Florida Senate - 2019                                     SB 806
       
       
        
       By Senator Perry
       
       
       
       
       
       8-00922A-19                                            2019806__
    1                        A bill to be entitled                      
    2         An act relating to local government public
    3         construction works; amending s. 255.20, F.S.;
    4         requiring the governing board of a local government to
    5         consider estimated costs of certain projects using
    6         generally accepted cost-accounting principles that
    7         account for specified costs when making a specified
    8         determination; prohibiting a local government from
    9         performing a project using its own services,
   10         employees, and equipment if the project requires an
   11         increase in the number of government employees or an
   12         increase in certain capital expenditures; requiring
   13         that a local government that performs projects using
   14         its own services, employees, and equipment disclose
   15         the actual costs of the project after completion to
   16         the Auditor General; requiring that the Auditor
   17         General review such disclosures as part of his or her
   18         routine audits of local governments; amending s.
   19         336.41, F.S.; requiring estimated total construction
   20         project costs for certain projects to include
   21         specified costs; providing an effective date.
   22          
   23  Be It Enacted by the Legislature of the State of Florida:
   24  
   25         Section 1. Paragraph (c) of subsection (1) of section
   26  255.20, Florida Statutes, is amended to read:
   27         255.20 Local bids and contracts for public construction
   28  works; specification of state-produced lumber.—
   29         (1) A county, municipality, special district as defined in
   30  chapter 189, or other political subdivision of the state seeking
   31  to construct or improve a public building, structure, or other
   32  public construction works must competitively award to an
   33  appropriately licensed contractor each project that is estimated
   34  in accordance with generally accepted cost-accounting principles
   35  to cost more than $300,000. For electrical work, the local
   36  government must competitively award to an appropriately licensed
   37  contractor each project that is estimated in accordance with
   38  generally accepted cost-accounting principles to cost more than
   39  $75,000. As used in this section, the term “competitively award”
   40  means to award contracts based on the submission of sealed bids,
   41  proposals submitted in response to a request for proposal,
   42  proposals submitted in response to a request for qualifications,
   43  or proposals submitted for competitive negotiation. This
   44  subsection expressly allows contracts for construction
   45  management services, design/build contracts, continuation
   46  contracts based on unit prices, and any other contract
   47  arrangement with a private sector contractor permitted by any
   48  applicable municipal or county ordinance, by district
   49  resolution, or by state law. For purposes of this section, cost
   50  includes the cost of all labor, except inmate labor, and the
   51  cost of equipment and materials to be used in the construction
   52  of the project. Subject to the provisions of subsection (3), the
   53  county, municipality, special district, or other political
   54  subdivision may establish, by municipal or county ordinance or
   55  special district resolution, procedures for conducting the
   56  bidding process.
   57         (c) The provisions of this subsection do not apply:
   58         1. If the project is undertaken to replace, reconstruct, or
   59  repair an existing public building, structure, or other public
   60  construction works damaged or destroyed by a sudden unexpected
   61  turn of events such as an act of God, riot, fire, flood,
   62  accident, or other urgent circumstances, and such damage or
   63  destruction creates:
   64         a. An immediate danger to the public health or safety;
   65         b. Other loss to public or private property which requires
   66  emergency government action; or
   67         c. An interruption of an essential governmental service.
   68         2. If, after notice by publication in accordance with the
   69  applicable ordinance or resolution, the governmental entity does
   70  not receive any responsive bids or proposals.
   71         3. To construction, remodeling, repair, or improvement to a
   72  public electric or gas utility system if such work on the public
   73  utility system is performed by personnel of the system.
   74         4. To construction, remodeling, repair, or improvement by a
   75  utility commission whose major contracts are to construct and
   76  operate a public electric utility system.
   77         5. If the project is undertaken as repair or maintenance of
   78  an existing public facility. For the purposes of this paragraph,
   79  the term “repair” means a corrective action to restore an
   80  existing public facility to a safe and functional condition and
   81  the term “maintenance” means a preventive or corrective action
   82  to maintain an existing public facility in an operational state
   83  or to preserve the facility from failure or decline. Repair or
   84  maintenance includes activities that are necessarily incidental
   85  to repairing or maintaining the facility. Repair or maintenance
   86  does not include the construction of any new building,
   87  structure, or other public construction works or any substantial
   88  addition, extension, or upgrade to an existing public facility.
   89  Such additions, extensions, or upgrades shall be considered
   90  substantial if the estimated cost of the additions, extensions,
   91  or upgrades included as part of the repair or maintenance
   92  project exceeds the threshold amount in subsection (1) and
   93  exceeds 20 percent of the estimated total cost of the repair or
   94  maintenance project using generally accepted cost-accounting
   95  principles that fully account for all costs associated with
   96  performing and completing the work, including employee
   97  compensation and benefits, equipment cost and maintenance,
   98  insurance costs, and materials. An addition, extension, or
   99  upgrade shall not be considered substantial if it is undertaken
  100  pursuant to the conditions specified in subparagraph 1. Repair
  101  and maintenance projects and any related additions, extensions,
  102  or upgrades may not be divided into multiple projects for the
  103  purpose of evading the requirements of this subparagraph.
  104         6. If the project is undertaken exclusively as part of a
  105  public educational program.
  106         7. If the funding source of the project will be diminished
  107  or lost because the time required to competitively award the
  108  project after the funds become available exceeds the time within
  109  which the funding source must be spent.
  110         8. If the local government competitively awarded a project
  111  to a private sector contractor and the contractor abandoned the
  112  project before completion or the local government terminated the
  113  contract.
  114         9. If the governing board of the local government complies
  115  with all of the requirements of this subparagraph, conducts a
  116  public meeting under s. 286.011 after public notice, and finds
  117  by majority vote of the governing board that it is in the
  118  public’s best interest to perform the project using its own
  119  services, employees, and equipment. The public notice must be
  120  published at least 21 days before the date of the public meeting
  121  at which the governing board takes final action. The notice must
  122  identify the project, the components and scope of the work, and
  123  the estimated cost of the project using generally accepted cost
  124  accounting principles that fully account for all costs
  125  associated with performing and completing the work, including
  126  employee compensation and benefits, equipment cost and
  127  maintenance, insurance costs, and materials. The notice must
  128  specify that the purpose for the public meeting is to consider
  129  whether it is in the public’s best interest to perform the
  130  project using the local government’s own services, employees,
  131  and equipment. Upon publication of the public notice and for 21
  132  days thereafter, the local government shall make available for
  133  public inspection, during normal business hours and at a
  134  location specified in the public notice, a detailed itemization
  135  of each component of the estimated cost of the project and
  136  documentation explaining the methodology used to arrive at the
  137  estimated cost. At the public meeting, any qualified contractor
  138  or vendor who could have been awarded the project had the
  139  project been competitively bid shall be provided with a
  140  reasonable opportunity to present evidence to the governing
  141  board regarding the project and the accuracy of the local
  142  government’s estimated cost of the project. In deciding whether
  143  it is in the public’s best interest for the local government to
  144  perform a project using its own services, employees, and
  145  equipment, the governing board must consider the estimated cost
  146  of the project using generally accepted cost-accounting
  147  principles that fully account for all costs associated with
  148  performing and completing the work, including employee
  149  compensation and benefits, equipment costs and maintenance,
  150  insurance costs, and the cost of materials, and the accuracy of
  151  the estimated cost in light of any other information that may be
  152  presented at the public meeting and whether the project requires
  153  an increase in the number of government employees or an increase
  154  in capital expenditures for public facilities, equipment, or
  155  other capital assets. If the project requires an increase in the
  156  number of government employees or an increase in such capital
  157  expenditures, the local government may not perform the project
  158  using its own services, employees, and equipment. The local
  159  government may further consider the impact on local economic
  160  development, the impact on small and minority business owners,
  161  the impact on state and local tax revenues, whether the private
  162  sector contractors provide health insurance and other benefits
  163  equivalent to those provided by the local government, and any
  164  other factor relevant to what is in the public’s best interest.
  165  A local government that performs projects using its own
  166  services, employees, and equipment must disclose the actual
  167  costs of the project after completion to the Auditor General.
  168  The Auditor General shall review such disclosures as part of his
  169  or her routine audits of local governments.
  170         10. If the governing board of the local government
  171  determines upon consideration of specific substantive criteria
  172  that it is in the best interest of the local government to award
  173  the project to an appropriately licensed private sector
  174  contractor pursuant to administrative procedures established by
  175  and expressly set forth in a charter, ordinance, or resolution
  176  of the local government adopted before July 1, 1994. The
  177  criteria and procedures must be set out in the charter,
  178  ordinance, or resolution and must be applied uniformly by the
  179  local government to avoid awarding a project in an arbitrary or
  180  capricious manner. This exception applies only if all of the
  181  following occur:
  182         a. The governing board of the local government, after
  183  public notice, conducts a public meeting under s. 286.011 and
  184  finds by a two-thirds vote of the governing board that it is in
  185  the public’s best interest to award the project according to the
  186  criteria and procedures established by charter, ordinance, or
  187  resolution. The public notice must be published at least 14 days
  188  before the date of the public meeting at which the governing
  189  board takes final action. The notice must identify the project,
  190  the estimated cost of the project, and specify that the purpose
  191  for the public meeting is to consider whether it is in the
  192  public’s best interest to award the project using the criteria
  193  and procedures permitted by the preexisting charter, ordinance,
  194  or resolution.
  195         b. The project is to be awarded by any method other than a
  196  competitive selection process, and the governing board finds
  197  evidence that:
  198         (I) There is one appropriately licensed contractor who is
  199  uniquely qualified to undertake the project because that
  200  contractor is currently under contract to perform work that is
  201  affiliated with the project; or
  202         (II) The time to competitively award the project will
  203  jeopardize the funding for the project, materially increase the
  204  cost of the project, or create an undue hardship on the public
  205  health, safety, or welfare.
  206         c. The project is to be awarded by any method other than a
  207  competitive selection process, and the published notice clearly
  208  specifies the ordinance or resolution by which the private
  209  sector contractor will be selected and the criteria to be
  210  considered.
  211         d. The project is to be awarded by a method other than a
  212  competitive selection process, and the architect or engineer of
  213  record has provided a written recommendation that the project be
  214  awarded to the private sector contractor without competitive
  215  selection, and the consideration by, and the justification of,
  216  the government body are documented, in writing, in the project
  217  file and are presented to the governing board prior to the
  218  approval required in this paragraph.
  219         11. To projects subject to chapter 336.
  220         Section 2. Subsection (4) of section 336.41, Florida
  221  Statutes, is amended to read:
  222         336.41 Counties; employing labor and providing road
  223  equipment; accounting; when competitive bidding required.—
  224         (4) All construction and reconstruction of roads and
  225  bridges, including resurfacing, full scale mineral seal coating,
  226  and major bridge and bridge system repairs, to be performed
  227  utilizing the proceeds of the 80-percent portion of the surplus
  228  of the constitutional gas tax shall be let to contract to the
  229  lowest responsible bidder by competitive bid, except for:
  230         (a) Construction and maintenance in emergency situations;,
  231  and
  232         (b) In addition to emergency work, construction and
  233  reconstruction, including resurfacing, mineral seal coating, and
  234  bridge repairs, having a total cumulative annual value not to
  235  exceed 5 percent of its 80-percent portion of the constitutional
  236  gas tax or $400,000, whichever is greater;, and
  237         (c) Construction of sidewalks, curbing, accessibility
  238  ramps, or appurtenances incidental to roads and bridges if each
  239  project is estimated in accordance with generally accepted cost
  240  accounting principles to have total construction project costs
  241  of less than $400,000 or as adjusted by the percentage change in
  242  the Construction Cost Index from January 1, 2008,
  243  
  244  for which the county may utilize its own forces. Estimated total
  245  construction project costs must include all costs associated
  246  with performing and completing the work, including employee
  247  compensation and benefits, equipment cost and maintenance,
  248  insurance costs, and the cost of materials. However, if, after
  249  proper advertising, no bids are received by a county for a
  250  specific project, the county may use its own forces to construct
  251  the project, notwithstanding the limitation of this subsection.
  252  Nothing in this section shall prevent the county from performing
  253  routine maintenance as authorized by law.
  254         Section 3. This act shall take effect July 1, 2019.