Florida Senate - 2020                              CS for SB 504
       
       
        
       By the Committee on Governmental Oversight and Accountability;
       and Senator Perry
       
       
       
       
       585-02218-20                                           2020504c1
    1                        A bill to be entitled                      
    2         An act relating to local government public
    3         construction works; amending s. 218.80, F.S.; revising
    4         legislative intent; revising disclosure requirements
    5         for bidding documents and other requests for proposals
    6         issued for bids by a local governmental entity and
    7         public contracts entered into between local
    8         governmental entities and contractors; amending s.
    9         255.20, F.S.; requiring the governing board of a local
   10         government to consider estimated costs of certain
   11         projects using generally accepted cost-accounting
   12         principles that account for specified costs when the
   13         board is making a specified determination; requiring
   14         that a local government that performs projects using
   15         its own services, employees, and equipment disclose
   16         the actual costs of the project after completion to
   17         the Auditor General; requiring that the Auditor
   18         General review such disclosures as part of his or her
   19         routine audits of local governments; amending s.
   20         336.41, F.S.; requiring estimated total construction
   21         project costs for certain projects to include
   22         specified costs; providing an effective date.
   23          
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. Subsections (2) and (3) of section 218.80,
   27  Florida Statutes, are amended to read:
   28         218.80 Public Bid Disclosure Act.—
   29         (2) It is the intent of the Legislature that a local
   30  governmental entity shall disclose all of the local governmental
   31  entity’s permits or fees, including, but not limited to, all
   32  license fees, permit fees, impact fees, or inspection fees,
   33  payable by the contractor to the unit of government that issued
   34  the bidding documents or other request for proposal, unless such
   35  permits or fees are disclosed in the bidding documents or other
   36  request for proposal for the project at the time the project was
   37  let for bid. It is further the intent of the Legislature to
   38  prohibit local governments from halting construction to collect
   39  any undisclosed permits or fees which were not disclosed or
   40  included in the bidding documents or other request for proposal
   41  for the project at the time the project was let for bid.
   42         (3) Bidding documents or other request for proposal issued
   43  for bids by a local governmental entity, or any public contract
   44  entered into between a local governmental entity and a
   45  contractor shall disclose each permit or fee which the
   46  contractor will have to pay before or during construction and
   47  shall include the dollar amount or the percentage method or the
   48  unit method of all permits or fees which may be required by the
   49  local government as a part of the contract. If the request for
   50  proposal does not require the response to include a final fixed
   51  price, the local governmental entity is not required to disclose
   52  any fees or assessments in the request for proposal. However, at
   53  least 10 days prior to requiring the contractor to submit a
   54  final fixed price for the project, the local governmental entity
   55  shall make the disclosures required in this section. Any of the
   56  local governmental entity’s permits or fees that which are not
   57  disclosed in the bidding documents, other request for proposal,
   58  or a contract between a local government and a contractor shall
   59  not be assessed or collected after the contract is let. No local
   60  government shall halt construction under any public contract or
   61  delay completion of the contract in order to collect any permits
   62  or fees which were not provided for or specified in the bidding
   63  documents, other request for proposal, or the contract.
   64         Section 2. Paragraph (c) of subsection (1) of section
   65  255.20, Florida Statutes, is amended to read:
   66         255.20 Local bids and contracts for public construction
   67  works; specification of state-produced lumber.—
   68         (1) A county, municipality, special district as defined in
   69  chapter 189, or other political subdivision of the state seeking
   70  to construct or improve a public building, structure, or other
   71  public construction works must competitively award to an
   72  appropriately licensed contractor each project that is estimated
   73  in accordance with generally accepted cost-accounting principles
   74  to cost more than $300,000. For electrical work, the local
   75  government must competitively award to an appropriately licensed
   76  contractor each project that is estimated in accordance with
   77  generally accepted cost-accounting principles to cost more than
   78  $75,000. As used in this section, the term “competitively award”
   79  means to award contracts based on the submission of sealed bids,
   80  proposals submitted in response to a request for proposal,
   81  proposals submitted in response to a request for qualifications,
   82  or proposals submitted for competitive negotiation. This
   83  subsection expressly allows contracts for construction
   84  management services, design/build contracts, continuation
   85  contracts based on unit prices, and any other contract
   86  arrangement with a private sector contractor permitted by any
   87  applicable municipal or county ordinance, by district
   88  resolution, or by state law. For purposes of this section, cost
   89  includes the cost of all labor, except inmate labor, and the
   90  cost of equipment and materials to be used in the construction
   91  of the project. Subject to the provisions of subsection (3), the
   92  county, municipality, special district, or other political
   93  subdivision may establish, by municipal or county ordinance or
   94  special district resolution, procedures for conducting the
   95  bidding process.
   96         (c) The provisions of this subsection do not apply:
   97         1. If the project is undertaken to replace, reconstruct, or
   98  repair an existing public building, structure, or other public
   99  construction works damaged or destroyed by a sudden unexpected
  100  turn of events such as an act of God, riot, fire, flood,
  101  accident, or other urgent circumstances, and such damage or
  102  destruction creates:
  103         a. An immediate danger to the public health or safety;
  104         b. Other loss to public or private property which requires
  105  emergency government action; or
  106         c. An interruption of an essential governmental service.
  107         2. If, after notice by publication in accordance with the
  108  applicable ordinance or resolution, the governmental entity does
  109  not receive any responsive bids or proposals.
  110         3. To construction, remodeling, repair, or improvement to a
  111  public electric or gas utility system if such work on the public
  112  utility system is performed by personnel of the system.
  113         4. To construction, remodeling, repair, or improvement by a
  114  utility commission whose major contracts are to construct and
  115  operate a public electric utility system.
  116         5. If the project is undertaken as repair or maintenance of
  117  an existing public facility. For the purposes of this paragraph,
  118  the term “repair” means a corrective action to restore an
  119  existing public facility to a safe and functional condition and
  120  the term “maintenance” means a preventive or corrective action
  121  to maintain an existing public facility in an operational state
  122  or to preserve the facility from failure or decline. Repair or
  123  maintenance includes activities that are necessarily incidental
  124  to repairing or maintaining the facility. Repair or maintenance
  125  does not include the construction of any new building,
  126  structure, or other public construction works or any substantial
  127  addition, extension, or upgrade to an existing public facility.
  128  Such additions, extensions, or upgrades shall be considered
  129  substantial if the estimated cost of the additions, extensions,
  130  or upgrades included as part of the repair or maintenance
  131  project exceeds the threshold amount in subsection (1) and
  132  exceeds 20 percent of the estimated total cost of the repair or
  133  maintenance project using generally accepted cost-accounting
  134  principles that fully account for all costs associated with
  135  performing and completing the work, including employee
  136  compensation and benefits, equipment cost and maintenance,
  137  insurance costs, and materials. An addition, extension, or
  138  upgrade shall not be considered substantial if it is undertaken
  139  pursuant to the conditions specified in subparagraph 1. Repair
  140  and maintenance projects and any related additions, extensions,
  141  or 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 account for all costs
  164  associated with performing and completing the work, including
  165  employee compensation and benefits, equipment cost and
  166  maintenance, insurance costs, and materials. The notice must
  167  specify that the purpose for the public meeting is to consider
  168  whether it is in the public’s best interest to perform the
  169  project using the local government’s own services, employees,
  170  and equipment. Upon publication of the public notice and for 21
  171  days thereafter, the local government shall make available for
  172  public inspection, during normal business hours and at a
  173  location specified in the public notice, a detailed itemization
  174  of each component of the estimated cost of the project and
  175  documentation explaining the methodology used to arrive at the
  176  estimated cost. At the public meeting, any qualified contractor
  177  or vendor who could have been awarded the project had the
  178  project been competitively bid shall be provided with a
  179  reasonable opportunity to present evidence to the governing
  180  board regarding the project and the accuracy of the local
  181  government’s estimated cost of the project. In deciding whether
  182  it is in the public’s best interest for the local government to
  183  perform a project using its own services, employees, and
  184  equipment, the governing board must consider the estimated cost
  185  of the project using generally accepted cost-accounting
  186  principles that fully account for all costs associated with
  187  performing and completing the work, including employee
  188  compensation and benefits, equipment costs and maintenance,
  189  insurance costs, and the cost of materials, and the accuracy of
  190  the estimated cost in light of any other information that may be
  191  presented at the public meeting and whether the project requires
  192  an increase in the number of government employees or an increase
  193  in capital expenditures for public facilities, equipment, or
  194  other capital assets. The local government may further consider
  195  the impact on local economic development, the impact on small
  196  and minority business owners, the impact on state and local tax
  197  revenues, whether the private sector contractors provide health
  198  insurance and other benefits equivalent to those provided by the
  199  local government, and any other factor relevant to what is in
  200  the public’s best interest. A local government that performs
  201  projects using its own services, employees, and equipment must
  202  disclose the actual costs of the project after completion to the
  203  Auditor General. The Auditor General shall review such
  204  disclosures as part of his or her routine audits of local
  205  governments.
  206         10. If the governing board of the local government
  207  determines upon consideration of specific substantive criteria
  208  that it is in the best interest of the local government to award
  209  the project to an appropriately licensed private sector
  210  contractor pursuant to administrative procedures established by
  211  and expressly set forth in a charter, ordinance, or resolution
  212  of the local government adopted before July 1, 1994. The
  213  criteria and procedures must be set out in the charter,
  214  ordinance, or resolution and must be applied uniformly by the
  215  local government to avoid awarding a project in an arbitrary or
  216  capricious manner. This exception applies only if all of the
  217  following occur:
  218         a. The governing board of the local government, after
  219  public notice, conducts a public meeting under s. 286.011 and
  220  finds by a two-thirds vote of the governing board that it is in
  221  the public’s best interest to award the project according to the
  222  criteria and procedures established by charter, ordinance, or
  223  resolution. The public notice must be published at least 14 days
  224  before the date of the public meeting at which the governing
  225  board takes final action. The notice must identify the project,
  226  the estimated cost of the project, and specify that the purpose
  227  for the public meeting is to consider whether it is in the
  228  public’s best interest to award the project using the criteria
  229  and procedures permitted by the preexisting charter, ordinance,
  230  or resolution.
  231         b. The project is to be awarded by any method other than a
  232  competitive selection process, and the governing board finds
  233  evidence that:
  234         (I) There is one appropriately licensed contractor who is
  235  uniquely qualified to undertake the project because that
  236  contractor is currently under contract to perform work that is
  237  affiliated with the project; or
  238         (II) The time to competitively award the project will
  239  jeopardize the funding for the project, materially increase the
  240  cost of the project, or create an undue hardship on the public
  241  health, safety, or welfare.
  242         c. The project is to be awarded by any method other than a
  243  competitive selection process, and the published notice clearly
  244  specifies the ordinance or resolution by which the private
  245  sector contractor will be selected and the criteria to be
  246  considered.
  247         d. The project is to be awarded by a method other than a
  248  competitive selection process, and the architect or engineer of
  249  record has provided a written recommendation that the project be
  250  awarded to the private sector contractor without competitive
  251  selection, and the consideration by, and the justification of,
  252  the government body are documented, in writing, in the project
  253  file and are presented to the governing board prior to the
  254  approval required in this paragraph.
  255         11. To projects subject to chapter 336.
  256         Section 3. Subsection (4) of section 336.41, Florida
  257  Statutes, is amended to read:
  258         336.41 Counties; employing labor and providing road
  259  equipment; accounting; when competitive bidding required.—
  260         (4) All construction and reconstruction of roads and
  261  bridges, including resurfacing, full scale mineral seal coating,
  262  and major bridge and bridge system repairs, to be performed
  263  utilizing the proceeds of the 80-percent portion of the surplus
  264  of the constitutional gas tax shall be let to contract to the
  265  lowest responsible bidder by competitive bid, except for:
  266         (a) Construction and maintenance in emergency situations;,
  267  and
  268         (b) In addition to emergency work, construction and
  269  reconstruction, including resurfacing, mineral seal coating, and
  270  bridge repairs, having a total cumulative annual value not to
  271  exceed 5 percent of its 80-percent portion of the constitutional
  272  gas tax or $400,000, whichever is greater;, and
  273         (c) Construction of sidewalks, curbing, accessibility
  274  ramps, or appurtenances incidental to roads and bridges if each
  275  project is estimated in accordance with generally accepted cost
  276  accounting principles to have total construction project costs
  277  of less than $400,000 or as adjusted by the percentage change in
  278  the Construction Cost Index from January 1, 2008,
  279  
  280  for which the county may utilize its own forces. Estimated total
  281  construction project costs must include all costs associated
  282  with performing and completing the work, including employee
  283  compensation and benefits, equipment costs and maintenance,
  284  insurance costs, and the cost of materials. However, if, after
  285  proper advertising, no bids are received by a county for a
  286  specific project, the county may use its own forces to construct
  287  the project, notwithstanding the limitation of this subsection.
  288  Nothing in this section shall prevent the county from performing
  289  routine maintenance as authorized by law.
  290         Section 4. This act shall take effect July 1, 2020.