Section 337.11, Florida Statutes 2004
337.11 Contracting authority of department; bids; emergency repairs, supplemental agreements, and change orders; combined design and construction contracts; progress payments; records; requirements of vehicle registration.--
(1) The department shall have authority to enter into contracts for the construction and maintenance of all roads designated as part of the State Highway System or the State Park Road System or of any roads placed under its supervision by law. The department shall also have authority to enter into contracts for the construction and maintenance of rest areas, weigh stations, and other structures, including roads, parking areas, supporting facilities and associated buildings used in connection with such facilities. However, no such contract shall create any third-party beneficiary rights in any person not a party to the contract.
(2) The department shall ensure that all project descriptions, including design plans, are complete, accurate, and up to date prior to the advertisement for bids on such projects.
(3)(a) On all construction contracts of $250,000 or less, the department shall advertise for bids in a newspaper having general circulation in the county where the proposed work is located. Publication shall be at least once a week for no less than 2 consecutive weeks, and the first publication shall be no less than 14 days prior to the date on which bids are to be received.
(b) On all construction contracts greater than $250,000, the department shall provide a bid solicitation notice to all prequalified contractors at least 2 weeks before the date bids are scheduled to be received.
(c) No advertisement for bids shall be published and no bid solicitation notice shall be provided until title to all necessary rights-of-way and easements for the construction of the project covered by such advertisement or notice has vested in the state or a local governmental entity, and all railroad crossing and utility agreements have been executed. The turnpike enterprise is exempt from this paragraph for a turnpike enterprise project. Title to all necessary rights-of-way shall be deemed to have been vested in the State of Florida when such title has been dedicated to the public or acquired by prescription.
(4) The department may award the proposed construction and maintenance work to the lowest responsible bidder, or in the instance of a time-plus-money contract, the lowest evaluated responsible bidder, or it may reject all bids and proceed to rebid the work in accordance with subsection (2) or otherwise perform the work.
(5)(a) Any person who files an action protesting a bid solicitation, a bid rejection, or an award pursuant to this section shall post with the department, at the time of filing a notice of protest, a bond payable to the department in the following amounts:
1. For an action protesting a bid solicitation that requires qualification of bidders, the bond shall be $5,000.
2. For an action protesting a bid rejection or contract award that requires qualification of bidders, the bond shall be equal to 1 percent of the lowest bid submitted or $5,000, whichever is greater.
3. For an action protesting a bid solicitation, bid rejection, or contract award that does not require qualification of bidders, the bond shall be $2,500.
(b) The bond required by this subsection shall be conditioned upon the payment of all costs which may be adjudged against the person filing the protest in the administrative hearing in which the action is brought and any subsequent appellate court proceeding. If, after completion of the administrative hearing process and any appellate court proceedings, the department prevails, it shall recover all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. Upon payment of such costs and charges by the person filing the protest, the bond shall be returned to him or her. If the person filing the protest prevails, he or she shall recover from the department all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. The entire amount of the bond shall be forfeited if the administrative law judge determines that a protest was filed for a frivolous or improper purpose, including, but not limited to, the purpose of harassing, causing unnecessary delay, or causing needless cost for the department or parties.
(c) As an alternative to any provision in s. 120.57(3)(c), the department may proceed with the bid solicitation or contract award process when the head of the department sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the contract award process in order to avoid a substantial loss of funding to the state.
(d) A person may not file a protest on any project for which he or she is not certified to bid pursuant to s. 337.14.
(6)(a) If the secretary determines that an emergency in regard to the restoration or repair of any state transportation facility exists such that the delay incident to giving opportunity for competitive bidding would be detrimental to the interests of the state, the provisions for competitive bidding do not apply; and the department may enter into contracts for restoration or repair without giving opportunity for competitive bidding on such contracts. Within 30 days after such determination and contract execution, the head of the department shall file with the Executive Office of the Governor a written statement of the conditions and circumstances constituting such emergency.
(b) If the secretary determines that delays on a contract for maintenance exist due to administrative challenges, bid protests, defaults or terminations and the further delay would reduce safety on the transportation facility or seriously hinder the department's ability to preserve the state's investment in that facility, competitive bidding provisions may be waived and the department may enter into a contract for maintenance on the facility. However, contracts for maintenance executed under the provisions of this paragraph shall be interim in nature and shall be limited in duration to a period of time not to exceed the length of the delay necessary to complete the competitive bidding process and have the contract in place.
(c) When the department determines that it is in the best interest of the public for reasons of public concern, economy, improved operations or safety, and only when circumstances dictate rapid completion of the work, the department may, up to the amount of $120,000, enter into contracts for construction and maintenance without advertising and receiving competitive bids. The department may enter into such contracts only upon a determination that the work is necessary for one of the following reasons:
1. To ensure timely completion of projects or avoidance of undue delay for other projects;
2. To accomplish minor repairs or construction and maintenance activities for which time is of the essence and for which significant cost savings would occur; or
3. To accomplish nonemergency work necessary to ensure avoidance of adverse conditions that affect the safe and efficient flow of traffic.
The department shall make a good faith effort to obtain two or more quotes, if available, from qualified contractors before entering into any contract. The department shall give consideration to disadvantaged business enterprise participation. However, when the work exists within the limits of an existing contract, the department shall make a good faith effort to negotiate and enter into a contract with the prime contractor on the existing contract.
(7)1(a) If the head of the department determines that it is in the best interests of the public, the department may combine the right-of-way services and design and construction phases of a building, a major bridge, a limited access facility, or a rail corridor project into a single contract. Such contract is referred to as a design-build contract. Design-build contracts may be advertised and awarded notwithstanding the requirements of paragraph (3)(c). However, construction activities may not begin on any portion of such projects until title to the necessary rights-of-way and easements for the construction of that portion of the project has vested in the state or a local governmental entity and all railroad crossing and utility agreements have been executed. Title to rights-of-way vests in the state when the title has been dedicated to the public or acquired by prescription.
(b) The department shall adopt by rule procedures for administering design-build contracts. Such procedures shall include, but not be limited to:
1. Prequalification requirements.
2. Public announcement procedures.
3. Scope of service requirements.
4. Letters of interest requirements.
5. Short-listing criteria and procedures.
6. Bid proposal requirements.
7. Technical review committee.
8. Selection and award processes.
(c) The department must receive at least three letters of interest in order to proceed with a request for proposals. The department shall request proposals from no fewer than three of the design-build firms submitting letters of interest. If a design-build firm withdraws from consideration after the department requests proposals, the department may continue if at least two proposals are received.
(8)(a) The department shall permit the use of written supplemental agreements and written change orders to any contract entered into by the department. Any supplemental agreement shall be reduced to written contract form, approved by the contractor's surety, and executed by the contractor and the department. Any supplemental agreement modifying any item in the original contract must be approved by the head of the department, or his or her designee, and executed by the appropriate person designated by him or her.
(b) Supplemental agreements shall be used to clarify the plans and specifications of a contract; to provide for major quantity differences which result in the contractor's work effort exceeding the original contract amount by more than 5 percent; to provide for unforeseen work, grade changes, or alterations in plans which could not reasonably have been contemplated or foreseen in the original plans and specifications; to change the limits of construction to meet field conditions; to provide a safe and functional connection to an existing pavement; to settle contract claims; and to make the project functionally operational in accordance with the intent of the original contract. Supplemental agreements may be used to expand the physical limits of a project only to the extent necessary to make the project functionally operational in accordance with the intent of the original contract. The cost of any such agreement extending the physical limits of a project shall not exceed $100,000 or 10 percent of the original contract price, whichever is greater.
(c) Written change orders may be issued by the department and accepted by the contractor covering minor changes in the plans, specifications, or quantities of work within the scope of a contract, when prices for the items of work affected are previously established in the contract, but in no event may such change orders extend the physical limits of the work.
(d) For the purpose of this section, the term "physical limits" means the length or width of any project and specifically includes drainage facilities not running parallel to the project. The length and width of temporary connections affected by such supplemental agreements shall be established in accordance with current engineering practice.
(e) Upon completion and final inspection of the contract work, the department may accept the improvement if it is in substantial compliance with the plans, specifications, special provisions, proposals, and contract and if a proper adjustment in the contract price is made.
(f) Any supplemental agreement or change order in violation of this section is null and void and unenforceable for payment.
(9) The department shall preserve all records which reflect the quantities of materials used in the construction of any road project supervised by the department for a period of 3 years after final acceptance. This requirement is equally binding when materials are purchased by prime contractors or subcontractors.
(10)(a) Every contract let by the department for the performance of work shall contain a provision requiring the prime contractor, before receipt of any progress payment under the provisions of such contract, to certify that the prime contractor has disbursed to all subcontractors and suppliers having an interest in the contract their pro rata shares of the payment out of previous progress payments received by the prime contractor for all work completed and materials furnished in the previous period, less any retainage withheld by the prime contractor pursuant to an agreement with a subcontractor, as approved by the department for payment. The department shall not make any such progress payment before receipt of such certification, unless the contractor demonstrates good cause for not making any such required payment and furnishes written notification of any such good cause to both the department and the affected subcontractors and suppliers.
(b) Every contract let by the department for the performance of work shall contain a provision requiring the prime contractor, within 30 days of receipt of the final progress payment or any other payments received thereafter except the final payment, to pay all subcontractors and suppliers having an interest in the contract their pro rata shares of the payment for all work completed and materials furnished, unless the contractor demonstrates good cause for not making any such required payment and furnishes written notification of any such good cause to both the department and the affected subcontractors or suppliers within such 30-day period.
(c) The department shall document and monitor claims of nonpayment of prime contractors, subcontractors, and suppliers. The claims shall be submitted to the department in writing, and the department shall maintain, in a central file, a record of each claim, specifying the claimant and the nature and the resolution of the claim.
(11) Notwithstanding any other provision of law to the contrary, the department has unilateral authority to pay the contractor the sums the department determines to be due to the contractor for work performed on a project. This unilateral authority to pay by the department does not preclude or limit the rights of the department and the contractor to negotiate and agree to the amounts to be paid to the contractor. By acceptance of any such unilateral payment, the contractor does not waive any rights the contractor may have against the department for payment of any additional sums the contractor claims are due for the work.
(12) Each contract let by the department for the performance of road or bridge construction or maintenance work shall contain a provision requiring the contractor to provide proof to the department, in the form of a notarized affidavit from the contractor, that all motor vehicles that he or she operates or causes to be operated in this state are registered in compliance with chapter 320.
(13) Each contract let by the department for performance of road or bridge construction or maintenance work must contain a traffic maintenance plan which shows the appropriate regulatory speed signs and traffic control devices for the work zone area as defined in s. 316.003.
(14) When the department determines that it is in the best interest of the public, the department may enter into a contract with an electric utility as defined in s. 366.02(2) for the construction or maintenance of lighting on poles owned by the electric utility and located within a road right-of-way without competitive bidding. In any contract entered into without competition, the individuals taking part in the evaluation or award process shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected.
(15) The department shall have the authority to develop procedures for the administration of maintenance contracts. In addition to the other contract administration matters, the procedures shall address advertising and bid solicitation for maintenance contracts and each bid solicitation notice shall contain specific requirements, if any are deemed necessary by the department for maintenance contractor eligibility.
History.--s. 90, ch. 29965, 1955; s. 1, ch. 61-432; s. 1, ch. 61-443; s. 1, ch. 61-222; s. 1, ch. 65-4; s. 5, ch. 67-461; s. 1, ch. 69-315; s. 1, ch. 69-392; ss. 23, 35, ch. 69-106; s. 1, ch. 70-325; s. 114, ch. 71-377; s. 1, ch. 72-88; s. 1, ch. 75-6; s. 3, ch. 76-85; s. 1, ch. 84-277; s. 139, ch. 84-309; s. 32, ch. 86-243; s. 1, ch. 87-93; s. 5, ch. 87-100; s. 1, ch. 87-104; s. 1, ch. 87-162; s. 6, ch. 88-91; s. 5, ch. 88-93; s. 14, ch. 88-168; s. 1, ch. 89-160; s. 12, ch. 89-301; s. 46, ch. 90-136; s. 120, ch. 92-152; s. 27, ch. 93-164; s. 14, ch. 94-237; s. 963, ch. 95-148; s. 35, ch. 95-196; s. 26, ch. 95-257; s. 36, ch. 96-323; s. 70, ch. 96-410; s. 1, ch. 99-345; s. 18, ch. 99-385; ss. 2, 4, ch. 2001-350; ss. 10, 11, 12, ch. 2002-20.
1Note.--Section 12, ch. 2002-20, amended paragraph (7)(a), effective July 1, 2005, to read:
(7)(a) If the head of the department determines that it is in the best interests of the public, the department may combine the design and construction phases of a building, a major bridge, a limited access facility, or a rail corridor project into a single contract. Such contract is referred to as a design-build contract. Design-build contracts may be advertised and awarded notwithstanding the requirements of paragraph (3)(c). However, construction activities may not begin on any portion of such projects until title to the necessary rights-of-way and easements for the construction of that portion of the project has vested in the state or a local governmental entity and all railroad crossing and utility agreements have been executed. Title to rights-of-way vests in the state when the title has been dedicated to the public or acquired by prescription.