; removing authorization for a
18county to use its own resources for constructing and
19opening new roads and bridges; revising requirements for
20certain county road and bridge projects to be let to
21contract; authorizing the governing body of a municipality
22to employ labor and provide equipment for repair and
23maintenance of roads and bridges; requiring county and
24municipal construction and reconstruction projects using
25certain tax revenues to be let to contract; providing
26exceptions; authorizing a municipality to require that
27persons interested in performing work under the contract
28first be certified or qualified to do the work when the
29contract amount exceeds a certain threshold; providing for
30qualification of a contractor by the Department of
31Transportation; providing that a contractor may be
32considered ineligible to bid by the municipality if the
33contractor is behind an approved progress schedule by more
34than a certain amount on another project for that
35municipality at the time of the advertisement of the work
36requiring prequalification; authorizing an appeal process;
37requiring prequalification criteria and procedures to be
38published prior to advertisement or notice of
39solicitation; requiring notice of a public hearing for
40comment on such criteria and procedures prior to adoption;
41requiring the procedures to provide for an appeal process
42for objections to the prequalification process; requiring
43the municipality to publish for comment, prior to
44adoption, the selection criteria and procedures to be used
45if such procedures would allow selection of other than the
46lowest responsible bidder; requiring the selection
47criteria to include an appeal process; providing an
48effective date.
49
50Be It Enacted by the Legislature of the State of Florida:
51
52     Section 1.  Subsection (1) of section 255.20, Florida
53Statutes, is amended to read:
54     255.20  Local bids and contracts for public construction
55works; specification of state-produced lumber.--
56     (1)  A county, municipality, special district as defined in
57chapter 189, or other political subdivision of the state seeking
58to construct, or improve, repair, or perform maintenance on a
59public building, structure, facility, or other public
60construction works must competitively award to an appropriately
61licensed contractor each project that is estimated in accordance
62with generally accepted cost-accounting principles to have total
63construction project costs of more than $200,000. For electrical
64work, local government must competitively award to an
65appropriately licensed contractor each project that is estimated
66in accordance with generally accepted cost-accounting principles
67to have a cost of more than $50,000. As used in this section,
68the term "competitively award" means to award contracts based on
69the submission of sealed bids, proposals submitted in response
70to a request for proposal, proposals submitted in response to a
71request for qualifications, or proposals submitted for
72competitive negotiation. This subsection expressly allows
73contracts for construction management services, design/build
74contracts, continuation contracts based on unit prices, and any
75other contract arrangement with a private sector contractor
76permitted by any applicable municipal or county ordinance, by
77district resolution, or by state law. For purposes of this
78section, construction costs include the cost of all labor,
79except inmate labor, and include the cost of equipment and
80materials to be used in the construction of the project. Subject
81to the provisions of subsection (3), the county, municipality,
82special district, or other political subdivision may establish,
83by municipal or county ordinance or special district resolution,
84procedures for conducting the bidding process.
85     (a)  Notwithstanding any other law to the contrary, a
86county, municipality, special district as defined in chapter
87189, or other political subdivision of the state seeking to
88construct or improve bridges, roads, streets, highways, or
89railroads, and services incidental thereto, at costs in excess
90of $250,000 may require that persons interested in performing
91work under contract first be certified or qualified to perform
92such work. Any contractor may be considered ineligible to bid by
93the governmental entity if the contractor is behind on
94completing an approved progress schedule for the governmental
95entity by 10 percent or more at the time of advertisement of the
96work. Any contractor prequalified and considered eligible by the
97Department of Transportation to bid to perform the type of work
98described under the contract shall be presumed to be qualified
99to perform the work described. The governmental entity may
100provide an appeal process to overcome that presumption with de
101novo review based on the record below to the circuit court.
102     (b)  With respect to contractors not prequalified with the
103Department of Transportation, the governmental entity shall
104publish prequalification criteria and procedures prior to
105advertisement or notice of solicitation. Such publications shall
106include notice of a public hearing for comment on such criteria
107and procedures prior to adoption. The procedures shall provide
108for an appeal process within the authority for objections to the
109prequalification process with de novo review based on the record
110below to the circuit court within 30 days.
111     (c)  The provisions of this subsection do not apply:
112     1.  When the project is undertaken to replace, reconstruct,
113or repair an existing facility damaged or destroyed by a sudden
114unexpected turn of events, such as an act of God, riot, fire,
115flood, accident, or other urgent circumstances, and such damage
116or destruction creates:
117     a.  An immediate danger to the public health or safety;
118     b.  Other loss to public or private property which requires
119emergency government action; or
120     c.  An interruption of an essential governmental service.
121     2.  When, after notice by publication in accordance with
122the applicable ordinance or resolution, the governmental entity
123does not receive any responsive bids or proposals responses.
124     3.  To construction, remodeling, repair, or improvement to
125a public electric or gas utility system when such work on the
126public utility system is performed by personnel of the system.
127     4.  To construction, remodeling, repair, or improvement by
128a utility commission whose major contracts are to construct and
129operate a public electric utility system.
130     5.  When the project is undertaken as repair or maintenance
131of an existing public facility.
132     5.6.  When the project is undertaken exclusively as part of
133a public educational program.
134     6.7.  When the funding source of the project will be
135diminished or lost because, through no fault of the governmental
136entity, the time required to competitively award the project
137after the funds become available exceeds the time within which
138the funding source must be spent.
139     7.8.  When the local government has competitively awarded a
140project to a private sector contractor and the contractor has
141abandoned the project before completion or the local government
142has terminated the contract.
143     8.9.  When, after receipt of bids or proposals, all
144responsive bids or proposals are at least 10 percent greater
145than the local government's estimated cost of the project. In
146this case, the local government may request that a professional
147engineer not affiliated with the local government prepare an
148independent estimate of the fair market cost of the project. If
149the professional engineer's cost estimate is within 10 percent
150of at least one of the responsive bids or proposals, the project
151must be competitively awarded. If the professional engineer's
152cost estimate is not within 10 percent of at least one of the
153responsive bids or proposals, the local government may request
154that a certified public accountant not affiliated with the local
155government prepare, in conjunction with the professional
156engineer, an estimate of the cost of the project if performed by
157the local government using its own services, employees, and
158equipment and using generally accepted accounting principles
159that fully account for all employee compensation and benefits,
160equipment and material costs, and any other associated costs and
161expenses. Only if the accountant's estimate is less than the
162lowest-priced responsive bid or proposal and the governing board
163of the local government, after public notice, conducts a public
164meeting under s. 286.011 and finds by a majority vote of the
165governing board that it is in the public's best interest to
166perform the project using its own services, employees, and
167equipment may the local government perform the work using its
168own services, employees, and equipment. The public notice must
169be published at least 14 days prior to the date of the public
170meeting at which the governing board takes final action to apply
171this subparagraph. The notice must identify the project, the
172estimated cost of the project, and specify that the purpose for
173the public meeting is to consider whether it is in the public's
174best interest to perform the project using the local
175government's own services, employees, and equipment. In deciding
176whether it is in the public's best interest for local government
177to perform a project using its own services, employees, and
178equipment, the governing board may consider the cost of the
179project, whether the project requires an increase in the number
180of government employees or, an increase in capital expenditures
181for public facilities, equipment, or other capital assets, the
182impact on local economic development, the impact on small and
183minority business owners, the impact on state and local tax
184revenues, whether the private sector contractors provide health
185insurance and other benefits equivalent to those provided by the
186local government, and any other factor relevant to what is in
187the public's best interest.
188     9.10.  When the governing board of the local government
189determines upon consideration of specific substantive criteria
190and administrative procedures that it is in the best interest of
191the local government to award the project to an appropriately
192licensed private sector contractor according to procedures
193established by and expressly set forth in a charter, ordinance,
194or resolution of the local government adopted prior to July 1,
1951994. The criteria and procedures must be set out in the
196charter, ordinance, or resolution and must be applied uniformly
197by the local government to avoid award of any project in an
198arbitrary or capricious manner. This exception shall apply when
199all of the following occur:
200     a.  When the governing board of the local government, after
201public notice, conducts a public meeting under s. 286.011 and
202finds by a two-thirds vote of the governing board that it is in
203the public's best interest to award the project according to the
204criteria and procedures established by charter, ordinance, or
205resolution. The public notice must be published at least 14 days
206prior to the date of the public meeting at which the governing
207board takes final action to apply this subparagraph. The notice
208must identify the project, the estimated cost of the project,
209and specify that the purpose for the public meeting is to
210consider whether it is in the public's best interest to award
211the project using the criteria and procedures permitted by the
212preexisting ordinance.
213     b.  In the event the project is to be awarded by any method
214other than a competitive selection process, the governing board
215must find evidence that:
216     (I)  There is one appropriately licensed contractor who is
217uniquely qualified to undertake the project because that
218contractor is currently under contract to perform work that is
219affiliated with the project; or
220     (II)  The time to competitively award the project will
221jeopardize the funding for the project, or will materially
222increase the cost of the project or will create an undue
223hardship on the public health, safety, or welfare.
224     c.  In the event the project is to be awarded by any method
225other than a competitive selection process, the published notice
226must clearly specify the ordinance or resolution by which the
227private sector contractor will be selected and the criteria to
228be considered.
229     d.  In the event the project is to be awarded by a method
230other than a competitive selection process, the architect or
231engineer of record has provided a written recommendation that
232the project be awarded to the private sector contractor without
233competitive selection; and the consideration by, and the
234justification of, the government body are documented, in
235writing, in the project file and are presented to the governing
236board prior to the approval required in this paragraph.
237     10.11.  To projects subject to chapter 336.
238     (d)1.  If the project is to be awarded based on price, the
239contract must be awarded to the lowest qualified and responsive
240bidder in accordance with the applicable county or municipal
241ordinance or district resolution and in accordance with the
242applicable contract documents. The county, municipality, or
243special district may reserve the right to reject all bids and to
244rebid the project or elect not to proceed with the project. This
245subsection is not intended to restrict the rights of any local
246government to reject the low bid of a nonqualified or
247nonresponsive bidder and to award the contract to any other
248qualified and responsive bidder in accordance with the standards
249and procedures of any applicable county or municipal ordinance
250or any resolution of a special district.
251     2.  If the project uses a request for proposal or a request
252for qualifications, the request must be publicly advertised and
253the contract must be awarded in accordance with the applicable
254local ordinances.
255     3.  If the project is subject to competitive negotiations,
256the contract must be awarded in accordance with s. 287.055.
257     (e)  If a construction project greater than $200,000, or
258$50,000 for electrical work, is started after October 1, 1999,
259and is to be performed by a local government using its own
260employees in a county or municipality that issues registered
261contractor licenses and the project would require a licensed
262contractor under chapter 489 if performed by a private sector
263contractor, the local government must use a person appropriately
264registered or certified under chapter 489 to supervise the work.
265     (f)  If a construction project greater than $200,000, or
266$50,000 for electrical work, is started after October 1, 1999,
267and is to be performed by a local government using its own
268employees in a county that does not issue registered contractor
269licenses and the project would require a licensed contractor
270under chapter 489 if performed by a private sector contractor,
271the local government must use a person appropriately registered
272or certified under chapter 489 or a person appropriately
273licensed under chapter 471 to supervise the work.
274     (g)  Projects performed by a local government using its own
275services and employees must be inspected in the same manner as
276inspections required for work performed by private sector
277contractors.
278     (h)  A construction project provided for in this subsection
279may not be divided into more than one project for the purpose of
280evading this subsection.
281     (i)  This subsection does not preempt the requirements of
282any small-business or disadvantaged-business enterprise program
283or any local-preference ordinance.
284     (j)  Notwithstanding any other law to the contrary, any
285provision contained in any public construction contract for a
286county, municipality, special district as defined in chapter
287189, or other political subdivision of the state which purports
288to limit, waive, release, or extinguish the rights of a
289contractor to recover costs or damages for delay in performing
290such contract, either on its behalf or on behalf of its
291subcontractors, if and to the extent the delay is caused by acts
292or omissions of the county, municipality, special district, or
293political subdivision, its agents or employees, or other
294entities with which it is in privity and due to causes within
295its control, shall be void and unenforceable as against public
296policy. The decisions of a county, municipality, special
297district, or other political subdivision concerning additional
298compensation or time to which a contractor is entitled in
299connection with any public construction contract shall be
300subject to de novo review in a state court of appropriate
301jurisdiction.
302     Section 2.  Section 336.41, Florida Statutes, is amended to
303read:
304     336.41  Counties and municipalities; employing labor and
305providing road equipment; accounting; when competitive bidding
306required.--
307     (1)  The governing body of a county or municipality
308commissioners may employ labor and provide equipment as may be
309necessary, except as provided in subsection (3), for
310constructing and opening of new roads or bridges and repair and
311maintenance of any existing roads and bridges.
312     (2)  It shall be the duty of all persons to whom the
313governing body of a county or municipality delivers
314commissioners deliver equipment and supplies for road and bridge
315purposes to make a strict accounting of the same to the
316governing body commissioners.
317     (3)(a)  All construction and reconstruction of roads and
318bridges, including resurfacing, full scale mineral seal coating,
319and major bridge and bridge system repairs, to be performed
320utilizing the proceeds of the 80-percent portion of the surplus
321of the constitutional fuel gas tax under s. 206.41(1)(a), the
322county fuel tax under s. 206.41(1)(b) for county projects or the
323municipal fuel tax under s. 206.41(1)(c) for municipal projects,
324the ninth-cent fuel tax under s. 206.41(1)(d) when imposed by
325the county, or the local option fuel tax under s. 206.41(1)(e)
326when imposed by the county shall be let to contract to the
327lowest responsible bidder by competitive bid.
328     (b)  Notwithstanding paragraph (a), the county or
329municipality may use its own forces, except for:
330     1.(a)  Construction and maintenance in emergency
331situations., and
332     2.(b)  In addition to emergency work, construction and
333reconstruction, including resurfacing, mineral seal coating, and
334bridge repairs, having a total cumulative annual value not to
335exceed 5 percent of its proceeds listed in paragraph (a) 80-
336percent portion of the constitutional gas tax or $400,000,
337whichever is greater., and
338     3.(c)  Construction of sidewalks, curbing, accessibility
339ramps, or appurtenances incidental to roads and bridges if each
340project is estimated in accordance with generally accepted cost-
341accounting principles to have total construction project costs
342of less than $400,000 or as adjusted by the percentage change in
343the Construction Cost Index from January 1, 2008,
344
345for which the county may utilize its own forces.
346     (c)  However, if, after proper advertising, no bids are
347received by a county or municipality for a specific project, the
348county or municipality may use its own forces to construct the
349project, notwithstanding the limitation of this subsection.
350     (d)  Nothing in this section shall prevent the county or
351municipality from performing routine maintenance as authorized
352by law.
353     (4)(a)  For contracts in excess of $250,000, any county or
354municipality may require that persons interested in performing
355work under the contract first be certified or qualified to do
356the work. Any contractor prequalified and considered eligible to
357bid by the department to perform the type of work described
358under the contract shall be presumed to be qualified to perform
359the work so described. Any contractor may be considered
360ineligible to bid by the county or municipality if the
361contractor is behind an approved progress schedule by 10 percent
362or more on another project for that county or municipality at
363the time of the advertisement of the work. The county or
364municipality may provide an appeal process to overcome such
365consideration with de novo review based on the record below to
366the circuit court.
367     (b)  The county or municipality, as appropriate, shall
368publish prequalification criteria and procedures prior to
369advertisement or notice of solicitation. Such publications shall
370include notice of a public hearing for comment on such criteria
371and procedures prior to adoption. The procedures shall provide
372for an appeal process within the county or municipality for
373objections to the prequalification process with de novo review
374based on the record below to the circuit court.
375     (c)  The county or municipality, as appropriate, shall also
376publish for comment, prior to adoption, the selection criteria
377and procedures to be used by the county or municipality if such
378procedures would allow selection of other than the lowest
379responsible bidder. The selection criteria shall include an
380appeal process within the county or municipality with de novo
381review based on the record below to the circuit court.
382     Section 3.  This act shall take effect July 1, 2008.


CODING: Words stricken are deletions; words underlined are additions.
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