Florida Senate - 2020                        COMMITTEE AMENDMENT
       Bill No. CS for SB 504
       
       
       
       
       
       
                                Ì627108(Î627108                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/03/2020           .                                
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       The Committee on Rules (Perry) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (3) of section 218.80, Florida
    6  Statutes, is amended to read:
    7         218.80 Public Bid Disclosure Act.—
    8         (3) Bidding documents or other request for proposal issued
    9  for bids by a local governmental entity, or any public contract
   10  entered into between a local governmental entity and a
   11  contractor shall disclose each permit or fee which the
   12  contractor will have to pay before or during construction, and
   13  shall include the dollar amount or the percentage method or the
   14  unit method of all permits or fees which may be required by the
   15  local government as a part of the contract and a listing of all
   16  other governmental entities that may have additional permits or
   17  fees generated by the project. If the request for proposal does
   18  not require the response to include a final fixed price, the
   19  local governmental entity is not required to disclose any fees
   20  or assessments in the request for proposal. However, at least 10
   21  days prior to requiring the contractor to submit a final fixed
   22  price for the project, the local governmental entity shall make
   23  the disclosures required in this section. Any of the local
   24  governmental entity’s permits or fees that which are not
   25  disclosed in the bidding documents, other request for proposal,
   26  or a contract between a local government and a contractor shall
   27  not be assessed or collected after the contract is let. No local
   28  government shall halt construction under any public contract or
   29  delay completion of the contract in order to collect any permits
   30  or fees which were not provided for or specified in the bidding
   31  documents, other request for proposal, or the contract.
   32         Section 2. Subsection (1) of section 255.20, Florida
   33  Statutes, is amended to read:
   34         255.20 Local bids and contracts for public construction
   35  works; specification of state-produced lumber.—
   36         (1) A county, municipality, special district as defined in
   37  chapter 189, or other political subdivision of the state seeking
   38  to construct or improve a public building, structure, or other
   39  public construction works must competitively award to an
   40  appropriately licensed contractor each project that is estimated
   41  in accordance with generally accepted cost-accounting principles
   42  to cost more than $300,000. For electrical work, the local
   43  government must competitively award to an appropriately licensed
   44  contractor each project that is estimated in accordance with
   45  generally accepted cost-accounting principles to cost more than
   46  $75,000. As used in this section, the term “competitively award”
   47  means to award contracts based on the submission of sealed bids,
   48  proposals submitted in response to a request for proposal,
   49  proposals submitted in response to a request for qualifications,
   50  or proposals submitted for competitive negotiation. This
   51  subsection expressly allows contracts for construction
   52  management services, design/build contracts, continuation
   53  contracts based on unit prices, and any other contract
   54  arrangement with a private sector contractor permitted by any
   55  applicable municipal or county ordinance, by district
   56  resolution, or by state law. For purposes of this section, cost
   57  includes employee compensation and benefits the cost of all
   58  labor, except inmate labor, and the cost of equipment and
   59  maintenance, insurance costs, and the cost of direct materials
   60  to be used in the construction of the project, including
   61  materials purchased by the local government, and other direct
   62  costs, plus a factor of 20 percent for management, overhead, and
   63  other indirect costs. Subject to the provisions of subsection
   64  (3), the county, municipality, special district, or other
   65  political subdivision may establish, by municipal or county
   66  ordinance or special district resolution, procedures for
   67  conducting the bidding process.
   68         (a) Notwithstanding any other law, a governmental entity
   69  seeking to construct or improve bridges, roads, streets,
   70  highways, or railroads, and services incidental thereto, at a
   71  cost in excess of $250,000 may require that persons interested
   72  in performing work under contract first be certified or
   73  qualified to perform such work. A contractor may be considered
   74  ineligible to bid if the contractor is behind by 10 percent or
   75  more on completing an approved progress schedule for the
   76  governmental entity at the time of advertising the work. A
   77  prequalified contractor considered eligible by the Department of
   78  Transportation to bid to perform the type of work described
   79  under the contract is presumed to be qualified to perform the
   80  work described. The governmental entity may provide an appeal
   81  process to overcome that presumption with de novo review based
   82  on the record below to the circuit court.
   83         (b) For contractors who are not prequalified by the
   84  Department of Transportation, the governmental entity shall
   85  publish prequalification criteria and procedures prior to
   86  advertisement or notice of solicitation. Such publications must
   87  include notice of a public hearing for comment on such criteria
   88  and procedures prior to adoption. The procedures must provide
   89  for an appeal process within the authority for making objections
   90  to the prequalification process with de novo review based on the
   91  record below to the circuit court within 30 days.
   92         (c) The provisions of this subsection do not apply:
   93         1. If the project is undertaken to replace, reconstruct, or
   94  repair an existing public building, structure, or other public
   95  construction works damaged or destroyed by a sudden unexpected
   96  turn of events such as an act of God, riot, fire, flood,
   97  accident, or other urgent circumstances, and such damage or
   98  destruction creates:
   99         a. An immediate danger to the public health or safety;
  100         b. Other loss to public or private property which requires
  101  emergency government action; or
  102         c. An interruption of an essential governmental service.
  103         2. If, after notice by publication in accordance with the
  104  applicable ordinance or resolution, the governmental entity does
  105  not receive any responsive bids or proposals.
  106         3. To construction, remodeling, repair, or improvement to a
  107  public electric or gas utility system if such work on the public
  108  utility system is performed by personnel of the system.
  109         4. To construction, remodeling, repair, or improvement by a
  110  utility commission whose major contracts are to construct and
  111  operate a public electric utility system.
  112         5. If the project is undertaken as repair or maintenance of
  113  an existing public facility. For the purposes of this paragraph,
  114  the term “repair” means a corrective action to restore an
  115  existing public facility to a safe and functional condition and
  116  the term “maintenance” means a preventive or corrective action
  117  to maintain an existing public facility in an operational state
  118  or to preserve the facility from failure or decline. Repair or
  119  maintenance includes activities that are necessarily incidental
  120  to repairing or maintaining the facility. Repair or maintenance
  121  does not include the construction of any new building,
  122  structure, or other public construction works or any substantial
  123  addition, extension, or upgrade to an existing public facility.
  124  Such additions, extensions, or upgrades shall be considered
  125  substantial if the estimated cost of the additions, extensions,
  126  or upgrades included as part of the repair or maintenance
  127  project exceeds the threshold amount in subsection (1) and
  128  exceeds 20 percent of the estimated total cost of the repair or
  129  maintenance project using generally accepted cost-accounting
  130  principles that fully accounting account for all costs
  131  associated with performing and completing the work, including
  132  employee compensation and benefits, equipment cost and
  133  maintenance, insurance costs, and the cost of direct materials
  134  to be used in the construction of the project, including
  135  materials purchased by the local government, and other direct
  136  costs, plus a factor of 20 percent for management, overhead, and
  137  other indirect costs. An addition, extension, or upgrade shall
  138  not be considered substantial if it is undertaken pursuant to
  139  the conditions specified in subparagraph 1. Repair and
  140  maintenance projects and any related additions, extensions, or
  141  upgrades may not be divided into multiple projects for the
  142  purpose of evading the requirements of this subparagraph.
  143         6. If the project is undertaken exclusively as part of a
  144  public educational program.
  145         7. If the funding source of the project will be diminished
  146  or lost because the time required to competitively award the
  147  project after the funds become available exceeds the time within
  148  which the funding source must be spent.
  149         8. If the local government competitively awarded a project
  150  to a private sector contractor and the contractor abandoned the
  151  project before completion or the local government terminated the
  152  contract.
  153         9. If the governing board of the local government complies
  154  with all of the requirements of this subparagraph, conducts a
  155  public meeting under s. 286.011 after public notice, and finds
  156  by majority vote of the governing board that it is in the
  157  public’s best interest to perform the project using its own
  158  services, employees, and equipment. The public notice must be
  159  published at least 21 days before the date of the public meeting
  160  at which the governing board takes final action. The notice must
  161  identify the project, the components and scope of the work, and
  162  the estimated cost of the project using generally accepted cost
  163  accounting principles that fully accounting account for all
  164  costs associated with performing and completing the work,
  165  including employee compensation and benefits, equipment cost and
  166  maintenance, insurance costs, and the cost of direct materials
  167  to be used in the construction of the project, including
  168  materials purchased by the local government, and other direct
  169  costs, plus a factor of 20 percent for management, overhead, and
  170  other indirect costs. The notice must specify that the purpose
  171  for the public meeting is to consider whether it is in the
  172  public’s best interest to perform the project using the local
  173  government’s own services, employees, and equipment. Upon
  174  publication of the public notice and for 21 days thereafter, the
  175  local government shall make available for public inspection,
  176  during normal business hours and at a location specified in the
  177  public notice, a detailed itemization of each component of the
  178  estimated cost of the project and documentation explaining the
  179  methodology used to arrive at the estimated cost. At the public
  180  meeting, any qualified contractor or vendor who could have been
  181  awarded the project had the project been competitively bid shall
  182  be provided with a reasonable opportunity to present evidence to
  183  the governing board regarding the project and the accuracy of
  184  the local government’s estimated cost of the project. In
  185  deciding whether it is in the public’s best interest for the
  186  local government to perform a project using its own services,
  187  employees, and equipment, the governing board must consider the
  188  estimated cost of the project fully accounting for all costs
  189  associated with performing and completing the work, including
  190  employee compensation and benefits, equipment cost and
  191  maintenance, insurance costs, and the cost of direct materials
  192  to be used in the construction of the project, including
  193  materials purchased by the local government, and other direct
  194  costs, plus a factor of 20 percent for management, overhead, and
  195  other indirect costs, and the accuracy of the estimated cost in
  196  light of any other information that may be presented at the
  197  public meeting and whether the project requires an increase in
  198  the number of government employees or an increase in capital
  199  expenditures for public facilities, equipment, or other capital
  200  assets. The local government may further consider the impact on
  201  local economic development, the impact on small and minority
  202  business owners, the impact on state and local tax revenues,
  203  whether the private sector contractors provide health insurance
  204  and other benefits equivalent to those provided by the local
  205  government, and any other factor relevant to what is in the
  206  public’s best interest. A report summarizing completed projects
  207  constructed by the local government pursuant to this subsection
  208  shall be publicly reviewed each year by the governing body of
  209  the local government. The report shall detail the estimated
  210  costs and the actual costs of the projects constructed by the
  211  local government pursuant to this subsection. The report shall
  212  be made available for review by the public. The Auditor General
  213  shall review the report as part of his or her audits of local
  214  governments.
  215         10. If the governing board of the local government
  216  determines upon consideration of specific substantive criteria
  217  that it is in the best interest of the local government to award
  218  the project to an appropriately licensed private sector
  219  contractor pursuant to administrative procedures established by
  220  and expressly set forth in a charter, ordinance, or resolution
  221  of the local government adopted before July 1, 1994. The
  222  criteria and procedures must be set out in the charter,
  223  ordinance, or resolution and must be applied uniformly by the
  224  local government to avoid awarding a project in an arbitrary or
  225  capricious manner. This exception applies only if all of the
  226  following occur:
  227         a. The governing board of the local government, after
  228  public notice, conducts a public meeting under s. 286.011 and
  229  finds by a two-thirds vote of the governing board that it is in
  230  the public’s best interest to award the project according to the
  231  criteria and procedures established by charter, ordinance, or
  232  resolution. The public notice must be published at least 14 days
  233  before the date of the public meeting at which the governing
  234  board takes final action. The notice must identify the project,
  235  the estimated cost of the project, and specify that the purpose
  236  for the public meeting is to consider whether it is in the
  237  public’s best interest to award the project using the criteria
  238  and procedures permitted by the preexisting charter, ordinance,
  239  or resolution.
  240         b. The project is to be awarded by any method other than a
  241  competitive selection process, and the governing board finds
  242  evidence that:
  243         (I) There is one appropriately licensed contractor who is
  244  uniquely qualified to undertake the project because that
  245  contractor is currently under contract to perform work that is
  246  affiliated with the project; or
  247         (II) The time to competitively award the project will
  248  jeopardize the funding for the project, materially increase the
  249  cost of the project, or create an undue hardship on the public
  250  health, safety, or welfare.
  251         c. The project is to be awarded by any method other than a
  252  competitive selection process, and the published notice clearly
  253  specifies the ordinance or resolution by which the private
  254  sector contractor will be selected and the criteria to be
  255  considered.
  256         d. The project is to be awarded by a method other than a
  257  competitive selection process, and the architect or engineer of
  258  record has provided a written recommendation that the project be
  259  awarded to the private sector contractor without competitive
  260  selection, and the consideration by, and the justification of,
  261  the government body are documented, in writing, in the project
  262  file and are presented to the governing board prior to the
  263  approval required in this paragraph.
  264         11. To projects subject to chapter 336.
  265         (d) If the project:
  266         1. Is to be awarded based on price, the contract must be
  267  awarded to the lowest qualified and responsive bidder in
  268  accordance with the applicable county or municipal ordinance or
  269  district resolution and in accordance with the applicable
  270  contract documents. The county, municipality, or special
  271  district may reserve the right to reject all bids and to rebid
  272  the project, or elect not to proceed with the project. This
  273  subsection is not intended to restrict the rights of any local
  274  government to reject the low bid of a nonqualified or
  275  nonresponsive bidder and to award the contract to any other
  276  qualified and responsive bidder in accordance with the standards
  277  and procedures of any applicable county or municipal ordinance
  278  or any resolution of a special district.
  279         2. Uses a request for proposal or a request for
  280  qualifications, the request must be publicly advertised and the
  281  contract must be awarded in accordance with the applicable local
  282  ordinances.
  283         3. Is subject to competitive negotiations, the contract
  284  must be awarded in accordance with s. 287.055.
  285         (e) If a construction project greater than $300,000, or
  286  $75,000 for electrical work, is started after October 1, 1999,
  287  is to be performed by a local government using its own employees
  288  in a county or municipality that issues registered contractor
  289  licenses, and the project would require a contractor licensed
  290  under chapter 489 if performed by a private sector contractor,
  291  the local government must use a person appropriately registered
  292  or certified under chapter 489 to supervise the work.
  293         (f) If a construction project greater than $300,000, or
  294  $75,000 for electrical work, is started after October 1, 1999,
  295  is to be performed by a local government using its own employees
  296  in a county that does not issue registered contractor licenses,
  297  and the project would require a contractor licensed under
  298  chapter 489 if performed by a private sector contractor, the
  299  local government must use a person appropriately registered or
  300  certified under chapter 489 or a person appropriately licensed
  301  under chapter 471 to supervise the work.
  302         (g) Projects performed by a local government using its own
  303  services and employees must be inspected in the same manner
  304  required for work performed by private sector contractors.
  305         (h) A construction project provided for in this subsection
  306  may not be divided into more than one project for the purpose of
  307  evading this subsection.
  308         (i) This subsection does not preempt the requirements of
  309  any small-business or disadvantaged-business enterprise program
  310  or any local-preference ordinance.
  311         (j) A county, municipality, special district as defined in
  312  s. 189.012, or any other political subdivision of the state that
  313  owns or operates a public-use airport as defined in s. 332.004
  314  is exempt from this section when performing repairs or
  315  maintenance on the airport’s buildings, structures, or public
  316  construction works using the local government’s own services,
  317  employees, and equipment.
  318         (k) A local government that owns or operates a port
  319  identified in s. 403.021(9)(b) is exempt from this section when
  320  performing repairs or maintenance on the port’s buildings,
  321  structures, or public construction works using the local
  322  government’s own services, employees, and equipment.
  323         (l) A local government that owns or operates a public
  324  transit system as defined in s. 343.52, a public transportation
  325  system as defined in s. 343.62, or a mass transit system
  326  described in s. 349.04(1)(b) is exempt from this section when
  327  performing repairs or maintenance on the buildings, structures,
  328  or public construction works of the public transit system,
  329  public transportation system, or mass transit system using the
  330  local government’s own services, employees, and equipment.
  331         (m) Any contractor may be considered ineligible to bid by
  332  the governmental entity if the contractor has been found guilty
  333  by a court of any violation of federal labor or employment tax
  334  laws regarding subjects such as safety, tax withholding,
  335  workers’ compensation, reemployment assistance or unemployment
  336  tax, social security and Medicare tax, wage or hour, or
  337  prevailing rate laws within the past 5 years.
  338         Section 3. Subsection (4) of section 336.41, Florida
  339  Statutes, is amended to read:
  340         336.41 Counties; employing labor and providing road
  341  equipment; accounting; when competitive bidding required.—
  342         (4) All construction and reconstruction of roads and
  343  bridges, including resurfacing, full scale mineral seal coating,
  344  and major bridge and bridge system repairs, to be performed
  345  utilizing the proceeds of the 80-percent portion of the surplus
  346  of the constitutional gas tax shall be let to contract to the
  347  lowest responsible bidder by competitive bid, except for:
  348         (a) Construction and maintenance in emergency situations,
  349  and
  350         (b) In addition to emergency work, construction and
  351  reconstruction, including resurfacing, mineral seal coating, and
  352  bridge repairs, having a total cumulative annual value not to
  353  exceed 5 percent of its 80-percent portion of the constitutional
  354  gas tax or $400,000, whichever is greater, and
  355         (c) Construction of sidewalks, curbing, accessibility
  356  ramps, or appurtenances incidental to roads and bridges if each
  357  project is estimated in accordance with generally accepted cost
  358  accounting principles to have total construction project costs
  359  of less than $400,000 or as adjusted by the percentage change in
  360  the Construction Cost Index from January 1, 2008,
  361  
  362  for which the county may utilize its own forces. Estimated total
  363  construction project costs must include all costs associated
  364  with performing and completing the work, including employee
  365  compensation and benefits, equipment cost and maintenance,
  366  insurance costs, and the cost of direct materials to be used in
  367  the construction of the project, including materials purchased
  368  by the local government, and other direct costs, plus a factor
  369  of 20 percent for management, overhead, and other indirect
  370  costs. However, if, after proper advertising, no bids are
  371  received by a county for a specific project, the county may use
  372  its own forces to construct the project, notwithstanding the
  373  limitation of this subsection. Nothing in this section shall
  374  prevent the county from performing routine maintenance as
  375  authorized by law.
  376         Section 4. This act shall take effect July 1, 2020.
  377  
  378  ================= T I T L E  A M E N D M E N T ================
  379  And the title is amended as follows:
  380         Delete everything before the enacting clause
  381  and insert:
  382                        A bill to be entitled                      
  383         An act relating to local government public
  384         construction works; amending s. 218.80, F.S.; revising
  385         disclosure requirements for bidding documents and
  386         other requests for proposals issued for bids by a
  387         local governmental entity and public contracts entered
  388         into between local governmental entities and
  389         contractors; amending s. 255.20, F.S.; revising the
  390         term cost to include specified information; requiring
  391         the governing board of a local government to consider
  392         estimated costs of certain projects that account for
  393         specified costs when the board is making a specified
  394         determination; requiring that a local government that
  395         performs projects using its own services, employees,
  396         and equipment provide a report to the local governing
  397         board with certain information; requiring that the
  398         Auditor General review the report as part of his or
  399         her audits of local governments; amending s. 336.41,
  400         F.S.; requiring estimated total construction project
  401         costs for certain projects to include specified costs;
  402         providing an effective date.