House Bill 0867e1
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HB 867, First Engrossed
1 A bill to be entitled
2 An act relating to public construction;
3 amending s. 255.20, F.S.; lowering the
4 threshold amount required for competitive
5 awards of local bids and contracts for public
6 electrical work; providing the certain
7 qualified contractors or vendors shall have
8 standing to challenge the propriety of a local
9 government's action under certain
10 circumstances; providing for the award of
11 reasonable attorney's fees under certain
12 circumstances; providing an effective date.
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14 Be It Enacted by the Legislature of the State of Florida:
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16 Section 1. Section 255.20, Florida Statutes, is
17 amended to read:
18 255.20 Local bids and contracts for public
19 construction works; specification of state-produced lumber.--
20 (1) A county, municipality, special district as
21 defined in chapter 189, or other political subdivision of the
22 state seeking to construct or improve a public building,
23 structure, or other public construction works must
24 competitively award to an appropriately licensed contractor
25 each project that is estimated in accordance with generally
26 accepted cost-accounting principles to have total construction
27 project costs of more than $200,000. For electrical work,
28 local government must competitively award to an appropriately
29 licensed contractor each project that is estimated in
30 accordance with generally accepted cost-accounting principles
31 to have a cost of more than $50,000. As used in this section,
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HB 867, First Engrossed
1 the term "competitively award" means to award contracts based
2 on the submission of sealed bids, proposals submitted in
3 response to a request for proposal, proposals submitted in
4 response to a request for qualifications, or proposals
5 submitted for competitive negotiation. This subsection
6 expressly allows contracts for construction management
7 services, design/build contracts, continuation contracts based
8 on unit prices, and any other contract arrangement with a
9 private sector contractor permitted by any applicable
10 municipal or county ordinance, by district resolution, or by
11 state law. For purposes of this section, construction costs
12 include the cost of all labor, except inmate labor, and
13 include the cost of equipment and materials to be used in the
14 construction of the project. Subject to the provisions of
15 subsection (3), the county, municipality, special district, or
16 other political subdivision may establish, by municipal or
17 county ordinance or special district resolution, procedures
18 for conducting the bidding process.
19 (a) The provisions of this subsection do not apply:
20 1. When the project is undertaken to replace,
21 reconstruct, or repair an existing facility damaged or
22 destroyed by a sudden unexpected turn of events, such as an
23 act of God, riot, fire, flood, accident, or other urgent
24 circumstances, and such damage or destruction creates:
25 a. An immediate danger to the public health or safety;
26 b. Other loss to public or private property which
27 requires emergency government action; or
28 c. An interruption of an essential governmental
29 service.
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HB 867, First Engrossed
1 2. When, after notice by publication in accordance
2 with the applicable ordinance or resolution, the governmental
3 entity does not receive any responsive bids or responses.
4 3. To construction, remodeling, repair, or improvement
5 to a public electric or gas utility system when such work on
6 the public utility system is performed by personnel of the
7 system.
8 4. To construction, remodeling, repair, or improvement
9 by a utility commission whose major contracts are to construct
10 and operate a public electric utility system.
11 5. When the project is undertaken as repair or
12 maintenance of an existing public facility.
13 6. When the project is undertaken exclusively as part
14 of a public educational program.
15 7. When the funding source of the project will be
16 diminished or lost because the time required to competitively
17 award the project after the funds become available exceeds the
18 time within which the funding source must be spent.
19 8. When the local government has competitively awarded
20 a project to a private sector contractor and the contractor
21 has abandoned the project before completion or the local
22 government has terminated the contract.
23 9. When the governing board of the local government,
24 after public notice, conducts a public meeting under s.
25 286.011 and finds by a majority vote of the governing board
26 that it is in the public's best interest to perform the
27 project using its own services, employees, and equipment. The
28 public notice must be published at least 14 days prior to the
29 date of the public meeting at which the governing board takes
30 final action to apply this subparagraph. The notice must
31 identify the project, the estimated cost of the project and
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HB 867, First Engrossed
1 specify that the purpose for the public meeting is to consider
2 whether it is in the public's best interest to perform the
3 project using the local government's own services, employees,
4 and equipment. In deciding whether it is in the public's best
5 interest for local government to perform a project using its
6 own services, employees, and equipment, the governing board
7 may consider the cost of the project, whether the project
8 requires an increase in the number of government employees, an
9 increase in capital expenditures for public facilities,
10 equipment or other capital assets, the impact on local
11 economic development, the impact on small and minority
12 business owners, the impact on state and local tax revenues,
13 whether the private sector contractors provide health
14 insurance and other benefits equivalent to those provided by
15 the local government, and any other factor relevant to what is
16 in the public's best interest.
17 10. When the governing board of the local government
18 determines upon consideration of specific substantive criteria
19 and administrative procedures that it is in the best interest
20 of the local government to award the project to an
21 appropriately licensed private sector contractor according to
22 procedures established by and expressly set forth in a
23 charter, ordinance, or resolution of the local government
24 adopted prior to July 1, 1994. The criteria and procedures
25 must be set out in the charter, ordinance, or resolution and
26 must be applied uniformly by the local government to avoid
27 award of any project in an arbitrary or capricious manner.
28 This exception shall apply when all of the following occur:
29 a. When the governing board of the local government,
30 after public notice, conducts a public meeting under s.
31 286.011 and finds by a two-thirds vote of the governing board
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HB 867, First Engrossed
1 that it is in the public's best interest to award the project
2 according to the criteria and procedures established by
3 charter, ordinance, or resolution. The public notice must be
4 published at least 14 days prior to the date of the public
5 meeting at which the governing board takes final action to
6 apply this subparagraph. The notice must identify the
7 project, the estimated cost of the project, and specify that
8 the purpose for the public meeting is to consider whether it
9 is in the public's best interest to award the project using
10 the criteria and procedures method permitted by the
11 preexisting ordinance.
12 b. In the event the project is to be awarded by any
13 method other than a competitive selection process, the
14 governing board must find evidence that:
15 (I) There is one appropriately licensed contractor who
16 is uniquely qualified to undertake the project because that
17 contractor is currently under contract to perform work that is
18 affiliated with the project; or
19 (II) The time to competitively award the project will
20 jeopardize the funding for the project, or will materially
21 increase the cost of the project or will create an undue
22 hardship on the public health, safety, or welfare.
23 c. In the event the project is to be awarded by any
24 method other than a competitive selection process, the
25 published notice must clearly specify the ordinance or
26 resolution method by which the private sector contractor will
27 be selected and the criteria to be considered.
28 d. In the event the project is to be awarded by a
29 method other than a competitive selection process, the
30 architect or engineer of record has provided a written
31 recommendation that the project be awarded to the private
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HB 867, First Engrossed
1 sector contractor without competitive selection; and the
2 consideration by, and the justification of, the government
3 body are documented, in writing, in the project file and the
4 findings and documentation required by s. 255.04(2) and (3)
5 are presented to the governing board prior to the approval
6 required in this paragraph.
7 (b)1. If the project is to be awarded based on price,
8 the contract must be awarded to the lowest qualified and
9 responsive bidder in accordance with the applicable county or
10 municipal ordinance or district resolution and in accordance
11 with the applicable contract documents. The county,
12 municipality, or special district may reserve the right to
13 reject all bids and to rebid the project or elect not to
14 proceed with the project. This subsection is not intended to
15 restrict the rights of any local government to reject the low
16 bid of a nonqualified or nonresponsive bidder and to award the
17 contract to any other qualified and responsive bidder in
18 accordance with the standards and procedures of any applicable
19 county or municipal ordinance or any resolution of a special
20 district.
21 2. If the project uses a request for proposal or a
22 request for qualifications, the request must be publicly
23 advertised and the contract must be awarded in accordance with
24 the applicable local ordinances.
25 3. If the project is subject to competitive
26 negotiations, the contract must be awarded in accordance with
27 s. 287.055.
28 (c) If a construction project greater than $200,000,
29 or $50,000 for electrical work, is started after October 1,
30 1999 July 1, 1996, and is to be performed by a local
31 government using its own employees in a county or municipality
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HB 867, First Engrossed
1 that issues registered contractor licenses and the project
2 would require a licensed contractor under chapter 489 if
3 performed by a private sector contractor, the local government
4 must use a person appropriately registered or certified under
5 chapter 489 to supervise the work.
6 (d) If a construction project greater than $200,000,
7 or $50,000 for electrical work, is started after October 1,
8 1999 July 1, 1996, and is to be performed by a local
9 government using its own employees in a county that does not
10 issue registered contractor licenses and the project would
11 require a licensed contractor under chapter 489 if performed
12 by a private sector contractor, the local government must use
13 a person appropriately registered or certified under chapter
14 489 or a person appropriately licensed under chapter 471 to
15 supervise the work.
16 (e) Projects performed by a local government using its
17 own services and employees must be inspected in the same
18 manner as inspections required for work performed by private
19 sector contractors.
20 (f) A construction project provided for in this
21 subsection may not be divided into more than one project for
22 the purpose of evading this subsection.
23 (g) This subsection does not preempt the requirements
24 of any small-business or disadvantaged-business enterprise
25 program or any local-preference ordinance.
26 (2) The threshold amount of $200,000 for construction
27 or $50,000 for electrical work must be adjusted by the
28 percentage change in the Consumer Price Index from January 1,
29 1994, to January 1 of the year in which the project is
30 scheduled to begin.
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HB 867, First Engrossed
1 (3) All county officials, boards of county
2 commissioners, school boards, city councils, city
3 commissioners, and all other public officers of state boards
4 or commissions that are charged with the letting of contracts
5 for public work, for the construction of public bridges,
6 buildings, and other structures must always specify lumber,
7 timber, and other forest products produced and manufactured in
8 this state whenever such products are available and their
9 price, fitness, and quality are equal. This subsection does
10 not apply when plywood specified for monolithic concrete
11 forms, when the structural or service requirements for timber
12 for a particular job cannot be supplied by native species, or
13 when the construction is financed in whole or in part from
14 federal funds with the requirements that there be no
15 restrictions as to species or place of manufacture.
16 (4) Any qualified contractor or vendor who could have
17 been awarded the project had the project been competitively
18 bid shall have standing to challenge the propriety of the
19 local government's actions when the local government seeks to
20 invoke the provisions of this section. The prevailing party
21 in such action shall be entitled to recover its reasonable
22 attorney's fees.
23 Section 2. This act shall take effect October 1, 1999.
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