Florida Senate - 2013                                     SB 602
       
       
       
       By Senator Hukill
       
       
       
       
       8-00987-13                                             2013602__
    1                        A bill to be entitled                      
    2         An act relating to local bids and contracts for public
    3         construction works; amending s. 255.20, F.S.;
    4         eliminating specified conditions under which a local
    5         government is exempt from the requirement to
    6         competitively award contracts; providing an effective
    7         date.
    8  
    9  Be It Enacted by the Legislature of the State of Florida:
   10  
   11         Section 1. Paragraph (c) of subsection (1) of section
   12  255.20, Florida Statutes, is amended to read:
   13         255.20 Local bids and contracts for public construction
   14  works; specification of state-produced lumber.—
   15         (1) A county, municipality, special district as defined in
   16  chapter 189, or other political subdivision of the state seeking
   17  to construct or improve a public building, structure, or other
   18  public construction works must competitively award to an
   19  appropriately licensed contractor each project that is estimated
   20  in accordance with generally accepted cost-accounting principles
   21  to cost more than $300,000. For electrical work, the local
   22  government must competitively award to an appropriately licensed
   23  contractor each project that is estimated in accordance with
   24  generally accepted cost-accounting principles to cost more than
   25  $75,000. As used in this section, the term “competitively award”
   26  means to award contracts based on the submission of sealed bids,
   27  proposals submitted in response to a request for proposal,
   28  proposals submitted in response to a request for qualifications,
   29  or proposals submitted for competitive negotiation. This
   30  subsection expressly allows contracts for construction
   31  management services, design/build contracts, continuation
   32  contracts based on unit prices, and any other contract
   33  arrangement with a private sector contractor permitted by any
   34  applicable municipal or county ordinance, by district
   35  resolution, or by state law. For purposes of this section, cost
   36  includes the cost of all labor, except inmate labor, and the
   37  cost of equipment and materials to be used in the construction
   38  of the project. Subject to the provisions of subsection (3), the
   39  county, municipality, special district, or other political
   40  subdivision may establish, by municipal or county ordinance or
   41  special district resolution, procedures for conducting the
   42  bidding process.
   43         (c) The provisions of this subsection do not apply:
   44         1. If the project is undertaken to replace, reconstruct, or
   45  repair an existing public building, structure, or other public
   46  construction works damaged or destroyed by a sudden unexpected
   47  turn of events such as an act of God, riot, fire, flood,
   48  accident, or other urgent circumstances, and such damage or
   49  destruction creates:
   50         a. An immediate danger to the public health or safety;
   51         b. Other loss to public or private property which requires
   52  emergency government action; or
   53         c. An interruption of an essential governmental service.
   54         2. If, after notice by publication in accordance with the
   55  applicable ordinance or resolution, the governmental entity does
   56  not receive any responsive bids or proposals.
   57         3. To construction, remodeling, repair, or improvement to a
   58  public electric or gas utility system if such work on the public
   59  utility system is performed by personnel of the system.
   60         4. To construction, remodeling, repair, or improvement by a
   61  utility commission whose major contracts are to construct and
   62  operate a public electric utility system.
   63         5. If the project is undertaken as repair or maintenance of
   64  an existing public facility. For the purposes of this paragraph,
   65  the term “repair” means a corrective action to restore an
   66  existing public facility to a safe and functional condition and
   67  the term “maintenance” means a preventive or corrective action
   68  to maintain an existing public facility in an operational state
   69  or to preserve the facility from failure or decline. Repair or
   70  maintenance includes activities that are necessarily incidental
   71  to repairing or maintaining the facility. Repair or maintenance
   72  does not include the construction of any new building,
   73  structure, or other public construction works or any substantial
   74  addition, extension, or upgrade to an existing public facility.
   75  Such additions, extensions, or upgrades shall be considered
   76  substantial if the estimated cost of the additions, extensions,
   77  or upgrades included as part of the repair or maintenance
   78  project exceeds the threshold amount in subsection (1) and
   79  exceeds 20 percent of the estimated total cost of the repair or
   80  maintenance project using generally accepted cost-accounting
   81  principles that fully account for all costs associated with
   82  performing and completing the work, including employee
   83  compensation and benefits, equipment cost and maintenance,
   84  insurance costs, and materials. An addition, extension, or
   85  upgrade shall not be considered substantial if it is undertaken
   86  pursuant to the conditions specified in subparagraph 1. Repair
   87  and maintenance projects and any related additions, extensions,
   88  or upgrades may not be divided into multiple projects for the
   89  purpose of evading the requirements of this subparagraph.
   90         6. If the project is undertaken exclusively as part of a
   91  public educational program.
   92         7. If the funding source of the project will be diminished
   93  or lost because the time required to competitively award the
   94  project after the funds become available exceeds the time within
   95  which the funding source must be spent.
   96         8. If the local government competitively awarded a project
   97  to a private sector contractor and the contractor abandoned the
   98  project before completion or the local government terminated the
   99  contract.
  100         9. If the governing board of the local government complies
  101  with all of the requirements of this subparagraph, conducts a
  102  public meeting under s. 286.011 after public notice, and finds
  103  by majority vote of the governing board that it is in the
  104  public’s best interest to perform the project using its own
  105  services, employees, and equipment. The public notice must be
  106  published at least 21 days before the date of the public meeting
  107  at which the governing board takes final action. The notice must
  108  identify the project, the components and scope of the work, and
  109  the estimated cost of the project using generally accepted cost
  110  accounting principles that fully account for all costs
  111  associated with performing and completing the work, including
  112  employee compensation and benefits, equipment cost and
  113  maintenance, insurance costs, and materials. The notice must
  114  specify that the purpose for the public meeting is to consider
  115  whether it is in the public’s best interest to perform the
  116  project using the local government’s own services, employees,
  117  and equipment. Upon publication of the public notice and for 21
  118  days thereafter, the local government shall make available for
  119  public inspection, during normal business hours and at a
  120  location specified in the public notice, a detailed itemization
  121  of each component of the estimated cost of the project and
  122  documentation explaining the methodology used to arrive at the
  123  estimated cost. At the public meeting, any qualified contractor
  124  or vendor who could have been awarded the project had the
  125  project been competitively bid shall be provided with a
  126  reasonable opportunity to present evidence to the governing
  127  board regarding the project and the accuracy of the local
  128  government’s estimated cost of the project. In deciding whether
  129  it is in the public’s best interest for the local government to
  130  perform a project using its own services, employees, and
  131  equipment, the governing board must consider the estimated cost
  132  of the project and the accuracy of the estimated cost in light
  133  of any other information that may be presented at the public
  134  meeting and whether the project requires an increase in the
  135  number of government employees or an increase in capital
  136  expenditures for public facilities, equipment, or other capital
  137  assets. The local government may further consider the impact on
  138  local economic development, the impact on small and minority
  139  business owners, the impact on state and local tax revenues,
  140  whether the private sector contractors provide health insurance
  141  and other benefits equivalent to those provided by the local
  142  government, and any other factor relevant to what is in the
  143  public’s best interest.
  144         9.10. If the governing board of the local government
  145  determines upon consideration of specific substantive criteria
  146  that it is in the best interest of the local government to award
  147  the project to an appropriately licensed private sector
  148  contractor pursuant to administrative procedures established by
  149  and expressly set forth in a charter, ordinance, or resolution
  150  of the local government adopted before July 1, 1994. The
  151  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 awarding a project in an arbitrary or
  154  capricious manner. This exception applies only if all of the
  155  following occur:
  156         a. 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  before the date of the public meeting at which the governing
  163  board takes final action. The notice must identify the project,
  164  the estimated cost of the project, and specify that the purpose
  165  for the public meeting is to consider whether it is in the
  166  public’s best interest to award the project using the criteria
  167  and procedures permitted by the preexisting charter, ordinance,
  168  or resolution.
  169         b. The project is to be awarded by any method other than a
  170  competitive selection process, and the governing board finds
  171  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, materially increase the
  178  cost of the project, or create an undue hardship on the public
  179  health, safety, or welfare.
  180         c. The project is to be awarded by any method other than a
  181  competitive selection process, and the published notice clearly
  182  specifies the ordinance or resolution by which the private
  183  sector contractor will be selected and the criteria to be
  184  considered.
  185         d. The project is to be awarded by a method other than a
  186  competitive selection process, and the architect or engineer of
  187  record has provided a written recommendation that the project be
  188  awarded to the private sector contractor without competitive
  189  selection, and the consideration by, and the justification of,
  190  the government body are documented, in writing, in the project
  191  file and are presented to the governing board prior to the
  192  approval required in this paragraph.
  193         10.11. To projects subject to chapter 336.
  194         Section 2. This act shall take effect July 1, 2013.