December 07, 2019
Print This PagePrint This Page

  *
Session:
Bill #:
Session:
Chamber: View Search Tips
Search Term:
Year: View Search Tips
Search Term:

Florida Senate - 2008 SB 2148

By Senator Haridopolos

26-03602-08 20082148__

1

A bill to be entitled

2

An act relating to public construction works; amending s.

3

255.20, F.S.; revising requirements for a county,

4

municipality, special district, or other political

5

subdivision of the state to competitively award contracts

6

for certain construction projects; revising exceptions to

7

those requirements; providing procedures for an exception

8

to those requirements when all bids or proposals are

9

greater than a threshold amount; providing that certain

10

construction contract terms limiting the right of a

11

contractor to recover certain costs or damages are void;

12

providing that certain decisions by the local governmental

13

entity concerning additional compensation or time to which

14

a contractor is entitled are subject to de novo review in

15

state court; amending s. 336.41, F.S.; revising provisions

16

authorizing a county to employ labor and provide equipment

17

for road and bridge projects; removing authorization for a

18

county to use its own resources for constructing and

19

opening new roads and bridges; revising requirements for

20

certain county road and bridge projects to be let to

21

contract; authorizing the governing body of a municipality

22

to employ labor and provide equipment for repair and

23

maintenance of roads and bridges; requiring county and

24

municipal construction and reconstruction projects using

25

certain tax revenues to be let to contract; providing

26

exceptions; authorizing a municipality to require that

27

persons interested in performing work under the contract

28

first be certified or qualified to do the work when the

29

contract amount exceeds a certain threshold; providing for

30

qualification of a contractor by the Department of

31

Transportation; providing that a contractor may be

32

considered ineligible to bid by the municipality if the

33

contractor is behind an approved progress schedule by more

34

than a certain amount on another project for that

35

municipality at the time of the advertisement of the work

36

requiring prequalification; authorizing an appeal process;

37

requiring prequalification criteria and procedures to be

38

published prior to advertisement or notice of

39

solicitation; requiring notice of a public hearing for

40

comment on such criteria and procedures prior to adoption;

41

requiring the procedures to provide for an appeal process

42

for objections to the prequalification process; requiring

43

the municipality to publish for comment, prior to

44

adoption, the selection criteria and procedures to be used

45

if such procedures would allow selection of other than the

46

lowest responsible bidder; requiring the selection

47

criteria to include an appeal process; providing an

48

effective date.

49

50

Be It Enacted by the Legislature of the State of Florida:

51

52

     Section 1.  Subsection (1) of section 255.20, Florida

53

Statutes, is amended to read:

54

     255.20  Local bids and contracts for public construction

55

works; specification of state-produced lumber.--

56

     (1)  A county, municipality, special district as defined in

57

chapter 189, or other political subdivision of the state seeking

58

to construct, or improve, repair, or perform maintenance on a

59

public building, structure, facility, or other public

60

construction works must competitively award to an appropriately

61

licensed contractor each project that is estimated in accordance

62

with generally accepted cost-accounting principles to have total

63

construction project costs of more than $200,000. For electrical

64

work, local government must competitively award to an

65

appropriately licensed contractor each project that is estimated

66

in accordance with generally accepted cost-accounting principles

67

to have a cost of more than $50,000. As used in this section, the

68

term "competitively award" means to award contracts based on the

69

submission of sealed bids, proposals submitted in response to a

70

request for proposal, proposals submitted in response to a

71

request for qualifications, or proposals submitted for

72

competitive negotiation. This subsection expressly allows

73

contracts for construction management services, design/build

74

contracts, continuation contracts based on unit prices, and any

75

other contract arrangement with a private sector contractor

76

permitted by any applicable municipal or county ordinance, by

77

district resolution, or by state law. For purposes of this

78

section, construction costs include the cost of all labor, except

79

inmate labor, and include the cost of equipment and materials to

80

be used in the construction of the project. Subject to the

81

provisions of subsection (3), the county, municipality, special

82

district, or other political subdivision may establish, by

83

municipal or county ordinance or special district resolution,

84

procedures for conducting the bidding process.

85

     (a)  Notwithstanding any other law to the contrary, a

86

county, municipality, special district as defined in chapter 189,

87

or other political subdivision of the state seeking to construct

88

or improve bridges, roads, streets, highways, or railroads, and

89

services incidental thereto, at costs in excess of $250,000 may

90

require that persons interested in performing work under contract

91

first be certified or qualified to perform such work. Any

92

contractor may be considered ineligible to bid by the

93

governmental entity if the contractor is behind on completing an

94

approved progress schedule for the governmental entity by 10

95

percent or more at the time of advertisement of the work. Any

96

contractor prequalified and considered eligible by the Department

97

of Transportation to bid to perform the type of work described

98

under the contract shall be presumed to be qualified to perform

99

the work described. The governmental entity may provide an appeal

100

process to overcome that presumption with de novo review based on

101

the record below to the circuit court.

102

     (b)  With respect to contractors not prequalified with the

103

Department of Transportation, the governmental entity shall

104

publish prequalification criteria and procedures prior to

105

advertisement or notice of solicitation. Such publications shall

106

include notice of a public hearing for comment on such criteria

107

and procedures prior to adoption. The procedures shall provide

108

for an appeal process within the authority for objections to the

109

prequalification process with de novo review based on the record

110

below 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,

113

or repair an existing facility damaged or destroyed by a sudden

114

unexpected turn of events, such as an act of God, riot, fire,

115

flood, accident, or other urgent circumstances, and such damage

116

or destruction creates:

117

     a.  An immediate danger to the public health or safety;

118

     b.  Other loss to public or private property which requires

119

emergency government action; or

120

     c.  An interruption of an essential governmental service.

121

     2.  When, after notice by publication in accordance with the

122

applicable ordinance or resolution, the governmental entity does

123

not receive any responsive bids or proposals responses.

124

     3.  To construction, remodeling, repair, or improvement to a

125

public electric or gas utility system when such work on the

126

public utility system is performed by personnel of the system.

127

     4.  To construction, remodeling, repair, or improvement by a

128

utility commission whose major contracts are to construct and

129

operate a public electric utility system.

130

     5. When the project is undertaken as repair or maintenance

131

of an existing public facility.

132

     5.6. When the project is undertaken exclusively as part of

133

a public educational program.

134

     6.7. When the funding source of the project will be

135

diminished or lost because, through no fault of the governmental

136

entity, the time required to competitively award the project

137

after the funds become available exceeds the time within which

138

the funding source must be spent.

139

     7.8. When the local government has competitively awarded a

140

project to a private sector contractor and the contractor has

141

abandoned the project before completion or the local government

142

has terminated the contract.

143

     8.9. When, after receipt of bids or proposals, all

144

responsive bids or proposals are at least 10 percent greater than

145

the local government's estimated cost of the project. In this

146

case, the local government may request that a professional

147

engineer not affiliated with the local government prepare an

148

independent estimate of the fair market cost of the project. If

149

the professional engineer's cost estimate is within 10 percent of

150

at least one of the responsive bids or proposals, the project

151

must be competitively awarded. If the professional engineer's

152

cost estimate is not within 10 percent of at least one of the

153

responsive bids or proposals, the local government may request

154

that a certified public accountant not affiliated with the local

155

government prepare, in conjunction with the professional

156

engineer, an estimate of the cost of the project if performed by

157

the local government using its own services, employees, and

158

equipment and using generally accepted accounting principles that

159

fully account for all employee compensation and benefits,

160

equipment and material costs, and any other associated costs and

161

expenses. Only if the accountant's estimate is less than the

162

lowest-priced responsive bid or proposal and the governing board

163

of the local government, after public notice, conducts a public

164

meeting under s. 286.011 and finds by a majority vote of the

165

governing board that it is in the public's best interest to

166

perform the project using its own services, employees, and

167

equipment may the local government perform the work using its own

168

services, employees, and equipment. The public notice must be

169

published at least 14 days prior to the date of the public

170

meeting at which the governing board takes final action to apply

171

this subparagraph. The notice must identify the project, the

172

estimated cost of the project, and specify that the purpose for

173

the public meeting is to consider whether it is in the public's

174

best interest to perform the project using the local government's

175

own services, employees, and equipment. In deciding whether it is

176

in the public's best interest for local government to perform a

177

project using its own services, employees, and equipment, the

178

governing board may consider the cost of the project, whether the

179

project requires an increase in the number of government

180

employees or, an increase in capital expenditures for public

181

facilities, equipment, or other capital assets, the impact on

182

local economic development, the impact on small and minority

183

business owners, the impact on state and local tax revenues,

184

whether the private sector contractors provide health insurance

185

and other benefits equivalent to those provided by the local

186

government, and any other factor relevant to what is in the

187

public's best interest.

188

     9.10. When the governing board of the local government

189

determines upon consideration of specific substantive criteria

190

and administrative procedures that it is in the best interest of

191

the local government to award the project to an appropriately

192

licensed private sector contractor according to procedures

193

established by and expressly set forth in a charter, ordinance,

194

or resolution of the local government adopted prior to July 1,

195

1994. The criteria and procedures must be set out in the charter,

196

ordinance, or resolution and must be applied uniformly by the

197

local government to avoid award of any project in an arbitrary or

198

capricious manner. This exception shall apply when all of the

199

following occur:

200

     a.  When the governing board of the local government, after

201

public notice, conducts a public meeting under s. 286.011 and

202

finds by a two-thirds vote of the governing board that it is in

203

the public's best interest to award the project according to the

204

criteria and procedures established by charter, ordinance, or

205

resolution. The public notice must be published at least 14 days

206

prior to the date of the public meeting at which the governing

207

board takes final action to apply this subparagraph. The notice

208

must identify the project, the estimated cost of the project, and

209

specify that the purpose for the public meeting is to consider

210

whether it is in the public's best interest to award the project

211

using the criteria and procedures permitted by the preexisting

212

ordinance.

213

     b.  In the event the project is to be awarded by any method

214

other than a competitive selection process, the governing board

215

must find evidence that:

216

     (I)  There is one appropriately licensed contractor who is

217

uniquely qualified to undertake the project because that

218

contractor is currently under contract to perform work that is

219

affiliated with the project; or

220

     (II)  The time to competitively award the project will

221

jeopardize the funding for the project, or will materially

222

increase the cost of the project or will create an undue hardship

223

on the public health, safety, or welfare.

224

     c.  In the event the project is to be awarded by any method

225

other than a competitive selection process, the published notice

226

must clearly specify the ordinance or resolution by which the

227

private sector contractor will be selected and the criteria to be

228

considered.

229

     d.  In the event the project is to be awarded by a method

230

other than a competitive selection process, the architect or

231

engineer of record has provided a written recommendation that the

232

project be awarded to the private sector contractor without

233

competitive selection; and the consideration by, and the

234

justification of, the government body are documented, in writing,

235

in the project file and are presented to the governing board

236

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

239

contract must be awarded to the lowest qualified and responsive

240

bidder in accordance with the applicable county or municipal

241

ordinance or district resolution and in accordance with the

242

applicable contract documents. The county, municipality, or

243

special district may reserve the right to reject all bids and to

244

rebid the project or elect not to proceed with the project. This

245

subsection is not intended to restrict the rights of any local

246

government to reject the low bid of a nonqualified or

247

nonresponsive bidder and to award the contract to any other

248

qualified and responsive bidder in accordance with the standards

249

and procedures of any applicable county or municipal ordinance or

250

any resolution of a special district.

251

     2.  If the project uses a request for proposal or a request

252

for qualifications, the request must be publicly advertised and

253

the contract must be awarded in accordance with the applicable

254

local ordinances.

255

     3.  If the project is subject to competitive negotiations,

256

the 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,

259

and is to be performed by a local government using its own

260

employees in a county or municipality that issues registered

261

contractor licenses and the project would require a licensed

262

contractor under chapter 489 if performed by a private sector

263

contractor, the local government must use a person appropriately

264

registered 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,

267

and is to be performed by a local government using its own

268

employees in a county that does not issue registered contractor

269

licenses and the project would require a licensed contractor

270

under chapter 489 if performed by a private sector contractor,

271

the local government must use a person appropriately registered

272

or certified under chapter 489 or a person appropriately licensed

273

under chapter 471 to supervise the work.

274

     (g)  Projects performed by a local government using its own

275

services and employees must be inspected in the same manner as

276

inspections required for work performed by private sector

277

contractors.

278

     (h)  A construction project provided for in this subsection

279

may not be divided into more than one project for the purpose of

280

evading this subsection.

281

     (i)  This subsection does not preempt the requirements of

282

any small-business or disadvantaged-business enterprise program

283

or any local-preference ordinance.

284

     (j) Notwithstanding any other law to the contrary, any

285

provision contained in any public construction contract for a

286

county, municipality, special district as defined in chapter 189,

287

or other political subdivision of the state which purports to

288

limit, waive, release, or extinguish the rights of a contractor

289

to recover costs or damages for delay in performing such

290

contract, either on its behalf or on behalf of its

291

subcontractors, if and to the extent the delay is caused by acts

292

or omissions of the county, municipality, special district, or

293

political subdivision, its agents or employees, or other entities

294

with which it is in privity and due to causes within its control,

295

shall be void and unenforceable as against public policy. The

296

decisions of a county, municipality, special district, or other

297

political subdivision concerning additional compensation or time

298

to which a contractor is entitled in connection with any public

299

construction contract shall be subject to de novo review in a

300

state court of appropriate jurisdiction.

301

     Section 2.  Section 336.41, Florida Statutes, is amended to

302

read:

303

     336.41 Counties and municipalities; employing labor and

304

providing road equipment; accounting; when competitive bidding

305

required.--

306

     (1) The governing body of a county or municipality

307

commissioners may employ labor and provide equipment as may be

308

necessary, except as provided in subsection (3), for constructing

309

and opening of new roads or bridges and repair and maintenance of

310

any existing roads and bridges.

311

     (2)  It shall be the duty of all persons to whom the

312

governing body of a county or municipality delivers commissioners

313

deliver equipment and supplies for road and bridge purposes to

314

make a strict accounting of the same to the governing body

315

commissioners.

316

     (3)(a) All construction and reconstruction of roads and

317

bridges, including resurfacing, full scale mineral seal coating,

318

and major bridge and bridge system repairs, to be performed

319

utilizing the proceeds of the 80-percent portion of the surplus

320

of the constitutional fuel gas tax under s. 206.41(1)(a), the

321

county fuel tax under s. 206.41(1)(b) for county projects or the

322

municipal fuel tax under s. 206.41(1)(c) for municipal projects,

323

the ninth-cent fuel tax under s. 206.41(1)(d) when imposed by the

324

county, or the local option fuel tax under s. 206.41(1)(e) when

325

imposed by the county shall be let to contract to the lowest

326

responsible bidder by competitive bid.

327

     (b) Notwithstanding paragraph (a), the county or

328

municipality may use its own forces, except for:

329

     1.(a) Construction and maintenance in emergency

330

situations., and

331

     2.(b) In addition to emergency work, construction and

332

reconstruction, including resurfacing, mineral seal coating, and

333

bridge repairs, having a total cumulative annual value not to

334

exceed 5 percent of its proceeds listed in paragraph (a) 80-

335

percent portion of the constitutional gas tax or $400,000,

336

whichever is greater., and

337

     3.(c) Construction of sidewalks, curbing, accessibility

338

ramps, or appurtenances incidental to roads and bridges if each

339

project is estimated in accordance with generally accepted cost-

340

accounting principles to have total construction project costs of

341

less than $400,000 or as adjusted by the percentage change in the

342

Construction Cost Index from January 1, 2008,

343

344

for which the county may utilize its own forces.

345

     (c) However, if, after proper advertising, no bids are

346

received by a county or municipality for a specific project, the

347

county or municipality may use its own forces to construct the

348

project, notwithstanding the limitation of this subsection.

349

     (d) Nothing in this section shall prevent the county or

350

municipality from performing routine maintenance as authorized by

351

law.

352

     (4)(a) For contracts in excess of $250,000, any county or

353

municipality may require that persons interested in performing

354

work under the contract first be certified or qualified to do the

355

work. Any contractor prequalified and considered eligible to bid

356

by the department to perform the type of work described under the

357

contract shall be presumed to be qualified to perform the work so

358

described. Any contractor may be considered ineligible to bid by

359

the county or municipality if the contractor is behind an

360

approved progress schedule by 10 percent or more on another

361

project for that county or municipality at the time of the

362

advertisement of the work. The county or municipality may provide

363

an appeal process to overcome such consideration with de novo

364

review based on the record below to the circuit court.

365

     (b) The county or municipality, as appropriate, shall

366

publish prequalification criteria and procedures prior to

367

advertisement or notice of solicitation. Such publications shall

368

include notice of a public hearing for comment on such criteria

369

and procedures prior to adoption. The procedures shall provide

370

for an appeal process within the county or municipality for

371

objections to the prequalification process with de novo review

372

based on the record below to the circuit court.

373

     (c) The county or municipality, as appropriate, shall also

374

publish for comment, prior to adoption, the selection criteria

375

and procedures to be used by the county or municipality if such

376

procedures would allow selection of other than the lowest

377

responsible bidder. The selection criteria shall include an

378

appeal process within the county or municipality with de novo

379

review based on the record below to the circuit court.

380

     Section 3.  This act shall take effect July 1, 2008.

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

Site Map
Session:   Bills ·   Calendars ·   Bound Journals ·   Citator ·   Search ·   Appropriations ·   Redistricting ·   Bill Information Reports
Committee Publications
Historical Information
Statutes:   Introduction ·   View Statutes ·   Search Statutes
Flsenate.gov
Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes.    Copyright © 2000-2019 State of Florida.     Privacy Statement     Contact Us     Get Acrobat Reader