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Florida Senate - 2008 COMMITTEE AMENDMENT

Bill No. SB 2148

084022

CHAMBER ACTION

Senate

Comm: WD

4/17/2008

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House



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The Committee on Community Affairs (Haridopolos) recommended the

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following amendment:

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     Senate Amendment (with title amendment)

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     Delete everything after the enacting clause

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and insert:

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

9

Statutes, is amended to read:

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     255.20  Local bids and contracts for public construction

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works; specification of state-produced lumber.--

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

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chapter 189, or other political subdivision of the state seeking

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

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public building, structure, or other public construction works

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must competitively award to an appropriately licensed contractor

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each project that is estimated in accordance with generally

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accepted cost-accounting principles to have total construction

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

20

government must competitively award to an appropriately licensed

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contractor each project that is estimated in accordance with

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generally accepted cost-accounting principles to have a cost of

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more than $50,000. As used in this section, the term

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"competitively award" means to award contracts based on the

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submission of sealed bids, proposals submitted in response to a

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request for proposal, proposals submitted in response to a

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request for qualifications, or proposals submitted for

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competitive negotiation. This subsection expressly allows

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contracts for construction management services, design/build

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contracts, continuation contracts based on unit prices, and any

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other contract arrangement with a private sector contractor

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permitted by any applicable municipal or county ordinance, by

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

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

35

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

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

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

38

district, or other political subdivision may establish, by

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municipal or county ordinance or special district resolution,

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procedures for conducting the bidding process.

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

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

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or other political subdivision of the state seeking to construct

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

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

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require that persons interested in performing work under contract

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first be certified or qualified to perform such work. Any

48

contractor may be considered ineligible to bid by the

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governmental entity if the contractor is behind on completing an

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approved progress schedule for the governmental entity by 10

51

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

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contractor prequalified and considered eligible by the Department

53

of Transportation to bid to perform the type of work described

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under the contract shall be presumed to be qualified to perform

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the work described. The governmental entity may provide an appeal

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process to overcome that presumption with de novo review based on

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the record below to the circuit court.

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     (b)  With respect to contractors not prequalified with the

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Department of Transportation, the governmental entity shall

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publish prequalification criteria and procedures prior to

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advertisement or notice of solicitation. Such publications shall

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include notice of a public hearing for comment on such criteria

63

and procedures prior to adoption. The procedures shall provide

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for an appeal process within the authority for objections to the

65

prequalification process with de novo review based on the record

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below to the circuit court within 30 days.

67

     (c)  The provisions of this subsection do not apply:

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     1.  When the project is undertaken to replace, reconstruct,

69

or repair an existing public building, structure, or other public

70

construction works facility damaged or destroyed by a sudden

71

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

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

73

or destruction creates:

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

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     b.  Other loss to public or private property which requires

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emergency government action; or

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     c.  An interruption of an essential governmental service.

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

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applicable ordinance or resolution, the governmental entity does

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not receive any responsive bids or proposals responses.

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

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public electric or gas utility system when such work on the

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public utility system is performed by personnel of the system.

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

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utility commission whose major contracts are to construct and

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operate a public electric utility system.

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     5. When the project is undertaken as repair or maintenance

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of an existing public facility.

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     5.6. When the project is undertaken exclusively as part of

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a public educational program.

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     6.7. When the funding source of the project will be

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diminished or lost because the time required to competitively

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award the project after the funds become available exceeds the

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time within which the funding source must be spent, so long as

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the governmental entity undertaking the project has not

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materially contributed to a delay in funding or competitively

97

awarding the project.

98

     7.8. When the local government has competitively awarded a

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project to a private sector contractor and the contractor has

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abandoned the project before completion or the local government

101

has terminated the contract.

102

     8.9. When the local government, after receiving competitive

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bids or proposals, decides to perform the project using its own

104

services, employees, and equipment in compliance with the

105

procedure in this subparagraph. If the local government receives

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bids or proposals that are otherwise responsive but are all at

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least 10 percent greater than the local government's estimated

108

cost of the project, the governing board of the local government,

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after public notice, must conduct conducts a public meeting under

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s. 286.011 and decide finds by a majority vote of the governing

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

112

project using its own services, employees, and equipment. The

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public notice must be published at least 14 days prior to the

114

date of the public meeting at which the governing board takes

115

final action to apply this subparagraph. The notice must identify

116

the project and, the estimated cost of the project, and specify

117

that the purpose for the public meeting is to consider whether it

118

is in the public's best interest to perform the project using the

119

local government's own services, employees, and equipment. A

120

local government's determination In deciding whether it is in the

121

public's best interest for local government to perform a project

122

using its own services, employees, and equipment must be

123

supported by the following factual findings, which are subject to

124

challenge under subsection (4):

125

     a. The local government's estimated cost of the project as

126

specified in the bid documents reasonably represents the fair

127

market cost of performing the project using private-sector

128

contractors; and

129

     b. The local government can perform the project using its

130

own services, employees, and equipment at a cost equal to or less

131

than its estimated cost of the project, using generally accepted

132

accounting principles that fully account for all employee

133

compensation and benefits, equipment, and material costs and any

134

other associated costs and expenses, the governing board may

135

consider the cost of the project, whether the project requires an

136

increase in the number of government employees, an increase in

137

capital expenditures for public facilities, equipment or other

138

capital assets, the impact on local economic development, the

139

impact on small and minority business owners, the impact on state

140

and local tax revenues, whether the private sector contractors

141

provide health insurance and other benefits equivalent to those

142

provided by the local government, and any other factor relevant

143

to what is in the public's best interest.

144

     9.10. When the governing board of the local government

145

determines upon consideration of specific substantive criteria

146

and administrative procedures that it is in the best interest of

147

the local government to award the project to an appropriately

148

licensed private sector contractor according to procedures

149

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

150

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

151

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

152

ordinance, or resolution and must be applied uniformly by the

153

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

154

capricious manner. This exception shall apply when all of the

155

following occur:

156

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

157

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

158

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

159

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

160

criteria and procedures established by charter, ordinance, or

161

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

162

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

163

board takes final action to apply this subparagraph. The notice

164

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

165

specify that the purpose for the public meeting is to consider

166

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

167

using the criteria and procedures permitted by the preexisting

168

ordinance.

169

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

170

method other than a competitive selection process, the governing

171

board must find evidence that:

172

     (I)  There is one appropriately licensed contractor who is

173

uniquely qualified to undertake the project because that

174

contractor is currently under contract to perform work that is

175

affiliated with the project; or

176

     (II)  The time to competitively award the project will

177

jeopardize the funding for the project, or will materially

178

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

179

on the public health, safety, or welfare.

180

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

181

method other than a competitive selection process, the published

182

notice must clearly specify the ordinance or resolution by which

183

the private sector contractor will be selected and the criteria

184

to be considered.

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

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other than a competitive selection process, the architect or

187

engineer of record has provided a written recommendation that the

188

project be awarded to the private sector contractor without

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competitive selection; and the consideration by, and the

190

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

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in the project file and are presented to the governing board

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prior to the approval required in this paragraph.

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     10.11. To projects subject to chapter 336.

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     (d)1.  If the project is to be awarded based on price, the

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contract must be awarded to the lowest qualified and responsive

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bidder in accordance with the applicable county or municipal

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ordinance or district resolution and in accordance with the

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applicable contract documents. The county, municipality, or

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

200

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

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subsection is not intended to restrict the rights of any local

202

government to reject the low bid of a nonqualified or

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nonresponsive bidder and to award the contract to any other

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qualified and responsive bidder in accordance with the standards

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and procedures of any applicable county or municipal ordinance or

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any resolution of a special district.

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

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for qualifications, the request must be publicly advertised and

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the contract must be awarded in accordance with the applicable

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local ordinances.

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     3.  If the project is subject to competitive negotiations,

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the contract must be awarded in accordance with s. 287.055.

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     (e)  If a construction project greater than $200,000, or

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$50,000 for electrical work, is started after October 1, 1999,

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

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employees in a county or municipality that issues registered

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contractor licenses and the project would require a licensed

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contractor under chapter 489 if performed by a private sector

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contractor, the local government must use a person appropriately

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registered or certified under chapter 489 to supervise the work.

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     (f)  If a construction project greater than $200,000, or

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$50,000 for electrical work, is started after October 1, 1999,

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

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employees in a county that does not issue registered contractor

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licenses and the project would require a licensed contractor

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under chapter 489 if performed by a private sector contractor,

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the local government must use a person appropriately registered

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or certified under chapter 489 or a person appropriately licensed

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under chapter 471 to supervise the work.

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

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services and employees must be inspected in the same manner as

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inspections required for work performed by private sector

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contractors.

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     (h)  A construction project provided for in this subsection

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

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evading this subsection.

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     (i)  This subsection does not preempt the requirements of

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any small-business or disadvantaged-business enterprise program

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or any local-preference ordinance.

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

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provision contained in a public construction contract with a

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

243

or other political subdivision of the state which purports to

244

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

245

to recover costs or damages for delay in performing such

246

contract, on its behalf or on behalf of its subcontractors, if

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and to the extent the delay is caused by acts or omissions of the

248

county, municipality, special district, or political subdivision,

249

its agents or employees, or other entities with which it is in

250

privity and due to causes within its control, is void and

251

unenforceable as against public policy. The decisions of a

252

county, municipality, special district, or other political

253

subdivision concerning additional compensation or time to which a

254

contractor is entitled in connection with any public construction

255

contract is subject to de novo review in a state court of

256

appropriate jurisdiction. This paragraph does not make void any

257

provision in such construction contract which provides for

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reasonable liquidated damages in case of a delay to the

259

completion of the project for which the contractor is responsible

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or which provides for reasonable liquidated damages to fairly

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compensate the contractor for its indirect costs and overhead

262

expenses associated with a delay.

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     (k) A local government owning or operating a public-use

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airport, as defined in s. 332.04(1), is exempt from this section

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if performing repairs or maintenance on the airport's buildings,

266

structures, or public construction works using the local

267

government's own services, employees, and equipment, regardless

268

of the total construction cost. A public construction contract

269

with such a local government for any construction, improvement,

270

repair, or maintenance work performed on a public-use airport is

271

not subject to paragraph (j).

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     (l) A local government owning or operating a seaport, as

273

identified in s. 403.021(9)(b), is exempt from this section if

274

performing repairs or maintenance on the seaport's buildings,

275

structures, or public construction works using the local

276

government's own services, employees, and equipment, regardless

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of the total construction cost. A public construction contract

278

with such a local government for any construction, improvement,

279

repair, or maintenance work performed on a public seaport is not

280

subject to paragraph (j).

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

282

read:

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     336.41 Counties and municipalities; employing labor and

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providing road equipment; accounting; when competitive bidding

285

required.--

286

     (1) The commissioners may employ labor and provide

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equipment as may be necessary, except as provided in subsection

288

(3), for constructing and opening of new roads or bridges and

289

repair and maintenance of any existing roads and bridges.

290

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

291

governing body of a county or municipality delivers commissioners

292

deliver equipment and construction materials supplies for road

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and bridge purposes to make a strict accounting of the same to

294

the governing body commissioners.

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     (2)(a)(3) The governing body of a county or municipality

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shall competitively award to a private-sector contractor all

297

construction, and reconstruction, or repair of roads and bridges,

298

including resurfacing, full scale mineral seal coating, and major

299

bridge and bridge system repairs., to be performed utilizing the

300

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

301

constitutional gas tax shall be let to contract to the lowest

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responsible bidder by competitive bid

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

304

municipality may use its own forces, except for:

305

     1.(a) Construction and maintenance in emergency

306

situations., and

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

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reconstruction, or repair of roads and bridges, including

309

resurfacing, full-scale mineral seal coating, and major bridge

310

and bridge system repairs. However:, having a total cumulative

311

annual value not to exceed 5 percent of its 80-percent portion of

312

the constitutional gas tax or $400,000, whichever is greater, and

313

     a. A single project may not exceed $250,000 in value or as

314

adjusted by the percentage change in the Construction Cost Index

315

dated January 1, 2009, exclusive of materials purchased in

316

accordance with sub-subparagraph c.

317

     b. A project under this subsection may not be divided into

318

more than one project for the purpose of avoiding the

319

requirements of this subsection.

320

     c. All materials for such projects must be purchased or

321

furnished from a commercial source, with the exception of

322

government-owned local material pits for sand, shell, gravel, and

323

rock existing before January 1, 2008.

324

     d. A county or municipality is not subject to the maximum

325

project value in sub-subparagraph a. for paving dirt roads only.

326

Such county or municipality is subject to sub-subparagraph c.

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

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ramps, or appurtenances incidental to roads and bridges if each

329

project is estimated in accordance with generally accepted cost-

330

accounting principles to have total construction project costs of

331

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

332

Construction Cost Index from January 1, 2008.,

333

334

for which the county may utilize its own forces.

335

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

336

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

337

county or municipality may use its own forces to construct the

338

project, notwithstanding the limitation of this subsection.

339

     (d) As used in this section, the term "competitively award"

340

means to award a contract based on the submission of sealed bids,

341

proposals submitted in response to a request for qualifications,

342

or proposals submitted for competitive negotiations. This

343

subsection expressly allows contracts for construction management

344

services, design-build contracts, continuation contracts based on

345

unit prices, and any other contract arrangement with a private-

346

sector contractor permitted by any applicable municipal or county

347

ordinance, by district resolution, or by state law.

348

     (e) For purposes of this section, the value of a project

349

includes the cost of all labor, except inmate labor, labor

350

burden, and equipment, including ownership, fuel, and maintenance

351

costs to be used in the construction and reconstruction of the

352

project.

353

     (f) Nothing in This section does not shall prevent the

354

county or municipality from performing routine maintenance as

355

authorized by law and defined in s. 334.03, including the grading

356

and shaping of dirt roads.

357

     (g) Notwithstanding any law to the contrary, a county,

358

municipality, or special district may not own or operate an

359

asphalt plant or a portable or stationary concrete batch plant

360

having an independent mixer.

361

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

362

or municipality may require that persons interested in performing

363

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

364

work. Any contractor prequalified and considered eligible to bid

365

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

366

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

367

described. Any contractor may be considered ineligible to bid by

368

the county or municipality if the contractor is behind an

369

approved progress schedule by 10 percent or more on another

370

project for that county or municipality at the time of the

371

advertisement of the work. The county or municipality may provide

372

an appeal process to overcome such consideration with de novo

373

review based on the record below to the circuit court.

374

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

375

publish prequalification criteria and procedures prior to

376

advertisement or notice of solicitation. Such publications shall

377

include notice of a public hearing for comment on such criteria

378

and procedures before prior to adoption. The procedures shall

379

provide for an appeal process within the county or municipality

380

for objections to the prequalification process with de novo

381

review based on the record below to the circuit court.

382

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

383

publish for comment, before prior to adoption, the selection

384

criteria and procedures to be used by the county or municipality

385

if such procedures would allow selection of other than the lowest

386

responsible bidder. The selection criteria shall include an

387

appeal process within the county or municipality with de novo

388

review based on the record below to the circuit court.

389

     Section 3.  Subsection (1) of section 336.44, Florida

390

Statutes, is amended, and subsection (6) is added to that

391

section, to read:

392

     336.44  Counties; contracts for construction of roads;

393

procedure; contractor's bond.--

394

     (1)  The commissioners shall let the work on roads out on

395

contract, in accordance with s. 336.41(2) s. 336.41(3).

396

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

397

provision contained in any public construction contract with a

398

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

399

or other political subdivision of the state which purports to

400

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

401

to recover costs or damages for delay in performing such

402

contract, on its behalf or on behalf of its subcontractors, if

403

and to the extent the delay is caused by acts or omissions of the

404

county, municipality, special district, or political subdivision,

405

its agents or employees, or other entities with which it is in

406

privity and due to causes within its control, is void and

407

unenforceable as against public policy. A decision of a county,

408

municipality, special district, or other political subdivision

409

concerning additional compensation or time to which a contractor

410

is entitled in connection with any public construction contract

411

is subject to de novo review in a state court of appropriate

412

jurisdiction. This subsection does make void any provision in

413

such construction contract which provides for reasonable

414

liquidated damages in case of a delay to the completion of the

415

project for which the contractor is responsible or which provides

416

for reasonable liquidated damages to fairly compensate the

417

contractor for its indirect costs and overhead expenses

418

associated with a delay. A public construction contract with a

419

local government owning or operating a public-use airport, as

420

defined in s. 332.04(1), is not required to comply with this

421

section for any construction, improvement, repair, or maintenance

422

work performed on a public-use airport. A public construction

423

contract with a local government owning or operating a seaport,

424

as identified in s. 403.021(9)(b), is not required to comply with

425

this section for any construction, improvement, repair, or

426

maintenance work performed on a public seaport.

427

     Section 4.  This act shall take effect July 1, 2008.

428

429

================ T I T L E  A M E N D M E N T ================

430

And the title is amended as follows:

431

     Delete everything before the enacting clause

432

and insert:

433

A bill to be entitled

434

An act relating to public construction works; amending

435

s. 255.20, F.S.; revising provisions requiring a

436

county, municipality, special district, or other

437

political subdivision of the state to competitively

438

award contracts for certain construction projects;

439

revising exceptions to such requirements; revising

440

provisions relating to an exemption for projects

441

performed by a local government using its own services,

442

employees, and equipment; providing that certain

443

construction contract terms purporting to limit

444

recovery of certain costs or damages by a contractor

445

are void; providing that certain decisions by the local

446

governmental entity concerning additional compensation

447

or time to which a contractor is entitled are subject

448

to de novo review in state court; providing an

449

exception; exempting a local government owning or

450

operating a public-use airport from specified

451

requirements if performing certain tasks relating to

452

the airport's buildings, structures, or public

453

construction works; exempting a local government owning

454

or operating a seaport from specified requirements when

455

performing certain tasks relating to the seaport's

456

buildings, structures, or public construction works;

457

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

458

authorizing a county to employ labor and provide

459

equipment for road and bridge projects; removing a

460

provision authorizing a county to use its own resources

461

for constructing and opening new roads and bridges;

462

revising requirements regarding contracting for certain

463

county road and bridge projects; requiring that certain

464

contracts be competitively awarded; authorizing a

465

county or municipality to use its own forces for

466

certain projects; providing restrictions and

467

limitations; providing for the purchase of materials

468

for such projects; providing that a county or

469

municipality is exempt from a certain restriction with

470

regard to paving dirt roads; defining the term

471

"competitively award" for specified purposes;

472

clarifying applicability of certain provisions;

473

specifying costs included in determining the value of a

474

project for certain purposes; revising provisions

475

allowing a county or municipality to perform routine

476

maintenance; prohibiting a county, municipality, or

477

special district from owning or operating an asphalt

478

plant or a portable or stationary concrete batch plant

479

with an independent mixer; authorizing a municipality

480

to require that persons interested in performing work

481

under the contract first be certified or qualified to

482

do the work when the contract amount exceeds a certain

483

threshold; providing that a contractor may be

484

considered ineligible to bid by the municipality if the

485

contractor is behind an approved progress schedule by

486

more than a certain amount on another project for that

487

municipality at the time of the advertisement of the

488

work requiring prequalification; authorizing an appeal

489

process; requiring that prequalification criteria and

490

procedures be published before advertisement or notice

491

of solicitation; requiring notice of a public hearing

492

for comment on such criteria and procedures before

493

adoption; requiring that the procedures provide for an

494

appeal process for objections to the prequalification

495

process; requiring the municipality to publish for

496

comment, before adoption, the selection criteria and

497

procedures to be used if such procedures would allow

498

selection of other than the lowest responsible bidder;

499

requiring that the selection criteria include an appeal

500

process; amending s. 336.44, F.S.; conforming a cross-

501

reference; providing that certain construction contract

502

terms purporting to limit recovery of certain costs or

503

damages by contractors are void; providing that certain

504

decisions by the local governmental entity concerning

505

additional compensation or time to which a contractor

506

is entitled are subject to de novo review in state

507

court; providing an exception; providing an effective

508

date.

4/1/2008  12:05:00 PM     26-06308A-08

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

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